On Appeal from the United States District Court for the Eastern District of Pennsylvania Civil No. 85-6089
Before: ADAMS, GIBBONS, and MANSMANN, Circuit Judges.
The issue in this habeas corpus proceeding is whether petitioner, who had exhausted his claim in the state courts, was properly granted bail prior to a ruling on the merits of his habeas corpus petition. We conclude that no special circumstances are present that justify such extraordinary relief, and accordingly we will reverse.
Petitioner Norfleet Lucas was convicted in a Pennsylvania state court on March 27, 1973 for selling narcotics, and sentenced to eighteen months to ten years imprisonment. After serving approximately nineteen months of his sentence, Lucas was released on parole in October 1974.
Subsequently, in March 1981 and while still on parole, Lucas was arrested and indicted by federal authorities on six counts of distributing heroin, conspiring to distribute heroin, and aiding and abetting the distribution of heroine, in violation of 21 U.S.C. §§ 841(a)(1), 846, and 18 U.S.C. § 2(a) (1982). He pleaded guilty to these offenses. Upon learning of Lucas's federal convictions, the Pennsylvania Board of Probation and Parole (the Parole Board) on March 26, 1981 issued a parole violation warrant for Lucas and on July 16, 1981, the Parole Board ordered Lucas recommitted to prison for four years for violating his parole. At that time, Lucas was transferred to the custody of the Commonwealth.
After serving forty-seven days in a county prison, Lucas was released to the federal authorities in August 1981 for sentencing on his federal convictions. He was sentenced by the district court to serve four years in confinement on count I, the conspiracy charge, and three years on the other five counts charging distribution and aiding and abetting distribution, with the latter sentence to be followed by a three-year term of special parole. The commitment order of the district court specified that Lucas's four-year term was to be concurrent with his four-year state parole violation sentence, but that the federal four- and three-year sentences were to be consecutive to one another. After sentencing, Lucas was placed in a federal penitentiary.
Shortly thereafter, Lucas filed a motion under Federal Rule of Criminal Procedure 35, seeking reduction of his federal sentence. The district court denied the Rule 35 motion in an order filed February 10, 1982. In this order, the district judge reiterated his intention that Lucas's federal and state sentences be served concurrently. The district judge therefore recommended to the Attorney General that Lucas be remanded to the custody of the Commonwealth. Nonetheless, Lucas was returned to the federal penitentiary, where he remained for the balance of his federal custodial sentence.
Lucas was paroled by the federal authorities on January 24, 1986, having served fifty-eight months under his federal sentence. At that time, the Pennsylvania Parole Board, refusing to recognize the time served in federal prison as time served under his state parole violation sentence, recommitted Lucas to serve his four-year state sentence.
When he learned of the Commonwealth's intention to recommit him upon his release from federal custody, Lucas filed a habeas corpus petition under 28 U.S.C. § 2254 (1982) on October 23, 1985. In his petition, Lucas asserted no constitutional violation nor did he identify any violation of federal law that was alleged to be the cause of his confinement. Rather, he claimed that his four-year state sentence had run, according to the district court's intention, concurrently with his federal term of imprisonment and that he should therefore be released from the custody of the Commonwealth.
The district court conducted a hearing on Lucas's habeas petition on February 10, 1986. During oral argument, the Pennsylvania Parole Board urged the district court to dismiss the petition because Lucas had not presented his claim to the state courts and thus had no exhausted his state remedies as required by § 2254(b). The district court nonetheless was troubled by Lucas's continued confinement. Accordingly, while ordering Lucas to file an action under the Pennsylvania Post Conviction Hearing Act (PCHA), 42 Pa. Cons. Stat. Ann. § 6501 et seq. (Purdon 1982) in order to exhaust his state remedies, and deferring its ruling on the merits of the federal habeas petition, the district court admitted Lucas to bail pending exhaustion of his claim in the state courts.
The Parole Board appealed to this Court from the district court's order that Lucas be released on bail, and requested an expedited briefing schedule. While this appeal was pending, Lucas filed a petition under the PCHA in the Pennsylvania Commonwealth Court. Lucas v. Commonwealth of Pennsylvania, Board of Probation and Parole, No. 501 C.D. (Pa. Commw. Ct. 1986). But at the time of oral argument before this Court, the ...