539 F2d 572 Thomas v. United States

539 F.2d 572

George Joseph THOMAS, Jr., Petitioner-Appellant,
UNITED STATES of America, Respondent-Appellee.

No. 76-2526

Summary Calendar.*

United States Court of Appeals,
Fifth Circuit.

Sept. 27, 1976.

George Joseph Thomas, Jr., pro se.

Wayman G. Sherrer, U. S. Atty., James C. Thomason, III, Asst. U. S. Atty., Birmingham, Ala., for respondent-appellee.

Appeal from the United States District Court for the Northern District of Alabama.

Before BROWN, Chief Judge, and GEWIN and MORGAN, Circuit Judges.


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In his habeas petition1 and briefs in this court appellant contends that (1) after the issuance of a parole violator's warrant, he was denied a prompt revocation hearing as required by Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1974), and (2) the failure promptly to dispose of the parole violator's charge requires that the federal detainer be lifted. Appellant was in custody on state charges at the time of issuance of the federal warrant and detainer. Hence, this case is controlled by Cook v. United States Attorney General, 488 F.2d 667 (5th Cir.), cert. denied, 419 U.S. 846, 95 S.Ct. 8, 42 L.Ed.2d 75 (1974), in which we held that a revocation hearing was not required, at the commencement of the state imprisonment, on an issued but unexecuted parole violator's warrant.2 Accordingly, appellant's contentions are without merit. The district court's judgment denying the petition is AFFIRMED.


Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I


Jurisdiction in the district court was based on 28 U.S.C. § 2241


As appellant notes, some circuits have not followed our position. See United States ex rel. Hahn v. Revis, 520 F.2d 632 (7th Cir. 1975); Cooper v. Lockhart, 489 F.2d 308 (8th Cir. 1973). Other circuits have adopted our rule. See Gaddy v. Michael, 519 F.2d 669 (4th Cir. 1975); Small v. Britton, 500 F.2d 299 (10th Cir. 1974). We are, of course, bound by Cook unless it is overturned by Supreme Court or en banc action