Virgil Melton, Appellant, v. J. C. Taylor, Warden, United States Penitentiary, Leavenworth, Kansas, Appellee, 276 F.2d 913 (10th Cir. 1960)

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U.S. Court of Appeals for the Tenth Circuit - 276 F.2d 913 (10th Cir. 1960) March 30, 1960

E. M. Heppenstall, Denver, Colo. (Samuel C. Jackson, Topeka, Kan., on brief), for appellant.

Wilbur G. Leonard, U. S. Atty., Council Grove, Kan., on brief for appellee.

Before PICKETT and BREITENSTEIN, Circuit Judges, and SAVAGE, District Judge.

PER CURIAM.


In this habeas corpus proceeding the claim is that appellant Melton had completed his federal sentence on April 26, 1956, and cannot be held under a parole violator's warrant which was issued in January, 1951, but not served upon appellant until his discharge from the Missouri State Penitentiary on March 28, 1959. The record discloses that after his release on parole Melton violated that parole and committed state offenses for which he was sentenced to the Missouri State Penitentiary. The trial court held that there was no unreasonable delay in the execution of the warrant, that it was lawfully served, and that the writ should be discharged. As service of the original sentence was interrupted by parole violation and incarceration in a state penal institution the full term of that sentence has not been completed and Melton is properly in custody. See Zerbst v. Kidwell, 304 U.S. 359, 58 S. Ct. 872, 82 L. Ed. 1399; Groce v. Hudspeth, 10 Cir., 121 F.2d 800; Teague v. Looney, 10 Cir., 268 F.2d 506.

Affirmed.