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cited 8× by 8 distinct cases, last quoted 2007 · 6 courts↓ Fading ·
…fundamental principles of liberty and justice
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discussed
Cited as authority (rule)
United States v. Valdez
(2×)
also: Cited "see"
Piper v. Estelle, 485 F.2d 245, 246 (5th Cir. 1973).
cited
Cited as authority (rule)
Wilson v. US District Court Northern District of Texas
“It is not sufficient to prove official conduct that merely evidences a lack of eager pursuit or even arguable lack of interest.” Piper v. Estelle, 485 F.2d 245, 246 (5th Cir. 1973).
discussed
Cited as authority (rule)
Hurd v. District of Columbia
Freeman; 195 F.3d 732 , 737 (4th Cir.1999) (twenty months); Hughes v. Oliver, 596 Fed.Appx. 597, 598 (10th Cir.2014) (one year); Piper v. Estelle, 485 F.2d 245, 246 (5th Cir.1973) (twenty-two months); Sterling v. Maggio, 505 F.Supp. 1111, 1113 (M.D.La.1981) (less than eighteen months); Campbell v. Williamson, 783 F.Supp. 1161, 1162 (C.D.Ill.1992) (nineteen months); Graham v. DeBoo, 2009 WL 224491 , at *4 (ND.W.Va.
discussed
Cited as authority (rule)
Hughes v. Oliver
He cites cases evaluating whether there was government “action ‘so affirmatively wrong or [] inaction so grossly negligent that it would be unequivocally inconsistent with fundamental principles of liberty and justice to require a legal sentence to be served in the aftermath of such action or inaction.’ ” Johnson v. Williford, 682 F.2d 868, 873 (9th Cir.1982) (quoting Piper v. Estelle, 485 F.2d 245, 246 (5th Cir.1973) (per curiam)).
cited
Cited as authority (rule)
Johnson v. Patton
Mr. Johnson’s case is not factually similar to Shields , which the Fifth Circuit limited in Piper v. Estelle, 485 F.2d 245, 246 (5th Cir.1973) (per curiam).
discussed
Cited as authority (rule)
State v. Calabaza
See, e.g., United States v. Barfield, 396 F.3d 1144, 1148 (11th Cir.2005) (recognizing that “a delay in the execution of a sentence can, under certain circumstances, amount to a due process violation under the waiver of jurisdiction theory”); Piper v. Estelle, 485 F.2d 245, 246 (5th Cir. 1973) (per curiam) (holding that for a waiver of jurisdiction, the state’s action “must be so affirmatively wrong or its inaction so grossly negligent that it would be unequivocally inconsistent with fundamental principles of liberty and justice to require a legal sentence to be served in the aftermath…
cited
Cited as authority (rule)
Vega v. United States
Piper v. Estelle, 485 F.2d 245, 246 (5th Cir. 1973); accord Shelton v. Ciccone, 578 F.2d 1241, 1244 (8th Cir. 1978).
cited
Cited as authority (rule)
Vega v. United States
Piper v. Estelle, 485 F.2d 245, 246 (5th Cir. 1973); accord Shelton v. Ciccone, 578 F.2d 1241, 1244 (8th Cir.1978).
examined
Cited as authority (rule)
Board of Pardons and Paroles v. Williams
(4×)
also: Cited "see"
Emphasizing that `lack of eager pursuit' or `lack of interest' is not enough, Piper held that `the . . . action must be so affirmatively wrong or [the] inaction so grossly negligent that it would be unequivocally inconsistent with fundamental principles of liberty and justice to require [that the "time owed"] be served. . . .' Id. at 246 (quotation omitted).
discussed
Cited as authority (rule)
Linda Bonebrake v. Larry Norris, (Originally Sued McPherson Unit, Newport, Arkansas)
(2×)
We emphasized that a habeas petitioner invoking the waiver theory bears a heavy burden to show that the "`state's action [was] so affirmatively wrong or its inaction so grossly negligent that it would be inconsistent with "fundamental principles of liberty and justice" to require a legal sentence to be served in the aftermath of such action or in action.'" Shelton, 578 F.2d at 1244 (quoting Piper v. Estelle, 485 F.2d 245, 246 (5th Cir.1973)).
discussed
Cited as authority (rule)
Linda Bonebrake v. Larry Norris
We emphasized that a habeas petitioner invoking the waiver theory bears a heavy burden to show that the “‘state’s action [was] so affirmatively wrong or its inaction so grossly negligent that it would be inconsistent with “fundamental principles of liberty and justice” to require a legal sentence to be served in the aftermath of such action or inaction.’” Shelton, 578 F.2d at 1244 (quoting Piper v. Estelle, 485 F.2d 245, 246 (5th Cir. 1973)).
examined
Cited as authority (rule)
United States v. Pamela Barfield
(3×)
also: Cited "see"
See, e.g., Hawkins v. Freeman, 195 F.3d 732 , 744 & n. 7 (4th Cir.1999) (listing several cases where the standard was not met); Camper, 36 F.3d at 784-85 (no due process violation where execution of sentence was delayed for four years); Martinez, 837 F.2d at 864-65 (finding no due process violation when execution of prisoner’s sentence was delayed for seven and one-half years); Mobley, 823 F.2d at 1496-97 (seven-year delay did not constitute due process Violation); Piper, 485 F.2d at 246 (no due process violation). 8 .
discussed
Cited as authority (rule)
Bonebrake v. Norris
In order to establish waiver, “it is not sufficient to prove official conduct that merely evidences a lack of eager pursuit or even arguable lack of interest.” Shelton v. Ciccone, 578 F.2d at 1244 (quoting Piper v. Estelle, 485 F.2d 245, 246 (5th Cir.1973)).
discussed
Cited as authority (rule)
In Re Roach
E.g., Johnson, 682 F.2d at 873 ; United States v. Merritt, 478 F.Supp. 804, 807-08 (D.D.C.1979); Piper v. Estelle, 485 F.2d 245, 246-47 (5th Cir.1973); Shields v. Beto, 370 F.2d 1003, 1005 (5th Cir.1967); Derrer v. Anthony, 265 Ga. 892 , 463 S.E.2d 690, 693-94 (1995); Brown v. Brittain, 773 P.2d 570, 575 (Colo.1989); In re Messerschmidt, 104 Cal.App.3d 514 , 163 Cal.Rptr. 580, 581 (1980).
discussed
Cited as authority (rule)
In re the Personal Restraint of Roach
E.g., Johnson, 682 F.2d at 873 ; United States v. Merritt, 478 F. Supp. 804, 807-08 (D.D.C. 1979); Piper v. Estelle, 485 F.2d 245, 246-47 (5th Cir. 1973); Shields v. Beto, 370 F.2d 1003, 1005 (5th Cir. 1967); Derrer v. Anthony, 265 Ga. 892 , 463 S.E.2d 690, 693-94 (1995); Brown v. Brittain, 773 P.2d 570, 575 (Colo. 1989); In re Messerschmidt, 104 Cal. App. 3d 514 , 163 Cal. Rptr. 580, 581 (1980).
discussed
Cited as authority (rule)
Koss v. Holm
Thus, in Piper v. Estelle, 485 F.2d 245, 246 (5th Cir.1973), the Court stated that In cases based upon the principles of Shields it is not sufficient to prove official conduct that merely evidences a lack of eager pursuit or even arguable lack of interest.
cited
Cited as authority (rule)
Hertz v. State
Piper v. Estelle, 485 F.2d 245, 246 (5th Cir.1973). 28 .
discussed
Cited as authority (rule)
Jackson v. Stalder
In Piper v. Estelle, 485 F.2d 245, 246 (5th Cir. 1973), the court explained the circumstances upon which a court may make a finding that waiver of jurisdiction has occurred: [I]t is not sufficient to prove official conduct that merely evidences a lack of eager pursuit or even arguable lack of interest.
discussed
Cited as authority (rule)
Evans v. Holm
Thus, in Piper v. Estelle, 485 F.2d 245, 246 (5th Cir.1973), the Court stated that In cases based upon the principles of Shields it is not sufficient to prove official conduct that merely evidences a lack of eager pursuit or even arguable lack of interest.
discussed
Cited as authority (rule)
Hawkins v. Freeman
Emphasizing that “lack of eager pursuit” or “lack of interest” is not enough, Piper held that “the ... action must be so affirmatively wrong or [the] inaction so grossly negligent that it would be unequivocally inconsistent with fundamental principles of liberty and justice to require [that the ‘time owed’] be served.... ” Id. at 246 (quotation omitted).
discussed
Cited as authority (rule)
Irving Houston Hawkins v. Franklin Freeman
Emphasizing that"lack of eager pursuit" or "lack of interest" is not enough, Piper held that "the . . . action must be so affirmatively wrong or [the] inaction so grossly negligent that it would be unequivocally inconsistent with fundamental principles of liberty and justice to require [that the"time owed"] be served . . . ." Id. at 246 (quotation omitted).
discussed
Cited as authority (rule)
Hawkins v. Freeman
Six years later, the Fifth Circuit took the occasion in Piper v. Estelle, 485 F.2d 245 (5th Cir.1973), to cabin in Shields facially broad rule that had seemed to rest principally on the prolonged period of government inaction, emphasizing that "lack of eager pursuit" or "lack of interest" is not enough, "[r]ather," Piper held, "the ... action must be so affirmatively wrong or [the] inaction so grossly negligent that it would be unequivocally inconsistent with fundamental principles of liberty and justice to require [that the sentence] be served...." Id. at 246 (quotation omitted).
discussed
Cited as authority (rule)
Hawkins v. Freeman
(2×)
Six years later, the Fifth Circuit took the occasion in Piper v. Estelle, 485 F.2d 245 (5th Cir. 1973), to cabin in Shields facially broad rule that had seemed to rest principally on the prolonged period of government inaction, emphasizing that "lack of eager pursuit" or "lack of interest" is not enough, "[r]ather," Piper held, "the . . . action must be so affirmatively wrong or [the] inaction so grossly negligent that it would be unequivocally inconsistent with fundamental principles of liberty and justice to require [that the sentence] be served . . . ." Id. at 246 (quotation omitted).
cited
Cited as authority (rule)
Robert David Knapp v. Randy Henderson Attorney General of the State of Colorado Colorado State Parole Board
Cf. Piper v. Estelle, 485 F.2d 245, 246 (5th Cir.1973) (per curiam) (discussing standard for due process claim based on waiver of jurisdiction).
discussed
Cited as authority (rule)
Knapp v. Henderson
(2×)
Cf. Piper v. Estelle, 485 F.2d 245, 246 (5th Cir. 1973) (per curiam) (discussing standard for due process claim based on waiver of jurisdiction).
discussed
Cited as authority (rule)
Tommy Camper v. Larry Norris, Director, Arkansas Department of Corrections Winston Bryant, Attorney General for the State of Arkansas
Under this theory, “it is not sufficient to prove official conduct that merely evidences a lack of eager pursuit or even arguable lack of interest.” Shelton v. Ciccone, 578 F.2d 1241, 1244 (8th Cir.1978) (quoting Piper v. Estelle, 485 F.2d 245, 246 (5th Cir.1973)).
discussed
Cited as authority (rule)
Zullo
(2×)
also: Cited "see, e.g."
The “due process clause of the Fourteenth Amendment . . . requires that ‘action by a state through any of its agencies must be consistent with the fundamental principles of liberty and justice.’ ” Piper v. Estelle, 485 F.2d 245, 246 (5th Cir. 1973), quoting from Shields v. Beto, 370 F.2d 1003, 1004 (5th Cir. 1967). “[T]he issuance of a violator warrant triggers a process which, as a matter of fundamental fairness must be pursued with reasonable diligence and with reasonable dispatch.” Shelton v. United States Bd. of Parole, 388 F.2d 567 , 574 (D.C.
discussed
Cited as authority (rule)
State v. Parker
See Milstead v. Rison, 702 F.2d 216, 218 (11th Cir.1983) (Texas did not lose jurisdiction over prisoner by surrendering him to federal authorities for service of concurrent federal sentence); Piper v. Estelle, 485 F.2d 245, 246 (5th Cir.1973) (state waives jurisdiction over prisoner by surrendering him to another sovereign only if state’s action is “so affirmatively wrong or its inaction so grossly negligent that it would be unequivocally inconsistent with fundamental principles of liberty and justice to require a legal sentence to be served in the aftermath of such action or inaction”);…
discussed
Cited as authority (rule)
Millard v. Roach
Several additional factors must be present before relief will be granted — the result must not be attributable to the defendant himself; the action of the authorities must amount to more than simple neglect; and the situation brought about by defendant's release and his reincar-ceration must be “unequivocally inconsistent with ‘fundamental principles of liberty and justice.’" Id. (quoting Piper v. Estelle, 485 F.2d 245, 246 (5th Cir.1973)).
cited
Cited as authority (rule)
Robert D. Mistretta v. Patrick Whalen
Shields, however, was an extreme case (see Piper v. Estelle, 485 F.2d 245, 246 (5th Cir.1973)), one which does not even come close to controlling this case.
cited
Cited as authority (rule)
Elbert Blango v. Richard R. Thornburgh J. Michael Quinlan Gary L. Henman Mayor, Washington, D.C.
Id. at 246 (citation omitted).
discussed
Cited as authority (rule)
State v. Speith
Rather the waiving state’s action must be so affirmatively wrong or its inaction so grossly negligent that it would be unequivocally inconsistent with ‘fundamental principles of liberty and justice’ to require a legal sentence to be served in the aftermath of such action or inaction.” “Piper v. Estelle, 485 F.2d 245, 246 (5th Cir. 1973) (Citation omitted.) Obviously, the state does not deny a prisoner due process when the prisoner himself is responsible for the delay.
cited
Cited as authority (rule)
State v. Spieth
Piper v. Estelle, 485 F.2d 245, 246 (5th Cir.1973) (Citation omitted.) Obviously, the state does not deny a prisoner due process when the prisoner himself is responsible for the delay.
discussed
Cited as authority (rule)
Brown v. Brittain
(2×)
The court also found that the paroled prisoner’s subsequent conduct in returning to society was so exemplary that reincarceration would be “inconsistent with fundamental principles of liberty and justice.” Id. at 808 (citing Piper v. Estelle, 485 F.2d 245, 246 (5th Cir.1973)).
discussed
Cited as authority (rule)
Atuatasi v. Tu'ufuli
Rather, there must be " 'action so affirmatively wrong or inaction so grossly negligent that it would be unequivocally inconsistent with "fundamental principles of liberty and justice" to require a legal sentence to be served in the aftermath of such action or inaction.’" Johnson v. Williford, 682 F.2d 868, 873 (9th Cir. 1982) (citing Piper v. Estelle, 485 F.2d 245, 246 (5th Cir. 1973)).
discussed
Cited as authority (rule)
Jefferson v. Morris
Several additional factors must be present before relief will be granted — the result must not be attributable to the defendant himself; the action of the authorities must amount to more than simple neglect; and the- situation brought about by defendant’s release and his reincarceration must be ‘unequivocally inconsistent with “fundamental principles of liberty and justice.” ’ See Piper v. Estelle, 485 F. 2d 245, 246 (5th Cir. 1973).” The general rule, however, is stated as follows: “A void parole has no effect on the original judgment; and, where the sentence is lawful, a pris…
discussed
Cited as authority (rule)
Robert Lee Mobley v. Richard L. Dugger, Jim Smith, Etc.
Piper v. Estelle, 485 F.2d 245, 246 (5th Cir.1973); accord, Shelton v. Ciccone, 578 F.2d at 1244 ; see, e.g., Shields v. Beto, 370 F.2d 1003 (5th Cir.1967) (twenty-eight year delay in a prisoner’s incarceration denies due process).
discussed
Cited as authority (rule)
Daniel Curry Crowley, Larry Noel Sherman, David Steeves Taylor v. Robert M. Landon, Director Gerald M. Baliles, Attorney General
The erroneous release must not have been attributable to the petitioner, the action of the authorities must have amounted to more than simple neglect, and reincarceration must be unequivocally inconsistent with fundamental principles of liberty and justice. 478 F.Supp. at 807 (citing Piper v. Estelle, 485 F.2d 245, 246 (5th Cir.1973)).
discussed
Cited as authority (rule)
Thomas S. Mathes, Jr. v. John T. Pierpont
(2×)
This court articulated the waiver theory in Shelton v. Ciccone, 578 F.2d 1241 (8th Cir.1978): The waiver theory was developed by the Court of Appeals for the Fifth Circuit in Shields v. Beto, 370 F.2d 1003, 1005 (1967), and thereafter refined in Piper v. Estelle, 485 F.2d 245, 246 (5th Cir.1973).
discussed
Cited as authority (rule)
Bobby Joe Fabian v. Jack Reed, Superintendent of Mississippi State Penitentiary
(2×)
also: Cited "see"
Id. at 247.
cited
Cited as authority (rule)
Thompson v. Brooks
Piper v. Estelle, 485 F.2d 245, 246 (5th Cir. 1973); see Williams v. Department of Corrections, 438 F.2d 78 (9th Cir. 1971); United States v. Vann, 207 F.Supp. 108 (E.D.N.Y. 1962).
discussed
Cited as authority (rule)
United States v. Merritt
Several additional factors must be present before relief will be granted — the result must not be attributable to the defendant himself; the action of the authorities must amount to more than simple neglect; and the situation brought about by defendant’s release and his reincarceration must be “unequivocally inconsistent with ‘fundamental principles of liberty and justice.’ ” See Piper v. Estelle, 485 F.2d 245, 246 (5th Cir. 1973).
discussed
Cited as authority (rule)
James Michael Shelton v. Dr. P. J. Ciccone, Director, United States Medical Center for Federal Prisoners, Springfield, Missouri
(2×)
The waiver theory was developed by the Court of Appeals for the Fifth Circuit in Shields v. Beto, 370 F.2d 1003, 1005 (1967), and thereafter refined in Piper v. Estelle, 485 F.2d 245, 246 (5th Cir. 1973).
discussed
Cited as authority (rule)
Esquivel v. Estelle
Rather the waiving State’s action must be so affirmatively wrong or its inaction so grossly negligent that it would be unequivocably inconsistent with ‘fundamental principles of liberty and justice’ to require a legal sentence to be served in the aftermath of such action or inaction.” Piper v. Estelle, supra, at 246.
discussed
Cited as authority (rule)
Gaches v. THIRD JUDICIAL DIST., ETC., STATE OF UTAH
(2×)
also: Cited "see"
Rather the waiving state’s inaction must be so affirmatively wrong or its inaction so grossly negligent that it would be unequivocally inconsistent with ‘fundamental principles of liberty and justice’ to require a legal sentence to be served in the aftermath of such action or inaction.” Piper v. Estelle, 485 F.2d 245, 246 (CA5 1973).
discussed
Cited as authority (rule)
State v. Sheehy
(2×)
Piper v. Estelle, 485 F.2d 245, 246 (5th Cir. 1973); Shields v. Beto, 370 F.2d 1003, 1004 (5th Cir. 1967); see Buchalter v. New York, 319 U.S. 427, 429 (1943).
discussed
Cited as authority (rule)
JOHN P. BEARD v. GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION
This court has said that a state’s inaction must be “so grossly negligent that it would be unequivocally inconsistent with ‘fundamental principles of liberty and justice’ to require a legal sentence to be served in the aftermath of such .... inaction.” Piper v. Estelle, 485 F.2d 245, 246 (5th Cir. 1973).
discussed
Cited as authority (rule)
UNITED STATES OF AMERICA v. MARIO HERNANDEZ
Not only did it not make that argument in the district court, the government ignored the magistrate judge’s statement in her report filed May 27, 1997, that the delay-in-surrendering-for-sentence issue “mandates a response from the government.” On the merits, Hernandez has failed to show that the government’s delay was “so affirmatively wrong or its inaction so grossly negligent that it would be unequivocally inconsistent with ‘fundamental principles of liberty and justice’ to require a legal sentence to be served in the aftermath of such action or inaction.” Piper v. Estelle, …
discussed
Cited "see"
Pete Villegas v. Rick Thaler, Director
See Piper v. Estelle, 485 F.2d 245, 246 (5th Cir. 1973) 3 No. 08-20822 Cons. w/ 09-20822 (holding that State was permitted to file parole revocation detainer against inmate while inmate was serving a federal sentence for conviction obtained after the state parole); cf. United States v. Skinner, 14 F.3d 52 , 1993 WL 560262, at * 2 (5th Cir. 1993) (“The [federal] Parole Board may, as it did in this case, place a parole violator warrant on a [state] prisoner as a detainer then wait to execute the warrant until the prisoner has completed his sentence for any crimes he committed while on parole.�…
Retrieving the full opinion text from the archive…
Thomas J. PIPER, Jr., Petitioner-Appellant,
v.
W. J. ESTELLE, Director, Texas Department of Corrections, Respondent-Appellee
v.
W. J. ESTELLE, Director, Texas Department of Corrections, Respondent-Appellee
73-2320.
Court of Appeals for the Fifth Circuit.
Sep 27, 1973.
Thomas J. Piper, Jr., pro se., Dunklin Sullivan, Asst. Atty. Gen., Austin, for respondent-appellee.
Wisdom, Ainsworth, Clark.
Cited by 75 opinions | Published
[*246] PER CURIAM:
The instant appeal arises from the denial of a writ of habeas corpus. While on parole from a 1961 Texas conviction, Thomas J. Piper was charged by the State of Texas with robbery by assault. A separate federal prosecution for violations of the firearms registration laws grew out of the same activity. Piper was convicted and sentenced on both the state and federal charges. Texas, which had revoked Piper’s parole immediately after his arrest on the robbery charge, released him to federal custody to permit him to begin serving the firearms sentence. Thereafter, a detainer was filed with federal authorities to require his ultimate return to Texas to complete the service of the remainder of the 1961 sentence from which he had been paroled and to serve the new sentence for robbery by assault. Piper claims here that so much of the detainer as relates to the completion of service of his 1961 sentence is void. He argues that both by their action and inaction Texas officials have waived jurisdiction over him as to his former conviction within our holding in Shields v. Beto, 370 F.2d 1003 (5th Cir. 1963). We affirm the order of the district court holding that this case is not within Shields.
Shields v. Beto was not intended to constitute a trap for unwary state officials. It is founded upon the due process clause of the Fourteenth Amendment and requires that “action by a state through any of its agencies must be consistent with the fundamental principles of liberty and justice” Shields at 1004. The facts in Shields are not at all analogous to those in the case at bar. Before expiration of the Texas sentence he was then serving, Shields had been extradited to Louisiana to complete a jail term. Texas filed no detainer, and Shields was ultimately released on parole in Louisiana. Eighteen years after his release and 28 years after his extradition to Louisiana, Texas sought to compel Shields to serve the remainder of his Texas sentence. We held that under these circumstances Texas had demonstrated such a lack of interest in Shields as to waive jurisdiction over him.
In cases based upon the principles of Shields it is not sufficient to prove official conduct that merely evidences a lack of eager pursuit or even arguable lack of interest. Rather the waiving state’s action must be so affirmatively wrong or its inaction so grossly negligent that it would be unequivocally inconsistent with “fundamental principles of liberty and justice” to require a legal sentence to be served in the aftermath of such action or inaction.
Piper alleges that there are three manifestations of lack of interest in him by Texas: (1) refusal to return him to the Department of Corrections to complete his 1961 sentence immediately after the revocation of his parole; (2) failure to file a detainer against him until 22 months after his parole revocation; and (3) a statement by a Texas official to a United States Attorney that Piper’s parole had not been revoked when it in fact had been. Reliance on (2) and (3) is misplaced. There was no reason to file a detainer until Piper’s release from federal custody was imminent, and the statement urged upon us proves little more than an administrative mistake by some Texas official. Thus, we are left with (1). Even assuming that Piper is correct in concluding that Texas law [1] requires the immediate return of a prisoner to the Department of Corrections upon revocation of his parole, the failure to follow that procedure here presents no federal constitutional basis for voiding his prior sentence. Any claim that such conduct constituted a lack of interest of the dimensions present in Shields is ridiculous. See Mills v. Beto, 477 F.2d 124 [5th Cir. 1973]; Dorrough v. Texas, 440 F.2d 1063 (5th Cir. 1971); and Bilton v. Beto, 403 F.2d 664 (5th Cir. 1968).
[*247] Piper also argues that Shields is applicable any time one sovereign surrenders a prisoner to another sovereign while the prisoner is serving a sentence of the surrenderer. Even assuming such a holding would somehow raise issues of constitutional dimensions, [2] Shields establishes no per se rule which substitutes for analysis of the facts of each case in light of the requirements of due process.
Affirmed.
1
. Vernon’s Ann.Tex.Code Crim.Pro. art. 42.01 et seq. (1966).
2
. It is an established rule that a prisoner has no standing to attack agreements between sovereigns as to the order in which sentences are to be served. DeLong v. United States, 474 F.2d 719 (5th Cir. 1973) ; Chunn v. Clark, 451 F.2d 1005 (5th Cir. 1971).