2000 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-13-2000

Callwood v. Enos

Precedential or Non-Precedential:

Docket 98-7501

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Recommended Citation

"Callwood v. Enos" (2000). 2000 Decisions. Paper 217.

http://digitalcommons.law.villanova.edu/thirdcircuit_2000/217
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