Unpublished Dispositionnotice: Seventh Circuit Rule 53(b)(2) States Unpublished Orders Shall Not Be Cited or Used As Precedent Except to Support a Claim of Res Judicata, Collateral Estoppel or Law of the Case in Any Federal Court Within the Circuit.quincy A. Tobin, Petitioner-appellant, v. E.j. Brenner, et al., Respondents-appellees, 921 F.2d 278 (7th Cir. 1990)

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US Court of Appeals for the Seventh Circuit - 921 F.2d 278 (7th Cir. 1990) Submitted Nov. 20, 1990. *Decided Dec. 20, 1990

Before RIPPLE and MANION, Circuit Judges, and ROBERT A. GRANT, Senior District Judge** .

ORDER

Plaintiff-appellant Tobin, a prisoner incarcerated in the Federal prison in Oxford, Wisconsin, appeals from the district court's order dismissing his petition for a writ of habeas corpus. In his petition for a writ pursuant to 28 U.S.C. § 2241, Tobin alleged that the time he served in state prison should be credited to the time he is required to serve in federal custody. For the reasons stated below, we vacate the district court's dismissal of Tobin's petition and remand for further proceedings in accordance with this order.

In reviewing a petition for writ of habeas corpus, the district court is authorized to deny the petition without issuing an order for the respondent to show cause why the writ should not issue if it appears from the petition itself or the petition and any exhibits attached thereto that the applicant is not entitled to relief. Davis v. Franzen, 671 F.2d 156, 157 (7th Cir. 1982). When a district court does issue an order to show cause why the writ should not issue, this order serves as notice of the action to the respondents. Del Raine v. Carlson, 826 F.2d 698, 703 (7th Cir. 1987).

In this case, the district court followed the procedures outlined in 28 U.S.C. § 2243 and denied the petition without issuing an order to show cause. In our view, such a disposition in this case was premature. On the record before us, we cannot determine with certainty whether the district court properly concluded that petitioner is not entitled to relief.

Accordingly, we vacate the order of the district court and remand the case for further proceedings consistent with this order.

IT IS SO ORDERED.

 *

The court received a Letter from the Assistant United States Attorney Christina A. Gruber which it construed as a notice of intent not to file a brief. On September 25, 1990, the court ordered the appeal submitted to the court without the filing of a brief by the appellee

FNAfter preliminary examination of the briefs, the court notified the parties that it had tentatively concluded that oral argument would not be helpful to the court in this case. The notice provided that any party might file a "Statement as to Need of Oral Argument." See Rule 34(a), Fed. R. App. P. ; Circuit Rule 34(f). No such statement having been filed, the appeal has been submitted on the brief.

 **

Honorable Robert A. Grant, Senior District Judge for the Northern District of Indiana, is sitting by designation