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JOHNSON v. HIATT

UNITED STATES DISTRICT COURT, MIDDLE DISTRICT OF PENNSYLVANIA


June 6, 1947

JOHNSON
v.
HIATT, Warden

The opinion of the court was delivered by: FOLLMER

Henry B. Johnson, the petitioner, a military prisoner at the United States Penitentiary, Lewisburg, Pennsylvania, has filed his application in forma pauperis for a writ of habeas corpus.

The petition was ambiguous and this Court in order that it might have sufficient facts before it for a proper determination, directed the petitioner to supplement his position with additional information. *fn1"

 On such petition and the additional information so submitted it now appears that he was convicted by general Court-Martial on May 30, 1942, at San Juan, Puerto Rico, under Article of War 93, 10 U.S.C.A. § 1565, upon a charge of forgery. The Board of Review on July 27, 1942, remitted two years of the original nine year sentence, so that his sentence as approved included, inter alia, a term of seven years, and a penitentiary was designated as the place of confinement. After a short period in a military stockade he was, on August 25, 1942, committed to the United States Penitentiary at Atlanta, Georgia. The term of imprisonment was subsequently reduced at an 'annual review' in April, 1946, to five and one-half years. *fn2" Having earned 'good time' he was conditionally released on parole on May 29, 1946, under the provisions of 18 U.S.C.A. § 716b *fn3" and subsequently, while thus on parole, he was adjudged a conditional release parole violator by the Parole Board and was committed to the United States Penitentiary, Lewisburg, Pennsylvania, for the balance of his maximum five and one-half year term. *fn4"

 It is his contention that the parole provisions of 18 U.S.C.A. § 716b are not applicable to military prisoners even though the military authorities in connection with the sentence have designated the penitentiary as the place of confinement and that therefore he is now entitled to release from his present confinement in the United States Penitentiary at Lewisburg, Pennsylvania.

 The offense of which the petitioner was convicted in a military court involved the crime of forgery *fn5" and the military authorities could therefore in connection with the sentence properly designate that the service thereof should be in a United States Penitentiary. *fn6"

 This Court under such circumstances has ruled several times *fn7" that even though the effect of a penitentiary sentence would be that the prisoner would have less good time deduction than provided under Army Regulations for disciplinary barracks and even though by reason thereof he would be on parole during the period of release under good time deduction, whereas there is no such provision in connection with what is commonly designated 'Military Good Time,' nevertheless these would be incidental results of and form a part of and be the effect of the sentence as imposed.

 The statutory provisions authorizing service of a military sentence in a United States Penitentiary *fn8" and the Army Regulations which provide for the same allowance for good time to which civil prisoners are entitled *fn9" compel the conclusion that all provisions of law, including the provisions of 18 U.S.C.A. § 716b applicable to civil prisoners, apply equally to military prisoners confined in a penitentiary *fn10" except insofar as excepted by statute. *fn11"

 The petition for a writ of habeas corpus is accordingly denied.


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