The opinion of the court was delivered by: FOLLMER
Petitioner, a prisoner at the United States Penitentiary, Lewisburg, Pennsylvania, has pending an application in forma pauperis for a writ of habeas corpus. He bases his application on three contentions, which will be considered separately
His first contention is that he had completed the service of all his sentence on January 1, 1960, and was eligible for release on that date. He was sentenced to a term of two years on February 26, 1948, and was paroled on November 11, 1948, with 471 days unserved. While thus on parole he received a nine months sentence in the United States District Court for the Eastern District of New York, and upon his release thereunder on January 11, 1950, he was recommitted as a parole violator on the unserved balance of 471 days under the 1948 two year sentence. He was again conditionally released on parole on January 8, 1951 with 108 days of the 1948 two year sentence remaining unserved. On March 25, 1952, he received a new sentence in the Eastern District of Pennsylvania to a term of five years and a committed $ 1,000 fine. He received his good time release thereunder (under the imprisonment portion of the sentence) on September 30, 1955, with 541 days remaining unserved thereon. He was immediately recommitted, as of September 20, 1955, as a parole violator to serve the 108 days remaining on the 1948 two year sentence and upon the termination thereof, on December 2, 1955, was recommitted because of the $ 1,000 committed fine in the 1952 sentence. Having taken the indigent prisoner's oath under 18 U.S.C. § 3569 (formerly 18 U.S.C. § 641), he was released on January 1, 1956. At this point he was on parole on the 541 days remaining to be served under the five year sentence of 1952. On April 20, 1956, based upon charges of 'Loss of Contact and Failure to Maintain Employment', a Parole Violation Warrant issued with reference to the unserved 541 days. Subsequent thereto he was charged with and convicted of a crime in the Eastern District of New York and sentenced to a term of three and one-half years commencing on May 9, 1957. On November 10, 1959, he was eligible for conditional release under this sentence and began the service of the 541 days as to which the Parole Violation Warrant had been lodged. Requiring the service of the unexpired 541 day portion of the previous sentence after release under the three and one-half year sentence of 1957 was within the power of the Parole Board.
He is now serving the 541 days and is not yet eligible for release.
His second contention is that of mental incompetency at the time of the alleged parole violations, which would have been subsequent to his release from the Penitentiary on January 1, 1956, and the issuance of the Parole Violation Warrant in April 1956. There is absolutely no basis for suspecting any such condition up to the time of his release January 1, 1956. He was subsequently arrested in New York after the issuance of the Parole Violation Warrant, but not pursuant to such warrant. After such arrest and during imprisonment he was examined at Bellevue Hospital, New York City, and transferred to Kings Park State Hospital in August 1956. He was subsequently discharged with a finding that 'This patient was primarily a psychopathic personality in whom a schizophrenic paranoia had developed while he was in jail, and he has since recovered from his psychotic episode.' Even if we accept this finding, there is nothing to justify any belief that Hock was incompetent prior to his arrest and during the period covered by his parole violations. Moreover, the evidence before me at this hearing, including that of a competent psychiatrist, established to my complete satisfaction that he was malingering at the time of his so-called psychotic episode, and actually was never suffering any incompetency affecting his responsibility for his conduct throughout the entire period from 1948 to the present time, and I so find.
His third contention is that he asked whether he could have counsel present at his parole revocation hearing and was told by the Parole Board representative that 'there would be no counsel at the hearing in this institution.'
The matter of the right to be represented by counsel at Parole Board revocation hearings was brought into focus in Fleming v. Tate, 1946, 81 U.S.App.D.C. 205, 156 F.2d 848, 849. That case held that under the old District of Columbia parole statute (24 D.C.Code 206) the language 'he 'shall be given an opportunity to appear before the said Board" meant that a parole violator had the right to be represented by counsel in his appearance before the Board. This holding was subsequently, to wit, July 17, 1947, codified in the District of Columbia Code, 61 Stat. 379, 24 D.C.Code, § 206, in pertinent part as follows:
'Sec. 6. When a prisoner has been retaken upon a warrant issued by the Board of Parole, he shall be given an opportunity to appear before the Board, a member thereof, or an examiner designated by the Board. At such hearing he may be represented by counsel. * * *'
The pertinent Federal statute, 18 U.S.C. § 4207, June 25, 1948, provides, in part, as follows:
'A prisoner retaken upon a warrant issued by the Board of Parole, shall be given an opportunity to appear before the Board, a member thereof, or an examiner designated by the Board.
'The Board may then, or at any time in its discretion, revoke the order of parole and terminate such parole or modify the terms and conditions thereof.'
In Moore v. Reid, 1957, 100 U.S.App.D.C. 373, 246 F.2d 654, the Court of Appeals for the District of Columbia expanded its opinion in Fleming by holding that the prisoner does not waive this statutory privilege to appear with counsel and to present testimony when he is not advised that he has it.
It will be noted that the Federal statute quoted above was enacted approximately one year after the above-cited codification of the District of Columbia Code.
The distinction between the District of Columbia statute involved in Fleming and the Federal statute was recognized in Hiatt v. Compagna, 5 Cir., 1949, 178 F.2d 42, 46, affirmed by an equally divided Court in 340 U.S. 880, 71 S. Ct. 192, 95 L. Ed. 639, as follows:
'* * * Congress, in revising the parole law, Revised Title 18, Sec. 4207, changed the wording to read: 'A prisoner retaken upon a warrant issued by the Board of Parole, shall be given an opportunity to appear before the Board, a member thereof or an examiner designated by the Board.' This change cuts deeply into the idea that the appearance is to be a trial. An examiner may conduct it now, and it would seem ...