Richard James Ellefson v. Herman Solem, Warden, South Dakota State Penitentiary, and Mark Meierhenry, Attorney General, State of South Dakota , 748 F.2d 443 ( 1984 )

748 F.2d 443

Richard James ELLEFSON, Appellant,
v.
Herman SOLEM, Warden, South Dakota State Penitentiary, and
Mark Meierhenry, Attorney General, State of South
Dakota, Appellees.

No. 84-1748.

United States Court of Appeals,
Eighth Circuit.

Submitted Oct. 26, 1984.
Decided Nov. 9, 1984.

Thomas Frankman, Sioux Falls, for appellant.

Mark V. Meierhenry, Atty. Gen. and Douglas E. Kludt, Asst. Atty. Gen., Pierre, S.D., for appellees.

Before HEANEY, BRIGHT and ROSS, Circuit Judges.

PER CURIAM.

1

Richard James Ellefson appeals from an order of the district court1 dismissing his habeas corpus petition filed pursuant to 28 U.S.C. Sec. 2254. We affirm.

2

Appellant contends that he was denied due process when a South Dakota state court refused to provide him a preliminary probation revocation hearing. We disagree. Appellant did not have a protectable liberty interest. At the time of the revocation hearing, he was incarcerated in Nebraska. Because "appellant was already confined ... [and] had been legally deprived of his liberty ... [,] no interruption of his 'liberty' occurred." United States v. Sutton, 607 F.2d 220, 222 (8th Cir.1979). Furthermore, even assuming error, the error was harmless. Appellant has not alleged that he was prejudiced by the court's failure to conduct a preliminary hearing. Id.

3

Appellant also contends that he was denied due process when the court refused to continue the revocation hearing pending appeal of his Nebraska conviction. This claim has no merit. "Federal courts have consistently ruled that a criminal conviction provides sufficient grounds for revocation of probation even though an appeal from the conviction is still pending." United States v. Gentile, 610 F.2d 541, 542 (8th Cir.1979) (order).

4

Accordingly, the judgment of the district court is affirmed.

1

The Honorable John B. Jones, United States District Judge for the District of South Dakota