Gilbert F. Postelwait, Appellant, v. J. T. Willingham, Warden, United States Penitentiary, Leavenworth, Kansas, Appellee, 365 F.2d 759 (10th Cir. 1966)

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US Court of Appeals for the Tenth Circuit - 365 F.2d 759 (10th Cir. 1966) September 12, 1966

Richmond M. Enochs, Overland Park, Kan., for appellant.

Benjamin E. Franklin, Asst. U. S. Atty., Topeka, Kan. (Newell A. George, U. S. Atty., and James R. Ward, Asst. U. S. Atty., on the brief), for appellee.

Before PICKETT and HILL, Circuit Judges, and PAYNE, District Judge.


Appellant, a prisoner in the United States Penitentiary at Leavenworth, Kansas, appeals from an order dismissing his habeas corpus petition without a hearing. The essence of his contention is that after revocation of his parole and return to prison, he was entitled to have credited against his sentence the time during which he was on parole, because he was in constructive custody of the Attorney General of the United States. This same argument was rejected by this court in Weathers v. Willingham, 356 F.2d 421. Sentence can be served only by imprisonment or by unrevoked parole.