Howell v. Hiatt, 14074.
| Citation | 199 F.2d 584 |
| Decision Date | 28 October 1952 |
| Docket Number | No. 14074.,14074. |
| Parties | HOWELL v. HIATT, Warden. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Archie Wilson Howell, in propria persona.
J. Ellis Mundy, U. S. Atty., Harvey H. Tisinger, Asst. U. S. Atty., Atlanta, Ga., for appellee.
Before HUTCHESON, Chief Judge, and HOLMES and RUSSELL, Circuit Judges.
This appeal is from an order denying a petition for habeas corpus.
This is the record. On October 20, 1942, the appellant was convicted in the United States District Court for the Middle District of North Carolina, upon his plea of guilty, and was sentenced to a term of twelve years for violation of Section 588b, Title 12, U.S.C. (Bank Robbery) 1948 Revised Criminal Code, 18 U.S.C.A. § 2113. After serving a portion of that sentence, he was, on October 19, 1946, released on parole. On August 1, 1949, appellant was brought to trial in the North Carolina State Court on an indictment charging robbery with fire arms, but was acquitted on a directed verdict. On September 1, 1949, appellant was recommitted to the United States Penitentiary at Atlanta, Ga., upon a duly authorized warrant of the United States Board of Parole for violation of his parole, and, following a hearing on September 21, 1949, appellant's parole was revoked.
Appellant, relying upon the instructed verdict of not guilty and upon allegations that there was no other basis for revoking his parole than the fact that he was charged as stated above, argued below, and insists here: that the board, in revoking the parole, acted arbitrarily upon whim and caprice and in the absence of substantial evidence or reliable information; that the revocation was, therefore, void; and that he was being illegally held by the warden.
The district judge, citing Hiatt v. Compagna, 5 Cir., 178 F.2d 42, and United States ex rel. Rowe v. Nicholson, 4 Cir., 78 F.2d 468, held that, since it appeared that petitioner was being held pursuant to a revocation of his parole,1 he could not be said to be illegally held by the warden, nor could he by habeas corpus obtain a review of the decision of the board.
Appellant, while conceding that this would be the ordinary rule insists that it has no application here because, as appears from his allegations, the order of the Parole Board is not merely erroneous but is wholly void, and, under Hiatt v. Compagna, supra, he made out a case for relief on habeas corpus.
We cannot agree with appellant. On the contrary, we agree...
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McCoy v. U.S. Bd. of Parole
...v. Ciccone, 326 F.Supp. 609, 612--13 (W.D.Mo.1970); Langston v. Ciccone, 313 F.Supp. 56, 59--60 (W.D.Mo.1970). See also Howell v. Hiatt, 199 F.2d 584, 585 (5th Cir. 1952). The District of Columbia Circuit has rejected this viewpoint, however, by directing the transfer of petitions for habea......
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