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UNITED STATES EX REL. KRENKOWITZ v. RUNDLE

September 21, 1970

UNITED STATES of America ex rel. Walter KRENKOWITZ
v.
A.T. RUNDLE


Masterson, District Judge.


The opinion of the court was delivered by: MASTERSON

MASTERSON, District Judge.

 In this habeas corpus petition relator challenges the validity of his 1963 conviction for burglary on five grounds, namely:

 (1) suppression of evidence by the state;

 (2) the use of perjured testimony both to extradite and convict relator;

 (3) newly-discovered evidence which was unavailable at the time of trial and which would have affected the outcome of his trial;

 (4) the failure of the Commonwealth to comply with the Interstate Agreement on Detainers, 19 Purdon's Pa. Statutes § 1431; and

 (5) a violation of relator's right to a a speedy trial.

 Relator was convicted in November 1963 and received a 3 to 6 year sentence. On May 17, 1967, he was paroled. On September 26, 1967, relator pled guilty to another burglary charge and was sentenced to a 4 to 8 year term. By the terms of the sentence, relator is required to serve this latter sentence before he serves any time as a parole violator of his 1963 sentence. See Docket Entries for September 26, 1967, Commonwealth v. Krenkowitz, No. 127, June Term, 1967. Hence, relator is presently serving the 4 to 8 year sentence he received in 1967 but may still be subject to incarceration after that sentence expires as a parole violator of his 1963 sentence. The Parole Board has declared relator a parole violator and has filed a detainer against him. *fn1" Under Pennsylvania law, the Board may recommit relator to serve the balance of his unexpired 3 to 6 year sentence without credit for time on parole. *fn2"

 As we have noted, in this habeas corpus petition relator challenges his first conviction in 1963, not his 1967 conviction for which he is presently serving time. Relator has challenged his 1963 conviction unsuccessfully in the state courts in the following proceedings: (1) petition for a writ of Error Coram Nobis; (2) petition for New Trial on the basis of newly discovered evidence; and (3) Post-Conviction Hearing Act proceedings.

 Initially, two related questions arise (1) as to our jurisdiction and (2) as to the nature of the relief we can grant in this case. These questions arise because relator is not presently in custody for the sentence he is challenging nor was he at the time he filed this petition.

 First, it is clear that we have jurisdiction in this case. 28 U.S.C. § 2241(c)(3) provides in part: "The writ of habeas corpus shall not extend to a prisoner unless * * * (3) he is in custody in violation of the Constitution or laws of the United States * * *". Under the decisions of the Supreme Court, relator has met this "in-custody" jurisdictional requirement even though the relief we ultimately grant does not affect his present incarceration, that is, bring about relator's immediate release. It is clear that relator may still be subject to incarceration for the challenged conviction because the Parole Board may recommit him as a convicted parole violator. Viewed in this light, the instant case is analogous to challenging a future consecutive sentence which the Supreme Court in Peyton v. Rowe, 391 U.S. 54, 88 S. Ct. 1549, 20 L. Ed. 2d 426 (1968) held met the "in-custody" requirement of the habeas corpus statute. In addition, in Carafas v. LaVallee, 391 U.S. 234, 88 S. Ct. 1556, 20 L. Ed. 2d 554 (1968), the Supreme Court held that Federal Courts have jurisdiction of habeas corpus petitions even though the petitioner's sentence totally expired and the Court could not grant a discharge from actual physical custody. The Court noted that the relief available in habeas corpus cases is broad -- "as law and justice require", 28 U.S.C. § 2243, and is not limited to a discharge from custody. Accordingly, we have jurisdiction to entertain this petition. See also United States of America ex rel. DiRienzo v. New Jersey, 423 F.2d 224 (3d Cir. 1970).

 Secondly, assuming we hold relator's first conviction invalid, the question arises whether the sole relief available to relator is to suffer no ill consequences in the future as a result of that conviction or whether we can go further and credit to the sentence relator is presently serving the time served under his invalid conviction. We have concluded that we cannot credit relator with any time served under his first conviction. It is well established that the Constitution does not require such relief, see, e.g. United States ex rel. Watson v. Commonwealth and Common Pleas Court of Pa., 260 F. Supp. 474 (E.D. Pa. 1966) and cases cited therein, and it does not appear that Pennsylvania requires its courts to give such credit. Relator's situation should be distinguished from the situation where one is paroled from one sentence, is later convicted and sentenced for a second offense and given the status of a convicted parole violator because of this subsequent conviction and then actually serves time as a parole violator before commencing his second sentence. In those cases the Pennsylvania courts do credit time spent as a parole violator of the invalid sentence to the subsequent valid conviction. Commonwealth ex rel. Ulmer v. Rundle, 421 Pa. 40, 218 A. 2d 233 (1966); United States ex rel. Watson v. Commonwealth and Common Pleas Court of Pa., supra. Here, relator has not yet served any time as a convicted parole violator. Hence the only relief we can accord relator if we hold his 1963 conviction invalid is to see that he suffers no adverse consequences from this conviction such as being required to serve the balance of his unexpired sentence as a convicted parole violator. As we see it, however, relator would be free to present to the state courts the question whether, as a matter of state law, he should be credited with time served under an invalid sentence. But the door to the Federal Courts on this question is closed.

 We now turn to the merits of petitioner's claim. The record in this case reveals the following facts. On December 1, 1957, relator was arrested in connection with an offense he allegedly committed in New Jersey. He was convicted of this offense and incarcerated in the State Prison at Trenton, New Jersey, for a term of 5 to 7 years. While so incarcerated, relator was notified on November 23, 1959, that a detainer was lodged against him by Northampton County, Pennsylvania, on a warrant issued for a burglary offense relator allegedly committed. (Petitioner's Exhibit No. 1). *fn3" In January of 1961, through a Mr. Ralph Peach, relator twice contacted the Northampton County Chief of Police requesting a speedy disposition of this charge. (See P-2; Notes of Testimony at Federal Habeas Corpus Hearing on May 20). On June 6, 1961, relator made this same request to the Chief of Police by letter (P-2). Relator received no response to these requests. On October 24, 1961, relator wrote to the Honorable William J. Barthold, President Judge of the Northampton County Court of Common Pleas, asking that speedy disposition be made of the outstanding charges against him (P-4). Judge Barthold referred this letter to the District Attorney of Northampton County (P-5). The District Attorney apparently answered this letter (see P-6) but the document was not produced at our hearing. On November 27, 1961, Krenkowitz wrote to the District Attorney (P-6) stating that he was innocent of the crime charged, that he be assigned counsel so that he could prove his whereabouts on the day of the crime and that he be given a lie detector test. Krenkowitz also stated that if the District Attorney complied with his request relator would be ready to go to trial during the second week of February, 1962. On December 4, 1961, the District Attorney responded, informing Krenkowitz that his request for counsel was referred to the Legal Aid Committee and that he, the District Attorney, thought that he had a prima facie case against Krenkowitz (P-7). On January 23, 1961, relator again wrote to Judge Barthold reviewing relator's futile attempt to obtain a disposition of the charges outstanding against him and enclosing a "Motion to Nolle Prosequi and/or Dismiss" the indictment (P-8). On March 2, 1962, Judge Barthold responded to relator's letter informing him ...


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