U.S. ex rel. Caruso v. U.S. Bd. of Parole, 56349

• Decision Date: 05 January 1978
• Docket Number: No. 56349,A,No. 77-1253,56349,77-1253
• Citation: 570 F.2d 1150
• Parties: UNITED STATES of America ex rel. Ciro M. CARUSO, N. J. S. P.ppellant, v. UNITED STATES BOARD OF PAROLE.
• Court: U.S. Court of Appeals — Third Circuit

Page 1150

570 F.2d 1150

UNITED STATES of America ex rel. Ciro M. CARUSO, N. J. S. P No. 56349, Appellant, v. UNITED STATES BOARD OF PAROLE.

No. 77-1253.

United States Court of Appeals, Third Circuit.

Argued Oct. 18, 1977.

Decided Jan. 5, 1978.

David A. Ruhnke, Asst. Federal Public Defender, Newark, N. J., for appellant; Martin C. Aronchick, law student, on the brief.

Jonathan L. Goldstein, U. S. Atty., Newark, N. J., for appellee; Ralph A. Jacobs, Asst. U. S. Atty., Newark, N. J., on the brief.

Before ADAMS and GARTH, Circuit Judges, and LAYTON, ^* District Judge.

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 again 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 Commissioner'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 violator 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 (Morrissey 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 circumstances ⁸ 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 detainer 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 Commission 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...