Brown v. Kearney

Full title: Emory Newton BROWN, Appellant, v. J.O. KEARNEY, Warden, United States…

Court: United States Court of Appeals, Fifth Circuit

Date published: Jan 28, 1966

355 F.2d 199 (5th Cir. 1966)

Opinion

No. 22760.

January 28, 1966.

Emory Newton Brown, Atlanta, Ga., for appellant.

Thomas K. McWhorter, Asst. U.S. Atty., Charles L. Goodson, U.S. Atty., for appellees.

Before GEWIN and BELL, Circuit Judges, and HUGHES, District Judge.

PER CURIAM:

This is an appeal from an order of the United States District Court denying appellant's petition for habeas corpus. Appellant contends in his petition that the revocation of his conditional release from the United States penitentiary was based solely on evidence obtained by an illegal search and seizure.

While a parolee is entitled to constitutional protection from illegal search and seizure, it is not necessary for us to pass on this question in reaching our decision.

Parole is a matter of grace, not of right, and the revoking of parole is within the sound discretion of the Parole Board. Excluding the evidence obtained by the search and seizure, the record shows there were ample grounds upon which to base the decision of the Parole Board and there was no abuse of its discretion in revoking the parole of petitioner.

The order of the United States District Court in denying appellant's petition for habeas corpus is therefore affirmed.