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UNITED STATES EX REL. POLLACK v. MCGINNIS

August 26, 1971

UNITED STATES of America ex rel. Milton POLLACK, Petitioner,
v.
Paul D. McGINNIS, Commissioner of Corrections, et al., Respondents


Motley, District Judge.


The opinion of the court was delivered by: MOTLEY

MOTLEY, District Judge.

This proceeding originally came before this court on a pro se application for relief under 42 U.S.C. § 1983. Petitioner, at that time, claimed that he was being denied his constitutional rights by New York State in that he was being held in custody by the warden of Green Haven Prison although he had already served his maximum term of five years or 60 months imprisonment. To be sure of obtaining appropriate relief, petitioner, by his court appointed counsel, also filed a petition for a writ of habeas corpus. By an opinion and order dated October 16, 1970, this court ordered that petitioner first exhaust his state legal remedies before seeking relief in the federal courts. 28 U.S.C. § 2254(d). An accompanying order that petitioner be released on bail pending such exhaustion was vacated by the Second Circuit without prejudice to renewal of any application after exhaustion of state remedies.

 Petitioner has now exhausted his state remedies on both the bail issue and on the merits and reapplies to this court for habeas corpus relief and bail pending disposition of the former. This court's power to grant bail pending disposition of a petition for a writ of habeas corpus has been confirmed by the Supreme Court. In re Shuttlesworth, 369 U.S. 35, 82 S. Ct. 551, 7 L. Ed. 2d 548 (1962). But petitioner, having earned good time credit, was conditionally released by the State Parole Board on March 26, 1971. Conditional release, unlike parole, interrupts the service of the sentence and the remaining portion of the maximum is held in abeyance for a period equal to the unserved portion of the maximum or for a period of one year, whichever is greater. In petitioner's case, his maximum sentence, had he remained in custody, would have ended November 4, 1971, a period of less than one year and, therefore, he will remain on conditional release for one year, or until March 25, 1972, unless habeas corpus relief is now granted. The court takes no action on petitioner's bail application but now considers his petition for a writ of habeas corpus releasing him from the custody of the Board of Parole.

 The first question is whether petitioner is in custody thus making habeas corpus the appropriate remedy for release from the custody of the Board of Parole. An inmate released on conditional release is under the supervision of the Board of Parole and the Board imposes such rules as it sees fit. Penal Law, McKinney's Consol. Laws, c. 40, § 70.40(1)(b). These rules are the same as those imposed on parolees. N.Y.C.R.R. § 155.15. Petitioner's conditional release conditions state that he is in the "custody" of the Board of Parole, that he is confined to New York City, and that he cannot leave without the written permission of his parole officer. He is prohibited from driving a car, possessing a driver's license, or having sexual relations with anyone not his wife. Petitioner is separated.* Petitioner has also been required to waive his Fourth Amendment rights, thereby permitting his person, property and premises to be searched at any time. (General Rules Governing Parole attached to petitioner's affidavit of April 13, 1971). These conditions of parole are particularly onerous to a petitioner who is quite ill, who wishes to visit his mother in New Jersey, and who has his business contacts in New Jersey. A fuller description of the hardships visited upon petitioner by these parole conditions is contained in his affidavit filed with this court and dated April 13, 1971. Consequently, petitioner is not on "mere . . parole" as was the case in Dodd v. United States Marshal, 439 F.2d 774 at 775, n. 2 (2d Cir., 1971); he is, rather, living under "custodial" conditions clearly analogous to those described in Jones v. Cunningham, 371 U.S. 236, 83 S. Ct. 373, 9 L. Ed. 2d 285 (1963). *fn1" And, as petitioner has exhausted all available state court remedies and remains in "custody", although he has allegedly served the maximum time under his first sentence, his application for a writ of habeas corpus is properly before this court. Zaffarano v. Fitzpatrick, 404 F.2d 474, 478 (2d Cir. 1968), cert. denied, 395 U.S. 977, 89 S. Ct. 2130, 23 L. Ed. 2d 766 (1969).

 Petitioner was convicted of grand larceny in the first degree in the Supreme Court, New York County, and sentenced on December 14, 1964 to a term of 4-5 years, later reduced by the Appellate Division to a term of 2 1/2 to 5 years. At the time of sentence, petitioner had served 2 months and 4 days in jail; consequently, the maximum expiration date of the sentence was October 11, 1969.

 After serving 21 months and 24 days in jail (including the time spent prior to sentence), petitioner was released on parole on August 4, 1966. He remained on parole without incident for 16 months and 17 days or until December 21, 1967, at which time he committed an act of delinquency, the leaving of the state without permission. A parole violation warrant issued on April 11, 1968. The warrant, #2133, was issued for two other violations of parole, failing to report and changing his residence. *fn2" This first act of delinquency, upon being declared such on June 18, 1968, interrupted the running of petitioner's sentence under New York law until a hearing and determination by the Board of Parole or until petitioner was housed in a New York State Correctional Institution. New York Correction Law, McKinney's Consol. Laws, c. 43, § 218. Under New York law petitioner received credit for his 16 months and 17 days on parole. Consequently, petitioner was credited with a total of 38 months and 11 days on his original sentence of 60 months, leaving a total of 21 months and 19 days to be served on the sentence.

 On or about April 19, 1968, the District Attorney of New York County secured the issuance of a warrant for petitioner's arrest. Then on April 23, 1968, petitioner surrendered to the District Attorney and was arraigned on a previously sealed indictment charging him with possession of stolen property. *fn3" Parole officers had been actively searching for Pollack before they learned on April 23, 1968 that he had surrendered. *fn4" It is not clear whether petitioner knew of the parole violation warrant although the parole officer believed he knew. *fn5" In any event, his surrender was treated solely as a surrender on the District Attorney's warrant and not on the parole violation warrant. Had petitioner's surrender been treated also as one on the parole warrant, this case would not be before this court. Under New York law a parolee is credited with any time spent in custody if such custody is based on a surrender on a parole violation warrant. Penal Law § 70.40(3)(a).

 In any case, bail was set at $35,000 on the new charge. Petitioner could not post bail. Even assuming petitioner could have posted the $35,000 bail, he would have been held in custody pursuant to the parole violation warrant. New York Correction Law § 216. That warrant was lodged as a detainer against petitioner's release on April 23, 1968, the day of his arraignment on the new charge. *fn6" There is no provision for bail from such a warrant, it can be lifted only by the Board of Parole. N.Y.C.R.R. 155.18. *fn7"

 Petitioner made at least three applications for reduction of his $35,000 bail. The first made and denied in August, 1968 requested the judge to either reduce petitioner's bail to a nominal amount or exonerate bail. The petitioner was aware that he would not be free even if he posted bail, but he wished to post bail so that his parole time would begin to run. (See affidavit of petitioner entitled "Overt Acts in Support", filed June 9, 1969 in Pollack v. Board of Parole of the State of New York, 69 Civ. 2972 (1969)). Additional motions to reduce bail were heard in the state court on February 26, 1969 and October 20, 1969. This last motion was granted to the extent that petitioner's bail was reduced to $25,000. *fn8" Apparently he could still not raise this sum.

 Petitioner was, in fact, held in custody at the Manhattan House of Detention for Men (The Tombs), a New York City jail, from April 23, 1968 to October 30, 1969, a period of 18 months and 7 days. During this time, he was neither brought to trial on the pending charge nor granted a parole revocation hearing.

 On June 12, 1968, the Board of Parole declared petitioner delinquent as of December 21, 1967, on the ground that on that date he had left the state without permission. *fn9" In August, 1969, while petioner was in custody in the City jail, he filed a petition for a writ of habeas corpus in this Court claiming that he had never received a hearing on his parole violation and, consequently, was unable to earn good time since his arrest for this violation. The Court (Palmieri, J.) denied relief on the ground that state remedies had not been exhausted. In the Matter of Milton Pollack v. Board of Parole of the State of New York (69 Civ. 2972 decided August 19, 1969). No parole revocation hearing was held until February 19, 1970, despite the provisions of § 218 of the New York Correction Law, which directs the Parole Board to hold a revocation hearing "as soon as practicable", and mandates the Board to act on the charges of violation of parole "within a reasonable time." Petitioner did request a speedy parole revocation hearing from the Board by a letter dated June 14, 1968. *fn10"

 On October 30, 1969, petitioner entered a plea of guilty to the charge of possessing stolen property. As a result, on that day, after 18 months and 7 days in the City jail, he was released on his own recognizance so he could go into the hospital for an operation pending sentence.

 Thereafter, on January 14, 1970, the court imposed a sentence of 6 months on the new charge with credit for time served. Petitioner also received one month of earned good time credit on his six month sentence. *fn11" This meant that there was a period of 13 months and 7 days which petitioner had spent in the City jail over and above his sentence on the second charge.

 At the time of the sentencing, the judge stated that he would write the Board of Parole recommending that petitioner be credited on his first sentence with this 13 months and 7 days spent in jail. The judge wrote such a letter on May 12, 1970. *fn12"

 Upon leaving the courtroom after sentencing, petitioner was taken into custody by a parole officer and removed to Green Haven, a state prison. *fn13" On February 19, 1970, the Board of Parole held a delinquency hearing. It refused to credit petitioner with the excess time spent in the City jail as recommended on the ground that the charges had not been dismissed or petitioner acquitted. New York Penal Law § 70.40. *fn14" Petitioner was ordered to serve the remainder of his sentence in Green Haven, i.e., 21 months and 19 days.

 The claim here is that petitioner is entitled to have the 13 months and 7 days spent in the City jail, in excess of his second sentence, credited to his first sentence of 60 months. If he is so credited, his time spent in custody would be greatly in excess of his original sentence. His time spent in custody would be as follows:

 
1) 38 months and 11 days prior to his parole revocation;
 
2) 14 months and 12 days since his return to Green Haven; and
 
3) 13 months and 7 days spent in the City jail in excess of his second sentence.

 Thus, if petitioner is entitled to credit for the 13 months and 7 days spent in the City jail, he has spent 66 months in custody on a charge carrying a maximum of 60 months and he would be entitled to be free of all parole conditions. If he is not so credited, he will remain in the custody of the Parole ...


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