The opinion of the court was delivered by: Foreman, Judge:
Before the Court is the habeas corpus petition of William
Ernest Ross, presently confined in the United States Penitentiary
at Marion, Illinois.
The Court has considered the pleadings and memoranda of the
parties and concludes that there is no material issue of disputed
fact, and that the writ should be granted as prayed for.
Petitioner was indicted in 1968 in the Southern District of New
York for narcotics violations, specifically 21 U.S.C. § 173 and
174. He was convicted in late 1971 and was sentenced to ten years
imprisonment. He was sentenced pursuant to the terms of
26 U.S.C. § 7237(d) — which proscribed parole eligibility under
18 U.S.C. § 4202, that is, upon completion of one-third of his federal
sentence. Effective May 1, 1971, § 7237(d) was repealed.
It is the law in this Circuit that the repeal of § 7237(d)
makes parole available under 18 U.S.C. § 4202 to persons
sentenced under the old law. United States v. McGarr, 461 F.2d 1
(7th Cir., 1972); United States v. Robinson, 466 F.2d 780 (7th
Cir., 1972); Arias v. United States, 484 F.2d 577 (7th Cir.,
1973). See also Bradley v. United States, 410 U.S. 605, 93 S.Ct.
1151, 35 L.Ed.2d 528 (1973). Other Circuits concur, United States
v. Stephens, 449 F.2d 103 (9th Cir., 1971); United States ex rel.
Marrero v. Warden, 483 F.2d 656 (3d Cir., 1973); United States v.
Marshall, 485 F.2d 1062 (D.C. Cir., 1973).
The critical issues, as the Court views them are whether habeas
corpus is a proper remedy, and whether there exists an actual
ripe controversy for judicial determination.
It seems clear that the provisions of 28 U.S.C. § 2255 are not
available to petitioner. He does not seek to have an illegal
sentence vacated, nor does he raise a constitutional issue
regarding his original conviction, Marrero, supra; Kaufman v.
United States, 394 U.S. 217, 89 S.Ct. 1068, 22 L.Ed.2d 227
(1969). The thrust of recent Supreme
Court opinions strongly suggests that unlawful parole
ineligibility should be deemed such a "restraint" upon liberty
that habeas corpus relief is appropriate. Peyton v. Rowe,
391 U.S. 54, 88 S.Ct. 1549, 20 L.Ed.2d 426 (1968); Braden v. 30th
Judicial Circuit Court, 410 U.S. 484, 93 S.Ct. 1123, 35 L.Ed.2d
443 (1973); Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36
L.Ed.2d 439 (1973). Respondent has offered nothing to dispute
this contention. Therefore, the Court holds that habeas corpus
relief is available to one in petitioner's position.
Petitioner admits in his pleading that he will not be eligible
for parole under § 4202 until about June of 1974. The Court holds
that this fact is not a bar to the granting of relief at this
time. Beyond a doubt, petitioner has a profound present interest
in knowing whether he will be eligible for parole in June, 1974.
Respondent apparently would have petitioner wait until June of
1974, seek and be denied parole consideration, and then file a
writ of mandamus or habeas corpus with this Court. This Court is
intimately aware of the delays that would ensue. In view of
petitioner's clear entitlement to parole consideration under
McGarr and its progeny, and his present interest in such a
determination, such a course is not required.
Thus, petitioner is entitled to the relief he seeks.
Wherefore, judgment in this cause is hereby entered for
Respondent and his successors and agents are hereby ordered:
1) to state in petitioner's prison records that he is
eligible for parole consideration upon completion
of one-third of his present federal sentence, and
2) to consider petitioner for parole in accordance
with law, upon completion of one-third of his