McMILLAN v. PARKER

378 F.2d 444, 1967 U.S. App. LEXIS 6104

• Court: Court of Appeals for the Third Circuit
• Decided: June 6, 1967
• Docket: 16046
• Status: Published

Opinion

378 F.2d 444

Robert L. McMILLAN, Appellant,
v.
J. J. PARKER, Warden, U.S. Penitentiary, Lewisburg, Pa.,
Chairman, U.S. Board of Parole, Washington, D.C.,
and Mr. Faulkner, U.S. Probation
Officer, Baltimore, Md.

No. 16046.

United States Court of Appeals Third Circuit.

Submitted May 23, 1967.
Decided June 6, 1967.

Robert L. McMillan, pro se.

Harry A. Nagle, Lewisburg, Pa., Bernard J. Brown, U.S. Atty., for appellees.

Before STALEY, Chief Judge, and KALODNER and FREEDMAN, Circuit Judges.

OPINION OF THE COURT

PER CURIAM.

This is an appeal from a denial of appellant's petition for a writ of habeas corpus. Appellant was convicted of bank robbery and sentenced for a period of fifteen years on April 24, 1953. He was released on parole on March 31, 1962. He was free on parole for more than three and one-half years before he was arrested and recommitted for a parole violation. He maintains that he may not be detained beyond the original expiration date of his sentence;1 he contends that he must be given credit for the time he was on parole.

The district court properly concluded that the parole statute, 18 U.S.C. 4205, prohibits the diminution of the time remaining to be served by the time the prisoner was on parole and that his constitutional claim was without merit.2 See Smith v. Blackwell, 367 F.2d 539 (C.A.5, 1966); Weathers v. Willingham, 356 F.2d 421 (C.A.10, 1966).

The judgment of the district court will be affirmed.

1 There would appear to be a question of prematurity involved here, but the parties have not discussed it. The simplicity of the substantive issues renders unnecessary our consideration of that problem

2 The district court's opinion has been published, 254 F.Supp. 365 (M.D.Pa., 1966)