APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA (D.C. Civil Action No. 74-778)
Aldisert, Kalodner and Adams, Circuit Judges. Adams, Circuit Judge (dissenting).
This appeal is from the district court's Order granting the habeas corpus petition of Melvin Sanders, an inmate of the federal penitentiary at Lewisburg, Pennsylvania. The district court, in an Opinion*fn1 accompanying its Order, held that the United States Board of Parole ("Board") had violated Sanders' due process rights and otherwise abused its discretion in reincarcerating Sanders for violation of his parole after it had granted him parole on a sentence imposed for a crime committed while he was on parole.
The facts relevant to our disposition may be summarized as follows:
On May 26, 1970, Sanders was sentenced to a three-year prison term for counterfeiting.
On August 16, 1971, Sanders was granted parole, after he had served 15 months of his three-year sentence.
On May 17, 1972, Sanders was sentenced to a 7 1/2-year prison term for conspiracy to pass counterfeit money in the spring of 1972 when he was still on parole. The sentence, imposed by Judge Jack B. Weinstein,*fn* provided that it was "to run concurrently with previously imposed sentence." Later, Judge Weinstein in a letter to the Board, dated April 5, 1973, stated that "it was my intention that the parole violation term and the term imposed be served concurrently."
On June 9, 1972, Sanders wrote, without avail, to the Board requesting a parole violation revocation hearing (Exhibit D).
On June 12, 1972, the Board lodged a detainer, in the form of a parole violator's warrant, against Sanders, with the Warden of the Lewisburg Penitentiary, where Sanders was incarcerated pursuant to Judge Weinstein's sentence.
On April 10, 1974, Sanders filed with the Federal Bureau of Prisons an " [Inmates] Request for Administrative Remedy" (Exhibit C) which asserted that the detainer was invalid by reason of the concurrent provisions of Judge Weinstein's sentence. The "Request" was denied on April 16, 1974. On April 19, 1974, he filed an "Appeal" (Exhibit B) with the Bureau of Federal Prisons which was denied May 15, 1974.
On August 26, 1974, the Board issued a "Notice of Action" (Exhibit E) to Sanders which informed him that he had been granted "Parole September 18, 1974 to actual physical custody of detainer only." The "Notice of Action," which was served on Sanders on September 3, 1974, stated, under the caption "Appeals procedure" -- "You have a right to appeal . . . within thirty days of the date this Notice was sent."
On September 6, 1974, the Board issued a Certificate of Parole which provided that Sanders was to be paroled on September 18, 1974 on Judge Weinstein's sentence. The Certificate stated that the Board had found that Sanders "is eligible to be PAROLED, and that there is a reasonable probability that he WILL REMAIN AT LIBERTY WITHOUT VIOLATING THE LAWS and . . . that the release of this person is not incompatible with the welfare of society . . ."
On September 18, 1974, Sanders was paroled on his second sentence, and the parole violator's warrant was simultaneously executed, pursuant to the "Notice of Action" of August 26, 1974.
On September 20, 1974, Sanders filed a habeas corpus petition challenging his continued incarceration on the ground that Judge Weinstein's concurrent sentence was valid, and accordingly the balance of the term of his first sentence had been ...