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. e du/thir dc ir c uit_2000/217Filed 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 Isl ands (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 Judg es

(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 juris diction of the courts in the Virgin Islands over habeas corpus petitions. Here, James Callwood appeals the order o f the District Court of the Virgin Islands denying his pr o se petition for a writ of habeas corpus in which he ch allenges the failure of the Virgin Islands Director of Corre ctions 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 int o the home of John Bruggeman. Callwood was armed with a sawed-off shotgun and Smith with a machete. Bruggem an was asleep in the bedroom, and when he woke up and reached for the table, Callwood shot and killed him . 1 On

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1. The underlying facts of the crime are taken from the transcript of Callwood's plea hearing and therefore reflect the f acts 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 Au gust 26, 1983 to adult status pursuant to V.I. Code Ann. tit. 4, S 176.

2September 28, 1983, Callwood pled guilty in the Dis trict

Court of the Virgin Islands to second degree murder in violation of territorial law, V.I. Code Ann. tit. 1 4, S 922. He was sentenced to 40 years imprisonment. In 1984, he was sentenced to an additional 5 years for an earlier e scape from custody. Since 1984, Callwood has been serving his
sentence as a contractual-boarder in the United Sta tes federal penitentiary in Lewisburg, Pennsylvania, an d 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 senten ce. He also filed a motion seeking to amend his S 2255 pet itions. 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 opin ion dated January 2, 1991.

On November 6, 1997, Callwood filed the pro se peti tion that is the subject of this appeal. In this petitio n, he alleges that he is in custody in violation of his rights un der a Virgin Islands statute and the Due Process Clause o f the United States Constitution, made applicable to the Virgin Islands by 48 U.S.C. S 1561, because the Virgin Isl ands
Bureau of Corrections has failed to recommend him f or 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 vi olation of the Virgin Islands law for a definite term or te rms of over 180 days or for the term of his natural life , whose

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2. The Attorney General of the Virgin Islands is au thorized by local statute to enter into agreements to use the correct ional or detention
facilities of the United States Bureau of Prisons w hen the Attorney General determines that "detention and/or correctio nal 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 ar e met. See V.I. Code Ann. tit. 5, S 4503(c).

3record 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 rel eased on parole after serving one-half of such term o r terms or after serving 15 years of a life sentence or of a sentence of 30 years or more or after serving the min imum sentence required by law, whichever is great er; Provided, however, That the Board of Parole, in its discretion by at least a two-thirds affirmat ive vote of all its members, upon recommendation by the Dire ctors of the Bureau of Corrections, supported by the recommendation of a psychiatrist and/or psyc hologist, is authorized to fix an earlier eligibility date for the release of a prisoner on parole after servin g one-third of his term or terms or after serving 10 years of a life sentence or of a sentence of 30 years or mor e .

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 Boar d 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 a t the time he filed his petition, informed the Virgin Isl ands Bureau of Corrections of Callwood's desire for paro le consideration. In the letter, the warden stated tha t Callwood has completed 10 years of his sentence and that "[a] psychological evaluation completed on May 2, 1 997, indicates Inmate Callwood is an individual capable of maintaining responsible and regulation abiding beha vior." The letter was accompanied by Callwood's Progress R eport, issued by the United States Department of Justice, Federal Bureau of Prisons. By letter dated July 8, 1997, an other warden of the Lewisburg penitentiary informed the V irgin

Islands Board of Parole of the same. Callwood has h eard no response from either the Virgin Islands Directors o f Corrections or Board of Parole. In his petition, Ca llwood

4requests that the court "[o]rder that the Bureau of

Correction fix an earlier parole eligibility date u nder 5 V.I.C. 4601, thereby ordering the V.I. Parole Board to gra nt [Callwood] a hearing to consider his release on par ole." 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 su ccessive petition under 28 U.S.C. S 2255. See 28 U.S.C. S 22 44 (requiring an order of the court of appeals authori zing the district court to consider a second or successive p etition under S 2255). On March 31, 1998, we issued an orde r stating the following:

The foregoing application to file a successi ve 28 U.S.C. S 2255 motion is denied as unnecessary. Beca use petitioner wishes to challenge parole proces ses, 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. Th e 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 den ied 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 Is lands over Callwood's petition, an inquiry that is also releva nt 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 Prope rty belonging to the United States," including the Virg in Islands. U.S. Const. art. IV, S 3, cl.2; see also B row v.

5Farrelly, 994 F.2d 1027, 1032 (3d Cir. 1993). Pursu ant to

that authority, Congress enacted the Revised Organi c 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 Ac t 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 Constitutio n, treaties and laws of the United States . . . ." Act of July 22, 1954, ch. 558, S 22, 68 Stat. 497. The Act also vested th e District Court of the Virgin Islands with general original j urisdiction over all other matters in the Virgin Islands, subje ct to the exclusive jurisdiction of the local courts over civ il actions in which the amount in controversy was less than $500 and
over criminal actions for local offenses in which t he maximum punishment did not exceed six months in pri son or a $100 fine. Under this jurisdictional framework , the District Court of the Virgin Islands heard the majo rity 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. , 6 79 F.2d 1051, 1057 (3d Cir. 1982) (explaining jurisdiction of the District Court of the Virgin Islands under the Revi sed 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 provis ions 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. ___, 200 0), 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 Dis trict Court of the United States . . . ." Id. at ___; see 48 U. S.C. S 1612(a). Moreover, in enacting the 1984 amendment s, Congress gave the Virgin Islands legislature the po wer 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

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3. For a detailed account of the judicial system in effect in the Virgin Islands prior to the Revised Organic Act of 1954, s ee Carty v. Beech Aircraft Corp., 679 F.2d 1051, 1053-55 (3d Cir. 198 2).

6Thomas Mall, Inc. v. Territorial Court of Virgin Is lands, 923

F.2d 258 (3d Cir. 1991) [caption of case amended 4/ 19/95].

On September 5, 1990, the Virgin Islands legislatur e exercised that power, enacting legislation, effecti ve October 1, 1991, that vests original jurisdiction over all local civil actions in the Territorial Court of the Virgin Isla nds. See V.I. Code Ann. tit. 4, S 76(a). Since October 1, 19 91, therefore, all civil actions that are based on loca l law and that do not satisfy diversity jurisdiction requirem ents must be brought in the Territorial Court of the Virgin I slands, 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 th e District Court of the Virgin Islands over civil actions).

Effective January 1, 1994, the Virgin Islands legis lature also vested original jurisdiction in the Territoria l Court over
all local criminal actions. See V.I. Code Ann. tit. 4, S 76(b)(1) & (c). However, under S 22 of the Revise d Organic Act, the District Court of the Virgin Islands retai ns 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 Is lands 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 Territ orial Court has had jurisdiction over criminal actions th at 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 g uilty plea and sentencing, took place in the District Court of the Virgin Islands. His conviction, however, is for vio lation 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 prose cuted after January 1, 1994, in all likelihood his crimin al proceedings would have taken place in the Territori al Court rather than the District Court of the Virgin Island s.

7With this statutory framework in mind, we turn to t he

jurisdictional issue presented in this case: whethe r the District Court of the Virgin Islands has jurisdicti on over Callwood's habeas petition challenging the executio n 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 Ma rch 31,
1998 order in this case.

B.

Given the significant jurisdictional changes instit uted by the 1984 amendments to the Revised Organic Act and subsequent Virgin Islands legislation, we revisit t he statement in our March 31, 1998 order that "[t]he d istrict 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 directe d, "An appellate federal court must satisfy itself not onl y of its own jurisdiction, but also of that of the lower courts in a cause under review." Mitchell v. Maurer, 293 U.S. 237, 24 4 (1934); see also Fed. R. Civ. P. 12(h)(3) ("Whenever it app ears by suggestion of the parties or otherwise that the cou rt lacks jurisdiction of the subject matter, the court shall dismiss the action.").

Sections 1301-1325, tit. 5, of the Virgin Islands C ode provide for the availability of the writ of habeas corpus. In particular, S 1303 states that "[t]he writ of habea s 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 Dis trict Court had jurisdiction over Callwood's petition und er the territorial habeas corpus provisions, we relied on our holding in Bennett v. Soto, 850 F.2d 161 (3d Cir. 1 988), that a prisoner's challenge to his parole status wa s properly brought under SS 1301-1325 in the District Court of the Virgin Islands. Although the district court in Benn ett did have jurisdiction over Bennett's petition underS 13 03, because of subsequent statutory changes the Distric t Court in this case does not have jurisdiction under that section over Callwood's petition. Bennett's petition wasfil ed before

8October 1, 1991, the effective date of the territor ial statute

that vested jurisdiction over local civil actions i n the Territorial Court. See V.I. Code Ann., tit. 4, S 76 (a). Callwood's petition, in contrast, was filed on Nove mber 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 civi l in nature. See Santana v. United States, 98 F.3d 752, 754 (3d Cir. 1996). Accordingly, by operation of S 76(a), a s of October 1, 1991 the District Court of the Virgin Is lands 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 C ourt, 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 S ch. Advisory Bd. of St. Thomas, V.I. v. Rawlins, 70 F.3 d 270, 273 (3d Cir. 1995) (same). It follows that to the e xtent that S 1303 vests jurisdiction in the District Court ove r a habeas corpus action brought under that section, it too ha s been repealed.

The issue whether, under these circumstances, S 130 3 should be interpreted to provide for jurisdiction i n the
Territorial Court in lieu of the District Court is not before us in this case.4 We hold only that the District Co urt of the Virgin Islands does not have jurisdiction underS 13 03 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 juri sdiction

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

9under the local statute does not end our jurisdicti onal

inquiry. Rather, we must also consider whether the District Court of the Virgin Islands has jurisdiction pursua nt to 28 U.S.C. S 2241, the federal habeas statute under whi ch a prisoner may challenge parole proceedings. See Unit ed States v. Ferri, 686 F.2d 147, 158 (3d Cir. 1982); see also Bennett, 850 F.2d at 162-63 ("The jurisdictional au thority of 28 U.S.C. S 2255 is limited to challenges to the legality of a sentence and does not encompass the power to ente rtain a claim for wrongful revocation of parole.").

Before the 1984 amendments, the District Court of t he Virgin Islands lacked the authority to issue writs under
S 2241 because the "district courts" that are autho rized to
entertain writs under that section are defined in T itle 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), th at it did not have authority to issue writs under S 2241.5 As we explain in detail in Walker, however, in enacting t he 1984 amendments to the Revised Organic Act, Congress gav e the District Court of the Virgin Islands the authority to issue writs of habeas corpus even though it is not a "dis trict court[ ]" within the meaning of Title 28 of the Uni ted 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 se ntence by the Territorial Court. In Walker, we state that S 22 of the Revised Organic Act, as amended, "affirmatively bes tows on the District Court of the Virgin Islands the entire jurisdiction of a District Court of the United Stat es . . . ." Walker, ___ F.3d at ___; see also 48 U.S.C. S 1612 (a)

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5. In contrast, since 1949 the District Court of th e Virgin Islands has had jurisdiction under 28 U.S.C. S 2255 over petiti ons brought by prisoners challenging the imposition of sentences b y that court because S 2255 authorizes courts "established by Act of Con gress" to issue relief under that section. See United States ex rel. Legui llou v. Davis, 212 F.2d 681, 682 n.1 (3d Cir. 1954). Nothing in the 1984 am endments affects the authority of the District Court of the Virgin Islan ds to issue relief

under S 2255, where applicable.

10(providing that the District Court of the Virgin Is lands

"shall have the jurisdiction of a District Court of the United States"). After extensive examination of the 1984 amendments, we conclude there that Congress intende d for the District Court of the Virgin Islands to have ju risdiction under 28 U.S.C. S 2254 "where the petitioner is in custody serving a sentence of the Territorial Court," Walke r, ___ 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 Dis trict Court of the Virgin Islands does not have jurisdict ion over Callwood's petition under S 1303, the territorial h abeas corpus provision, it does have jurisdiction under 2 8 U.S.C. S 2241.6 We have jurisdiction over Callwood's appea l from the District Court's final order denying the writ p ursuant to
28 U.S.C. S 1291 and S 2253.7

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6. Callwood named Jerry Enos, the Director of the V irgin Islands Bureau of Corrections, and Chesley Roebuck, the Chairman o f the Virgin Islands Parole Board, as respondents in his petition. At th e time that he filed
his petition, Callwood was imprisoned in a federal peni tentiary in Lewisburg, Pennsylvania, and he is now imprisoned in a federal penitentiary in Edgefield, South Carolina. Given the unusual circum stances of prisoners convicted in the Virgin Islands for territorial cri mes who are now housed in federal prisons on a contract basis and who are challenging the execution of their sentence, the Director of the Vi rgin Islands Bureau of Corrections is the constructive custodian of such p risoners, and therefore is a proper respondent for Callwood'sS 22 41 petition. See Braden v. 30th Judicial Circuit Court of Kentucky , 410 U.S. 484 (1973); see also Order of Judgment and Commitment (committi ng Callwood to the custody of the Virgin Islands Bureau of Correct ions).

7. A certificate of appealability is not a prerequi site to an appeal by a prisoner convicted in the District Court of the Vir gin 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 complain ed of arises out of "process issued by a State court"). Callwood, unlik e Walker, who we hold was required to obtain a certificate of appealabili ty under S 2253(c)(1), see Walker, ___ F.3d at ___, is not in custody purs uant 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 cha llenges the execution of that sentence by the Virgin Islands Bureau of Co rrections.

11Nonetheless, given our understanding of the judicia l

system as it now stands in the Virgin Islands, prin ciples 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 requireme nt attached to S 2241, we have consistently applied an exhaustion requirement to claims brought under S 22 41. See Schandelmeier v. Cunningham, 819 F.2d 52, 53 (3 d Cir. 1986) ("The state court exhaustion requirement is mandated by statute under 28 U.S.C. S 2254(b) and h as developed through decisional law in applying princi ples of comity and federalism as to claims brought under 28 U.S.C. S 2241."); Arias v. United States Parole Com m'n, 648 F.2d 196, 199 (3d Cir. 1981) (requiring federal pri soner to exhaust administrative remedies before bringing cla im under S 2241). As Callwood has understandably faile d 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 d oubt 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, be fore Callwood seeks federal habeas corpus relief. Callwo od will
be free to return to the District Court under S 224 1, after exhausting any remedy available in the Territorial Court. Accordingly, we will vacate the order of the Distri ct Court dismissing the petition on the merits and will rema nd with
instructions to dismiss for failure to exhaust loca l remedies without prejudice to Callwood's refiling his challe nge under
S 2241 after exhaustion.8

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8. Although we express no view on the merits of the claims presented in Callwood's petition, we note that in order to attai n relief under S 2241, Callwood must establish that he is being held in cu stody in violation of
the Constitution or laws or treaties of the United States. See 28 U.S.C.

S 2241.

12A True Copy:

Teste:

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

13