231 F2d 658 Tuckson v. Clemmer F Dc B Dc

231 F.2d 658

Rudolph TUCKSON, Appellant,


Donald CLEMMER, Director, Department of Corrections for the

District of Columbia, Paul F. Pegelow, Superintendent, D.C.

Reformatory, and Jack B. Garrott, Chief, Institution Parole

Officer, D.C. Reformatory, Appellees.

No. 7147.

United States Court of Appeals Fourth Circuit.

Argued March 19, 1956.

Decided April 9, 1956.

Rudolph Tuckson, pro se, on the brief.

Edwin J. Slipek, Asst. U.S. Atty, Richmond, Va. (L. S. Parsons, Jr., U.S. Atty., Norfolk, Va., and Harlan E. Freeman, Asst. U.S. Atty., Alexandria, Va., on brief), for appellees.

Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.


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This is an appeal from an order dismissing an application for a mandatory and prohibitory injunction, which the court below treated as a complaint for a declaratory judgment. Appellant is imprisoned in the District of Columbia Reformatory at Lorton, Va. He contends that he should have been imprisoned in the District of Columbia Work House instead of the Lorton Reformatory and that, after the expiration of the sentence which he is now serving, he should be discharged and not held for violation of parole under an order of the parole board of which he complains because he contends that he was entitled to an absolute and not a conditional release under the provisions of the 'good time' statute. We think that his application is absolutely without merit for reasons adequately stated in the order of the court below. See also Masterson v. Lindsay, 4 Cir., 219 F.2d 236. We think, also, that this is not a case for declaratory judgment. as said by this court in Hurley v. Lindsay, 4 Cir., 207 F.2d 410:


'We agree with the District Judge that he was without jurisdiction in the premises. If there was any irregularity in the sentence or orders under which appellant was held, and we do not intimate that there was, appellant's remedy was a motion in the sentencing court under 28 U.S.C. § 2255, not a petition for a declaratory judgment in another court. As was well said by Judge Watkins, speaking for the Court of Appeals of the District of Columbia Circuit in Clark v. Memolo. 82 U.S.App.D.C. 65, 174 F.2d 978, 981, 'It was the primary purpose of the (Declaratory Judgment) act (28 U.S.C.A. §§ 2201, 2202) to have a declaration of rights not theretofore determined, and not to determine whether rights theretofore adjudicated have been properly adjudicated".


The order dismissing the petition will be affirmed.