Appellant Earl Van Blaricom filed for habeas corpus relief in United States District Court on November 9, 1971 contesting the validity of the revocation of
Appellant was released on bond pending appeal pursuant to an order of this court dated July 13, 1972. It has now been made to appear that prior to our February 21 panel decision, an order was entered by the United States district court revoking appellant's bond for cause. (The district court order was dated January 10, 1973). An evidentiary hearing was held by the district court prior to entering the order revoking bond.
It is within the discretion of this Court not to reach the merits of an appeal where the petitioner is not available and subject to any judgment which might be entered in the case. United States ex rel. Bottoms v. Eberhardt, 5 Cir., 1972, 467 F.2d 578; United States v. Shelton, 5 Cir., 1973, 482 F.2d 848; Brinlee v. United States, 8 Cir., 1973, 483 F.2d 925; United States v. O'Neal, 10 Cir., 1972, 453 F.2d 344; Johnson v. Laird, 9 Cir., 1970, 432 F.2d 77.
Panel opinion vacated; appeal removed from docket on condition.
RIVES, Senior Circuit Judge, with whom WISDOM, Circuit Judge, joins, dissenting:
I respectfully dissent because I think that the only just determination of this appeal is by a decision on the merits. Otherwise stated, the en banc court should answer the question: Could two members of the eight member Board of Parole validly revoke Van Blaricom's parole and require him to serve his full
The original panel (Rives, Wisdom and Roney) answered that question forthrightly. In deference to the holding of the Tenth Circuit in Earnest v. Moseley, 1970, 426 F.2d 466, 469, the panel limited its holding to the narrow ground that, "As best we can determine, the procedure employed in revoking Blaricom's parole did not conform with the then applicable administrative procedure of the Board itself." 473 F.2d 1328. The panel did express its difficulty in squaring the holding of the Tenth Circuit with the more doctrinaire logic of Cudahy Packing Company v. Holland, 1942, 315 U.S. 357, 363, 364, 62 S.Ct. 651, 86 L.Ed. 895, and its progeny (473 F.2d at 1328, first column). In denying the Board's petition for rehearing on December 14, 1973, the panel adhered to the narrow ground of its original holding but in a footnote added on January 15, 1974, the panel called attention to Federal Trade Commission v. Flotill Products, 1967, 389 U.S. 179, 183, 184, 88 S.Ct. 401, 19 L.Ed.2d 398 and concluded that, "Under that decision, it would seem that five members would constitute a quorum of the eight member Board and that the discretion vested in the Board could, in no event, be exercised by less than three members constituting a majority of that quorum."
Now the en banc court avoids any discussion of the merits by holding that Van Blaricom was a fugitive prior to the panel's decision and opinion of February 21, 1973, vacating that opinion as modified, and removing the case from the docket without prejudice to its reinstatement, if Van Blaricom returns and so moves within thirty (30) days, and with the final provision that "If thirty (30) days elapses without such a representation his appeal is ordered dismissed."
That order is entered by the en banc court sua sponte, without suggestion by either party. Both parties have consistently pressed for an en banc decision on the merits. Such a decision is obviously important to the Board, to courts, parolees and others for jurisprudential reasons. As to Van Blaricom, the failure to render a decision on the merits may well result in a future unjust and unlawful deprivation of his liberty.
With deference, I submit that the en banc court's conclusion that Van Blaricom was a fugitive prior to the panel's decision and opinion of February 21, 1973, is not justified. The basis of that conclusion is the fact now known to this Court that the district court revoked Van Blaricom's bail bond by order dated January 10, 1973. The first notice to the Court of Appeals of that order was a comment in footnote 1 at page 2 of appellee's brief filed March 27, 1973, more than a month after the panel's decision and opinion of February 21, 1973. Apparently neither of the parties considered the district court's order of January 10, 1973, to be relevant to this Court's disposition of Van Blaricom's appeal.
The "3rd Supplemental Record on Appeal" filed January 25, 1974, contains the proceedings in the district court hearing of January 10, 1973, at the conclusion of which the district court revoked Van Blaricom's bail bond and ordered his arrest. A few quotations from those proceedings show that counsel on both sides and the district judge himself were all under the erroneous impression that Van Blaricom had only a few more days to serve before completing his sentence. First, on page 2 of the brief proceedings, Mrs. Carol Anderson, Assistant United States Attorney, states: "That case was appealed to the Fifth Circuit and the Fifth Circuit ordered that the Petitioner be released on bond pending appeal because he only
Next, on pages 5 and 6, appears a colloquy between the Court and Mr. Sakowitz, the public defender, appearing for Van Blaricom:
Lastly, on page 7, appears the following remark of the district judge:
Actually, under the order of revocation, Van Blaricom has a much longer time remaining to serve on his sentence.
It may well be that Van Blaricom was no better informed than were the counsel on both sides and the judge. Van Blaricom may well be not a "fugitive" at all, but, instead, blissfully unaware that he has not completed service of his sentence, and hence is under a continuing duty to report. When his appeal is dismissed and he is ultimately arrested and imprisoned, there will indeed be a rude awakening, and, in my opinion, an unjust deprivation of his liberty.
With deference, I submit that the disposition of this appeal by the en banc court does not meet the first test of our Federal Rules of Criminal Procedure for "the just determination of every criminal proceeding." (Rule 2.) See also 28 U.S.C. § 2106. I therefore respectfully dissent.