ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA (C.A. No. 79-0063)
Before Seitz, Chief Judge, Adams and Higginbotham, Circuit Judges.
In this appeal, a prisoner convicted in a state court and originally incarcerated in a state prison challenges his transfer to federal custody on the ground that the applicable federal statute did not authorize it, and on the further ground that the hearing preceding the transfer was inadequate.
Arthur Beshaw was convicted in the Vermont state courts for the crime of breaking and entering, and at a later trial of attempted escape and related charges. He was sentenced to a total of twenty-two years, six months and twenty-four days in prison. Originally, Beshaw was confined in Vermont's maximum security prison at Windsor, Vermont. When Vermont decided to phase out its 175-year old Windsor facility, the Vermont Department of Corrections contracted with the Federal Bureau of Prisons to transfer to federal custody those state prisoners who could not be accommodated at other state institutions. Pursuant to this agreement, Beshaw was sent to the Federal Correctional Institution at Petersburg, Virginia. Before he was transferred, Beshaw was given a pre-transfer hearing by the Vermont Department of Corrections.
For disciplinary and security reasons, Beshaw was subsequently moved to federal facilities in Wisconsin, Illinois, Pennsylvania, and Indiana. On June 11, 1980, Beshaw was transferred to the Massachusetts Correctional Institution, Walpole, Massachusetts. The shift to the Massachusetts institution was made in accordance with an agreement between the Federal Bureau of Prisons and the State of Massachusetts authorizing the transfer of federal prisoners to Massachusetts state facilities.
In January 1979, while confined in the federal penitentiary at Lewisburg, Pennsylvania, Beshaw filed a petition for a writ of habeas corpus with the District Court for the Middle District of Pennsylvania. Beshaw challenged his move from the Vermont prison system to federal custody, on the ground that this transfer was not authorized by federal statute. Beshaw also averred that the pre-transfer hearing accorded him by the Vermont Department of Corrections was inadequate to satisfy the requirements of due process.
On January 24, 1979, the United States Magistrate issued a report recommending that the writ be denied. He found that Beshaw's transfer was lawful and involved an "administrative matter best left to the discretion of prison officials rather than the courts." This report was adopted by the district judge, who, on February 9, 1979 issued an order denying the writ. A notice of appeal was filed from the district court's decision on February 22. On March 7, the district court certified that the appeal was not being taken in good faith. This Court, however, issued a certificate of probable cause on June 7, 1979, and the appeal was docketed.*fn1
Because Beshaw is presently confined at a Massachusetts state facility, we must consider initially whether his challenge to the transfer from a Vermont state institution to federal prison is moot. In Preiser v. Newkirk, 422 U.S. 395, 95 S. Ct. 2330, 45 L. Ed. 2d 272 (1975), the Supreme Court ruled that a prisoner's challenge to a transfer from a New York state medium security prison was rendered moot by his retransfer to a minimum security prison within New York and by the fact that he would be eligible for parole in a short time. The Court determined that there was no reasonable expectation that the wrong would be repeated, and that the questions presented did not fall within that category of harm capable of repetition yet evading review.
We find the case at hand distinguishable from Preiser. While Beshaw is no longer in federal custody,*fn2 his transfer from a federal prison system to the Massachusetts state was made pursuant to an agreement between the Federal Bureau of Prisons and the State of Massachusetts. The State of Vermont is not a party to that agreement, although Vermont officials were consulted before Beshaw was transferred into Massachusetts custody. Beshaw's present confinement in Massachusetts is thus a consequence of the transfer from Vermont to federal custody, the very transfer that he attacks, and there is no indication in the record that Beshaw's present confinement in Massachusetts could have come about had he not been transferred first to federal custody in the way he claims was unlawful.
In addition, federal officials retain discretion to return Beshaw to federal custody. Unlike Preiser, there is in the present situation a distinct possibility that Beshaw will once again suffer the "wrong" of which he complains, namely, transfer to a federal facility. Counsel for the government stated at oral argument that Beshaw would likely be moved to a federal institution if a position at a suitable facility became available. In light of these circumstances, we find that Beshaw's claim is still alive and that his appeal is not moot. Cf. Ali v. Gibson, 631 F.2d 1126 (3d Cir. 1980) (challenge to conditions of ...