Tarlton v. Clark, 30584 Summary Calendar.
| Decision Date | 21 June 1971 |
| Docket Number | No. 30584 Summary Calendar.,30584 Summary Calendar. |
| Citation | 441 F.2d 384 |
| Parties | John Brent TARLTON, Jr., Petitioner-Appellant, v. J. J. CLARK, Warden, U. S. Penitentiary, and the U. S. Board of Parole, Respondents-Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
John B. Tarlton, Jr., pro se.
John W. Stokes, Jr., U. S. Atty., Allen I. Hirsch, Richard H. Still, Jr., Asst. U. S. Attys., Atlanta, Ga., for respondents-appellees.
Before GEWIN, GOLDBERG and DYER, Circuit Judges.
Rehearing Denied and Rehearing En Banc Denied April 5, 1971.
Certiorari Denied June 21, 1971. See 91 S.Ct. 2263.
This appeal is taken from an order of the district court denying the petition for mandamus of a federal prisoner. We affirm for the reasons which are well stated in the order appealed from, which is appended to this opinion.
Affirmed.
APPENDIX
Petitioner, a federal prisoner confined at the United States Penitentiary, Atlanta, Georgia, has submitted in forma pauperis a petition for writ of mandamus.
(1) Petitioner contends that the United States Bureau of Prisons have denied his Eighth Amendment right under the United States Constitution in that he is not allowed to have sexual relations with his wife during her visit with him at the United States Penitentiary, Atlanta, Georgia.
While other nations have experimented with the idea of "sexual visitations" for prisoners in confinement, the court knows of no case which requires or permits such practices in United States institutions. In any event, such claim would not come up to the level of a federal constitutional right so as to be cognizable as a basis for relief in federal court.
Moreover, such personal grievance is one which would have to be presented, in the fisrt instance, by administrative remedies available to the prisoner with the Bureau of Prisons. The courts have reportedly held that grievances relating to the case and management of prisoners should be presented and processed in such manner.
For this reason, the petition is denied.
(2) Petitioner is seeking an order to compel the United States Parole Board to show-cause why he was not granted parole pursuant to Title 18 U.S.C.A. §§ 4202 and 4203 after having completed one-third of his total sentence. Petitioner contends that under the purview of 4202 and 4203, the Board of Parole had a duty to release him upon the completion of one-third of his sentence, if the record showed that he obeyed all rules and regulations of the institution where he was confined up to that date. Also he seeks to confront the witnesses who made statements about his activities which contributed to the fact that he was denied parole.
This case is in direct line with Thompkins v. United States Board of Parole, 427 F.2d 222 (5th Cir., June 15, 1970) in which petitioner Thompkins made the same allegation that the petitioner in this case makes, to wit: that having met the conditions of Title 18 U. S.C.A. §§ 4202 and 4203, he was entitled, as a matter of right, to parole. The Fifth Circuit Court of Appeals in its decision stated:
By the language of Title 18 U.S.C.A. § 4203, the Board of Parole is given absolute discretion in matters of parole. The courts are without power to grant a parole or to determine judicially eligibility for parole. United States v. Frederick, 405 F.2d 129 (3rd Cir. 1968). Furthermore, it is not the function of the courts to review the discretion of the Board in the denial of application for parole or to review the credibility of reports and information received by the Board in making its determination. Brest v. Ciccone, 371 F.2d 981 (8th Cir. 1967); Birch v. Anderson, 123 U.S. App.D.C. 153, 358 F.2d 520(9) (1965); Cagle v. Harris, 349 F.2d 404(2, 3) (8th Cir. 1965); Hiatt v. Compagna, 178 F.2d 42(2, 3) (5th Cir. 1949); Goldsmith v. Aderholt, 44 F.2d 166(3) (5th Cir. 1930); Title 18 U.S.C.A. § 4203; United States v. Frederick, supra.
As to petitioner's right to cross examine members of the parole board or persons who have given statements to members of the parole board is without merit. In a well written opinion by The Honorable Charles Wyzanski, United States...
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