concurring.
I join in Judge Pell’s opinion but wish to add a few words.
It is true, as Chief Judge Fairchild points out in his dissent, that in Moody v. Daggett, 429 U.S. 78, 97 S.Ct. 274, 50 L.Ed.2d 236 (1976), the custody during the period of the delay was held not to be unlawful because it resulted from conviction of other crimes, not the parole violation warrant. But it also is clear from that case that a delay of more than 90 days in holding a parole revocation hearing is not in and of itself so inherently unfair as to amount to a violation of constitutional right. That proposition is consistent with Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), for if an inflexible presumption of prejudice resulting automatically in unconditional release is not necessary to enforce the explicit speedy trial command of the Sixth Amendment, it seems to me that it cannot be said that it is necessary to enforce the prompt hearing requirement of Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). Accordingly, even when the basis for the custody is the parole violation warrant, as it is here, its lawfulness should be determined by the criteria prescribed in Barker v. Wingo.
That result does not mean that a prisoner held under a parole revocation warrant is without a remedy for a threatened or actual deprivation of the right to a prompt hearing. First, like an indicted defendant awaiting trial, he can demand a prompt hearing. Second, by filing a petition for habeas corpus he can force the parole authorities to hold a prompt hearing, failing which he can obtain his release. If he has been prejudiced by an unnecessary delay in holding the hearing, he will be entitled to relief. If he has not been prejudiced, and it turns out as a result of the hearing that the commencement and duration of custody have not been affected by the delay, the custody will ordinarily be lawful and release pursuant to a petition for habeas corpus inappropriate. These are the reasons, I believe, that have led other circuits, and led this circuit before Hahn, to deny relief when the Board had held a proper hearing before the court ruled on the habeas corpus petition and no prejudice was shown. *830Weaver v. Markley, 332 F.2d 34 (7th Cir. 1964); United States ex rel. Blassingame v. Gengler, 502 F.2d 1388 (2d Cir. 1974), adhering to United States ex rel. Buono v. Kenton, 287 F.2d 534 (2d Cir. 1961), cert. denied 368 U.S. 846, 82 S.Ct. 75, 7 L.Ed.2d 44 (1961); Gaddy v. Michael, 519 F.2d 669 (4th Cir. 1975), cert. denied, 429 U.S. 998, 97 S.Ct. 524, 50 L.Ed.2d 608 (1976); Cotner v. United States, 409 F.2d 853, 857 (10th Cir. 1969); compare Heezen v. Daggett, 442 F.2d 1002, 1004 (8th Cir. 1971) with Cleveland v. Ciccone, 517 F.2d 1082,1089 (8th Cir. 1975).