United States of America Ex Rel. Melvin Sanders 75551-158 v. Floyd E. Arnold, Warden

535 F.2d 848

Opinions

OPINION OF THE COURT

KALODNER, Circuit Judge.

This appeal is from the district court’s Order granting the habeas corpus petition of Melvin Sanders, an inmate of the federal penitentiary at Lewisburg, Pennsylvania. The district court, in an Opinion¹ accompanying its Order, held that the United States Board of Parole (“Board”) had violated Sanders’ due process rights and otherwise abused its discretion in reincarcerating Sanders for violation of his parole after it had granted him parole on a sentence imposed for a crime committed while he was on parole.

The facts relevant to our disposition may be summarized as follows:

On May 26, 1970, Sanders was sentenced to a three-year prison term for counterfeiting.

On August 16,1971, Sanders was granted parole, after he had served 15 months of his three-year sentence.

On May 17, 1972, Sanders was sentenced to a 7!/2-year prison term for conspiracy to pass counterfeit money in the spring of 1972 when he was still on parole. The sentence, imposed by Judge Jack B. Weinstein,

Footnotes

•

* provided that it was “to run concurrently with previously imposed sentence.” Later, Judge Weinstein in a letter to the Board, dated April 5, 1973, stated that “it was my intention that the parole violation term and the term imposed be served concurrently.”

On June 9, 1972, Sanders wrote, without avail, to the Board requesting a parole violation revocation hearing (Exhibit D).

On June 12, 1972, the Board lodged a detainer, in the form of a parole violator’s warrant, against Sanders, with the Warden of the Lewisburg Penitentiary, where Sanders was incarcerated pursuant to Judge Weinstein’s sentence.

On April 10, 1974, Sanders filed with the Federal Bureau of Prisons an “Inmate[s] Request for Administrative Remedy” (Exhibit C) which asserted that the detainer was invalid by reason of the concurrent provisions of Judge Weinstein’s sentence. The “Request” was denied on April 16, 1974. On April 19, 1974, he filed an “Appeal” (Exhibit B) with the Bureau of Federal Prisons which was denied May 15, 1974.

On August 26, 1974, the Board issued a “Notice of Action” (Exhibit E) to Sanders which informed him that he had been granted “Parole September 18, 1974 to actual physical custody of detainer only.” The “Notice of Action,” which was served on Sanders on September 3, 1974, stated, under the caption “Appeals procedure”— “You have a right to appeal . . within thirty days of the date this Notice was sent.”

On September 6, 1974, the Board issued a Certificate of Parole which provided that Sanders was to be paroled on September 18, 1974 on Judge Weinstein’s sentence. The Certificate stated that the Board had found that Sanders “is eligible to the PAROLED, and that there is a reasonable probability that he WILL REMAIN AT LIBERTY WITHOUT VIOLATING THE LAWS and . that the release of this person is not incompatible with the welfare of society

On September 18, 1974, Sanders was paroled on his second sentence, and the parole violator’s warrant was simultaneously executed, pursuant to the “Notice of Action” of August 26, 1974.

On September 20, 1974, Sanders filed a habeas corpus petition challenging his continued incarceration on the ground that Judge Weinstein’s concurrent sentence was valid, and accordingly the balance of the term of his first sentence had been served during his imprisonment under the intervening sentence.

On October 10, 1974, Sanders moved to amend his petition by including an allegation that the Board’s delay in holding a parole revocation hearing was so unreasonable as to constitute denial of due process. Permission to so amend the petition was later granted by the court.

On October 22, 1974, the Board held a revocation hearing with respect to Sanders’ parole on his first sentence, and the same day revoked that parole.

On October 29, 1974, Sanders moved to amend his habeas corpus petition by including an allegation that the Board’s October 22, 1974 revocation of his first sentence parole was so inconsistent with its prior granting of parole on his second sentence as to constitute denial of due process.

On December 6, 1974, the district court, without hearing, granted Sanders’ petition on the ground that he was illegally detained as a parole violator. In doing so, it held that (1) the Board abused its discretion when it “ignore[d]” the fact that the 7V2 -year sentence imposed by Judge Weinstein provided that it was “to run concurrently with previously imposed sentence”; and (2) the action of the Board in revoking the parole granted Sanders on his first sentence after it had granted him parole on his second sentence was so “inconsistent” as to constitute “arbitrary and capricious” conduct violative of due process.²

On this appeal the Government challenges the district court’s holdings that the Board abused its discretion and further violated Sanders’ due process right in revoking the parole granted him on his first sentence. It urges that a sentencing judge (Judge Weinstein) does not have the power to require the Board to run a subsequently imposed parole violator’s term concurrently with the sentence imposed by the judge, and that the action of the Board in revoking an earlier parole after paroling a prisoner from an intervening sentence is not inconsistent and does not amount to arbitrary and capricious conduct violative of due process.

We do not reach the Government’s stated challenges for this reason:

A federal prisoner cannot challenge a parole decision of the United States Board of Parole in a habeas corpus proceeding until he has exhausted available administrative remedies for review of the Board’s decision. Otherwise stated, a federal prisoner must exhaust available administrative remedies before seeking habeas corpus relief.

Here, Sanders failed to exhaust his available administrative remedies with respect to (1) the Board’s execution of its parole violation warrant on September 18, 1974, and (2) the Board’s revocation of Sanders’ first sentence parole on October 22, 1974.

The Board’s “Notice of Action” of August 26, 1974, which informed Sanders that he was to be paroled on his second sentence on September 18, 1974 “to actual physical custody of detainer only,” specifically advised Sanders that “[y]ou have a right to appeal . within 30 days.” Sanders did not exercise his right to appeal. Instead, he filed his habeas corpus petition on September 20, 1974, prior to the expiration of the 30-day period.

Again, Sanders did not appeal from the Board’s revocation of his first sentence parole on October 22, 1974 albeit he had an administrative remedy of appeal pursuant to the Board’s Regulations.³ It must be noted parenthetically that the district court granted Sanders’ motion of October 29, 1974 to amend his petition to include a challenge to the Board’s October 22, 1974 revocation of his first sentence parole, prior to the expiration of the 30-day period available for appeal from the revocation.

Sanders’ failure to exhaust his available administrative remedies required the district court to dismiss his habeas corpus petition. The district court erred in failing to deny the petition and it compounded its error in granting it.

This Court has in the recent past applied the exhaustion doctrine in habeas proceedings brought by federal prisoners.

We did so in Grant v. Hogan, 505 F.2d 1220 (1974), where a federal prisoner, via a habeas petition, challenged a detainer lodged against him under the Interstate Agreement on Detainers, 18 U.S.C.A. App. Article III, and Soyka v. Alldredge, 3 Cir., 481 F.2d 303 (1973), where a federal prisoner, via a habeas petition, sought credit against sentence for time spent in confinement prior to sentencing.

We have also applied the exhaustion doctrine in mandamus proceedings brought by federal prisoners. Waddell v. Alldredge, 3 Cir., 480 F.2d 1078 (1973), and Green v. United States, 3 Cir., 283 F.2d 687 (1960).

Other circuits are in accord. Burnett v. United States Board of Parole, 491 F.2d 966 (5th Cir.1974); Smoake v. Willingham, 359 F.2d 386 (10th Cir.1966); United States ex rel. Jacobs v. Barc, 141 F.2d 480 (6th Cir.), cert. denied, 322 U.S. 751, 64 S.Ct. 1262, 88 L.Ed. 1581 (1944).

It is pertinent to note that Chief Judge Sheridan of the Middle District of Pennsylvania in Talerico v. Warden, U.S. Penitentiary, 391 F.Supp. 193, 195 (1975) squarely ruled that a federal prisoner must exhaust available administrative remedies before seeking habeas corpus relief from an adverse parole decision of the United States Board of Parole.

The vitality of the exhaustion doctrine in habeas proceedings is attested to by the following statement in Schlesinger v. Councilman, 420 U.S. 738, 95 S.Ct. 1300, 43 L.Ed.2d 591 (1975), at pages 756-757, 95 S.Ct. at 1312, 43 L.Ed.2d at 608:

“To some extent, the practical considerations supporting both the exhaustion requirement in habeas corpus and the federal equity rule barring intervention into pending state criminal proceedings except in extraordinary circumstances are similar to those that underlie the requirement of exhaustion of administrative remedies. E.g., Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-51 [58 S.Ct. 459, 463-464, 82 L.Ed. 638] (1938). The latter rule, looking to the special competence of agencies in which Congress has reposed the duty to perform particular tasks, is based on the need to allow agencies to develop the facts, to apply the law in which they are peculiarly expert, and to correct their own errors. The rule ensures that whatever judicial review is available will be informed and narrowed by the agencies’ own decisions. It also avoids duplicative proceedings, and often the agency’s ultimate decision will obviate the need for judicial intervention. E.g., McKart v. United States, 395 U.S. 185, 194-195 [89 S.Ct. 1657, 1662-1663, 23 L.Ed.2d 194] (1969); Parisi v. Davidson, 405 U.S. 34, 37 [92 S.Ct. 815, 817, 31 L.Ed.2d 17] (1972).”

There remains this to be said with reference to Sanders’ statements in his Brief concerning the Board’s “Notice of Action” of August 26, 1974. They are correct in noting that the Government incorrectly stated in its Brief that the Notice was included in the Government’s Appendix. They are incorrect insofar as they inexplicably state “no such document was before the Honorable Malcolm Muir when he rendered his Opinion and Order dated December 6, 1974 granting Appellee habeas corpus relief.”

The record below discloses that the “Notice of Action” was attached to Sanders’ habeas petition and therein marked by him as “EX-E” in that portion of the petition which specifically noted that “the Petitioner was paroled to the actual physical custody of the detainer only.”

For the reasons earlier stated, the cause will be remanded to the district court with directions to deny the petition for habeas corpus for failure to exhaust available administrative remedies.

1

. The district court’s opinion, filed December 6, 1974, is unreported.

United States District Court, Eastern District of New York.

2

. The district court did not rule on Sanders’ further contention that his due process rights were violated by the Board’s alleged unreasonable delay between the lodging of its detainer parole violator warrant and the holding of the Board’s parole revocation hearing.

3

. 28 C.F.R. § 2.56, incorporating §§ 2.25-2.27.