677 F2d 225 United States Carrasquillo v. Thomas

677 F.2d 225

UNITED STATES of America ex rel. Efraim CARRASQUILLO,
Dale THOMAS, Warden of the Metropolitan Correctional Center,
New York City, Respondent-Appellee.

No. 973, Docket 81-2442.

United States Court of Appeals,
Second Circuit.

Argued March 31, 1982.
Decided April 14, 1982.

Alan Scribner, New York City (Ivan S. Fisher, David Ely, Michael Davies, New York City, of counsel), for petitioner-appellant.

William J. Brennan, Asst. U. S. Atty. for the Southern District of New York, New York City (John S. Martin, Jr., U. S. Atty. for the Southern District of New York, Richard N. Papper, Asst. U. S. Atty., New York City, of counsel), for respondent-appellee.

Before FEINBERG, Chief Judge, MANSFIELD, Circuit Judge, and MISHLER, District Judge.*


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Petitioner, Efraim Carrasquillo, appeals from a judgment of the United States District Court of the Southern District of New York, Edward Weinfeld, J., which granted the government's motion to dismiss Carrasquillo's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. The sole issue before us on appeal is whether criminal charges contained in an indictment dismissed with prejudice can form the basis for a subsequent revocation of parole. We find that the double jeopardy clause of the fifth amendment does not bar use of the charges in a parole revocation proceeding. Although the issue has not been squarely presented in this circuit, our decision here was presaged by Billiteri v. United States Board of Parole, 541 F.2d 938, 944 (2nd Cir. 1976). Judge Weinfeld addressed the issue thoroughly and we affirm on the basis of his opinion, reported at 527 F.Supp. 1105.


Judgment affirmed.


Honorable Jacob Mishler, Senior United States District Judge for the Eastern District of New York, sitting by designation