(concurring and dissenting):
In Miller, No. 74-2545, I concur. However, I am unable to concur in Reese, No. 74-2418, or Marine, No. 74-2541.
I cannot accept the view that, where the parole violation is based upon conviction of a crime by the parolee while he is on parole, and results in a detainer filed with the jurisdiction having him in custody under the new conviction, an early parole revocation hearing is not required by Morrissey v. Brewer, 1972, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484. In the first place, as the Fourth Circuit has recently pointed out, the parolee may wish to contest the fact of the conviction, as distinguished from the validity of the conviction. Pope v. Chew, 4 Cir., 1975, 521 F.2d 400, 404-5, and fn. 5A.
Here, however, that is not what Reese and Marine are after. What they want, and what I believe that they were entitled to, is a hearing at which they can argue about, and present evidence relevant to, the question of what should be done by the United States Board of Parole on the basis of their new convictions. It would hold that they became entitled to such a hearing promptly after the detainers were lodged against them. I would require the hearing that 28 C.F.R. § 2.53(a), quoted in the majority opinion, purports to make discretionary with the parole board. For such a hearing, the annual review, provided for in subsection (c) of § 2.53, is no substitute.
A detainer can be, and usually is, detrimental to the prisoner. It is, or can be, held against him by the prison authorities and the parole authorities of the jurisdiction where he is imprisoned. It may result in loss of valuable privilege, and in having to serve his full term in prison when he would otherwise have been released. See United States ex rel. Hahn v. Revis, 7 Cir., 1975, 520 F.2d 632, 637; Cooper v. Lockhart, 8 Cir., 1973, 489 F.2d 308, 314 n. 10; R. Dawson, Sentencing: The Decision as to Type, Length and Conditions of Sentence 283 (1969); Note, Detainers and the Correctional Process, 16 Wash.U.L.Q. 417, 418-20 (1966). Moreover, the United States Board of Parole has discretion as to whether to revoke parole at all for a violation and also as to the terms it will impose if it does revoke parole. Not every parole violation, even one based on conviction of an offense while on parole, results in parole revocation. Cooper v. Lockhart, 8 Cir., 1973, 489 F.2d 308, 316; In re Shapiro, 1975, 14 Cal.3d 711, 122 Cal.Rptr. 768, 537 P.2d 888. If a prompt hearing is held, the detainer may be lifted. Alternatively, the board may decide to “execute” the warrant, so that the parolee can serve his reinstated time concurrently with the time that he is serving under the new conviction. If there is no decision, if the detainers are simply left in effect, these possibilities are eliminated by mere bureaucratic inertia. See Smith v. Hooey, 1969, 393 U.S. 374, 378, 89 S.Ct. 575, 21 L.Ed.2d 607. This is not consistent with the principles of due process laid down in Morrissey, supra. See also Pope v. Chew, supra, 521 F.2d at 405. It is the kind of “grievous loss” that is referred to in the Morrissey opinion. (408 U.S. at 481, 92 S.Ct. 2593)
It is not for us to assume, as the majority opinion does, that a hearing in these cases would be a waste of time *238because we can conceive of no mitigating circumstances in these cases that would justify lifting the detainer or executing it so as to make the remaining parole term concurrent with the new term. Our discretion is not involved, nor are our notions as to what mitigating circumstances may exist. The discretion belongs to the Board of Parole; so does the decision as to whether there are mitigating circumstances and, if so, what are to be the consequences. The Board, therefore, must hold a hearing meeting the standards of Morrissey, supra. Under these circumstances, we have no way of knowing whether the failure to hold a hearing was “prejudicial.” To decide that question, we would have to guess what the Board might have done if it had had a hearing. If due process requires a hearing, its denial is prejudicial.
My views are fully supported by the Seventh Circuit in United States ex rel. Hahn v. Revis, supra, by the Eighth Circuit in Cooper v. Lockhart, supra, and by the California Supreme Court in In re Shapiro, supra. The decisions cited by the majority as to the contrary, Gaddy v. Michael, 4 Cir., 1975, 519 F.2d 699, 674; Cook v. United States Attorney General, 5 Cir., 1974, 488 F.2d 667; Burdette v. Nock, 6 Cir., 1973, 480 F.2d 1010; and Small v. Britton, 10 Cir., 1974, 500 F.2d 229, seem to me, in the light of Morrissey, supra, to be plainly wrong. In substance, they do not require a hearing until the Board of Parole takes custody of the parolee, an event that usually occurs only when he is released from custody by the authorities with whom the detainer was lodged. To adopt such a posi-. tion is to ignore the actual effect of the detainer. It is, in my view, contrary to the decision in Morrissey. The fact is that a detainer, when lodged, puts the detainee in the joint custody of the prison authority and of the person or body issuing the warrant which is the basis for the detainer. Braden v. 30th Judicial Circuit Court of Kentucky, 1973, 410 U.S. 484, 489 n. 4, 93 S.Ct. 1123, 35 L.Ed.2d 443.
In view of the time that has elapsed since the detainers in these cases were lodged (Over 2½ years in each case), I would remand with directions to issue the writ, quashing the parole violation warrants and the detainers.