OPINION OF THE COURT
ROSENN, Circuit Judge.
The major question raised by this appeal is whether a prisoner, ineligible for parole at the time he was sentenced under the provisions of the penal statute for which he was convicted, became eligible for parole when the penal statute was subsequently repealed' by the. Comprehensive Drug Abuse Prevention and Control Act of 1970. Resolution of the question requires analysis of: (1) the proper forum in which to make such a claim of parole eligibility, (2) the nature of parole and its relation to sentencing, and (3) two congressional “saving provisions” for repealed criminal statutes.
Benigno Marrero was tried to a jury and convicted on May 27, 1970, in the United States District Court for the Southern District of New York, of possessing and selling heroin in violation of 21 U.S.C. §§ 173 and 174 and 26 U.S.C. §§ 4701, 4703, 4704(a), 4771(b), and 7237(a). As a second offender, he was sentenced to mandatory minimum terms of ten years on each of two counts, the sentences to run concurrently. His conviction was affirmed by the Second Circuit. 450 F.2d 373 (2d Cir. 1971), cert. denied, 405 U.S. 933, 92 S.Ct. 991, 30 L.Ed.2d 808 (1972). He now appeals the denial on July 26, 1972, by the United States District Court for the Middle District of Pennsylvania, of his petition for writ of habeas corpus.
In his habeas petition, appellant alleged that he was being unlawfully detained because 26 U.S.C. § 7237(d),
which was in effect at the time of his sentencing and precluded his parole eligibility, had been repealed effective May 1, 1971, by § 1101(b)(4)(A) of the Comprehensive Drug Abuse Prevention and Control Act of 1970, Pub.L. No. 91-513, 84 Stat. 1292. He alleged that repeal of § 7237(d) made him eligible for parole in September 1973 under 18 U.S. C. § 4202. He did not allege that the United States Board of Parole or any other authority had decided that § 4202 would not be applied to him or that he would not be eligible for parole in September 1973, but he contended that ha-beas corpus is nonetheless an appropriate remedy at this time to determine his status vis-a-vis parole. We think habeas
relief is merited and therefore reverse the district court’s denial of relief.
I
The first question that we must address is the applicability of the exhaustion of administrative remedies doctrine. That doctrine deserves comment because appellant did not seek any relief from the Board of Parole before instituting this action.
The basic premises underlying the exhaustion requirement are that (1) judicial review may be facilitated by allowing the appropriate agency to develop a factual record and apply its expertise, (2) judicial time may be conserved because the agency might grant the relief sought, and (3) administrative autonomy requires that an agency be given an opportunity to correct its own errors. Waddell v. Alldredge, 480 F.2d 1078 (3d Cir., 1973); McKart v. United States, 395 U.S. 185, 194-195, 89 S.Ct. 1657, 23 L.Ed.2d 194 (1969).
We find none of the basic goals of the administrative exhaustion doctrine would be served in the present case were we to direct the appellant to seek relief from the Board of Parole before judicial action. The issue here of the availability of parole under § 4202 involves only statutory construction. No administrative record or expertise is therefore required. The second and third premises above are also inapplicable because the Board of Parole has taken a firm position that § 4202 is unavailable to prisoners in appellant’s situation.
Whether to require exhaustion is discretionary. If pursuing an administrative remedy would be futile, the requirement may be waived. City Bank Farmers Trust Co. v. Schnader, 291 U.S. 24, 34, 54 S.Ct. 259, 78 L.Ed. 628 (1934);
see
3 Davis, Administrative Law Treatise, § 20.07, at 99 (1958). We are especially reluctant to require exhaustion when, as here, both parties agree administrative proceedings would be futile. Moreover, as appellant points out, this habeas petition was filed in January 1972, and more than 19 months have already elapsed. Subjecting him to any further unnecessary delay would be unconscionable. The unfairness in such unnecessary protraction of litigation partially underlay the Supreme Court’s decision in Peyton v. Rowe, 391 U.S. 54, 88 S.Ct. 1549, 20 L.Ed.2d 426 (1968), that a prisoner serving consecutive sentences can challenge his later sentences before beginning to serve them. 391 U. S. at 64, 88 S.Ct. 1549. We therefore decline to invoke the exhaustion doctrine here.
We also reject the Government’s contention that because parole eligibility does not automatically entitle a prisoner to parole, “the proper remedy would not be habeas corpus but rather a petition for writ of mandamus to compel the Parole Board to consider appellant for parole.” Immediate and unconditional release is not the only remedy available in a habeas corpus proceeding. Peyton v. Rowe, 391 U.S. at 66-67, 88 S.Ct. 1549. An improper denial of parole eligibility is a sufficient restraint
to justify habeas corpus relief. Williams v. Peyton, 372 F.2d 216 (4th Cir. 1967); Martin v. Commonwealth of Virginia, 349 F.2d 781 (4th Cir. 1965);
see also
Halprin v. United States, 295 F.2d 458 (9th Cir. 1961)
II
The district court denied appellant’s habeas petition on two grounds: (1) it lacked jurisdiction since a remedy in the sentencing court is provided by 28 U.S.C. § 2255; and (2) the repeal of § 7237(d) did not affect appellant’s eligibility for parole because he was convicted and sentenced prior to the effective date of the repeal.
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OPINION OF THE COURT
ROSENN, Circuit Judge.
The major question raised by this appeal is whether a prisoner, ineligible for parole at the time he was sentenced under the provisions of the penal statute for which he was convicted, became eligible for parole when the penal statute was subsequently repealed' by the. Comprehensive Drug Abuse Prevention and Control Act of 1970. Resolution of the question requires analysis of: (1) the proper forum in which to make such a claim of parole eligibility, (2) the nature of parole and its relation to sentencing, and (3) two congressional “saving provisions” for repealed criminal statutes.
Benigno Marrero was tried to a jury and convicted on May 27, 1970, in the United States District Court for the Southern District of New York, of possessing and selling heroin in violation of 21 U.S.C. §§ 173 and 174 and 26 U.S.C. §§ 4701, 4703, 4704(a), 4771(b), and 7237(a). As a second offender, he was sentenced to mandatory minimum terms of ten years on each of two counts, the sentences to run concurrently. His conviction was affirmed by the Second Circuit. 450 F.2d 373 (2d Cir. 1971), cert. denied, 405 U.S. 933, 92 S.Ct. 991, 30 L.Ed.2d 808 (1972). He now appeals the denial on July 26, 1972, by the United States District Court for the Middle District of Pennsylvania, of his petition for writ of habeas corpus.
In his habeas petition, appellant alleged that he was being unlawfully detained because 26 U.S.C. § 7237(d),
which was in effect at the time of his sentencing and precluded his parole eligibility, had been repealed effective May 1, 1971, by § 1101(b)(4)(A) of the Comprehensive Drug Abuse Prevention and Control Act of 1970, Pub.L. No. 91-513, 84 Stat. 1292. He alleged that repeal of § 7237(d) made him eligible for parole in September 1973 under 18 U.S. C. § 4202. He did not allege that the United States Board of Parole or any other authority had decided that § 4202 would not be applied to him or that he would not be eligible for parole in September 1973, but he contended that ha-beas corpus is nonetheless an appropriate remedy at this time to determine his status vis-a-vis parole. We think habeas
relief is merited and therefore reverse the district court’s denial of relief.
I
The first question that we must address is the applicability of the exhaustion of administrative remedies doctrine. That doctrine deserves comment because appellant did not seek any relief from the Board of Parole before instituting this action.
The basic premises underlying the exhaustion requirement are that (1) judicial review may be facilitated by allowing the appropriate agency to develop a factual record and apply its expertise, (2) judicial time may be conserved because the agency might grant the relief sought, and (3) administrative autonomy requires that an agency be given an opportunity to correct its own errors. Waddell v. Alldredge, 480 F.2d 1078 (3d Cir., 1973); McKart v. United States, 395 U.S. 185, 194-195, 89 S.Ct. 1657, 23 L.Ed.2d 194 (1969).
We find none of the basic goals of the administrative exhaustion doctrine would be served in the present case were we to direct the appellant to seek relief from the Board of Parole before judicial action. The issue here of the availability of parole under § 4202 involves only statutory construction. No administrative record or expertise is therefore required. The second and third premises above are also inapplicable because the Board of Parole has taken a firm position that § 4202 is unavailable to prisoners in appellant’s situation.
Whether to require exhaustion is discretionary. If pursuing an administrative remedy would be futile, the requirement may be waived. City Bank Farmers Trust Co. v. Schnader, 291 U.S. 24, 34, 54 S.Ct. 259, 78 L.Ed. 628 (1934);
see
3 Davis, Administrative Law Treatise, § 20.07, at 99 (1958). We are especially reluctant to require exhaustion when, as here, both parties agree administrative proceedings would be futile. Moreover, as appellant points out, this habeas petition was filed in January 1972, and more than 19 months have already elapsed. Subjecting him to any further unnecessary delay would be unconscionable. The unfairness in such unnecessary protraction of litigation partially underlay the Supreme Court’s decision in Peyton v. Rowe, 391 U.S. 54, 88 S.Ct. 1549, 20 L.Ed.2d 426 (1968), that a prisoner serving consecutive sentences can challenge his later sentences before beginning to serve them. 391 U. S. at 64, 88 S.Ct. 1549. We therefore decline to invoke the exhaustion doctrine here.
We also reject the Government’s contention that because parole eligibility does not automatically entitle a prisoner to parole, “the proper remedy would not be habeas corpus but rather a petition for writ of mandamus to compel the Parole Board to consider appellant for parole.” Immediate and unconditional release is not the only remedy available in a habeas corpus proceeding. Peyton v. Rowe, 391 U.S. at 66-67, 88 S.Ct. 1549. An improper denial of parole eligibility is a sufficient restraint
to justify habeas corpus relief. Williams v. Peyton, 372 F.2d 216 (4th Cir. 1967); Martin v. Commonwealth of Virginia, 349 F.2d 781 (4th Cir. 1965);
see also
Halprin v. United States, 295 F.2d 458 (9th Cir. 1961)
II
The district court denied appellant’s habeas petition on two grounds: (1) it lacked jurisdiction since a remedy in the sentencing court is provided by 28 U.S.C. § 2255; and (2) the repeal of § 7237(d) did not affect appellant’s eligibility for parole because he was convicted and sentenced prior to the effective date of the repeal. We think the court erred on both grounds.
Section 2255 provides:
An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.
Relief is available under § 2255 for a prisoner who claims he has been sentenced illegally. The statute requires him to “move
the court which imposed sentence
to vacate, set aside or correct the sentence.” [Emphasis added.]
In the present case, however, appellant has not requested vacation or correction of his sentence. His petition, although not very specific, in essence requests a determination of the applicability of a statute, the operation of which is automatic and beyond the control of the sentencing court. We note that the judgment of conviction mentions neither § 7237(d) nor appellant’s eligibility for parole. Section 2255 therefore does not require that appellant return to the Southern District of New York, his sentencing court, to seek the relief he now asks. Soyka v. Alldredge, 481 F.2d 303 (3d Cir. 1973); Halprin v. United States, 295 F.2d 458, 459 (9th Cir. 1961).
Our conclusion that relief need not be sought from the sentencing court is supported by the nature of the parole decision and its clear differences from sentencing. Parole is vested, subject to statutory limitations, in an administrative parole board which, in the federal system, is appointed by the President. 18 U.S.C. § 4201.
The parole mechanism provides the prisoner with an administrative release prior to the completion of his judicially prescribed sentence. It is aimed at rehabilitating the parolee and facilitating his reintegration into society by the time his sentence expires. Its importance lies in offering prisoners an opportunity for release from penal institutions before the expiration of their maximum term and, hopefully, for their successful reintegration into society as useful, productive persons. It also serves to relieve society from the heavy burden of keeping persons in prison.
See
Morrissey v. Brewer, 408 U.S. 471, 477, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); Comment, The Parole System, 120 U.Pa.L.Rev. 282, 284 (1971). Parole has become an integral and vigorous part of our modern penological system. “Rather than being an
ad hoc
exercise of clemency, parole is an established variation on impriosnment of convicted criminals.” 408 U.S. at 477, 92 S.Ct. at 2598. Parole thus involves implementing a prisoner’s sentence in the manner deemed best suited to attain the primary goals of criminal punishment, rehabilitation of the prisoner and protection of society from future deviant behavior. It does not involve modification of the sentence imposed.
The parolee is not granted the unconditional freedom of the ordinary citizen. The prisoner, upon parole release, agrees to abide by certain rules during the balance of his sentence. The rules are designed to accomplish the parole purposes of rehabilitation of the prisoner and protection of society. The parolee is usually required to report regularly to a parole officer and sometimes to make written reports of his activities. His travel is ordinarily limited. He is forbidden from associating with other parolees or convicted criminals. In addition, permission is often required before changing employment or marrying.
See
408 U.S. at 478, 92 S.Ct. 2593; 120 U.Pa.L.Rev. at 308.
For these reasons, we have concluded that the requested relief in this ease is not authorized under § 2255 and that a habeas corpus petition presented to a district court judge in the district in which the prisoner is incarcerated is therefore proper.
Ill
We thus meet the basic issue: is the prisoner eligible for the benefits of § 4202? It is first necessary to understand the statutes involved. 18 U.S.C. § 4202 authorizes the release on parole of a federal prisoner after serving one-third of his sentence. 26 U.S.C. § 7237(d) prohibited parole under § 4202 for prisoners convicted of certain narcotics offenses, including Marrero’s crimes. Section 7237(d), however, was repealed effective May 1, 1971, by the Comprehensive Drug Abuse Prevention and Control Act of 1970, Pub.L. No. 91-513, § 1101(b)(4)(A), 84 Stat. 1292. The question is whether that repeal is effective as to Marrero, who was convicted and sentenced on May 27, 1970. The answer depends on the interpretation of the savings provision of the 1970 Act, § 1103(a), 84 Stat. 1294, and the general statutory savings provision, 1 U.S.C. § 109.
Section 1103(a) of the Comprehensive Drug Abuse Prevention and Control Act provides:
Prosecution for any violation of law occurring prior to the effective date of section 1101 [(May 1, 1971)] shall not be affected by the repeals or
amendments made by such section or section 1102, or abated by reason thereof.
The effect of § 1103(a) on parole eligibility under § 4202 has not been decided by the Supreme Court. Its decision in Bradley v. United States, 410 U.S. 605, 93 S.Ct. 1151, 35 L.Ed.2d 528 (1973), on a related matter, however, is instructive.
Bradley
involved parole eligibility under 18 U.S.C. § 4208(a), which authorizes the court imposing sentence to designate
in the sentence
early parole eligibility.
Congress had specifically provided that § 4208(a) does not apply to any offense carrying a mandatory penalty. Pub.L. 85-752, § 7, 72 Stat. 847 (1958). The Comprehensive Drug Abuse Prevention and Control Act of 1970 repealed the mandatory sentence for the crime Bradley committed. Bradley committed the crime before the effective date but was sentenced after it. The Court held that the repeal did not render Bradley eligible for parole under § 4208(a) because of the savings clause in § 1103(a). It reasoned that the word “prosecution” in § 1103 included sentencing and that sentencing constituted the judgment in a criminal ease. Because the “decision to make early parole available under § 4208(a) must be made ‘[u]pon entering a judgment of conviction’ ” and therefore prior to the termination of the prosecution, it concluded that § 1103(a) barred parole under § 4208(a). The Court noted that the availability of parole under § 4202 “is a rather different matter, on which we express no opinion.” 410 U.S. at 612, 93 S.Ct. at 1156. Justices Brennan and White concurred in the decision but indicated without discussion their belief that parole under § 4202 was similarly unavailable.
Although
Bradley
did not decide the § 4202 question, it made clear that the decision to grant parole
under
§
4202 occurs
“long after sentence has been entered and the prosecution has terminated.”
In light of that statement and our previous analysis of the nature of parole, we hold that “prosecution” under § 1103(a) does not include the § 4202 parole eligibility decision, and therefore, does not bar Marrero from parole eligibility. A granting of parole does not affect the mandatory minimum sentence, only how it is executed.
United States v. Caldwell, 463 F.2d 590 (3d Cir. 1972), United States v. Fiotto, 454 F.2d 252 (2d Cir. 1972), and United States v. Stephens, 449 F.2d 103 (9th Cir. 1971), are inapposite here because they did not involve the effect of § 1103(a) on § 4202, the general parole statute; they involved, as did
Bradley,
decisions pertaining to sentencing.
The only remaining issue is the effect of 1 U.S.C. § 109, which provides in relevant part:
The repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing Act shall so provide,
and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability.
This general savings statute was intended to obviate the common law’s technical abatement of a prosecution by the repeal of the statute under which it proceeded. Hamm v. Rock Hill, 379 U.S. 306, 314, 85 S.Ct. 384, 13 L.Ed.2d 300 (1964). Therefore, the statute’s purpose would not be furthered by applying it to preclude Marrero’s parole eligibility under § 4202. His conviction and sentence will remain intact even if he is paroled. We therefore hold that permanent parole ineligibility is not a “penalty” incurred under § 7237(d).
We read § 7237(d)’s preclusion of parole as a dated legislative judgment as to the manner by which the actual penalty, i. e., the prison sentence, should be effectuated. To read it otherwise would preclude carrying out the apparent congressional judgment, in repealing the parole ban, that the rehabilitative goals of the criminal justice system will be furthered by parole. Moreover, we can find no rational basis that would justify barring parole for persons convicted of crimes committed before the Act’s effective date, yet granting it to persons convicted of subsequent crimes. To the extent parole aids prisoner rehabilitation and consequently strengthens the tensile fabric of society, it is important that we avoid technical, purposeless construction which runs counter to the congressional plan to encourage prison rehabilitation.
The judgment of the district court will be reversed and the case remanded for the entry of judgment granting the writ of habeas corpus with the direction that Marrero be released if he is not considered for parole within 60 days.