February 14, 1957
UNITED STATES OF AMERICA, EX REL. ERSKINE GATES, PETITIONER-APPELLANT,
JOSEPH E. RAGEN, WARDEN, ETC., RESPONDENT-APPELLEE.
Before DUFFY, Chief Judge, and MAJOR and LINDLEY, Circuit Judges.
The Court has been advised by the parties that at the time the opinion of this Court was filed, January 17, 1957, petitioner had been paroled by the State of Illinois, and was at that time, and has been and still is, free of any custody or restraint other than that of a paroled prisoner. In this situation the cause has become moot. Thus, in Weber v. Squier, 315 U.S. 810, 62 S. Ct. 800, 86 L. Ed. 1209, the Supreme Court, in denying a petition for certiorari stated: "Petition for writ of certiorari * * * denied on the ground that the cause is moot, it appearing that petitioner has been released upon order of the United States Board of Parole and that he is no longer in the respondent's custody." The same result was reached in Siercovich v. McDonald, 5 Cir., 193 F.2d 118; Factor v. Fox, 6 Cir., 175 F.2d 626.
The petitioner, in resisting the entry of this order, cites Mackenzie v. Barrett, 141 F.2d 964, decided by this Court. However, the facts are not parallel.
Under the Supreme Court's decision, we vacate the opinion of this Court and the judgment entered in pursuance thereof, and direct judgment to be entered for the respondent.
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