United States of America, ex rel, Valentine Broadway Bowers, Jr. Rule 81 (a) (2) which makes the Federal Rules of Civil Procedure applicable to appeals in habeas corpus proceedings, does not extend to such proceedings the provisions of Rule 73 (d) relating to supersedeas bonds. The question of custody of a prisoner pending appeal in a habeas corpus proceeding is still governed by Rule 45, paragraph 2, of the Rules of the Supreme Court. (See opinion in this case under Rule 81 (a) ) Subdivision (a) To What Proceedings Applicable Southern District of Florida Miami Division November 29, 1938 Jr. United States of America, ex rel. Valentine Broadway Bowers, Editorial Headnote Rule 81 (a) (2) which makes the Federal Rules of Civil Procedure applicable to appeals in habeas corpus proceedings, does not extend to such proceedings the provisions of Rule 73 (d) relating to supersedeas bonds. The question of custody of a prisoner pending appeal in a habeas corpus proceeding is still governed by Rule 45, paragraph 2, of the Rules of the Supreme Court. (Rule 73 (d) ) Editor's Statement of the Case The relator was This is a petition for a writ of habeas corpus. convicted of a violation of the mail fraud statute and was sentenced to two years' imprisonment in a penitentiary. After serving his sentence, less allowances for good conduct, he was granted a conditional release. Prior to the expiration of such allowances, he was arrested pursuant to a warrant charging him with a violation of the conditions of his release. The relator then filed a petition for a writ of habeas corpus, which was granted by the District Court. Subsequently the court entered an order discharging the writ. The relator appealed and applied for release on bail. The court made an order, under Rule 45, paragraph 2, of the Rules of the Supreme Court, that, pending the appeal, the relator be released on bond in the amount of $2,000; and requiring a cost bond of $250 under Rule 73 (c) of the Federal Rules of Civil Procedure. Order Granting Bail on Appeal This cause coming on to be heard upon motion of the Relator, Valentine Broadway Bowers, Jr., for an order granting bail on appeal in the above entitled cause, and the same having been argued by counsel and considered by the Court, It is the opinion of the Court that, from the time the Relator was taken into custody by the United States Marshal on November 2nd, 1938, up until such time as the Circuit Court of Appeals shall pass upon this appeal, the running of the good time period is suspended, and that, in the event the Circuit Court of Appeals affirms the decision of this Court, it is the view of this Court, in granting bail, that the running of the good time is so suspended and that action by the Parole Board after January 20th, 1939 (the expiration date of Relator's sentence) would be proper and in order; and IT IS THEREFORE ORDERED and ADJUDGED that pending the said appeal the Relator, Valentine Broadway Bowers, Jr., be released on bond in the amount of $2,000.00, said bond being condition according to law; and IT IS FURTHER ORDERED and ADJUDGED that the appeal shall act as a supersedeas upon the Relator filing the statutory cost bond in the sum of $250.00, as provided by Rule 73 of the Federal Rules of Practice. DONE AND ORDERED in open court at Miami, Florida, this 29th day of November, A.D. 1938. (S) JOHN W. HOLLAND United States District Judge. |