                                                                                                                           Opinions of the United
2000 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-13-2000

Callwood v. Enos
Precedential or Non-Precedential:

Docket 98-7501




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2000

Recommended Citation
"Callwood v. Enos" (2000). 2000 Decisions. Paper 217.
http://digitalcommons.law.villanova.edu/thirdcircuit_2000/217


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2000 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
Filed October 13, 2000

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

NO. 98-7501

JAMES CALLWOOD,
       Appellant

v.

JERRY ENOS*, DIRECTOR, BUREAU OF CORRECTION;
CHESLEY ROEBUCK, CHAIRMAN OF V.I.
PAROLE BOARD

*Caption Amended -- See Clerk's Order of 11/19/99

On Appeal from the District Court of the Virgin Islands
(D.C. Civil No. 97-cv-00167)
District Judge: Hon. Raymond L. Finch, Chief Judge

Submitted Under Third Circuit LAR 34.1(a)
April 14, 2000

Before: SLOVITER, ROTH and STAPLETON, Circuit   Judges

(Filed: October 13, 2000)
       James Callwood

        Appellant Pro Se

       Iver A. Stridiron
       Frederick Handleman
       Robert W. Bornholt
       Office of Attorney General
        of Virgin Islands
       Department of Justice
       Charlotte Amalie, St. Thomas,
        U.S. V.I. 00802

        Attorneys for Appellees

OPINION OF THE COURT

SLOVITER, Circuit Judge.

This case, along with two others recently presented to the
court, raises important issues concerning the jurisdiction of
the courts in the Virgin Islands over habeas corpus
petitions. Here, James Callwood appeals the order of the
District Court of the Virgin Islands denying his pro se
petition for a writ of habeas corpus in which he challenges
the failure of the Virgin Islands Director of Corrections to
recommend him to the Virgin Islands Board of Parole for an
early parole eligibility date to which he claims he is entitled
by statute.

I.

Background

At approximately 11:30 p.m. on August 21, 1983,
Callwood and his accomplice, Irvin Smith, broke into the
home of John Bruggeman. Callwood was armed with a
sawed-off shotgun and Smith with a machete. Bruggeman
was asleep in the bedroom, and when he woke up and
reached for the table, Callwood shot and killed him. 1 On
_________________________________________________________________

1. The underlying facts of the crime are taken from the   transcript of
Callwood's plea hearing and therefore reflect the facts   as admitted by
Callwood at the time of his plea. Although Callwood was   a juvenile (16)
at the time of his arrest, he was transferred on August   26, 1983 to adult
status pursuant to V.I. Code Ann. tit. 4, S 176.

                                  2
September 28, 1983, Callwood pled guilty in the District
Court of the Virgin Islands to second degree murder in
violation of territorial law, V.I. Code Ann. tit. 14, S 922. He
was sentenced to 40 years imprisonment. In 1984, he was
sentenced to an additional 5 years for an earlier escape
from custody. Since 1984, Callwood has been serving his
sentence as a contractual-boarder in the United States
federal penitentiary in Lewisburg, Pennsylvania, and more
recently in Edgefield, South Carolina.2

Callwood filed a petition in the District Court of the
Virgin Islands pursuant to 28 U.S.C. S 2255 in 1984 and
again in 1989 in which he challenged the imposition of his
sentence, seeking an order setting aside the sentence. He
also filed a motion seeking to amend his S 2255 petitions.
The two petitions, as well as the proposed amended
petition, were denied on the merits by the District Court.
We affirmed the denial on appeal by memorandum opinion
dated January 2, 1991.

On November 6, 1997, Callwood filed the pro se petition
that is the subject of this appeal. In this petition, he alleges
that he is in custody in violation of his rights under a
Virgin Islands statute and the Due Process Clause of the
United States Constitution, made applicable to the Virgin
Islands by 48 U.S.C. S 1561, because the Virgin Islands
Bureau of Corrections has failed to recommend him for
early parole eligibility under V.I. Code Ann. tit. 5, S 4601.
That section of the Virgin Islands Code provides:

       Except for a prisoner sentenced to a term of life
       imprisonment without parole, every prisoner confined
       in any penitentiary, jail or prison for a violation of the
       Virgin Islands law for a definite term or terms of over
       180 days or for the term of his natural life, whose
_________________________________________________________________

2. The Attorney General of the Virgin Islands is authorized by local
statute to enter into agreements to use the correctional or detention
facilities of the United States Bureau of Prisons when the Attorney
General determines that "detention and/or correctional facilities within
the Virgin Islands are inadequate to serve the best interest of the inmate
or the general interest or welfare of the Territory," provided that
certain
education and/or vocational program requirements are met. See V.I.
Code Ann. tit. 5, S 4503(c).

                                3
       record of conduct shows that he has observed the rules
       of the institution in which he is confined, upon
       recommendation of the Director of the Bureau of
       Corrections supported by the recommendation of a
       psychiatrist and/or psychologist, may be released on
       parole after serving one-half of such term or terms or
       after serving 15 years of a life sentence or of a sentence
       of 30 years or more or after serving the minimum
       sentence required by law, whichever is greater;
       Provided, however, That the Board of Parole, in its
       discretion by at least a two-thirds affirmative vote of all
       its members, upon recommendation by the Directors of
       the Bureau of Corrections, supported by the
       recommendation of a psychiatrist and/or psychologist,
       is authorized to fix an earlier eligibility date for the
       release of a prisoner on parole after serving one-third of
       his term or terms or after serving 10 years of a life
       sentence or of a sentence of 30 years or more .

V.I. Code Ann. tit. 5, S 4601 (emphasis added).

Callwood has served over 10 years of his 45-year
sentence, and, as we construe his petition, he now seeks a
recommendation by the Directors of the Bureau of
Corrections to the Board of Parole so that the Board of
Parole can exercise its discretion in fixing a date for his
release on parole.

By letter dated June 23, 1997, the warden at the
Lewisburg penitentiary, where Callwood was housed at the
time he filed his petition, informed the Virgin Islands
Bureau of Corrections of Callwood's desire for parole
consideration. In the letter, the warden stated that
Callwood has completed 10 years of his sentence and that
"[a] psychological evaluation completed on May 2, 1997,
indicates Inmate Callwood is an individual capable of
maintaining responsible and regulation abiding behavior."
The letter was accompanied by Callwood's Progress Report,
issued by the United States Department of Justice, Federal
Bureau of Prisons. By letter dated July 8, 1997, another
warden of the Lewisburg penitentiary informed the Virgin
Islands Board of Parole of the same. Callwood has heard no
response from either the Virgin Islands Directors of
Corrections or Board of Parole. In his petition, Callwood

                                4
requests that the court "[o]rder that the Bureau of
Correction fix an earlier parole eligibility date under 5 V.I.C.
4601, thereby ordering the V.I. Parole Board to grant
[Callwood] a hearing to consider his release on parole." Pet.
filed Nov. 6, 1997, at 10.

The District Court transferred the petition to this court to
be treated as an application to file a second or successive
petition under 28 U.S.C. S 2255. See 28 U.S.C. S 2244
(requiring an order of the court of appeals authorizing the
district court to consider a second or successive petition
under S 2255). On March 31, 1998, we issued an order
stating the following:

       The foregoing application to file a successive 28 U.S.C.
       S 2255 motion is denied as unnecessary. Because
       petitioner wishes to challenge parole processes, he
       must proceed under V.I. Code Ann. tit. 5, SS 1301-
       1325. Bennett v. Soto, 850 F.2d 161, 163 (3d Cir.
       1988). The clerk is directed to transfer the petition to
       the District Court of the Virgin Islands. The district
       court shall hear the petition in accordance with V.I.
       Code Ann. tit. 5, SS 1301-1325.

By order dated May 19, 1998, the District Court denied
Callwood's petition on the merits. Callwood timely appealed.

II.

Discussion

A.

We begin our discussion with an inquiry into the
jurisdiction of the District Court of the Virgin Islands over
Callwood's petition, an inquiry that is also relevant to our
own jurisdiction over the appeal.

Article IV, S 3 of the United States Constitution
authorizes Congress to establish "all needful Rules and
Regulations respecting the Territory or other Property
belonging to the United States," including the Virgin
Islands. U.S. Const. art. IV, S 3, cl.2; see also Brow v.

                               5
Farrelly, 994 F.2d 1027, 1032 (3d Cir. 1993). Pursuant to
that authority, Congress enacted the Revised Organic Act of
1954, 48 U.S.C. SS 1541-1645, which serves as the
Constitution of the Virgin Islands and establishes the
jurisdiction of its courts.3 The Revised Organic Act
originally vested the District Court of the Virgin Islands
with the jurisdiction of the district courts of the United
States "in all causes arising under the Constitution, treaties
and laws of the United States . . . ." Act of July 22, 1954,
ch. 558, S 22, 68 Stat. 497. The Act also vested the District
Court of the Virgin Islands with general original jurisdiction
over all other matters in the Virgin Islands, subject to the
exclusive jurisdiction of the local courts over civil actions in
which the amount in controversy was less than $500 and
over criminal actions for local offenses in which the
maximum punishment did not exceed six months in prison
or a $100 fine. Under this jurisdictional framework, the
District Court of the Virgin Islands heard the majority of
cases brought in the Virgin Islands, whether those cases
were brought under federal law or local law, civil law or
criminal law. See Carty v. Beech Aircraft Corp. , 679 F.2d
1051, 1057 (3d Cir. 1982) (explaining jurisdiction of the
District Court of the Virgin Islands under the Revised
Organic Act of 1954 as "more like a state court of general
jurisdiction than a United States district court").

In 1984, Congress rewrote the jurisdictional provisions of
the Revised Organic Act, which set in motion a
restructuring of the Virgin Islands judicial system. As we
explain in today's decision in Walker v. Government of the
Virgin Islands, ___ F.3d ___ (3d Cir. Oct. ___, 2000), in
enacting the 1984 amendments to the Revised Organic Act,
Congress "affirmatively bestow[ed] on the District Court of
the Virgin Islands the entire jurisdiction of a District Court
of the United States . . . ." Id. at ___; see 48 U.S.C.
S 1612(a). Moreover, in enacting the 1984 amendments,
Congress gave the Virgin Islands legislature the power to
vest jurisdiction over local actions exclusively in the local
courts. See 48 U.S.C. S 1612(b); 48 U.S.C. S 1611(b); Estate
_________________________________________________________________

3. For a detailed account of the judicial system in effect in the Virgin
Islands prior to the Revised Organic Act of 1954, see Carty v. Beech
Aircraft Corp., 679 F.2d 1051, 1053-55 (3d Cir. 1982).

                               6
Thomas Mall, Inc. v. Territorial Court of Virgin Islands, 923
F.2d 258 (3d Cir. 1991) [caption of case amended 4/19/95].

On September 5, 1990, the Virgin Islands legislature
exercised that power, enacting legislation, effective October
1, 1991, that vests original jurisdiction over all local civil
actions in the Territorial Court of the Virgin Islands. See
V.I. Code Ann. tit. 4, S 76(a). Since October 1, 1991,
therefore, all civil actions that are based on local law and
that do not satisfy diversity jurisdiction requirements must
be brought in the Territorial Court of the Virgin Islands,
with a few exceptions. See 48 U.S.C. S 1612; Brow, 994
F.2d at 1034 (3d Cir. 1993) (explaining the effect of V.I.
Code Ann. tit. 4, S 76(a) on the jurisdiction of the District
Court of the Virgin Islands over civil actions).

Effective January 1, 1994, the Virgin Islands legislature
also vested original jurisdiction in the Territorial Court over
all local criminal actions. See V.I. Code Ann. tit. 4,
S 76(b)(1) & (c). However, under S 22 of the Revised Organic
Act, the District Court of the Virgin Islands retains
concurrent jurisdiction with the Territorial Court over
criminal actions in which the local crimes charged are
related to federal crimes. See 48 U.S.C.S 1612(c); United
States v. Hodge, 211 F.3d 74, 75 n.1 (3d Cir. 2000) (noting
jurisdiction of the District Court of the Virgin Islands under
48 U.S.C. S 1612 and 4 V.I.C. S 32 over prosecution of
defendant for both federal and territorial crimes). Thus, as
a general matter, since January 1, 1994, the Territorial
Court has had jurisdiction over criminal actions that are
based solely on violations of local law, subject to the limited
concurrent jurisdiction of the District Court.

Pursuant to the system in place in 1983, Callwood's
criminal proceedings, including the taking of his guilty plea
and sentencing, took place in the District Court of the
Virgin Islands. His conviction, however, is for violation of
territorial criminal law, and the Virgin Islands is
responsible for execution of his 45-year sentence, including
his eligibility for parole. Had Callwood been prosecuted
after January 1, 1994, in all likelihood his criminal
proceedings would have taken place in the Territorial Court
rather than the District Court of the Virgin Islands.

                               7
With this statutory framework in mind, we turn to the
jurisdictional issue presented in this case: whether the
District Court of the Virgin Islands has jurisdiction over
Callwood's habeas petition challenging the execution of his
sentence, i.e. his eligibility for parole. We hold that it does,
but not on the basis to which we referred in our March 31,
1998 order in this case.

B.

Given the significant jurisdictional changes instituted by
the 1984 amendments to the Revised Organic Act and
subsequent Virgin Islands legislation, we revisit the
statement in our March 31, 1998 order that "[t]he district
court shall hear [Callwood's writ of habeas corpus] petition
[challenging his parole status] in accordance with V.I. Code
Ann. tit. 5, SS 1301-1325." As we have been directed, "An
appellate federal court must satisfy itself not only of its own
jurisdiction, but also of that of the lower courts in a cause
under review." Mitchell v. Maurer, 293 U.S. 237, 244 (1934);
see also Fed. R. Civ. P. 12(h)(3) ("Whenever it appears by
suggestion of the parties or otherwise that the court lacks
jurisdiction of the subject matter, the court shall dismiss
the action.").

Sections 1301-1325, tit. 5, of the Virgin Islands Code
provide for the availability of the writ of habeas corpus. In
particular, S 1303 states that "[t]he writ of habeas corpus
may be granted by the district court, upon petition by or on
behalf of any person restrained of his liberty." V.I. Code
Ann. tit. 5, S 1303.

In stating in the March 31, 1998 order that the District
Court had jurisdiction over Callwood's petition under the
territorial habeas corpus provisions, we relied on our
holding in Bennett v. Soto, 850 F.2d 161 (3d Cir. 1988),
that a prisoner's challenge to his parole status was properly
brought under SS 1301-1325 in the District Court of the
Virgin Islands. Although the district court in Bennett did
have jurisdiction over Bennett's petition underS 1303,
because of subsequent statutory changes the District Court
in this case does not have jurisdiction under that section
over Callwood's petition. Bennett's petition wasfiled before

                               8
October 1, 1991, the effective date of the territorial statute
that vested jurisdiction over local civil actions in the
Territorial Court. See V.I. Code Ann., tit. 4, S 76(a).
Callwood's petition, in contrast, was filed on November 6,
1997, after the effective date of S 76(a).

A suit seeking a writ of habeas corpus, although
admittedly somewhat of a hybrid, is considered civil in
nature. See Santana v. United States, 98 F.3d 752, 754 (3d
Cir. 1996). Accordingly, by operation of S 76(a), as of
October 1, 1991 the District Court of the Virgin Islands was
divested of jurisdiction to consider petitions for writs of
habeas corpus under territorial habeas corpus law. We
have previously held that to the extent that Virgin Islands
Code provisions vest jurisdiction in the District Court, they
have been implicitly repealed. See Tamarind Resort Assocs.
v. Government of the Virgin Islands, 138 F.3d 107, 114 (3d
Cir. 1998) (holding that V.I. Code Ann. tit. 5,S 76(a)
implicitly repealed a writ-of-review provision that provided
for jurisdiction in the District Court); Moravian Sch.
Advisory Bd. of St. Thomas, V.I. v. Rawlins, 70 F.3d 270,
273 (3d Cir. 1995) (same). It follows that to the extent that
S 1303 vests jurisdiction in the District Court over a habeas
corpus action brought under that section, it too has been
repealed.

The issue whether, under these circumstances, S 1303
should be interpreted to provide for jurisdiction in the
Territorial Court in lieu of the District Court is not before
us in this case.4 We hold only that the District Court of the
Virgin Islands does not have jurisdiction underS 1303 over
petitions filed under that section after October 1, 1991, and
thus that that section does not confer jurisdiction on the
District Court in this case.

C.

The fact that the District Court does not have jurisdiction
_________________________________________________________________

4. In Parrott v. Government of the Virgin Islands, ____ F.3d ____ (3d Cir.
Oct. ___, 2000), filed herewith, this court holds that S 1303 is to be
construed to provide the Territorial Court with jurisdiction over habeas
petitions.

                               9
under the local statute does not end our jurisdictional
inquiry. Rather, we must also consider whether the District
Court of the Virgin Islands has jurisdiction pursuant to 28
U.S.C. S 2241, the federal habeas statute under which a
prisoner may challenge parole proceedings. See United
States v. Ferri, 686 F.2d 147, 158 (3d Cir. 1982); see also
Bennett, 850 F.2d at 162-63 ("The jurisdictional authority
of 28 U.S.C. S 2255 is limited to challenges to the legality of
a sentence and does not encompass the power to entertain
a claim for wrongful revocation of parole.").

Before the 1984 amendments, the District Court of the
Virgin Islands lacked the authority to issue writs under
S 2241 because the "district courts" that are authorized to
entertain writs under that section are defined in Title 28 as
"courts constituted by chapter 5 of [Title 28]." 28 U.S.C.
S 451. The District Court of the Virgin Islands is not such
a court, see 28 U.S.C. SS 81-131, and therefore we held in
Ali v. Gibson, 572 F.2d 971, 974 (3d Cir. 1978), that it did
not have authority to issue writs under S 2241.5 As we
explain in detail in Walker, however, in enacting the 1984
amendments to the Revised Organic Act, Congress gave the
District Court of the Virgin Islands the authority to issue
writs of habeas corpus even though it is not a "district
court[ ]" within the meaning of Title 28 of the United States
Code. Walker was convicted in the Territorial Court for
territorial crimes. He filed a petition for a writ of habeas
corpus in the District Court of the Virgin Islands
challenging the imposition of his conviction and sentence
by the Territorial Court. In Walker, we state that S 22 of the
Revised Organic Act, as amended, "affirmatively bestows on
the District Court of the Virgin Islands the entire
jurisdiction of a District Court of the United States . . . ."
Walker, ___ F.3d at ___; see also 48 U.S.C. S 1612(a)
_________________________________________________________________

5. In contrast, since 1949 the District Court of the Virgin Islands has
had jurisdiction under 28 U.S.C. S 2255 over petitions brought by
prisoners challenging the imposition of sentences by that court because
S 2255 authorizes courts "established by Act of Congress" to issue relief
under that section. See United States ex rel. Leguillou v. Davis, 212 F.2d
681, 682 n.1 (3d Cir. 1954). Nothing in the 1984 amendments affects the
authority of the District Court of the Virgin Islands to issue relief
under
S 2255, where applicable.

                               10
(providing that the District Court of the Virgin Islands
"shall have the jurisdiction of a District Court of the United
States"). After extensive examination of the 1984
amendments, we conclude there that Congress intended for
the District Court of the Virgin Islands to have jurisdiction
under 28 U.S.C. S 2254 "where the petitioner is in custody
serving a sentence of the Territorial Court," Walker, ___
F.3d at ___, even though S 2254, likeS 2241, refers to
"district courts."

Applying the 1984 amendments to the Revised Organic
Act to this case, we conclude that although the District
Court of the Virgin Islands does not have jurisdiction over
Callwood's petition under S 1303, the territorial habeas
corpus provision, it does have jurisdiction under 28 U.S.C.
S 2241.6 We have jurisdiction over Callwood's appeal from
the District Court's final order denying the writ pursuant to
28 U.S.C. S 1291 and S 2253.7
_________________________________________________________________

6. Callwood named Jerry Enos, the Director of the Virgin Islands Bureau
of Corrections, and Chesley Roebuck, the Chairman of the Virgin Islands
Parole Board, as respondents in his petition. At the time that he filed
his
petition, Callwood was imprisoned in a federal penitentiary in Lewisburg,
Pennsylvania, and he is now imprisoned in a federal penitentiary in
Edgefield, South Carolina. Given the unusual circumstances of prisoners
convicted in the Virgin Islands for territorial crimes who are now housed
in federal prisons on a contract basis and who are challenging the
execution of their sentence, the Director of the Virgin Islands Bureau of
Corrections is the constructive custodian of such prisoners, and
therefore is a proper respondent for Callwood'sS 2241 petition. See
Braden v. 30th Judicial Circuit Court of Kentucky , 410 U.S. 484 (1973);
see also Order of Judgment and Commitment (committing Callwood to
the custody of the Virgin Islands Bureau of Corrections).

7. A certificate of appealability is not a prerequisite to an appeal by a
prisoner convicted in the District Court of the Virgin Islands for
territorial crimes who seeks an earlier parole date pursuant to S 2241.
See 28 U.S.C. S 2253(c)(1) (requiring a certificate of appealability in
S 2255 proceedings and where the detention complained of arises out of
"process issued by a State court"). Callwood, unlike Walker, who we hold
was required to obtain a certificate of appealability under S 2253(c)(1),
see Walker, ___ F.3d at ___, is not in custody pursuant to the sentence
of the Territorial Court; rather, he is in custody pursuant to the
sentence
of the District Court of the Virgin Islands and challenges the execution
of that sentence by the Virgin Islands Bureau of Corrections.

                               11
Nonetheless, given our understanding of the judicial
system as it now stands in the Virgin Islands, principles of
comity mandate that Callwood be required to exhaust his
remedies in the Territorial Court before proceeding in the
District Court of the Virgin Islands under federal law.
Although there is no statutory exhaustion requirement
attached to S 2241, we have consistently applied an
exhaustion requirement to claims brought under S 2241.
See Schandelmeier v. Cunningham, 819 F.2d 52, 53 (3d Cir.
1986) ("The state court exhaustion requirement is
mandated by statute under 28 U.S.C. S 2254(b) and has
developed through decisional law in applying principles of
comity and federalism as to claims brought under 28
U.S.C. S 2241."); Arias v. United States Parole Comm'n, 648
F.2d 196, 199 (3d Cir. 1981) (requiring federal prisoner to
exhaust administrative remedies before bringing claim
under S 2241). As Callwood has understandably failed to
seek relief in the Territorial Court under S 1303, this is a
case particularly well-suited to dismissal at this stage for
lack of exhaustion. The Territorial Court will no doubt be
more familiar with the provisions and requirements of the
territorial parole statute and should be given an
opportunity to provide a remedy, if appropriate, before
Callwood seeks federal habeas corpus relief. Callwood will
be free to return to the District Court under S 2241, after
exhausting any remedy available in the Territorial Court.
Accordingly, we will vacate the order of the District Court
dismissing the petition on the merits and will remand with
instructions to dismiss for failure to exhaust local remedies
without prejudice to Callwood's refiling his challenge under
S 2241 after exhaustion.8
_______________________________________________________________

8. Although we express no view on the merits of the claims presented in
Callwood's petition, we note that in order to attain relief under S 2241,
Callwood must establish that he is being held in custody in violation of
the Constitution or laws or treaties of the United States. See 28 U.S.C.
S 2241.
                                12
A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                               13
