On Appeal from the United States District Court for the Middle District of Pennsylvania.
Aldisert and Becker, Circuit Judges and Cohill,*fn* District 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August 19, 1976 to the actual physical custody of the New Jersey authorities; however, if the New Jersey detainer is withdrawn, parole effective September 7, 1976, via Community Treatment Center."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 ...