Anthony v. Luther , 383 F. Supp. 827 ( 1974 )

ORDER

McMILLAN, District Judge.

Charles Anthony has petitioned for habeas corpus, alleging that he has been unconstitutionally denied credit against his sentence for time spent at large after his escape from a North Carolina prison.

Anthony does not allege exhaustion of state remedies, and the petition is therefore dismissed without prejudice because of this failure.

However, if he raises the point by a properly filed petition it should be dismissed because a prisoner is not entitled to credit upon a prison sentence for time spent at liberty while on escape from prison; the memorandum decision of the Fourth Circuit Court of Appeals in Stubbs v. Turner, No. 11,425 (May 26, 1967), is not in point because the Stubbs case involved credit for time spent in jail awaiting the outcome of an appeal, which is a far cry from petitioner’s situation. Moreover, the Fourth Circuit has insistently advised district court judges that they should not cite memorandum decisions as authority. See Jones v. Superintendent, 465 F.2d 1091 (4th Cir. 1972).

It is therefore ordered:

1. That this petition be filed in for-ma pauperis.

2. That the petition be dismissed for failure to exhaust state remedies and because on its merits it obviously does not state a claim upon which habeas corpus relief can be granted.

Petitioner is advised that he may appeal in forma pauperis from this final order by forwarding a written notice of appeal to the Clerk of United States District Court, Post Office Box 1266, Charlotte, North Carolina 28201. Said written notice of appeal must be received by the Clerk within thirty days from the date of entry of this final order, and may be filed without the prepayment of costs or giving of security therefor. The court declines to issue a certificate of probable cause.