Unpublished Dispositionhoward Lee White, Petitioner-appellant, v. Paula Tennant; Regional Commissioner of U.S. Parolecommission, Atlanta, Georgia; Robert Grobmeyer, U.s.probation Officer, Memphis, Tennessee; and U.S. Marshal'sservice, Memphis, Tennessee, Respondents-appellees, 772 F.2d 909 (6th Cir. 1985)

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US Court of Appeals for the Sixth Circuit - 772 F.2d 909 (6th Cir. 1985) 8/16/85

W.D. Tenn.



Before: KENNEDY and KRUPANSKY, Circuit Judges; and DOWN,*  District Judge.

Petitioner appeals the order dismissing his habeas corpus petition brought under 28 U.S.C. § 2241. He has also filed a motion to prohibit his transfer under Rule 23(a) of the Federal Rules of Appellate Procedure. The case has been referred to a panel of this Court pursuant to Sixth Circuit Rule 9(a). Upon examination of the briefs and the record, the panel agrees unanimously that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure.

Petitioner, a federal prisoner, filed this habeas corpus petition challenging actions of the United States Parole Commission. The District Court dismissed the petition sua sponte on the grounds that petitioner failed to exhaust his administrative remedies prior to filing a habeas action. The District Court was correct in dismissing the action. See Little v. Hopkins, 638 F.2d 953 (6th Cir. 1981). Appellant has advised this Court that the Parole Commission, subsequent to the filing of the appeal, issued a final decision on May 24, 1985, revoking petitioner's parole. If this is the case, petitioner may file a new action. It is not grounds to reverse the judgment of the District Court.

Petitioner has filed a motion for this Court to issue an 'emergency' order prohibiting his transfer in violation of procedures set forth in Rule 23(a), Federal Rules of Appellate Procedure. Petitioner has failed to show that a transfer is imminent at this time or that any special circumstances warrant such extraordinary action by this Court. However, we note that the Rule 23(a) procedures should be followed if the Warden contemplates a transfer of petitioner.

Accordingly, it is ORDERED that the motion to prohibit transfer is denied. The District Court's judgment is affirmed.


The Honorable David D. Dowd, Jr., United States District Judge for the Northern District of Ohio, sitting by designation