United States ex rel. Barnwell v. Rundle, 72-1318.
| Decision Date | 10 May 1972 |
| Docket Number | No. 72-1318.,72-1318. |
| Parties | UNITED STATES of America ex rel. Sandy BARNWELL H-9446 v. Alfred T. RUNDLE, Superintendent, Commonwealth of Pennsylvania, Appellant. |
| Court | U.S. Court of Appeals — Third Circuit |
Victor J. DiNubile, Jr., Asst. Dist. Atty., Arlen Specter, Dist. Atty., Philadelphia, Pa., for appellant.
Stewart R. Dalzell, Philadelphia, Pa., for appellee.
Before GIBBONS and JAMES ROSEN,* Circuit Judges.
In this state habeas corpus case the appellee, a successful petitioner below, moves that he be released from custody as a parolee. The district court, 337 F. Supp. 688, on February 3, 1972 ordered that the writ of habeas corpus be granted unless the Commonwealth retries the petitioner within sixty days. The Commonwealth appealed, but did not seek a stay of the district court order. The sixty days having expired, petitioner seeks to be released from parole supervision. The Commonwealth has filed a cross motion for a stay of the district court's order. Its position is that the notice of appeal should act as a stay of execution of the district court's order.
Fed.R.App.P. 8 provides that application for a stay of the judgment or order of a district court pending appeal shall ordinarily be made in the first instance to a district court. Application for a stay may be made in the first instance to the court of appeals only when application to the district court for the relief sought is not practicable. Such is not the case here. Since the Commonwealth has not applied to the district court for a stay we cannot consider such a motion. The filing of a notice of appeal does not operate as a stay of judgment.
Fed.R.App.P. 23(c) provides:
"Pending review of a decision ordering the release of a prisoner in such a habeas corpus proceeding, the prisoner shall be enlarged upon his recognizance, with or without surety, unless the court or justice or judge rendering the decision, or the court of appeals or the Supreme Court, or a judge or justice of either court shall otherwise order."
This rule makes it clear that pending appeal by the custodian of a prisoner who has successfully obtained a writ of habeas corpus the prisoner is presumptively entitled to release. If the custodian deems release pending appeal to be inappropriate, or if he deems it appropriate to request that bail with surety be fixed, the custodian should...
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Cagle v. Davis
...surety be fixed, the custodian should * * * apply to the district judge who rendered the decision. * * *" United States ex rel. Barnwell v. Rundle, C.A.3d (1972), 461 F.2d 768, 770 The respondents-appellants thus applied for refusal of bail, claiming it would be inappropriate because, if th......
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Miller v. Stovall
...that they are not supported by the rules, and have been rejected by others. See Fed. R.App. P. 8 & 23; United States ex rel. Barnwell v. Rundle, 461 F.2d 768, 769-70 (3d Cir.1972) ("The filing of a of appeal does not operate as a stay of judgment."); Manley v. Ross Corr. Inst. Warden, No. 3......
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...stay the Order or relieve the State of its obligation to comply with the Order. See Fed.R.App.P. 8 & 23; United States ex rel. Barnwell v. Rundle, 461 F.2d 768 (3d Cir. 1972). Nor did the State seek a stay of the Order within the 120-day period pursuant to Federal Rule of Appellate Procedur......
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...an appeal has been noted. E. g., Aronson v. May, 85 S.Ct. 3, 13 L.Ed.2d 6 (Douglas, Circuit Justice, 1964); United States ex rel. Barnwell v. Rundle, 461 F.2d 768 (3rd Cir. 1972); Byrd v. Smith, 407 F.2d 363 (5th Cir. 1969); O'Brien v. Lindsey, 202 F.2d 418 (1st Cir. 1953); United States ex......