Van Blaricom v. Forscht, No. 72-1374.
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
| Writing for the Court | PER CURIAM |
| Citation | 490 F.2d 461 |
| Parties | Earl VAN BLARICOM, Petitioner-Appellant, v. Donald FORSCHT, as United States Marshal, Respondent-Appellee. |
| Decision Date | 06 March 1974 |
| Docket Number | No. 72-1374. |
490 F.2d 461 (1974)
Earl VAN BLARICOM, Petitioner-Appellant,
v.
Donald FORSCHT, as United States Marshal, Respondent-Appellee.
No. 72-1374.
United States Court of Appeals, Fifth Circuit.
March 6, 1974.
J. V. Eskenazi, Federal Public Defender, Theodore J. Sakowitz, Asst. Federal Public Defender, Miami, Fla., for petitioner-appellant.
Robert W. Rust, U. S. Atty., Carol M. Anderson, Asst. U. S. Atty., Miami, Fla., for respondent-appellee.
Before BROWN, Chief Judge, RIVES, Senior Circuit Judge, and WISDOM, GEWIN, BELL, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON, MORGAN, CLARK, RONEY and GEE, Circuit Judges.
PER CURIAM:
Appellant Earl Van Blaricom filed for habeas corpus relief in United States District Court on November 9, 1971 contesting the validity of the revocation of
Appellant was released on bond pending appeal pursuant to an order of this court dated July 13, 1972. It has now been made to appear that prior to our February 21 panel decision, an order was entered by the United States district court revoking appellant's bond for cause. (The district court order was dated January 10, 1973). An evidentiary hearing was held by the district court prior to entering the order revoking bond.1 At that hearing, appellant's counsel, who has represented Van Blaricom from the time of the parole revocation hearing, conceded that Van Blaricom had violated the conditions of his appeal bond,2 and that he, as well as parole board officials, have been unable to contact Van Blaricom at his last given address. The district court directed the issuance of a warrant for Van Blaricom's arrest, and as of the time of our en banc consideration on January 16, 1974, appellant's whereabouts were still unknown to the authorities.
It is within the discretion of this Court not to reach the merits of an appeal where the petitioner is not available and subject to any judgment which might be entered in the case. United States ex rel. Bottoms v. Eberhardt, 5 Cir., 1972, 467 F.2d 578; United States v. Shelton, 5 Cir., 1973, 482 F.2d 848; Brinlee v. United States, 8 Cir., 1973, 483 F.2d 925; United States v. O'Neal, 10 Cir., 1972, 453 F.2d 344; Johnson v. Laird, 9 Cir., 1970, 432 F.2d 77.3 See Molinaro v. New Jersey, 1970, 396 U.S. 365, 90 S.Ct. 498, 24 L.Ed.2d 586. Since Van Blaricom was a fugitive prior to the panel's decision, the opinion of this court February 21, 1973, as modified, supra, is vacated and the appeal is removed from the docket without prejudice to appellant's right to have the appeal reinstated on appropriate motion if, within thirty (30) days from the date hereof, it should be made known to this Court that Van Blaricom is available and subject to any judgment which might be entered in this case. If thirty (30) days elapses without such a representation his appeal is ordered dismissed.
Panel opinion vacated; appeal removed from docket on condition.
RIVES, Senior Circuit...
To continue reading
Request your trial
-
Dorrough v. Estelle, No. 73-1881.
...Term or the expiration of a fixed period of time". 396 U.S. at 366, 90 S. Ct. at 499. And in Van Blaricom v. Forscht, 5 Cir. 1974, 490 F.2d 461, 462 (en banc), this Court removed the appeal from the docket and ordered that if it was not made known to the Court within 30 days that the a......
-
Prevot, In re, Nos. 94-5854
...552 F.2d 682 (10th Cir.1977) (petition for habeas denied, petitioner fled pending appeal, appeal dismissed). In Van Blaricom v. Forscht, 490 F.2d 461 (5th Cir.1974) (en banc), cert. denied, 423 U.S. 915, 96 S.Ct. 222, 46 L.Ed.2d 144 (1975), disentitlement was retroactively applied in a civi......
-
Ruetz v. Lash, No. 73-1803
...854 (1877); Smith v. United States, 94 U.S. 97, 24 L.Ed. 115 (1876), as have the courts of appeals. See, e.g., Van Blaricom v. Forscht, 490 F.2d 461 (5th Cir. 1974); United States v. Swigart, 490 F.2d 914 (10th Cir. 1973); Brinlee v. United States,483 F.2d 925 (8th Cir. 1973); Hitchcock v. ......
-
U.S. v. Snow, No. 84-6267
...in sister cases who were still in escapee status when their cases were scheduled for argument. See, e.g., Van Blaricom v. Forscht, 490 F.2d 461 (5th Cir.1974), cert. denied, 423 U.S. 915, 96 S.Ct. 222, 46 L.Ed.2d 144 (1975) (prisoner's appeal will be reinstated if he returns to custody with......
-
Dorrough v. Estelle, No. 73-1881.
...Term or the expiration of a fixed period of time". 396 U.S. at 366, 90 S. Ct. at 499. And in Van Blaricom v. Forscht, 5 Cir. 1974, 490 F.2d 461, 462 (en banc), this Court removed the appeal from the docket and ordered that if it was not made known to the Court within 30 days that the a......
-
Prevot, In re, Nos. 94-5854
...552 F.2d 682 (10th Cir.1977) (petition for habeas denied, petitioner fled pending appeal, appeal dismissed). In Van Blaricom v. Forscht, 490 F.2d 461 (5th Cir.1974) (en banc), cert. denied, 423 U.S. 915, 96 S.Ct. 222, 46 L.Ed.2d 144 (1975), disentitlement was retroactively applied in a civi......
-
Ruetz v. Lash, No. 73-1803
...854 (1877); Smith v. United States, 94 U.S. 97, 24 L.Ed. 115 (1876), as have the courts of appeals. See, e.g., Van Blaricom v. Forscht, 490 F.2d 461 (5th Cir. 1974); United States v. Swigart, 490 F.2d 914 (10th Cir. 1973); Brinlee v. United States,483 F.2d 925 (8th Cir. 1973); Hitchcock v. ......
-
U.S. v. Snow, No. 84-6267
...in sister cases who were still in escapee status when their cases were scheduled for argument. See, e.g., Van Blaricom v. Forscht, 490 F.2d 461 (5th Cir.1974), cert. denied, 423 U.S. 915, 96 S.Ct. 222, 46 L.Ed.2d 144 (1975) (prisoner's appeal will be reinstated if he returns to custody with......