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No. 96-1591 ___________

Vern C. Top Bear, * * Appellant, * Appeal from the United States * District Court for the v. * District of South Dakota. * United States of America, * [UNPUBLISHED] * Appellee. *

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Submitted: October 7, 1996

Filed: October 16, 1996 ___________

Before BEAM, HANSEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.ENDFIELD ___________

PER CURIAM.

Vern C. Top Bear appeals from the district court's1 denial of his 28 U.S.C. § 2255 motion, on the ground that Top Bear was not "in custody." After careful review of the record and the parties' briefs, we conclude that denial of relief was proper. See 8th Cir. R. 47B.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

1 The Honorable Richard H. Battey, Chief Judge, United States District Court for the District of South Dakota.