Jack Fletcher, Plaintiff-appellant, v. Warden, United States Penitentiary, Leavenworth, Kansas,defendant-appellee.tommy J. Hart, Plaintiff-appellant, v. Irl E. Day, Warden, Defendant-appellee.askofu Lester M. Johnson, Plaintiff-appellant, v. the Attorney General of the United States, Benjaminciviletti, U. S. Bureau of Prisons Director,norman A. Carlson, and the Warden of Theleavenworth Usp, Defendants-appellees, 641 F.2d 850 (10th Cir. 1981)

Each of these appeals involves in varying contexts the interpretation by the United States District Court for the District of Kansas of 18 U.S.C. § 5003(a) concerning the transfer of state prisoners to federal custody.¹ 

No. 79-1156 Fletcher

Fletcher is now serving a substantial prison term by reason of his conviction of a criminal offense against the State of Delaware. He was transferred to federal custody in the United States Penitentiary at Leavenworth, Kansas, pursuant to a contract between Delaware officials and the Attorney General of the United States in reliance on 18 U.S.C. § 5003, supra. In his pro se petition to the federal district court for a writ of habeas corpus, he expressly did "not consent or object to the right of the State of Delaware to enter into agreement with the federal government" but objected to his transfer without a full hearing to determine whether he was in need of "specialized treatment" as required by the interpretation of section 5003(a) in Lono v. Fenton, 581 F.2d 645 (7th Cir. 1978) (en banc) .

In dismissing Fletcher's petition the district court agreed with the dissenting opinion of Judge Bauer in Lono, 581 F.2d at 648, that the statute does not restrict or limit the use of federal prison facilities to convicted state offenders in need of treatment. The district court concluded, accordingly, that the petitioner had no right to a pre-transfer hearing under either the statute or the Due Process Clause. Fletcher v. Warden, 467 F. Supp. 777 (D. Kan. 1979).

Following this appeal, appellant's direct criminal appeal was decided. Fletcher v. State, 409 A.2d 1254 (Del.1979). He was returned to a state prison for resentencing, where he remains. He has been advised of no plans for his transfer to federal custody at a later date.

Appellee argues that because of the last-mentioned circumstances this appeal is moot. We agree.

In this non-class action, there is no reasonable expectation that the alleged wrongful transfer of the prisoner will recur, and certainly there is nothing to indicate that the transfer issue will evade or, indeed, is evading judicial review. Preiser v. Newkirk, 422 U.S. 395, 95 S. Ct. 2330, 45 L. Ed. 2d 272 (1975). Vitek v. Jones, 445 U.S. 480, 100 S. Ct. 1254, 63 L. Ed. 2d 552 (1980), primarily relied upon by appellant on the issues of mootness, is distinguishable. There the issue involved possible recommitment to a mental hospital, with no indication that the petitioner's condition was not permanent. All parties had agreed that the case was not moot, the state advised the court that "there is a very real expectation of transfer," and the district court had found that Jones was subject to and was in fact "under threat of being transferred to the state mental hospital...."

The holding of mootness may make little real difference to appellant in the present case, since application to him of our ruling in Johnson, infra, would be fatal to his claim on the merits anyway. Yet the constitutional imperative of a subsisting case or controversy must briefly postpone our consideration of the meaning of the statute.

No. 79-2062 Hart

Hart petitioned the federal district court for a writ of habeas corpus on the contentions that, notwithstanding his detention solely for a conviction under the laws of Connecticut, he is presently being required to serve his state sentence in the United States Penitentiary at Leavenworth, Kansas; that he is not in prison by virtue of any act of Congress, it not having been determined that he was in need of specialized treatment, an alleged prerequisite under 18 U.S.C. § 5003; and that he is being denied access to Connecticut legal materials required to present properly his application for post-conviction relief. The district court refused habeas corpus relief, ruling as to the transfer issue that Hart had not exhausted his state remedies; it also held that the case lacked merit in light of its prior decision in Fletcher v. Warden, supra.

In reviewing the Hart judgment we do not reach the latter holding. By reason of 28 U.S.C. § 2254(b) and in light of VonEiselein v. Taylor, 344 F.2d 919 (10th Cir. 1965), the appellant's failure to exhaust state remedies forecloses consideration of the merits of his petition.² 

Hart's denial of access claim is implicitly covered by the district court's ruling, although not separately addressed. Administrative requests for Connecticut legal materials were refused. But unsuccessful pursuit of administrative remedies did not obviate the necessity of exhausting state judicial remedies.³ 

No. 80-1749 Johnson

In Johnson a pro se -in forma pauperis petition or complaint sought habeas corpus, declaratory, injunctive and damage relief on the claims that appellant's transfer from a Delaware state prison for reasons other than the need for specialized treatment and the Government's failure to provide a showing that appellant was in need of specialized treatment available only in the federal system violated 18 U.S.C. § 5003 and due process. Relying upon its decision in Fletcher, supra, the district court dismissed Johnson's action as frivolous and denied leave to appeal in forma pauperis.⁴  This court granted such leave and appointed counsel to represent appellant.

The exhaustion doctrine was not relied upon by the trial court in this case and, indeed, would not preclude consideration of Johnson's complaint in its civil rights aspects. Wilwording v. Swenson, 404 U.S. 249, 92 S. Ct. 407, 30 L. Ed. 2d 418 (1971). Cf. Preiser v. Rodriguez, 411 U.S. 475, 93 S. Ct. 1827, 36 L. Ed. 2d 439 (1973).

The judgment of the district court with reference to the interpretation of section 5003 is affirmed essentially for the reasons stated by it in Fletcher. We find little justification for adding much to Judge Rogers' well-considered opinion. It is reflective of the clear weight of authority. One of the most recent cases on the subject cites with approval Fletcher and reviews other decisions to the same effect. Howe v. Civiletti, 625 F.2d 454, 456 (2d Cir. 1980), cert. granted --- U.S. ----, 101 S. Ct. 938, 67 L. Ed. 2d 109 (1981).

Both of the last-mentioned cases conclude, in short, that the narrow reading of section 5003(a) as espoused by appellant has no basis in the language of the statute; that contracts not only for "treatment" but for the "custody, care, subsistence, education, treatment and training" of convicted persons are authorized; that nothing in the grammatical construction affords "treatment" the primacy for which the prisoner contends; that while the legislative history of the original provision may be ambiguous or conflicting, this is largely internal, without alteration of the broad authority granted for contracting; and that the uniform administrative interpretation since enactment without objection by Congress is indicative of continuing congressional intent and is entitled to deference.

Among other circumstances which Judge Rogers mentioned in the latter connection was the 1965 addition of subsection (d) to § 5003, Pub. L. 89-267, defining the term "state" so as to include the Canal Zone within the section. It was noted that Congress made this change without amending the substance of subsection (a), indicating approval of the long-standing administrative construction of the statute. We would add that the case against appellant's interpretation is still stronger: The legislative history of the Canal Zone Amendment expressly supports the Bureau of Prison's construction of section 5003(a) that a finding of need for specialized treatment is not required before a state prisoner may be transferred to federal custody.⁵ 

No. 79-1156 is remanded to the district court for dismissal as moot. In No. 79-2062, the judgment dismissing the petition for a writ for failure to exhaust state remedies is affirmed. In No. 80-1749, the judgment dismissing the action in the light of Judge Rogers' decision in Fletcher is affirmed.

IT IS SO ORDERED.

APPENDIX

S.Rep.No.799, 89th Cong., 1st Sess. (1965), reprinted in (1965) U.S.Code Cong. & Ad.News 3595 et seq.

The Committee on Armed Services, to which was referred the bill (H.R. 724) to authorize the transfer of certain Canal Zone prisoners to the custody of the Attorney General, having considered the same, reports favorably thereon without amendment and recommends that the bill do pass.

PURPOSE

This bill would permit the transfer of persons convicted of offenses in the Canal Zone to ... prisons within the United States.

EXPLANATION

The Canal Zone Penitentiary has a population that averages 90 to 100 prisoners of whom not more than about ten are citizens of the United States. The small number of inmates makes the operation of a rehabilitation program difficult. The location of the penitentiary complicates possible visits from relatives and friends. Rehabilitation programs and visits are both important elements in accomplishing prisoner reform.

This bill would provide authority for the Governor of the Canal Zone to contract with the Attorney General of the United States for the transfer to the custody of the Attorney General of prisoners who are citizens of the United States. The law requires that such contracts provide for reimbursing the United States in full for all costs and other expenses involved.

The American citizens imprisoned in the Canal Zone normally are persons who are in military service when convicted or who were seamen or other persons in a transient status at the time of conviction. The inmates all were convicted of felonies and hence there is no likelihood of returning prisoners with very short sentences.

COST

The Canal Zone Government estimates that only three or four persons a year would be returned to the United States for imprisonment....

DEPARTMENTAL RECOMMENDATION

The letter from the Assistant to the Governor of the Canal Zone dated February 23, 1965, that is printed below and made part of this report shows that the Canal Zone Government and the Department of Justice concur in recommending enactment of this bill and that the Bureau of the Budget has no objection to it.

Canal Zone Government,

Washington, D.C., February 23, 1965.

Hon. Herbert C. Bonner

Chairman, Committee on Merchant Marine and Fisheries,

House of Representatives.

Dear Mr. Chairman: Reference is made to your letter dated January 18, 1965, requesting a report on H.R. 724, a bill to authorize transfer of certain Canal Zone prisoners to the custody of the Attorney General....

The subject bill would amend section 5003 of Title 18, United States Code, so as to make that section applicable to the Canal Zone....

The circumstance that a great preponderance of the inmates are Panamanian citizens or persons admitted to Panama for permanent residence makes it difficult in terms of economic justification to establish any type of programs that might be specifically suited to the needs of the small group of U.S. citizens.

In addition to the foregoing considerations, cases arise from time to time indicating that transfer of a U.S. citizen prisoner to the United States to the custody of the Attorney General would clearly be in the best interests of the prisoner in that it would return the prisoner to his home environment, thus permitting visits from relatives and friends and, in general, improve the likelihood of his successful rehabilitation. Moreover, the likelihood of making appropriate arrangements for parole of a U.S. citizen prisoner who is not a Canal Zone resident would in the normal case be greatly enhanced by his transfer to the custody of the Attorney General.

... The legislative history of title 18, United States Code, section 5003 (see 1952 U.S.Code Cong. and Adm.News, p. 1420), indicates that the section was enacted because State officials had frequently requested the Bureau of Prisons to undertake the custody, treatment and training of State prisoners where specialized types of institutions and training programs were needed but were not available in the States. As discussed above, similar considerations make it desirable to extend the section to the Canal Zone. (Emphasis added.)