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ROWE v. PEYTON

Nos. 11072, 11217.

383 F.2d 709 (1967)

Robert Elmer ROWE, Appellant, v. C. C. PEYTON, Superintendent of the Virginia State Penitentiary, Appellee. Clyde Mason THACKER, Appellant, v. C. C. PEYTON, Superintendent of the Virginia State Penitentiary, Appellee.

United States Court of Appeals Fourth Circuit.

Decided August 28, 1967.

Attorney(s) appearing for the Case

John J. Kirby, Jr., Charlottesville, Va. (Court-assigned counsel), for appellants.

Reno S. Harp, III, Asst. Atty. Gen. of Virginia (Robert Y. Button, Atty. Gen., of Virginia, on brief), for appellee.

Before HAYNSWORTH, Chief Judge, and SOBELOFF, BOREMAN, BRYAN, WINTER and CRAVEN, Circuit Judges, sitting en banc.

HAYNSWORTH, Chief Judge:

We are asked to decide whether or not any remedy is available to state prisoners seeking to attack, on constitutional grounds, state sentences to be served in the future which have no present effect upon consideration of the prisoners for parole. We think that the traditional writ of habeas corpus is available to serve the clearly present need of a procedural device to test the legality of these convictions under the Constitution of the United...

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