UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
decided: November 15, 1983.
ANTHONY J. GARAFOLA, APPELLEE
G. C. WILKINSON, WARDEN, G. C. WILKINSON, APPELLANT
On Appeal from the United States District Court for the Middle District of Pennsylvania.
Aldisert and Becker, Circuit Judges and Cohill,*fn* District Judge.
Opinion OF THE COURT
BECKER, Circuit Judge.
This appeal presents the question whether the United States Parole Commission acted within its statutory authority when it promulgated a rule under which a federal prisoner who has been paroled to a state detainer, upon subsequent conviction for a crime punishable by imprisonment, committed while subject to the jurisdiction of the Commission, can be denied credit in the calculation of his parole-violation term for the time that he was incarcerated in state prison pursuant to the state detainer. The case turns on whether a "parole to a state detainer" is a "parole" within the meaning of the Parole Commission and Reorganization Act, 18 U.S.C. §§ 4201-4218 (1976) ("Parole Act").
The district court held that a prisoner is "paroled" only when he is released into the community, that a parole to a state detainer was the equivalent of a transfer to state custody, and therefore that the time spent by appellee Anthony J. Garafola in state prison after being paroled to the state detainer must be credited towards satisfaction of his federal sentence. Because we hold that a "parole to a state detainer" made pursuant to section 2.32(a)(2) of the Parole Commission's regulations, see 28 C.F.R. §§ 2.1-2.60 (1982), is a "parole" within the meaning of the Parole Act, we reverse.
On October 8, 1974, Garafola was sentenced in the United States District Court for the District of Massachusetts to a total regular adult term of six-years imprisonment on convictions of one count of conspiracy and eight counts of disposing of falsely made and forged securities in interstate commerce. On June 2, 1976, Garafola had his initial parole hearing. At this hearing, the Parole Commission was advised that Garafola had been convicted in New Jersey for assault and battery and had received a one- to three-year sentence to run concurrently with his federal sentence. The Commission decided to parole Garafola "effective August 19, 1976 to the actual physical custody of the New Jersey authorities; however, if the New Jersey detainer is withdrawn, parole effective September 7, 1976, via Community Treatment Center."
On August 19, 1976, pursuant to this decision, Garafola was paroled from his six-year federal sentence to the New Jersey detainer; at that time 1452 days remained to be served on his federal sentence. On January 10, 1978, after 509 days in a New Jersey state prison, Garafola was released by the State of New Jersey from his one one- to three-year state sentence, and he became subject to active supervision under his federal parole; on that date 943 days remained to be served on his federal parole.
On March 18, 1980, Garafola was convicted in a New Jersey state court of conspiracy. The criminal acts committed by Garafola that resulted in this conspiracy conviction occurred in September 1977, while Garafola was still in custody on his state sentence. On April 14, 1980, Garafola was sentenced to two years and eleven months imprisonment on this conspiracy conviction. On April 23, 1980, the Commission issued a parole violation warrant against Garafola, based upon his new conviction. This warrant was lodged as a detainer against Garafola with the New Jersey State prison authorities.
After conducting a hearing, the Commission decided, by notice of action dated September 24, 1981, to revoke Garafola's parole, to forfeit all time he had spent on parole, to begin his parole violation term on his release from state custody, and to deny him reparole on the parole violation term. The Commission found that August 19, 1976, was the date that Garafola was paroled from his federal sentence and thus computed the parole violation term to be 1452 days. On October 27, 1981, Garafola was released from his new state sentence, at which time the federal parole violation warrant was executed. The federal parole violation term of 1452 days began to run on that date.
On August 12, 1982, Garafola, acting pro se, petitioned in the District Court for the Middle District of Pennsylvania under 28 U.S.C. § 2241 (1976), for a writ of habeas corpus against his custodian George C. Wilkinson, Warden of United States Penitentiary, Lewisburg, Pennsylvania. Garafola requested credit towards the federal parole violation term for the time he had spent in custody pursuant to the state sentence to which he had been paroled in August 1976, and from which he was released on January 10, 1978.
On February 2, 1983, the district court granted Garafola's petition for a writ of habeas corpus. The district court held that the "parole to the state sentence" was not a "parole", and that therefore, the Commission could not deny a federal prisoner credit for time spent in state prison pursuant to a state detainer. The court ordered the Commission to credit Garafola for the time that he spent in state prison from August 19, 1976, to January 10, 1978. Garafola v. Wilkinson, 555 F. Supp. 1002 (M.D. Pa. 1983).*fn1
The Parole Commission has express statutory authority to revoke the parole of any parolee who is convicted of any new criminal offense punishable by imprisonment, and to order that that individual receive no credit towards time served from the date he was released on parole until he returns to federal custody following completion of any new sentence of incarceration. 18 U.S.C. § 4210(b)(2) (1976).*fn2 The term "parole" is not defined in the Parole Act;*fn3 however, this omission is not surprising given that the subject of the Parole Act is parole, and Congress clearly intended to define that term by reference to the structure and substance of the entire Act. Nor is there any express definition in the regulations promulgated by the Parole Commission pursuant to its express statutory authority to promulgate regulations to implement the goals of the Parole Act. However, the Commission has promulgated regulations that have the effect of making "parole to a state detainer" one form of "parole."*fn4 The real question in this case then is whether these regulations are valid.
If we determine that the regulations are valid, then Garafola was "paroled" when he was "paroled to the state detainer" on August 19, 1976, and upon his subsequent conviction and revocation of his parole, he is liable to serve the full amount of time that remained on his federal sentence calculated from the day he was paroled (i.e., 1452 days). If, however, the regulations are invalid, then Garafola was not a "parolee" while he was in state prison, and the Commission had no authority to deny credit to Garafola for the time he spent in state prison.*fn5
At the threshold, we note that Congress has committed substantive parole determinations to the absolute discretion of the Parole Commission.*fn6 This statutory restriction on judicial review does not preclude the federal courts, however, from considering a claim that the guidelines for exercising discretion, as promulgated and applied, violate the intent and directives of the Parole Act. "Such an inquiry into the legality of agency action, as opposed to its appropriateness within legal bounds, is uniquely appropriate for judicial determination." Garcia v. Neagle, 660 F.2d 983, 988 (4th Cir. 1981) (quoting Scanwell Laboratories, Inc. v. Shaffer, 137 U.S. App. D.C. 371, 424 F.2d 859, 875 (D.C. Cir. 1970)), cert. denied, 454 U.S. 1153, 102 S. Ct. 1023, 71 L. Ed. 2d 309 (1982); see 5 U.S.C. § 706 (1976). If, therefore, the Commission's regulations that make a "parole to a detainer" a form of "parole" are outside the statutory mandate granted to the Parole Commission by Congress in the Parole Act, then the regulations are invalid, and the Commission may not deny Garafola credit for the time he served in state prison. The district court in effect found that the Commission's regulations equating "parole to a detainer" with "parole" violated the statutory mandate of the Parole Act.*fn7 This determination is in turn subject to review by this court for error of law. Garcia, 660 F.2d at 989.
The district court pointed to three factors that persuaded it that the Parole Commission's regulations treating a "parole to a detainer" as a "parolee" exceeded the Commission's statutory mandate. First, the court stated its view that "parole" necessarily requires release to the community, not to another prison authority.
Release to a detainer is not, however, an ordinary circumstance of "parole." Indeed calling such release "parole" is pure hyperbole and a gross twisting of the concept. Release on parole usually results in termination of the prisoner's period of incarceration. The parolee lives in a community or other less intrusive setting under supervision of appropriate authorities. . . . While the parolee is subject to a variety of "conditions of release" . . . he has substantial freedom to adjust to the non-prison environment.
555 F. Supp. at 1004. We disagree.
Congress has charged the Parole Commission with making the determination whether a federal prisoner should be paroled. In Garafola's case the Commission applied the appropriate federal criteria and determined that he should be. In separate legislation Congress has also charged the Commission with cooperating with state authorities by honoring state detainers lodged against federal prisoners. See Interstate Agreement on Detainers Act, 18 U.S.C. Appendix (1976). In paroling Garafola to the state detainer the Parole Commission honored both of these Congressional directives. A state prison authority to which a federal prisoner has been paroled must make an entirely separate and independent judgment whether, under state criteria, the prisoner is entitled to state parole. The characterization of the federal action does not depend on actions taken by state authorities.*fn8 Where a prisoner has violated both state and federal law and is convicted by both forums, he has brought down upon himself the possibility of being paroled from federal prison to state prison; and there is nothing about a "parole to a state detainer" that inherently contradicts the notion of "parole". Moreover, in most cases, federal prisoners who find themselves subject to a state concurrent sentence will prefer a regime in which they can legitimately be paroled to a state detainer; a rule to the contrary would compel federal authorities to deny parole until termination of the state's concurrent sentence and thus eliminate the possibility of a shorter overall period of incarceration that might otherwise flow from federal parole followed by state parole. See Clay v. Henderson, 524 F.2d 921, 924 (5th Cir. 1975), cert. denied, 425 U.S. 995, 48 L. Ed. 2d 820, 96 S. Ct. 2210 (1976) (decided under pre-1976 Parole Act).
The second factor relied on by the district court is that the Parole Commission's own regulations place certain restrictions on a parolee that are inconsistent with incarceration in state prison. For example, one of the express conditions of release is that a parolee shall not "associate with persons who have a criminal record," 28 C.F.R. § 240(a)(10) (1982). But, by paroling Garafola to the New Jersey detainer, the Commission obviously suspended this regulation and gave its permission for Garafola to associate with other prisoners to the extent required by his state sentence. See 18 U.S.C. § 4203(b) (1976) ("The Commission, by majority vote, and pursuant to the procedures set out in this chapter, shall have the power to . . . impose reasonable conditions on an order granting parole. . . ."); see also Arciniega v. Freeman, 404 U.S. 4, 30 L. Ed. 2d 126, 92 S. Ct. 22 (1971).
Finally, the district court pointed to the fact that, if a prisoner is paroled to a state detainer under section 2.32(a)(1) of the Commission's regulations, once that detainer is withdrawn the prisoner is required to be returned to federal prison and is not to be released unless and until the Commission makes a new order of parole. 28 C.F.R. § 2.32(a)(1) (1982).*fn9 The district court reasoned that, where the existence of a state detainer is one factor in favor of federal parole, and where withdrawal of that detainer results not in release to the community, but rather in automatic reincarceration in federal prison and reconsideration of the parole question de novo, the Parole Commission must credit the prisoner with the time spent in the state prison towards satisfaction of his federal sentence.
Whatever the merits of this argument, it is not relevant here. On this appeal both Garafola and the Parole Commission agree that Garafola was not paroled under 28 C.F.R. § 2.32(a)(1) (1982), but under 28 C.F.R. § 2.32(a)(2) (1982).*fn10 Under this latter section the prisoner is paroled to the state detainer, but once the detainer is withdrawn, the prisoner is paroled to the community.*fn11 Thus there was an actual and binding determination by the Parole Commission to parole Garafola from federal prison.
In sum, we hold that the parole of a federal prisoner to a state detainer pursuant to 28 C.F.R. § 2.32(a)(2) (1982) is in all respects a "parole" within the meaning of the Parole Act. None of the factors cited by the district court impel the conclusion that the Parole Commission's regulations are outside the statutory mandate of the Parole Act; nor can we think of any other reason why they might be invalid. We therefore conclude that these regulations are within the province of the Parole Act and that they are valid. Thus, upon revocation of Garafola's federal parole because of the subsequent state conviction, he was liable to serve the full amount of time remaining on his federal sentence on the date he was paroled from federal prison (i.e., 1452 days). The judgment of the district court will therefore be reversed.