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Clarence Duke McGANN, 20205-145, Appellant, v. U. S. BOARD OF PAROLE & M. R. Hogan, (Warden)

United States Court of Appeals for the Third Circuit1973-11-14No. No. 73-1482
488 F.2d 39

Summary

Holding. The court affirmed the district court's denial of habeas corpus relief, holding that McGann's extradition from Jamaica was valid and that his subsequent confinement for parole revocation does not violate the extradition treaty because he is being held for the bank robbery crime underlying his parole status, not for any offense outside the scope of extradition.

McGann, a federal prisoner on parole, fled the United States to Jamaica after violating the terms of his parole by leaving his designated district without authorization. The U.S. government extradited him from Jamaica under an applicable treaty with the United Kingdom, and after a parole revocation hearing, the Board of Parole revoked his parole and returned him to confinement. McGann challenged his extradition and re-incarceration through a habeas corpus petition, arguing both that the extradition was invalid and that holding him violated the extradition treaty.

The court rejected McGann's claims. It held that the Jamaican court's determination that the offense was extraditable cannot be reviewed, and McGann's objections to the extradition process were without merit. The court also rejected his argument that the treaty prohibited his confinement, explaining that although parole violation prompted his re-arrest, the underlying crime for which he is held is the original bank robbery conviction, which was the proper basis for extradition. The court affirmed the district court's dismissal of his habeas petition.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

  • Validity of extradition from Jamaica under the U.S.-U.K. treaty
  • Whether extradition treaty provisions prohibit confinement for parole violation when the underlying crime was extraditable
  • Authority of parole board to participate in international extradition proceedings for alleged parole violators

Procedural posture

McGann appealed a district court order denying his petition for a writ of habeas corpus challenging his extradition from Jamaica and subsequent parole revocation and re-incarceration.

Authorities cited

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Opinion

majority opinion

OPINION OF THE COURT

PER CURIAM:

This appeal challenges a district court order denying a petition for a writ of habeas corpus by a federal prisoner, alleging that his extradition from Jamaica and subsequent confinement as a parole violator are illegal. See McGann v. U. S. Board of Parole & M. R. Hogan, Warden, 356 F.Supp. 1060. Opinion of 4/6/73 (M.D.Pa., H.C.No.1481).

Petitioner was sentenced to 20 years’ imprisonment in 1954 by the United States District Court for the District of Maryland upon his guilty plea to bank robbery. In June 1955, he entered another guilty plea to another charge of bank robbery in the United States District Court for the Southern District of New York and was sentenced to 2Ó years’ imprisonment, subsequently reduced to 19, to run concurrently with the Maryland sentence. In 1966, he was paroled with approximately 2950 days remaining to be served on his Maryland sentence. A condition of this parole was that he was to remain in the Southern District of New York. On April 10, 1969, the U. S. Board of Parole issued a parole violation warrant, charging, inter alia, that he had left the Southern District of New York without permission.

By the summer of 1969, the U. S. Department of Justice, having learned that petitioner had left the United States and gone to Jamaica, started initial steps to extradite petitioner from Jamaica to this country under a treaty (47 Stat. 2122) between the United States and the United Kindgom which is applicable to Jamaica. After hearing, petitioner was extradited for bank robbery, the offense underlying his status as a parolee, which offense is an extraditable offense under the treaty.

After a parole revocation hearing in New York in April 1972, his parole was revoked by the U. S. Board of Parole on May 2, 1972, on the ground that he had left the Southern District of New York without permission.

I.

We reject petitioner’s contention that his extradition was invalid. The holding of Johnson v. Browne, 205 U.S. 309, 316, 27 S.Ct. 539, 51 L.Ed. 816 (1907), precludes any review of the Jamaican court’s decision as to the extraditable nature of the offense, and petitioner’s arguments as to the illegality of American actions in regard to the extradition are all without merit. He was properly extradited for conviction and sentence of the basic bank robbery offense.

II.

Appellant’s contention that the petitioner’s “present incarceration is in violation of [the above-mentioned] treaty” is rejected. The petitioner’s reliance on the treaty language (Article 7) that appellant shall not be kept in custody for “. . . any other crime or offense, or on account of any other matters than those for which the extradition shall have taken place . . .’’is misplaced. Although violation of the terms of parole was the reason for his re-confinement, the crime (18 U.S.C. § 2113(d)) for which he is being held is the bank robbery for which he was convicted by the United States District Court for the District of Maryland. See McGann v. United States, 249 F.2d 431 (4th Cir. 1967); United States v. McGann, 161 F.Supp. 629 (D.Md.1958); United States v. McGann, 150 F.Supp. 463 (D.Md.1957).

III.

The other contentions of petitioner have been considered and rejected.

The April 6, 1973, district court order will be affirmed.

. A third sentence of 12 years’ imprisonment for another bank robbery was imposed by the United States District Court for the Eastern District of New York. See McGann v. United States, 362 U.S. 214, 80 S.Ct. 629, 4 L.Ed.2d 666 (1960).

Petitioner has had a series of collateral attacks on his Maryland sentence, including McGann v. United States, 249 F.2d 431 (4th Cir. 1957), cert. denied, 356 U.S. 923, 78 S. Ct. 708, 2 L.Ed.2d 718 (1958) ; United States v. McGann, 161 F.Supp. 629 (D.Md. 1958) ; McGann v. United States, 261 F.2d 956 (4th Cir. 1958), cert. denied, 359 U.S. 974, 79 S.Ct. 891, 3 L.Ed.2d 841 (1959) ; McGann v. Taylor, 289 F.2d 820 (10th Cir.), cert. denied, 368 U.S. 904, 82 S.Ct. 182, 7 L.Ed.2d 98 (1961) ; McGann v. United States, 200 F.Supp. 633 (D.Md.1961) ; McGann v. United States, 370 U.S. 948, 82 S. Ct. 1594, 8 L.Ed.2d 814 (1962) ; McGann v. United States, 372 U.S. 929, 83 S.Ct. 876, 9 L.Ed.2d 734 (1963). In McGann v. United States, 233 F.Supp. 419 (D.Md.1964), aff’d, 347 F.2d 986 (4th Cir. 1965), leave to file petition for a writ of habeas corpus denied sub nom., McGann v. Richardson, 382 U.S. 1007, 86 S.Ct. 632, 15 L.Ed.2d 536 (1966), petitioner’s collateral attack on the volun-tariness of his guilty plea was dismissed after an evidentiary hearing at which he was represented by counsel.

As to petitioner’s sentence in the Southern District of New York, see United States v. McGann, 245 F.2d 670 (2d Cir. 1957) ; McGann v. United States, 371 U.S. 866, 83 S.Ct. 129, 9 L.Ed.2d 104 (1963) ; McGann v. United States, 390 U.S. 1030, 88 S. Ct. 1422, 20 L.Ed.2d 287 (1968).

. Petitioner is a Jamaican citizen due to the citizenship of his parents, but is also a United States citizen because of birth in this country.

. The decision of the hearing court was upheld by the Supreme Court of Appeal of Jamaica on September 22, 1971.

. See 6 Whiteman, Digest of International Law (1968), at 796-97; In re Edmondson, 352 F.Supp. 22 (D.Minn.1972) ; see also McGann v. U. S. Board of Parole & M. R. Hogan, Warden, supra.

. These contentions include the following: (1) that the U. S. Board of Parole does not have the authority to enter into international extradition proceedings in order to obtain the presence of an alleged parole violator for hearings as to the revocation of his parole ; (2) that the Secretary of State did not have the authority to issue a warrant of arrest for the appellant, directed to the Jamaican government, based upon an alleged parole violation; (3) that the petitioner cannot be classified as a fugitive criminal for alleged parole violation.