United States ex rel. Marrero v. Warden, Lewisburg Pen.

Decision Date27 August 1973
Docket NumberNo. 72-1842.,72-1842.
Citation483 F.2d 656
PartiesUNITED STATES of America ex rel. Benigno MARRERO, Appellant, v. WARDEN, LEWISBURG PENITENTIARY.
CourtU.S. Court of Appeals — Third Circuit

COPYRIGHT MATERIAL OMITTED

Harry C. Batchelder, Jr., Brooklyn, N. Y., John J. Witmeyer, III, John B. Sherman, New York City, Stewart Dalzell, Drinker, Biddle & Reath, Philadelphia, Pa., for appellant.

S. John Cottone, U.S. Atty., Harry A. Nagle, Lewisburg, Pa., for appellee.

Before GIBBONS and ROSENN, Circuit Judges.

Certiorari Granted January 7, 1974. See 94 S.Ct. 865.

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of the penal statute for which he was convicted, became eligible for parole when the penal statute was subsequently repealed by the Comprehensive Drug Abuse Prevention and Control Act of 1970.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eligibility, (2) the nature of parole and its relation to sentencing, and (3) two congressional "saving provisions" for repealed criminal statutes.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26 U.S.C. § 7237(d),1 which was in effect at the time of his sentencing and precluded his parole eligibility, had been repealed effective May 1, 1971, by § 1101(b)(4)(A) of the Comprehensive Drug Abuse Prevention and Control Act of 1970, Pub.L. No. 91-513, 84 Stat. 1292.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 habeas 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.2

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).3

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. § 4201.4 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 case is not...

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