OPINION OF THE COURT
GARTH, Circuit Judge.
This appeal presents the question expressly reserved in Moody v. Daggett, 429 U.S. 78, 97 S.Ct. 274, 50 L.Ed.2d 236 (1976): whether the lodging of an unexecuted federal parole violator warrant as a detainer with state prison authorities violates the due process rights of a state prisoner when he is not afforded an immediate parole revocation hearing. Id. at 88, 97 S.Ct. 274. We hold that it does not.
I.
In 1964 the appellant, Ciro Caruso, was convicted of bank robbery in federal court in Connecticut, and was sentenced in 1965 to a 16 year term. In December, 1971, Caruso was paroled with 3,493 days remaining to be served on his federal sentence.
In May, 1974, while on parole, Caruso was arrested in New Jersey on narcotics charges and released on bail. In August, 1974 he was again arrested for drug offenses and [1152]*1152again released on bail. On October 7, 1974 he was arrested for his failure to appear in New Jersey state court and was jailed. On October 31,1974 the United States Board of Parole,1 having learned of the narcotics charges, issued a parole violator warrant and lodged it as a detainer with New Jersey officials.2
Caruso pled guilty in state court to charges of possession and distribution of heroin and cocaine and on April 9,1975, was sentenced to a 14 to 20 year state prison term. On April 29, 1975, federal parole authorities notified Caruso that a detainer had been lodged with New Jersey prison officials and that a dispositional review would be undertaken shortly.3 Caruso responded by letter, asking that the warrant be executed so that his federal parole violation term could run concurrently with the state sentence. He argued to the Board that his drug dealing had been precipitated by his drug habit, and that New Jersey officials were denying him access to prison programs because of the federal detainer. In addition to this information, the Parole Board received reports on Caruso from New Jersey authorities.
The Regional Director of the Parole Board conducted Caruso’s dispositional review without a hearing, and decided to let the warrant remain unexecuted and stand as a detainer. Caruso was so notified on November 28, 1975 by a Notice of Action. The Notice also informed him that the Regional Director’s decision could be appealed to the National Appeals Board within 30 days. Caruso did not appeal. Instead, on June 4,1976 he filed a petition for a writ of habeas corpus in the federal district court for the District of New Jersey. The petition was dismissed with prejudice on December 30, 1976.
II.
The initial question presented is whether this court’s decision in United States ex rel. Sanders v. Arnold, 535 F.2d 848 (3d Cir. 1976), requires that Caruso’s habeas petition be dismissed because of his failure to exhaust his administrative remedies. In Sanders a federal prisoner petitioned for habeas relief from decisions of the Parole Board executing a parole violator warrant and revoking his parole. This court held that the petition had to be dismissed because Sanders had failed to take an administrative appeal within 30 days from these determinations, as was his right.4 The Government argues here that Caruso’s failure to appeal to the National Appeals Board requires the same result.
We would agree, but for one important distinguishing factor. In this case we have been informed by counsel for the Parole Commission that under the Commission’s present practice, the Regional Com[1153]*1153missioner’s decision not to hold an immediate revocation hearing (i. e., not to execute a parole violation warrant and to let it stand as a detainer) is no longer considered to be a decision subject to the administrative appellate review process.5 It would appear, therefore, that Caruso no longer has a fruitful avenue of administrative review.6 Thus, for us to dismiss Caruso’s petition in order to require that he exhaust administrative remedies would be meaningless. Accordingly, relying on the representations made to us by counsel, we will proceed to the merits, although we freely admit that the subject of administrative appellate review in the present context is somewhat cloudy.
III.
Caruso has a two-fold complaint with respect to the lack of an immediate parole revocation hearing.
First, he complains of the lack of a prompt hearing as it could affect his first (the federal) sentence. He argues that as memories fade and witnesses disappear, his ability to prove mitigating circumstances and to convince the Parole Board that he should not be re-imprisoned to complete his first sentence, will be substantially impaired.
Second, he complains of the effect of the unexecuted warrant-detainer on his second (the present state) sentence. He contends that the existence of the detainer disqualifies him from many state rehabilitative programs, and reduces his opportunity for an early parole. He explains that the state parole authorities will be less likely to grant him an early parole date because of the existence of the federal detainer and because he will not have participated in rehabilitative programs.
A. First (Federal)-Sentence Effect
It is at least clear from Moody that a federal parolee, when convicted of and imprisoned by federal authorities for another crime committed while on parole, has no right to a prompt revocation hearing upon the issuance of a parole violator warrant based on that second crime. The Supreme Court in Moody appeared to hold that a parolee in prison on another charge has no liberty interest in a prompt revocation hearing per se. The Court there reasoned that Moody’s present confinement derived not from the outstanding parole violator warrant, but from his subsequent conviction, stating:
Petitioner’s present confinement and consequent liberty loss derive not in any sense from the outstanding parole violat- or warrant, but from his two 1971 homicide convictions. Issuance of the warrant and notice of that fact to the institution of confinement did no more than express the Board’s intent to defer consideration of parole revocation to a later time. Though the gravity of petitioner’s subsequent crimes places him under a cloud, issuance of the warrant was not a determination that petitioner’s parole under his 1962 rape conviction will be revoked; the time at which the Commission must make that decision has not yet arrived. With only a prospect of future incarceration which is far from certain, we cannot say that the parole violator warrant has any present or inevitable effect upon the liberty interests which Morrissey [Morris[1154]*1154sey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484] sought to protect. Indeed, in holding that “[t]he revocation hearing must be tendered within a reasonable time after the parolee is taken into custody,” Morrissey, 408 U.S., at 488 [92 S.Ct.
Free access — add to your briefcase to read the full text and ask questions with AI
OPINION OF THE COURT
GARTH, Circuit Judge.
This appeal presents the question expressly reserved in Moody v. Daggett, 429 U.S. 78, 97 S.Ct. 274, 50 L.Ed.2d 236 (1976): whether the lodging of an unexecuted federal parole violator warrant as a detainer with state prison authorities violates the due process rights of a state prisoner when he is not afforded an immediate parole revocation hearing. Id. at 88, 97 S.Ct. 274. We hold that it does not.
I.
In 1964 the appellant, Ciro Caruso, was convicted of bank robbery in federal court in Connecticut, and was sentenced in 1965 to a 16 year term. In December, 1971, Caruso was paroled with 3,493 days remaining to be served on his federal sentence.
In May, 1974, while on parole, Caruso was arrested in New Jersey on narcotics charges and released on bail. In August, 1974 he was again arrested for drug offenses and [1152]*1152again released on bail. On October 7, 1974 he was arrested for his failure to appear in New Jersey state court and was jailed. On October 31,1974 the United States Board of Parole,1 having learned of the narcotics charges, issued a parole violator warrant and lodged it as a detainer with New Jersey officials.2
Caruso pled guilty in state court to charges of possession and distribution of heroin and cocaine and on April 9,1975, was sentenced to a 14 to 20 year state prison term. On April 29, 1975, federal parole authorities notified Caruso that a detainer had been lodged with New Jersey prison officials and that a dispositional review would be undertaken shortly.3 Caruso responded by letter, asking that the warrant be executed so that his federal parole violation term could run concurrently with the state sentence. He argued to the Board that his drug dealing had been precipitated by his drug habit, and that New Jersey officials were denying him access to prison programs because of the federal detainer. In addition to this information, the Parole Board received reports on Caruso from New Jersey authorities.
The Regional Director of the Parole Board conducted Caruso’s dispositional review without a hearing, and decided to let the warrant remain unexecuted and stand as a detainer. Caruso was so notified on November 28, 1975 by a Notice of Action. The Notice also informed him that the Regional Director’s decision could be appealed to the National Appeals Board within 30 days. Caruso did not appeal. Instead, on June 4,1976 he filed a petition for a writ of habeas corpus in the federal district court for the District of New Jersey. The petition was dismissed with prejudice on December 30, 1976.
II.
The initial question presented is whether this court’s decision in United States ex rel. Sanders v. Arnold, 535 F.2d 848 (3d Cir. 1976), requires that Caruso’s habeas petition be dismissed because of his failure to exhaust his administrative remedies. In Sanders a federal prisoner petitioned for habeas relief from decisions of the Parole Board executing a parole violator warrant and revoking his parole. This court held that the petition had to be dismissed because Sanders had failed to take an administrative appeal within 30 days from these determinations, as was his right.4 The Government argues here that Caruso’s failure to appeal to the National Appeals Board requires the same result.
We would agree, but for one important distinguishing factor. In this case we have been informed by counsel for the Parole Commission that under the Commission’s present practice, the Regional Com[1153]*1153missioner’s decision not to hold an immediate revocation hearing (i. e., not to execute a parole violation warrant and to let it stand as a detainer) is no longer considered to be a decision subject to the administrative appellate review process.5 It would appear, therefore, that Caruso no longer has a fruitful avenue of administrative review.6 Thus, for us to dismiss Caruso’s petition in order to require that he exhaust administrative remedies would be meaningless. Accordingly, relying on the representations made to us by counsel, we will proceed to the merits, although we freely admit that the subject of administrative appellate review in the present context is somewhat cloudy.
III.
Caruso has a two-fold complaint with respect to the lack of an immediate parole revocation hearing.
First, he complains of the lack of a prompt hearing as it could affect his first (the federal) sentence. He argues that as memories fade and witnesses disappear, his ability to prove mitigating circumstances and to convince the Parole Board that he should not be re-imprisoned to complete his first sentence, will be substantially impaired.
Second, he complains of the effect of the unexecuted warrant-detainer on his second (the present state) sentence. He contends that the existence of the detainer disqualifies him from many state rehabilitative programs, and reduces his opportunity for an early parole. He explains that the state parole authorities will be less likely to grant him an early parole date because of the existence of the federal detainer and because he will not have participated in rehabilitative programs.
A. First (Federal)-Sentence Effect
It is at least clear from Moody that a federal parolee, when convicted of and imprisoned by federal authorities for another crime committed while on parole, has no right to a prompt revocation hearing upon the issuance of a parole violator warrant based on that second crime. The Supreme Court in Moody appeared to hold that a parolee in prison on another charge has no liberty interest in a prompt revocation hearing per se. The Court there reasoned that Moody’s present confinement derived not from the outstanding parole violator warrant, but from his subsequent conviction, stating:
Petitioner’s present confinement and consequent liberty loss derive not in any sense from the outstanding parole violat- or warrant, but from his two 1971 homicide convictions. Issuance of the warrant and notice of that fact to the institution of confinement did no more than express the Board’s intent to defer consideration of parole revocation to a later time. Though the gravity of petitioner’s subsequent crimes places him under a cloud, issuance of the warrant was not a determination that petitioner’s parole under his 1962 rape conviction will be revoked; the time at which the Commission must make that decision has not yet arrived. With only a prospect of future incarceration which is far from certain, we cannot say that the parole violator warrant has any present or inevitable effect upon the liberty interests which Morrissey [Morris[1154]*1154sey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484] sought to protect. Indeed, in holding that “[t]he revocation hearing must be tendered within a reasonable time after the parolee is taken into custody,” Morrissey, 408 U.S., at 488 [92 S.Ct. 2593], we established execution of the warrant and custody under that warrant as the operative event triggering any loss of liberty attendant upon parole revocation. This is a functional designation, for the loss of liberty as a parole violator does not occur until the parolee is taken into custody under the warrant. Cf. 18 U.S.C. § 4206; 18 U.S.C.A. § 4213(d) (June 1976 Supp.)
429 U.S. at 86-87, 97 S.Ct. at 278.
Moody controls in this case.7 The fact that the second sentence being served by Caruso is a state sentence, can make no difference on the effect which the detainer may have on his first (the federal) sentence.
Caruso has not pointed to any evidence of significant mitigating circumstances8 which might distinguish this case from Moody. In Moody no claim of mitigating circumstance was made and thus there was no danger that such evidence might be lost if a prompt hearing was denied. 429 U.S. at 88 n. 9, 97 S.Ct. 274. Whether a different case would be presented if there were a substantial claim of mitigating evidence, we need not decide here,9
B. Second (State)-Sentence Effect
Caruso urges that he should be granted an immediate revocation hearing because the existence of the federal detain-er denies him access to prison programs, and thereby lengthens the time he must spend in state prison since state parole authorities will look unfavorably upon his lack of participation in such programs.
The Supreme Court was faced with a similar argument in Moody, but rejected it on the ground that the same Parole Commission could consider, at parole application hearings, Moody’s second sentence parole as well as the revocation of his parole under his first sentence.
The statutory hearing to which petitioner will be entitled upon his application for release on parole will give him the same full opportunity to persuade the [1155]*1155Commission that he should be released from federal custody as would an immediate hearing on the parole violator warrant.
429 U.S. at 88, 97 S.Ct. at 279. The Court, however, did not consider the situation now confronting us, i. e., where there is the “prospect of adverse action by different and autonomous parole authorities.” Id.
We must reject Caruso’s contentions made in the case before us. We ascertain no grievous loss suffered by Caruso due to the Board’s failure to execute the parole violator warrant and hold an immediate revocation hearing. The harm he foresees is far too uncertain and inchoate to rise to the level of a deprivation of a liberty interest. Indeed, there is no basis in this record to support Caruso’s arguments, other than his unsubstantiated allegations.
Moreover, as we interpret Caruso’s complaint, it consists of no more than a charge that the state has taken or will take arbitrary and capricious actions against him based on the existence of the federal de-tainer. He does not — nor can he — charge that the federal Parole Board is denying him access to prison programs or parole because it has issued a parole violator warrant on the basis of his guilty plea to narcotics charges.10 If our interpretation is correct, it is the State of New Jersey, not the federal authorities, which is allegedly depriving Caruso of his “rights”. As such, whatever the basis for Caruso’s charges (and we express no view as to their validity), the appropriate targets for Caruso’s attack are state prison officials and the state parole authorities.
Indeed, if Caruso had been afforded an immediate revocation hearing, he would most likely be in the same position vis a vis his state sentence: he would almost certainly have been sentenced to a consecutive parole violation term, see 28 C.F.R. § 2.47(c) (1977), and the Commission would have lodged a detainer with New Jersey prison officials. In such a case he could not have asserted the complaint he asserts here against the Parole Board. In our view, the possibility of such a hypothetical situation brings into sharp relief the fact that Caruso’s complaint is in reality directed at the actions of New Jersey officials, and cannot be remedied by federal authorities.
We therefore hold that a state prisoner is not entitled to an immediate revocation hearing by federal parole authorities when an unexecuted federal parole violator warrant is lodged with state prison officials as a detainer, at least where the warrant is based on a state conviction for a felony, which was committed while the prisoner was on federal parole. This result is in accord with the views expressed in United States ex rel. Hahn v. Revis, 560 F.2d 264 (7th Cir. 1977) and Hicks v. Board of Parole, 550 F.2d 401 (8th Cir. 1977). The court in Larson v. McKenzie, 554 F.2d 131 (4th Cir. 1977) (per curiam) reached the same result when a state parole violator warrant was lodged as a detainer with prison officials of another state, a functionally equivalent situation to the case sub judice. See also Gaddy v. Michael, 519 F.2d 669 (4th Cir. 1975).
IV.
The order of the district court, which dismissed with prejudice Caruso’s petition for a writ of habeas corpus, will be affirmed.