from which he was released on parole, such convict shall, in addition to the penalty imposed for such crime committed during the said period and after the expiration of the same, be compelled by detainer and remand as for an escape, to serve in a penitentiary from which said convict had been released on parole, or in any other institution to which he may be legally transferred, the remainder of the term (without commutation) which such convict would have been compelled to serve but for the commutation authorizing said parole. 61 Purdon's Penna.Statutes Annotated, § 305; 61 Purdon's Penna.Statutes Annotated, § 331.21.
The law of the Commonwealth of Pennsylvania also provides, inter alia, that whenever it shall appear that a person who has been sentenced and released on parole by commutation containing a condition that the convict shall be subject to the terms of the Act under which he has been paroled, has violated the terms of his parole, a warrant shall be issued for the arrest of said person, which warrant shall give all field parole agents of the department of justice and officers authorized by law to make arrest full authority to apprehend and detain said convict. 61 Purdon's Penna.Statutes Annotated, § 309; 61 Purdon's Penna.Statutes Annotated, § 331.23.
Where a prisoner is released on parole by a state sovereignty, he is theoretically a prisoner of the state but it is for the state sovereignty granting the parole, and not the prisoner, to determine priority of jurisdiction over him in connection with a violation of his parole where he commits an offense under a federal law during his parole. United States ex rel. Demarois v. Farrell, 8 Cir., 87 F.2d 957; United States ex rel. Lombardo v. McDonnell, 7 Cir., 153 F.2d 919; Kirk v. Squier, 9 Cir., 150 F.2d 3; Stamphill v. United States, 10 Cir., 135 F.2d 177; United States v. Robinson, D.C., 74 F.Supp. 417.
Where a state sovereignty voluntarily surrenders the custody of its parolee to the federal authorities for trial, conviction, and sentence for a federal offense, and files a detainer at the federal institution where the prisoner is confined for violation of parole, the state sovereignty is entitled to the custody of said prisoner at the expiration of the federal sentence for the purpose of complying with and having executed the terms and provisions of the state sentence which arose from a violation of a prisoner's state parole. Rosenthal v. Hunter, 10 Cir., 164 F.2d 949; Zerbst v. McPike, 5 Cir., 97 F.2d 253; Rawls v. United States, 10 Cir., 166 F.2d 532; Povich v. Sanford, Warden, 5 Cir., 157 F.2d 873.
Under the provisions of the Judicial Code, a court, justice or judge entertaining an application for a writ of habeas corpus shall forthwith award the writ or enter an order directing the respondent to show cause why the writ should not be granted, unless it appears from the application that the applicant or person detained is not entitled thereto. 28 U.S.C.A. § 2243.
The time that the petitioner was out on parole is not to be regarded as imprisonment, to be credited on his sentence when he is recommitted for commission of a crime while out on such parole. Commonwealth ex rel. O'Leary v. Ashe, 152 Pa.Super. 322, 32 A.2d 36; Anderson v. Corall, 263 U.S. 193, 44 S. Ct. 43, 68 L. Ed. 247.
The petitioner is not entitled to an order being entered by this Court to show cause why a writ of habeas corpus should not be granted for the following reasons:
(a) The petitioner was a parole violator in May, 1942 in that he failed to comply with the terms and provisions of the parole to which he agreed when granted the parole by the State Parole Board of the Commonwealth of Pennsylvania.
(b) That the petitioner was a parole violator and a fugitive from justice at the time of his arrest by the federal authorities on January 30, 1943.
(c) That a parole violation detainer was lodged against the petitioner by the Parole Board of the Commonwealth of Pennsylvania in accordance with the provisions of law.
(d) That the Parole Board of the Commonwealth of Pennsylvania agreed to loan or temporarily waive their right to the custody and jurisdiction of the petitioner until disposition of the proceeding pending in the United States Court for the Western District of Pennsylvania, and the execution by the petitioner of the sentence imposed thereon.
(e) That the agreement of the parole authorities of the Commonwealth of Pennsylvania to permit the federal authorities to assume jurisdiction of the prisoner did not amount to a waiver or forfeiture of their rights.
(f) That the parole authorities of the Commonwealth of Pennsylvania could require the prisoner to comply with the terms of his parole and to serve the balance of the sentence required by the law of the Commonwealth of Pennsylvania at the time that the sentence of the petitioner imposed in the United States District Court was performed and executed.
(g) That the petitioner was not denied due process of law or deprived of any rights existing under the Constitution of the United States when taken into custody by the Sheriff of Fulton County, Georgia, and delivered to the custody of the authorities of the Commonwealth of Pennsylvania for execution of his sentence as a parole violator since custody was delivered through extradition proceedings.
The petitioner's application for leave to file in forma pauperis a petition for Writ of Habeas Corpus is allowed, but it is ordered that the petition is hereby dismissed.
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