*1 ' supra; Co., City Power v. Twin supra; Buena v. United States Seale States, su Homes, Inc. United Vista States, 4 Cunningham United pra; de certiorari 4 L.Ed. nied Waymire, 10 United States 202 F.2d 550. being re- judgment Since unnecessary to merits, isit on the

versed ease whether the consider jury than be- rather before tried been ing United to Commission. submitted supra. Inc., Ponder, Leavell & States v. al- unwilling extend

areWe opinion

ready lengthy for a discussion questions the Govern- raised the other They considered. have been ment. prejudicial error. them do find none of judgment of court is the district

Affirmed. Meador, J.

F. D. G. and Daniel Ribble Charlottesville, (court-assigned coun- Va. JONES, Appellant, R. John sel), appellant. Atty. Harp, III, Gen., Reno S. Asst. Jr., Superintend CUNNINGHAM, K.W. Virginia (Frederick Gray, Atty. Gen., T. Penitentiary, Virginia State ent of Virginia, appellee. brief), for Appellee. SOBELOFF, Judge, Before Chief No. 8356. BOREMAN, HAYNSWORTH Cir- States Court of Judges. cuit Fourth Circuit. Argued June HAYNSWORTH, Judge. Circuit Sept. Decided This for a writ of habeas dismissed, prison must large now er is He is defendant, Superintendent of the State Penitentiary, had where he been con indirectly

fined. While su their physical pervision, he is not in the cus tody of the members Pa Board, role whom parties defendant, nor substitute their subordinates. *2 QQ9 jiciendum may serving ap- Jones, a recidi- issue when the a sentence by plicant Virginia sought actual, physical his release is in the vist underlying attacking person convic- of the to whom the writ is di- of the one underlying rected.3 one conviction The court not order tions. The imposed upon guilty, produce body plea Jones is at of another who a liberty alleges assist- and be whose arrest would unlaw- that he was without great purpose and not told of ful. The of the writ is to and was ance of counsel testing speedily to afford a he had means for did not know that legality physical present, of a detention counsel. person. purpose.4 of a It no serves other reme- of his state After exhaustion sought dies, habeas cor- a writ of Jones recognition It was in of the nature of pus On Court. the District the writ and its limitations that there, ap- from denial of his a Supreme Court held the writ unavailable distinguished repre- pointed counsel to to a Naval officer orders to con- They ably presented his sent him.1 contentions, (1) City Washington fine himself to the special that there were charged persons crime, or to large with but at his conviction circumstances which made bail,6 or to one confinedin of counsel funda- without the assistance mentally under a sentence other than the one rule of Betts unfair within the appears seeks to attack.7 It thus that Brady, 1252, 455, v. 316 U.S. 62 S.Ct. person’s liberty some restraint a (2) 1595, circum- 86 L.Ed. and if the necessarily equivalent is not nevertheless, special, stances were not physical requisite detention which is Brady, either Betts has been overruled v. the writ. Illinois, People Griffin v. of State Court has considered a 891, 12, 585, 100 L.Ed. U.S. S.Ct. case identical to that before us. anticipate or that court should Squier, 810, Weber v. 315 U.S. 62 S.Ct. possibility given Supreme Court, 800, 1209, petition 86 L.Ed. for a writ appropriate occasion, an will overrule applicant of certiorari an for habeas Brady. Betts v. ground was denied on the .stated eligi- meanwhile, In the Jones became moot, that the cause was signed agree- ble for He having paroled being and provided ment which would re- that he custody. in the warden’s LaFayette, side with an uncle and aunt inquiry Georgia, employed Our would end with Weber the uncle as plumber report promptly Squier were it not for the and fact that Georgia Supervisor question, precisely release never since Chatsworth, Georgia.2 Supreme Court, He was then before has a subse- released. is assumed then history quent brings in that court which living left now work- question presented by into focus the ing Georgia. parties motion before tous substitute as defendant members of things, In the nature “Great Writ” of habeas Board. ad sub- Parole States, 1. The Dean of the Law School 4. See Heflin v. United 358 U.S. University 415, 421, 451, and another mem- 79 S.Ct. 3 L.Ed.2d 40 faculty opinion). (concurring ber of the school. Whitney, Wales U.S. Supervision by S.Ct. Georgia officials of 1050, 29 L.Ed. 277. arranged provisions had been under the the Uniform Act for Out-of-State Hoy, 227 U.S. Johnson Supervision. Parolee 497; Stallings Splain, 57 L.Ed. 64 L.Ed. 940. See, generally, III Blackstone’s Com mentaries, 129, seq. (1 McNally Hill, 1768). et Ed. 293 U.S. States, Heflin v. United 3 L.Ed.2d 407. proceeding comparable a 2255 respects to direct review Su- in these L.Ed.2d 354, 77 S.Ct. proceedings. coram proceeding under nobis preme said that rendered 2255 was authoritative, 28 U.S.C.A. Of course if Pollard is *3 the expiration term of by the prisoner if a former federal whose term petitioner, at the fact the fully and sentence his can obtain review of is served hearing, uncondition- was 2255, parolee the time ally under whose conviction § saying so, large. referred it In yet expired the entitled to term has not eases summary to earlier fashion the in relief. The Court of States, 329 U.S. relying Pollard, of Fiswick v. Circuit, so Ninth the and United Indeed, in two that court held cases.8 Morgan, 346 U.S. recognized corpus, allowed habeas for it though proceed- in the 247, 98 L.Ed. custody requirement in no difference the ings there was in cases those involved corpus and § requirement. custody Supreme The Hef- Court decided then sought Fiswick, alien, to overturn an 415, 79 lin v. United S. by appeal. It was a direct conviction his held 3 L.Ed.2d in which it Ct. the came before which custody requirement that the parable of 2255 com- § Mean- on certiorari. corpus. pris- to that of habeas A fully while, term and was serving served he oner first of the three consecu- that cause was It was held the released. sentences be without tive was held to the convic- moot because standing rendered question, not to under the § deportation subjected the him to in legality tion the sentence which third found to be one in- was begun the crime event not to had then serve. The Court volving turpitude. moral followed its earlier a habeas decision in involving corpus case circum- similar proceedings on review of direct Such McNally Hill, thought stances. were never in- to a conviction 24, 79 L.Ed. 238. custody requirements of habeas the volve clarified and Pollard The situation was Ellis, long- Parker v. Morgan laid to rest in a state court a received Parker 4 L.Ed.2d 963. would have than otherwise er sentence fully sen- of his Texas served the term imposed of an fed- because earlier seeking fruitlessly fully in state while tence which had been served. eral sentence hearing on his con- sought federal courts nobis re- a writ of coram He illegal. A the was that sentence court A tention federal conviction. the view majority court, curiam, majority per the dis- the court held that writ corpus case on the the habeas missed under those circumstances. available Morgan ground it Parker’s release made supports that in con- the decision The having explained custody requirement Pollard im- moot. the that clusion gone assump- upon corpus an off “unconsidered in plicit in habeas essential suggest nobis, 2255 relief available to that was does not that tion” it coram custody contrary requirement may custody not in later one the be disre- the garded decision, consideration, full corpus proceed- in habeas or in ing It relied and followedWeb- Heflin. under § Squier. er Pollard, there was no reference to dissenting requirement opinion, custody of 2255 the Chief the recognized terms, “pris- made available case in- was its Justice * * * custody distinguishable from Pollard. sentence He oner * claiming thought reconcilable, to be released Pollard and Heflin the sought explain Squier Weber reference the Fiswick and brief ground Morgan suggests parolee the limited cases court then Castle, Teets, 665; Egan Cir., 251 244 F.2d Dickson v. custody Direc- ward- habeas directed nowas court, tor of the Parole Board for the en, then before official purpose removing filed a detainer leaving question whether open custody Board with Ohio of some still officials. heldWe official. other unavailable because the majority in Clearly, however, the actual or constructive accept minor- Ellis did not Parker v. Virginia’s parole official. Squier. The ity’s explanation of Weber We pe- adhere to that decision. This expressly Pol- majority overrule did not titioner, living Georgia with his uncle in plainly seem lard, two cases working there is not in such al- inconsistent, it *4 Virginia’s parole prison of or officialsas ready Heflin. overruled support to a writ of habeas direct- major- course, We, must follow the of ed to them. accept ity Weber Parker v. Ellis. We in subsidiary question One remains to be meaning did, parolee Squier, a as it as v. mentioned. custody required for in such as is is not petition nothing contended It is find of sub- We custody Virginia’s light in of er is the Parole in in of the left the stance Virginia’s says because Board subsequent statute in and Park- decisions Heflin 53-264 of is. Section provides code er Ellis. v. that its official shall re exception the of cases in With the two custody “into the of lease the Parole following Pollard,9 the Ninth Circuit the any prisoner subject parole Board” to Appeals consistently of have held Courts when ordered to do so Parole the paroled prisoner that a state in is not is not clear Board. that this is anot custody permit such as to him to seek provision procedural pris to obtain the in writ the federal custody, release from all oner’s but for Circuit, The Ninth in courts.10 the present purposes we assume that year relying upon Pollard, in it de- Virginia interpret would it to com Egan Teets,11 emphatically cided v. held parable provisions to the of 18 U.S.C.A. parole in a different context that one on 4203, applicable parolees.13 to Federal custody.12 is not in Seven of the Courts Addressing prob itself a different of have reached that conclusion. lem, among the Court said in Ander There is no dissenter them. All Corall, agree 44 that, custody son v. S.Ct. requirement if is a 44, L.Ed. 247: writ, 68 parolee quali- of the a state cannot “ fy- * (cid:127)» * authorized suspend case, importance statute does not in this the serv- particular Of operate Virginia parolee, involving ice or to shorten the is the deci- term. Whiting Chew, the 4 convict is in While bound court v. of this sion Cir., legal There, remain 273 F.2d Ohio, sought control of under the the warden un- in a writ parolee, confined Eckle, Cir., supra. 836; v. 6 269 F.2d Johnson neither of footnote See Hunter, Cir., parolee 10 137 F.2d .a Weber was it held those cases custody. each, Pollard, in in supra. Footnote See requirement was unmentioned. Schmittroth, Cir., 9 12. Strand 251 F. ex rel. St. John v. Cum- 10. United 187; Cir., mings, 2 233 F.2d Adams v. provides 896; Cir., Whiting that a fed- Hiatt, 13. 18 U.S.C.A. F.2d legal custody parolee 885; Cir., is “in the Chew, eral 273 F.2d Van Meter Attorney 511; of Cir., Gen- the control Sanford, 99 F.2d Sierco- expiration eral, 118; the maximum McDonald, until 193 F.2d vich for which he sen- Fox, or terms term Factor tenced.” ginia’s Board has neither term, less of the expiration til body right power produce his good nor any, conduct. allowance, if Eastern pun- Court for District an amelioration While this Virginia. By voli- own legal impris- District of tion, ishment, effect it is appear in the court Jones could onment.” Virginia, is essential and his consent Judge said Thereafter, Hand Learned body production there. dictum,14 conceivable” “it is in a significance To to a declaration attach might parolee federal highly custody which, best, tech- by habeas reviewed his conviction have corpus insubstantial,16 nical, hypothetical and said the statute because actually prefer empty labels to a realistic custody. such One appraisal need This we Judge actualities. con- Hand what realized do. What formal state provisions declarations Because ceivable. incorporate statutes, if Ap- elects to in her 4203, 18 U.S.C.A. § they rights do affect substantive held that peals Circuit for the Second not, relations, not, and do control the conviction review availability cor- writ of habeas prisoner did not become a federal pus in the federal courts. If declara- paroled.15 when he was *5 custody, tion creates a technical it not is disagree. Respectfully, not It is the kind of which essential is an attaches sub- the labels statute but the relationships it creates which stantive importance. petitioner Whether or not Vir- Since are is no ginia’s provides custody, hypothetical statute is Board, of her Parole is the fact moot. lawfully large is Appeal dismissed. Georgia. time, From time he must re- Georgia parole port to a he officer and Judge SOBELOFF, (concur- Chief change not should employment his or his residence ring) . prior without or subse- assumption completing that on quent approval of that officer. Other- sentence, being prison paroled, per- or any wise, he is as free as other citizen further contest his son has no interest to go pleases do as he to pleases. where contrary com- record of conviction is predominantly His status is every- Society, experience. mon as our liberty. one of If he should commit a day confirms, visits crime, observation revoked, his be but strong disfavor, subject persons other citizen would its often be such ar- rest involving hardship offense. The overrid- severe less than ing point is that Board imprisonment itself. Where the convic- cannot compel revoke his or his re- process due these tion obtained turn to parolee, unless the him- though consequences, unfor- collateral self, an act subject commits which would tunate, cannot be redressed law. But any citizen to arrest and confinement or rights constitutional have been where ignores the other minimal terms standing at- there violated even tack a conviction the crime duty Particularly Unquestionably, “paid he is for.” under some has is this necessary inapplicable steps to other for re- and restraint zens, citi- true where complicated but, technical, unquestionably, as absent a and chal- lief— lenging lawyers parole, most the terms to the astute violation of Vir- —are Bradford, Sanford, Cir., Cir., 2 Meter v. 5 194 Van 99 F. States See Fox, 6 F.2d Factor F.2d Brilliant, 15. United consuming for habeas term became so time Although completed. expired. when his sentence process is out runs before the holding this is not a direct however, presents case, The instant similarly standing, without we are stronger grounds allowing at such recognize that, despite bound to interven- eco tack than “mere” social and where ing decisions, per opinion curiam prejudices brought bear nomic will be Parker Ellis has author- restored the Here, on an “ex-con.” is Jones ity Squier, 1942, of Weber v. restriction, re still under some subject mains to serve to recommitment pointed Judge Haynsworth, out unexpired out his event term controlling. here parole violation, if even the breach On me, this basis I fact, concur in the dismissal minor one. This it seems to appeal. logically indistinguish makes our case justiciability able the issue of from States, 1946, Fiswick v. United U.S. and, L.Ed. standing

the issue of to maintain a col attack,

lateral from United States v. Mor gan, 1954,

L.Ed. 248 and Pollard v. United 1 L.Ed.

2d 393. fairness, prosecute all PORTER, Appellant, William R. in- should not be lost in the *6 unavoidably because, stant case ex- EYSTER, Appellee. J. A. proceedings tended in state and federal No. 8261. courts, prisoner’s parole an- United States Court of morning nounced to the court on the Fourth Circuit. hearing. Be- scheduled lag cause the time between Argued initiation June disposition final corpus pro- Sept. Decided ceedings remedy will so often make the illusory, disposed I would ac-

cept question without state’s

bar vindication constitutional rights by granting One should continuing not be made to bear the bur- constitutionally den aof void conviction merely because, period of actual con- having ended, remedy

finement can unjust undo the commitment. This no reason to withhold remedy’s prospective operation. the benefit of explain why be difficult

statutory fiction of constructive parolee may over not be availed of to prerequisite by

supply the made 2254 or section 2255. section Neverthe- less, point debate seems to be

foreclosed Court’s re- Ellis, 1960, decision in Parker v.

cent L.Ed.2d prisoner’s which held state