Van Blaricom v. Forscht, No. 72-1374.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtPER CURIAM
Citation490 F.2d 461
PartiesEarl VAN BLARICOM, Petitioner-Appellant, v. Donald FORSCHT, as United States Marshal, Respondent-Appellee.
Decision Date06 March 1974
Docket NumberNo. 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

490 F.2d 462
his parole as a federal prisoner. The district court denied Van Blaricom's petition by an order entered December 20, 1971. On February 21, 1973, a panel of this Court reversed and remanded to the district court to grant either appellant's petition for habeas corpus or to allow respondents a reasonable time to afford appellant a new revocation hearing meeting applicable federal statutory and administrative requirements discussed in the panel opinion. Van Blaricom v. Forscht, 5 Cir., 1973, 473 F.2d 1323 (1973); petition for rehearing denied and opinion modified per curiam, 5 Cir., 1973, 489 F.2d 1034; opinion denying petition for rehearing amended, (January 15, 1974). The court voted to consider the case en banc and it was so considered on January 15, 1974, after the panel had amended its opinion denying the petition for rehearing

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...

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14 practice notes
  • Dorrough v. Estelle, No. 73-1881.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • July 29, 1974
    ...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
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • September 7, 1995
    ...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
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • July 22, 1974
    ...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
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • November 29, 1984
    ...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......
  • Request a trial to view additional results
14 cases
  • Dorrough v. Estelle, No. 73-1881.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • July 29, 1974
    ...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
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • September 7, 1995
    ...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
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • July 22, 1974
    ...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
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • November 29, 1984
    ...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......
  • Request a trial to view additional results

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