Appeal from denial by the United States District Court for the Northern District of New York, James T. Foley, Chief Judge, of habeas corpus petition seeking relief in absence of prompt parole revocation hearing, by federal parolee at present incarcerated in state prison for crime committed while on parole. Reversed and remanded.
Kaufman, Chief Judge, Smith and Mansfield, Circuit Judges.
Lyman Shepard, a federal parolee serving a state prison sentence for a crime committed while on parole, appeals an order entered by the United States District Court for the Northern District of New York, James T. Foley, Chief Judge, denying his habeas corpus petition seeking relief in absence of prompt parole revocation hearing. We reverse and remand.
In July of 1972, on conviction for interstate transportation of a stolen motor vehicle, in violation of 18 U.S.C. § 2312, Shepard was sentenced under the Youth Corrections Act to an indeterminate term of imprisonment not to exceed six years. On April 18, 1974, he was paroled. On December 17, 1974 he was sentenced in a New York state court for attempted second-degree robbery to a term of up to four years' imprisonment. He has been in a New York correctional facility since December of 1974.
In January, 1975, the federal parole board ("the Board") filed at the New York Facility as a detainer against Shepard a parole violation warrant based on his state conviction. Shepard requested a prompt parole revocation hearing to present evidence in mitigation of the charges underlying the warrant. But, in accordance with its regulations, after reviewing Shepard's case, the Board allowed the detainer to stand without affording him the requested hearing, promising only to re-examine his case in one year.
In November of 1975 Shepard filed his habeas corpus application. In it he alleged that, solely because of the detainer lodged against him, he was prevented from participating in educational and temporary release programs and from benefiting from other privileges generally available to inmates. He also claimed that the Board's delay in affording him a parole revocation hearing was impairing his ability to present evidence in mitigation of the charges underlying the detainer. Shepard contended that the Board's failure to afford him a prompt revocation hearing violated his right to due process. The application was denied by the district court, and Shepard appealed.
The court below had jurisdiction to entertain the instant habeas petition under 28 U.S.C. § 2241. The lodging of the parole violation warrant as a detainer against Shepard satisfied § 2241(c)(3)'s "in custody" requirement.*fn1 See, e. g., Jones v. Johnston, 175 U.S. App. D.C. 151, 534 F.2d 353, 357 (D.C. Cir., 1976).
On May 14, 1976, four days after oral argument before us, the statutory and regulatory framework challenged in Shepard's habeas application was replaced by the Parole Commission and Reorganization Act, Pub. L. No. 94-233, and regulations promulgated in accordance therewith. Prior to May 14, the Board's treatment of Shepard was regulated primarily by 28 C.F.R. § 2.53:
(a) In those instances where the prisoner is serving a new sentence in an institution, the warrant may be placed there as a detainer. Such prisoner shall be advised that he may communicate with the Board relative to disposition of the warrant, and may request that it be withdrawn or executed so his violator term will run concurrently with the new sentence. Should further information be deemed necessary, the Regional Director may designate a hearing examiner panel to conduct a dispositional interview at the institution where the prisoner is confined. At such dispositional interview the prisoner may be represented by counsel of his own choice and may call witnesses in his own behalf, provided he bears their expenses. He shall be given timely notice of the dispositional interview and its procedure.
(b) Following the dispositional review the Regional Director may:
(1) Let the detainer stand;
(2) Withdraw the detainer and close the case if the expiration date has passed;
(3) Withdraw the detainer and reinstate to supervision; thus permitting the federal sentence time to run uninterruptedly from the time of his original release on parole or mandatory release;
(4) Execute warrant, thus permitting the sentence to run from that point in time. If the warrant is executed, a previously conducted dispositional interview ...