The opinion of the court was delivered by: John E. Miller, District Judge.
On August 25, 1953, plaintiff's petition for writ of mandamus
was filed. He alleges that on November 17, 1950, he was sentenced
to four years imprisonment in Criminal Action No. 4037, Texarkana
Division; that while he was serving said sentence he entered a
plea of guilty and was sentenced to a year and a day in Criminal
Action No. 4149. He complains that the defendant has aggregated
these sentences, for purposes of computing good time, into a
sentence of five years and one day, and prays the Court to enter
an order requiring defendant to separate the sentences and to
begin the service of the sentence imposed in No. 4149 at the
expiration of the service of the sentence in No. 4037.
Plaintiff's petition was filed in forma pauperis, without
plaintiff's having obtained permission to so proceed. The Court
has disregarded the omission to obtain such consent and, in
accordance with its continuing duty to determine its own
jurisdiction, has read and examined the petition and concludes
that the petition shows on its face that it is completely without
merit for the following reasons:
(1) This is not the proper forum in which to initiate a
proceeding in the nature of mandamus, since venue in such an
action must be in the district wherein the defendant resides, and
it is apparent that the defendant does not reside in this
district. See, Howard v. United States, 10 Cir., 126 F.2d 667,
certiorari denied, 316 U.S. 699, 62 S.Ct. 1297, 86 L.Ed. 1768,
rehearing denied, 317 U.S. 705, 63 S.Ct. 25, 87 L.Ed. 563; Grand
International Brotherhood of Locomotive Engineers v. Morphy, 2
Cir., 109 F.2d 576, certiorari denied 310 U.S. 635, 60 S.Ct.
1078, 84 L.Ed. 1404; Cyclopedia of Federal Procedure, Section
84.50, Page 362; 28 U.S.C.A. § 1391.
(2) This Court does not have jurisdiction over the subject
matter of this action. Rule 81(b), F.R.C.P., 28 U.S.C.A.,
abolished writs of mandamus, and the Court has no jurisdiction of
the original proceeding in mandamus sought in this case. Innes v.
Hiatt, Warden, D.C.Pa., 57 F. Supp. 17. Furthermore, the action of
prison authorities with respect to a prisoner's good time is not
open to judicial review prior to the time the prisoner, with
credit for good time allowance, is entitled to be free from
further incarceration, and in plaintiff's case that date will not
occur until December 15, 1953. Sturm v. McGrath, 10 Cir.,
177 F.2d 472.
And, aside from the legal aspects of the petition, the Court is
unable to understand why the petitioner is requesting the action
prayed for in the petition. As the prison authorities have
treated the sentences, i.e., aggregating them, petitioner will be
entitled to release, with good time allowance, on July 25, 1954.
On the other hand, if the sentences are served separately as
petitioner desires, he will not be entitled to release, with good
time allowance, until October 5, 1954. Stated differently, when
the sentences are aggregated as they should be under the law, and
now are, the total sentence is five years and a day, and
therefore petitioner earns eight days good time per month. But,
if the sentences are separated, petitioner would earn only seven
days per month good time on the four year sentence and only six
days per month good time on the year and a day sentence. Thus, if
the sentences are separated petitioner will be entitled to 336
days good time on the four year sentence and 72 days good time on
the year and a day sentence, which is a total of 408 days good
time, whereas if the sentences are aggregated petitioner will be
entitled to 480 days good time. (Of course, a prisoner may, by
committing a crime or by violating prison regulations, forfeit
his good time, and the action of prison authorities in forfeiting
a prisoner's good time is conclusive upon a district court,
unless the authorities acted arbitrarily, capriciously of
fraudulently. Powell v. Hunter, 10 Cir., 172 F.2d 330.) In other
words, in the instant case petitioner will gain 72 days good time
by having the sentences aggregated, and the Court is at a loss to
comprehend why petitioner should be attempting, from all that
appears, to extend his incarceration for 72 days.
For the above stated reasons plaintiff's petition should be
denied, and an order to that effect should be entered today.
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