Elmer Eugene Higgerson, Appellant, v. United States Attorney General, Appellee, 369 F.2d 398 (8th Cir. 1966)

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U.S. Court of Appeals for the Eighth Circuit - 369 F.2d 398 (8th Cir. 1966) December 2, 1966

Elmer Eugene Higgerson, Springfield, Mo., filed brief pro se.

F. Russell Millin, U. S. Atty., and William A. Kitchen, Asst. U. S. Atty., Kansas City, Mo., filed brief for appellee.

Before MATTHES, MEHAFFY and LAY, Circuit Judges.


Elmer Eugene Higgerson, a prisoner confined as a medical patient at the Medical Center for Federal Prisoners in Springfield, Missouri, brought habeas proceedings in the United States District Court for the Western District of Missouri, Western Division, seeking his release. This appeal is from Chief Judge Becker's order dismissing the petition.

On April 17, 1951 appellant entered pleas of nolo contendere in three cases, each containing multiple counts, and was sentenced to a total term of fifteen years' imprisonment. He was released from prison on October 21, 1960 but retaken into custody as a mandatory release violator on September 24, 1964.

The sole issue here is whether under the Constitution and statutes of the United States, appellant is entitled to have the time of his mandatory or conditional release treated as time served on his sentence. Appellant states the issue as: "Does time spent on parole or mandatory release count on a prisoner's sentence?"

The answer to appellant's question is no. It is settled law in this circuit that a violator of a conditional release or parole has no such entitlement. Howard v. United States, 274 F.2d 100 (8th Cir. 1960); Hedrick v. Steele, 187 F.2d 261 (8th Cir. 1951). These two cases discuss the applicable constitutional provisions and statutes and resolve the issue squarely contrary to appellant's contentions here.

The District Court's order overruling the petition for habeas corpus is affirmed.