ON APPEAL FROM THE JUDGMENT OF THE DISTRICT COURT OF THE VIRGIN ISLANDS (D.C. Civil No. 76-0535)
Before Adams, Van Dusen and Higginbotham, Circuit Judges.
In this appeal we have been asked to examine the legality of the transfer of Ismail Muslim Ali (formerly known as Ishmael X. LaBeet) from a prison in the Virgin Islands to a United States Penitentiary in Atlanta, Georgia and to determine whether the conditions he faced both in the Georgia prison and the United States Penitentiary in Marion, Illinois, to which he was subsequently transferred, violated the eighth amendment to the United States Constitution. We find that his transfer was made in accordance with statutory and constitutional requirements and will therefore reverse the portion of the district court's decision which sustained this claim. We will affirm the district court's conclusion that Ali has not met his burden of proof on his challenge of the conditions of prison facilities.
On August 13, 1973, Ali and four co-defendants were convicted of eight counts of first degree murder, four counts of first degree assault and two counts of robbery. They were sentenced that day to eight consecutive life terms of imprisonment on the murder counts and four fifteen-year terms of imprisonment on the other counts, to be served concurrently with the sentences of the murder counts.*fn1 Ali and his co-defendants were held in a detention facility in Anna's Hope, Virgin Islands operated by the Government of the Virgin Islands (the Government) during their trial. While in the Anna's Hope facility, they were in the custody of the United States Marshal for the District of the Virgin Islands. On the day of sentencing, Ali and his co-defendants were sent to the Presidio Penitentiary in Rio Piedras, Puerto Rico, a United States government facility. They remained there until approximately September 6, 1973, when they were moved to the United States Penitentiary in Atlanta, Georgia. Ali's co-defendants were moved shortly thereafter to other federal institutions; Ali remained in the Atlanta penitentiary until 1977.
In December 1973 Ali's four co-defendants were returned temporarily to Atlanta, so that they might jointly confer with their attorneys on their direct appeal. During this time, the five defendants filed under the federal statute, 28 U.S.C. § 2241,*fn2 a petition for a writ of habeas corpus in the United States District Court for the Northern District of Georgia, in which they challenged the legality of their transfer from the Virgin Islands. The district court dismissed the petition and the Court of Appeals for the Fifth Circuit affirmed. United States ex rel. Gereau v. Henderson, 526 F.2d 889 (5th Cir. 1976).*fn3
In September 1976, Ali filed a second petition for a writ of habeas corpus in the District Court for the Virgin Islands, under 28 U.S.C. § 2241; it is the subject of this appeal. The district court held that it did not have jurisdiction to consider Ali's claim. Ali appealed, this court reversed holding that the district court did not have jurisdiction to hear the claim under 28 U.S.C. § 2241, the federal habeas corpus statute, but that Ali had stated a claim for relief under Virgin Islands law, and that the district court had jurisdiction to consider the petition under the Virgin Islands habeas statute, V.I. Code Ann. tit. 5 § 1301.*fn4 We therefore reversed and remanded for further proceedings. Ali v. Gibson, 572 F.2d 971 (3d Cir. 1979). In March 1977, during his first appeal, Ali was transferred to the United States Penitentiary at Marion, Illinois. He remained there until June 1978 when he was transferred to a Virgin Islands facility in Fort Christian, Virgin Islands for a hearing on this petition, pursuant to V.I. Code Ann. tit. 5 § 1309.
On remand, the district court held that Ali had been transferred in violation of the Virgin Islands law and the due process clause of the United States Constitution.*fn5 The court held that Ali's transfer was not legal because Alphonso Christian, then the Commissioner of Public Safety (hereafter referred to as the Commissioner or Christian) and Ali's legal custodian, did not have statutory authority to order Ali's transfer to a federal facility and that even if the Commissioner had the power, he had not in fact authorized the transfer. It also held that the transfer provision of the Code, if read to permit transfers to federal facilities, would have been in violation of the United States Constitution, as applied to Ali, because it did not provide for a hearing prior to the transfer. The court ordered the petitioner confined in the Virgin Islands and ordered the Director of the Bureau of Corrections to issue rules and regulations under which the advisability of any future transfer of Ali would be determined.*fn6 The court further held that Ali had not met his burden of proof on the challenge to the conditions of confinement. Ali v. Gibson, 483 F. Supp. 1102 (D.V.I.1979).
The Commissioner appealed. He argues that the transfer was authorized by the statute and that the Commissioner had in fact approved the transfer. Ali also appealed. He argues that the district court erred in its decision on the conditions of his confinement; the United States Bureau of Prisons and the Commissioner ask us to affirm that decision.
This appeal raises several issues regarding the validity of the Ali's transfer from a Virgin Islands facility to the federal penitentiary in Atlanta, Georgia. The dispute principally concerns two issues: first, whether as a factual matter the transfer was approved by the Commissioner, and second, whether the statute under which the Commissioner purportedly acted granted him the authority to approve the transfer. The district court answered both questions negatively. We disagree.
We start our review of the district court's findings mindful of our limited role in the fact-finding process. The district court's findings must be affirmed unless they are clearly erroneous. Krasnov v. Dinan, 465 F.2d 1298, 1302 (3d Cir. 1972). While this standard of review severely restricts our role, it does not extinguish it. Where, as here, the findings pertaining to the Commissioner's approval of Ali's transfer are not supported by the record, and indeed, the record supports contrary findings, we must reverse.
Ali and his co-defendants, who came to be known as the Fountain Valley Five, were tried and convicted for an armed daylight attack on September 6, 1972 at the Fountain Valley Golf Course in St. Croix, Virgin Islands. The assailants robbed guests and employees and opened fire, at random, as they exited the golf course. Eight persons were killed and four were wounded. Not unexpectedly, the attack on the golf course and the subsequent trial of the Fountain Valley Five were the object of considerable controversy and publicity. The fear was great, the anxiety high and the burden on the officials involved extraordinary. They were fearful that the prisoners, who faced considerable sentences for their violent acts, would not be reluctant to use violence if they had an opportunity to escape. They were also afraid that some citizens, outraged by the crimes, would try to attack the prisoners.
During the trial, the prisoners were held in a detention facility in Anna's Hope, Virgin Islands. They were in the actual custody of the United States Marshal, although the Commissioner retained constructive custody. At some unidentified point, it was determined that the prison facilities on the Virgin Islands were not adequate to hold the prisoners if they were convicted and that if they were convicted, they would be immediately transferred by the United States Marshals to a federal facility off-island. In accordance with this decision, the defendants were flown to Puerto Rico immediately upon being sentenced and were incarcerated in a federal penitentiary.
Precisely who made the decision to move the prisoners is the subject of controversy. The district judge held that U. S. Chief Deputy Marshal Krim Ballentine, who had been in charge of the U. S. Marshals guarding the defendants, made the decision with other officials from the Office of the U. S. Marshal. He found that the decision was made without notice to the Commissioner and was, therefore, made in violation of the trial court's order committing the "defendants "to the custody of the Commissioner of Public Safety, or his authorized ...