Appeal from a judgment of the United States District Court for the District of Connecticut. Jon O. Newman, J., granting a writ of habeas corpus which discharged appellee-petitioner Frank Grasso from federal custody. Judgment affirmed.
Feinberg and Mulligan, Circuit Judges and Frederick P. Bryan, District Judge.*fn* Feinberg, Circuit Judge, concurring and dissenting.
The Warden of the Federal Correctional Institution at Danbury, Connecticut and the United States Board of Parole appeal from a judgment of the United States District Court for the District of Connecticut (Jon O. Newman, J.) in a habeas corpus proceeding brought under 28 U.S.C. § 2241. The judgment directed the discharge from federal custody of appellee Frank Grasso, a prisoner at the Danbury institution.
Grasso was serving a sentence imposed under 18 U.S.C. § 4208(a)(2) pursuant to which the court fixed a maximum sentence of imprisonment to be served by Grasso, and specified that he would become eligible for parole at such time as the Board of Parole might determine. The appeal presents troublesome questions as to the duties and responsibilities of the Board of Parole to prisoners who, like Grasso, have been sentenced pursuant to Section 4208 (a)(2).
On February 13, 1973 Grasso was sentenced by Chief Judge Foley in the United States District Court for the Northern District of New York on a conviction for distribution of methamphetamine in violation of 21 U.S.C. § 841(a)(1). Three statutory alternatives as to Grasso's eligibility for parole were open to the sentencing court. Had a straight term of imprisonment been imposed under 18 U.S.C. § 4202, Grasso could have been released on parole only after serving one-third of his term.*fn1 Under 18 U.S.C. § 4208(a)(1), if Grasso had been sentenced to imprisonment for more than one year the court could have designated a minimum term "at the expiration of which the prisoner shall become eligible for parole."*fn2 Chief Judge Foley elected to use a third alternative, provided by Section 4208(a)(2).*fn3 Pursuant to that section Grasso was sentenced to a maximum term of three years' imprisonment with a special parole term of two years to follow, and the court specified that he should become eligible for parole at such time as the Board of Parole might determine.
In sentencing Grasso, Chief Judge Foley stated:
I am going to sentence you to a period of three years to an institution designated by the Attorney General, but the sentence in this type of case is in your favor. You are sentenced under Title 18, Section 4208(a)(2), which means that the Board of Parole may determine your eligibility for parole. It depends upon your behavior at Danbury, . . . . The Board of Parole will determine when they think you are eligible to be released to the public.
Grasso then began service of his sentence at Danbury.
Under the procedure followed by the Parole Board, prisoners sentenced under 18 U.S.C. § 4208(a)(2) ((a)(2) prisoners), were given a prompt initial parole hearing before a panel of Parole Board examiners. This initial hearing was primarily for purposes of evaluation and was held before any review as to institutional performance was possible. Parole was seldom granted at such hearings.*fn4
On May 7, 1973, less than three months after his incarceration, Grasso was given an initial parole hearing before Board of Parole examiners at Danbury. On May 9, 1973 he was notified that parole was denied and that his confinement would be "continued to expiration" of the maximum three-year sentence which had been imposed, without further parole hearing.*fn5
On July 16, 1973 Grasso filed a pro se petition for a writ of habeas corpus in the District Court of Connecticut, alleging that the Board of Parole had wrongfully denied him parole. Counsel was appointed to represent him. On December 19, 1973, after all administrative remedies had been exhausted, Grasso, through his counsel, filed an amended petition for a writ of habeas corpus, alleging that the action of the Parole Board in ordering his sentence to be continued to expiration on the basis of the initial hearing without giving him further parole consideration on a periodic basis was arbitrary and contrary to law. The amended petition sought Grasso's release from custody, a declaratory judgment that (a)(2) prisoners were entitled to periodic parole hearings during their terms of confinement and mandamus directing the Board to grant Grasso a hearing at which he would be considered for parole.*fn6
On February 4, 1974, Judge Newman held, in substance, that the determination of the Board to continue Grasso to the expiration of his sentence, without further parole consideration, was contrary to the purposes of Section 4208(a)(2) and unlawful. Judge Newman reasoned that the Board's determination deprived Grasso of an opportunity to demonstrate institutional performance and program achievement which might justify his release on parole as Section 4208(a)(2) had intended, and in fact placed Grasso in a worse position than a prisoner given a straight sentence under Section 4202 (a 4202 prisoner), who was entitled to a hearing at the one-third point of his sentence. Judge Newman issued a conditional writ discharging Grasso "unless within thirty days the Board rescinds its decision to continue petitioner to expiration and substitutes in lieu thereof a new order continuing petitioner to a date at or prior to the expiration of one-third of his sentence, at which time he will be entitled to parole consideration." Grasso v. Norton, 371 F. Supp. 171, 175 (D. Conn. 1974) (Grasso I).
The Warden and the Board filed a notice of appeal from the conditional writ and applied to the district court for a stay pending appeal. On February 11, 1974, Judge Newman granted a stay until February 21 "so that the Parole Board may have an opportunity to dispatch hearing examiners" to Danbury to give Grasso an institutional hearing. On February 19, 1974 this court granted a further stay until March 1, 1974 for the same purposes.
Before the expiration of the stay, the Board of Parole advised Danbury that it was sending hearing examiners there to conduct an institutional parole hearing in Grasso's case on February 28, 1974. Grasso was so advised.
On February 25, however, Grasso was informed that the hearing at Danbury was cancelled since the Board intended to pursue its appeal from the conditional writ, but that he would be released from custody on March 1. On February 28, after Grasso had completed the necessary forms in preparation for his release the next day, and had arranged for his wife to pick him up, he was advised that he would not be released but that the Parole Board would conduct a "file review" on his case in Washington. On March 1, 1974, there was a file review of Grasso's case at which he was again denied parole and he was again continued to "expiration of sentence".
After the denial of parole at the file review, Grasso moved in the district court for release from custody on the ground that the Parole Board had failed to comply with the conditional writ issued by Judge Newman in Grasso I. After a hearing to determine whether or not there had been compliance, Judge Newman held that under his decision in Grasso I the Parole Board was required to give an (a)(2) prisoner as effective parole consideration as a 4202 prisoner; that under the Board's regulations a 4202 prisoner who had served one-third of his sentence was entitled to a full-scale hearing before two hearing examiners in the inmate's institution at which the inmate and his representative were entitled to be present; that Grasso, as an (a)(2) prisoner who had served one-third of his sentence, was entitled to such a full-scale institutional hearing under the conditional writ issued in Grasso I ; and, finally, that the procedures of the Board and the file review given on March 1, 1974 in Grasso's case failed to comply with the terms of the conditional writ.
Judge Newman, therefore, directed that Grasso be permanently discharged from federal custody. Grasso v. Norton, 376 F. Supp. 116 (D. Conn. 1974) (Grasso II). Judgment was entered accordingly on May 6, 1974. It is the appeal from that judgment which is now before us.
Three issues are presented on this appeal:
1. In the case of a prisoner eligible for parole at such time as the Board of Parole may determine under 18 U.S.C. § 4208(a)(2), may the Board of Parole, on the basis of an initial parole hearing held within three months of incarceration, continue the prisoner beyond one-third of his maximum sentence without further parole consideration?
2. If not, what further parole consideration is such a prisoner entitled to?
3. Did the district court commit reversible error in discharging Grasso from federal custody?
Recent cases dealing with the first and second issues presented here take three divergent positions.
Garafola v. Benson, 505 F.2d 1212 (7th Cir. 1974), is in accord with the position taken in Grasso I and Grasso II, that an (a)(2) prisoner whose sentence has been continued beyond one-third of the maximum after an initial parole hearing, like a 4202 prisoner, is entitled to a full-scale institutional hearing at or before the one-third point of his maximum sentence.
Stroud v. Weger, 380 F. Supp. 897 (M.D. Pa. 1974), agrees that an (a)(2) prisoner whose sentence has been continued beyond one-third of the maximum after an initial parole hearing is entitled to additional parole consideration at or before the one-third point of his sentence. However, Stroud disagrees with the view that a full institutional hearing ...