James F. O'callahan, Petitioner, Appellant, v. the Attorney General of the United States, Respondent, Appellee, 351 F.2d 43 (1st Cir. 1965)

This proceeding is, in measure, a continuation of the matter referred to in our earlier opinion, O'Callahan v. Attorney General, 1 Cir., 1964, 338 F.2d 989, cert. den. 381 U.S. 926, 85 S. Ct. 1563, 14 L. Ed. 2d 685, in which O'Callahan, a parole violator, unsuccessfully sought to compel the respondent to regard his parole time prior to violation of parole conditions as time served under sentence. In this court O'Callahan vigorously contests the ruling of the court below that the prior decision is presently binding upon him. We may assume, without deciding, that he is correct in this. Rather, we deal with his principal point, namely, that 18 U.S.C. § 4205,¹  which denies him credit for parole time, is unconstitutional.

Essentially petitioner's contention is that because in Jones v. Cunningham, 1963, 371 U.S. 236, 83 S. Ct. 373, 9 L. Ed. 2d 285, the Supreme Court held that a prisoner on parole was in technical "custody" for the purpose of filing a petition for habeas corpus, section 4205's sandwiching of the parole time between the imprisonment prior to parole and imprisonment after conviction of a violation, without affording credit therefor unconstitutionally increased his sentence, or imposed a cruel and unusual punishment. The Supreme Court has not considered this question. Those circuits which have done so have resolved it in favor of the government. See Van Buskirk v. Wilkinson, 9 Cir., 1954, 216 F.2d 735, and cases cited. We concur. It is not unreasonable for Congress to conclude that the Parole Board should retain this amount of authority over a parolee in order for parole to be effective. Parole is a matter of grace. Correspondingly, a prisoner is under no compulsion to accept it. Even if, as he says, petitioner chose to accept parole without realizing the statutory consequences of a violation, there was no infringement of any constitutional right. Petitioner accepted the parole "custody" in the hope²  that it would discharge the balance of his prison sentence. Had he not violated the conditions it would have done so. The Constitution does not require that he have it both ways.

Affirmed.