Summary
involving circuit rule to same effect as Rule 23
Summary of this case from Strachan v. Army Clemency and Parole BoardOpinion
No. 23853.
February 27, 1967.
Francis Jarad Schultz, pro se.
F.D. Hand, Jr., Asst. U.S. Atty., Atlanta, Ga., Charles L. Goodson, U.S. Atty., Theodore E. Smith, Asst. U.S. Atty., for appellee.
Before TUTTLE, Chief Judge, and BELL and GOLDBERG, Circuit Judges.
The only issue raised in this appeal from the denial of a petition for a writ of habeas corpus which requires discussion is appellant's claim that his rights have been impaired by reason of the fact that he was transferred during the pendency of his appeal from the federal penitentiary in Atlanta, Georgia, to that facility's counterpart in Lewisburg, Pennsylvania, in violation of the Rules of this court.
"Pending review of a decision refusing a writ of habeas corpus, the custody of the prisoner shall not be disturbed." Rule 33(1), Rules of the United States Court of Appeals for the Fifth Circuit.
We think it clear that such a transfer cannot divest this court of jurisdiction to review the denial of appellant's petition. See Ex parte Catanzaro, 138 F.2d 100 (3rd Cir. 1943). Lest this be regarded as an implied condonation of a deliberate disregard of our Rules, we hasten to point out that were we to find appellant entitled to the writ, his custodian could find himself confronted with an opportunity to explain his inability to respond to the writ in a proper proceeding.
However, we are not faced with the necessity for such proceedings in this instance, for on the merits we are in agreement with the district court's conclusion that appellant has presented no case appropriate for habeas corpus relief. Consequently, the improvident transfer wrought no prejudice to his cause.
The judgment is affirmed.