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Docket Number

No. 17034.

Attorney(S)

Perrin Stewart, pro se. D. Jeff Lance, U.S. Atty., and William C. Martin, Asst. U.S. Atty., for appellee.

Judges

Harvey M. Johnsen

Acts

Judiciary And Judicial Procedure — Habeas Corpus — Particular Proceedings — Federal Custody; Remedies On Motion Attacking Sentence

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Smart Summary

Summary of Opinion: Perrin Stewart v. United States, No. 17034 (8th Cir. Jan. 2, 1964)

Court: United States Court of Appeals, Eighth Circuit. Date: January 2, 1964. Panel: JOHNSEN, Chief Judge, and MATTHES and RIDGE, Circuit Judges. Appellant: Perrin Stewart (pro se). Appellee Counsel: D. Jeff Lance, U.S. Atty., and William C. Martin, Asst. U.S. Atty.

Factual and Procedural Background

Perrin Stewart (Appellant) was sentenced to ten years' imprisonment for narcotic conspiracy under 21 U.S.C. § 174. He sought, by collateral attack, to have that sentence vacated on constitutional grounds. The District Court denied the application on its face, and Stewart appealed to the Eighth Circuit.

Additional procedural details from the opinion: Stewart made his application as one for a writ of error coram nobis. The District Court nonetheless treated the filing as if it were a motion under 28 U.S.C.A. § 2255. The application did not disclose that the ten-year sentence had been ordered consecutive to a five-year sentence previously imposed by the District Court for the Northern District of Illinois. The District Court denied relief, and the Eighth Circuit affirmed.

Legal Issues Presented

Whether denial of parole to persons convicted of narcotic offenses by operation of 26 U.S.C. § 7237(d) — i.e., removal of such sentences from the operation of the administrative parole statute 18 U.S.C.A. § 4202 — amounts to cruel and unusual punishment in violation of the Eighth Amendment.
Whether the form of the collateral filing (coram nobis versus § 2255) or the District Court's treatment of it affected the availability of relief, insofar as the opinion addresses the procedural posture of the application.

Arguments of the Parties

Appellant's Arguments

Appellant contended that his ten-year narcotic sentence constituted cruel and unusual punishment under the Eighth Amendment because 26 U.S.C. § 7237(d) excluded narcotic offenses from the parole provisions of 18 U.S.C.A. § 4202, while parole privileges remained available to other offenders.

The opinion does not contain a detailed account of any counter-arguments submitted specifically by appellee in this appeal; instead, the court's discussion relies principally on precedent and legislative history.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Vera v. United States, 8th Cir., 288 F.2d 25, 26	Held that deprivation of parole under 18 U.S.C. § 4202 does not constitute cruel and unusual punishment; parole is discretionary legislative grace and denial is within legislative discretion.	The court relied on Vera as controlling authority in the Eighth Circuit, adopting its reasoning that the lack of parole privilege for narcotic offenders does not make confinement cruel and unusual.
Gallego v. United States, 9th Cir., 276 F.2d 914	Held that closing narcotic sentences to parole does not raise an Eighth Amendment question; stated that § 7237(d) "merely forbids in this kind of case and for good reason the discretionary granting of special benefits which Congress did not have to permit."	Used to demonstrate that other circuits (specifically the Ninth) have reached the same conclusion and to cite a succinct statement of the legislative-grace principle supporting denial of the Eighth Amendment claim.
Lathem v. United States, 5th Cir., 259 F.2d 393	Applied the principle that exclusion of narcotic offenses from parole privileges does not constitute cruel and unusual punishment.	Provided inter-circuit corroboration that the constitutional claim lacks merit.
Oliver v. United States, 8th Cir., 290 F.2d 255	Cited as another decision addressing related issues and supporting the absence of an Eighth Amendment violation from denying parole to narcotic offenders.	Included among "see also" authorities to show consistent treatment within the Eighth Circuit and elsewhere.
Halprin v. United States, 9th Cir., 295 F.2d 458	Cited as an additional case reaching a similar conclusion on the constitutional question.	Served as further evidence of consensus among circuits that § 7237(d) does not create an Eighth Amendment problem.
Witt v. United States, 9th Cir., 287 F.2d 389	Cited as another Ninth Circuit decision consistent with the view that forbidding parole for narcotic offenses is not cruel and unusual punishment.	Reinforced the court's reliance on inter-circuit authority supporting denial of the Eighth Amendment claim.

Court's Reasoning and Analysis

The court's analysis proceeded in several steps, grounded in prior authority and legislative history as recited in the opinion:

The court first identified the appellant's claim as an Eighth Amendment challenge: that 26 U.S.C. § 7237(d) removed narcotic sentences from the administrative parole statute (18 U.S.C.A. § 4202) and that this differential treatment made the sentence cruel and unusual.
The court invoked controlling precedent in the Eighth Circuit (Vera v. United States, 288 F.2d 25) which had rejected an identical contention. The Vera opinion explained that parole is a discretionary matter of legislative grace and that its denial does not transform a lawful sentence into cruel and unusual punishment.
The opinion articulated the legal principle that Congress has the power to vary provisions for administrative alleviation of sentences (such as parole) just as it can vary provisions for judicial imposition of sentences, including differentiation among classes of offenses. The court emphasized that the determination of cruelty relates to what a sentence authorizes to be inflicted, not to whether administrative privileges (like parole) are available.
The court noted and relied upon decisions from other circuits (for example Gallego, Lathem) reaching the same conclusion, indicating a consensus that closing narcotic sentences to parole does not create an Eighth Amendment violation. The Ninth Circuit's summary in Gallego — that § 7237(d) simply forbids discretionary granting of benefits Congress did not have to permit — was quoted to illustrate this point.
The opinion addressed legislative history showing Congress had an urgent reason for excluding narcotic offenses from parole. Quoting the House Committee report accompanying the Narcotic Control Act of 1956 (of which 26 U.S.C.A. § 7237(d) is a part), the court recited congressional concern that first-offender peddlers were being recruited and often received lenient treatment (suspended sentence, probation, or parole), which the Committee believed would exacerbate narcotics trafficking unless parole and similar privileges were prohibited for such convictions.
Finally, the court considered the procedural form of appellant's filing. Although Stewart sought relief by writ of error coram nobis, the District Court treated the application as a § 2255 motion. The appellate court observed that the application did not disclose Stewart was still serving the sentence and concluded that, irrespective of form or treatment, the asserted claim lacked any basis for relief under any available remedy.

Holding and Implications

AFFIRMED. The Eighth Circuit affirmed the District Court's denial of the application to vacate the sentence.

Implications and direct effects:

The appellant's claim that exclusion of narcotic sentences from parole under 26 U.S.C. § 7237(d) constitutes cruel and unusual punishment was rejected.
The court relied on existing precedent within the Eighth Circuit and analogous holdings in other circuits to reach its decision, and it emphasized congressional authority and legislative history supporting the policy choice to deny parole for narcotic offenses.
As a direct practical consequence, the appellant's collateral-attack application was denied and his sentence remains in effect; the opinion does not purport to establish any new legal principle beyond its reliance on and application of prior decisions and the legislative record.

Note: This summary is based exclusively on the content of the provided opinion. Where the opinion did not present detailed party arguments or broader implications, the summary indicates that such information was not contained in the opinion itself.

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Perrin STEWART, Appellant, v. UNITED STATES of America, Appellee.

JOHNSEN, Chief Judge.

Appellant was given a 10-year sentence for narcotic conspiracy under 21 U.S.C. § 174. He sought by collateral attack to have the sentence vacated for alleged unconstitutionality. The District Court denied the application on its face, and he has appealed.

His claim was that the sentence constituted cruel and unusual punishment, in violation of the Eighth Amendment, in that 26 U.S.C. § 7237(d) removed it, as one for a narcotic offense, from the operation of the administrative parole statute, 18 U.S.C.A. § 4202, while leaving the privilege of seeking parole in effect as to other sentenced offenders.

This contention has previously been before us in Vera v. United States, 8 Cir., 288 F.2d 25, 26, and was held to be without merit, in an opinion by Judge Woodrough, which said: "Appellant's contention that deprivation of the parole accorded under 18 U.S.C. § 4202 and continued confinement under his sentence constitutes cruel and unusual punishment is without merit. Such confinement is usual punishment. The discretionary granting of parole is a matter of legislative grace. The denial of it to certain offenders is within legislative discretion".

Congress as much has power to vary provisions for administrative alleviating of sentences as to vary provisions for judicial imposing of sentences, between classes of criminal offenses. Cruelty of punishment as related to sentences turns on what the sentence authorizes to be inflicted. What is reasonable punishment on this basis cannot, therefore, be contended to be cruel because it is without privilege of administrative alleviation, or because the privilege of seeking such alleviation is different than as to some other class of offense.

Other Circuits, where the constitutional contention has been presented, have similarly held that no question of cruel and unusual punishment is involved from the closing of a narcotic sentence to parole privilege. Gallego v. United States, 9 Cir., 276 F.2d 914; Lathem v. United States, 5 Cir., 259 F.2d 393. See also Oliver v. United States, 8 Cir., 290 F.2d 255; Halprin v. United States, 9 Cir., 295 F.2d 458; Witt v. United States, 9 Cir., 287 F.2d 389. As the Ninth Circuit summarized it in Gallego, supra, § 7237(d) "merely forbids in this kind of case and for good reason the discretionary granting of special benefits which Congress did not have to permit in the first place". 276 F.2d at 918.

While Congress was free to refuse to accord the privilege of parole or to permit any other alleviation, either judicial or administrative, as to narcotic sentences, without indication of its reason for doing so, the legislative history involved makes clear that it regarded an urgent reason as existing for the action which it took. Occasion was taken by the Committee sponsoring the legislation to make strong emphasis of the need for not allowing any privilege or power of alleviation to exist as to narcotic sentences. See H.Rep. No. 2388 on H.R. 11619, (which became the Narcotic Control Act of 1956, 70 Stat. 567, of which 26 U.S.C.A. § 7237(d) is a part), 2 U.S. Cong. Adm. News (1956), 84 Cong. 2d Sess. at pages 3284-3285.

The Committee pointed out that the narcotic traffic was engaged in recruiting, as peddlers, persons who did not have a previous narcotic conviction, and that a substantial number were being obtained in this class, because of the profit, and because of the possibility that, if caught, they would, as first offenders, be given suspended sentence, probation or parole. The statement concluded: "Therefore, it is the view of your committee that the first-offender-peddler problem will become progressively worse and eventually lead to the large scale recruiting of our youth by the upper echelon of traffickers unless immediate action is taken to prohibit parole, probation, or suspension of sentence in the case of all persons convicted of trafficking in narcotic and marihuana drugs". Ibid.

Appellant's application to have his sentence vacated was made as one for a writ of error coram nobis. The District Court treated it as a motion to vacate sentence under 28 U.S.C.A. § 2255, although the application did not disclose that appellant was yet serving the sentence, which had been made consecutive to one for five years imposed by the District Court for the Northern District of Illinois. The form of the application or the manner of its treatment is, however, of no consequence here, since the claim and contention made are without basis for relief by remedy of any nature.

Affirmed.

STEWART v. UNITED STATES