author: NEESE, Senior District Judge.

text:
    Malcolm GRAY, III, Petitioner, v. James ROSE, etc., et al., Respondents.
    Civ. A. No. 3-83-0007.
    United States District Court, M.D. Tennessee, Nashville Division.
    Jan. 4, 1983.
    On Motion For New Trial Feb. 1, 1983.
    Supplemental Memorandum And Orders June 6, 1983.
    Malcolm Gray, pro se.
    John F. Southworth, Jr., Asst. Atty. Gen., Nashville, Tenn., for respondents.
   MEMORANDUM OPINION, ORDER AND CERTIFICATE

NEESE, Senior District Judge.

The petitioner Mr. Malcolm Gray, III, applied pro se for the federal writ of habe-as corpus, claiming that he is in the custody of the respondent-warden pursuant to the judgment of April 3, 1980 of the Criminal Court of Montgomery County, Tennessee, in violation of his federally-guaranteed rights against self-incrimination, Constitution, Fifth Amendment; to the assistance of counsel, Constitution, Sixth Amendment; against the introduction against him at his trial of evidence obtained by an unreasonable search and seizure, Constitution, Fourth Amendment; and to trial by an impartial jury, Constitution, Sixth Amendment. 28 U.S.C. § 2254(a). He claims the exhaustion of his available state-remedies in an appeal of his judgment of conviction and, upon its affirmance on February 3, 1982 by the Court of Criminal Appeals of Tennessee, by applying unsuccessfully to the Supreme Court of Tennessee for permission to appeal further. 28 U.S.C. §§ 2254(b), (c).

Annexed to such petition is the applicant’s affidavit that he is unable to pay the fees and costs hereof or give security therefor and his belief that he is entitled to redress. 28 U.S.C. § 1915(a). Accordingly, he hereby is

AUTHORIZED to commence and prosecute this proceeding without prepayment of fees or costs or the giving of security therefor. Id.

The applicant’s claim of deprivation of his rights against self-incrimination and to the assistance of counsel relate to a purported confession of the crime charged to law-enforcement officials. It appears from the exhibits annexed to the applicant’s petition that the first aforenamed Court herein-above in State of Tennessee v. Malcolm Gray, III. determined factually after a hearing on the merits that he was not so deprived. That determination is evidenced by the written opinion of March 24,1982 of the Court of Criminal Appeals of Tennessee disposing of the applicant’s and his (then) co-defendant’s petition for a rehearing in State of Tennessee, appellee, v. Malcolm Gray, III., and Larry Simpson, appellants, no. 80—184—III (Montgomery County), and is presumed to be correct. 28 U.S.C. § 2254(d).

The applicant is in vigorous disagreement with the determination thus made as well as with the conclusion of law thereon by the Court of Criminal Appeals of Tennessee, claiming that the latter tribunal sought thereby “ * * * to make a new rule in regards [sic] to the decision in Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)], as appears from the opinion of the Criminal Court of Appeals [of Tennessee] filed March 24, 1982, on petitions [sic] petition to rehear. >lc * >)

The State-Court concluded on all the evidence and the totality of the circumstances revealed in an adversary hearing between the applicant and the state of Tennessee that the confession of Mr. Gray, III. was voluntary; obviously, if his confession was voluntary, it did not constitute testimony he was compelled in a criminal case to give as a witness against himself, see Constitution, Fifth Amendment, supra. This met the requirements of the federal habeas corpus statute, providing inter alia that the State-Court’s determination made on the merits of the factual issue after a hearing and evidenced by adequate written indicia is to be presumed correct. Cf. LaVallee v. Delle Rose, 410 U.S. 690, 93 S.Ct. 1203, 35 L.Ed.2d 637 (1979).

For such reason, this Court cannot entertain the applicant’s claim of deprivation under the Constitution, Fifth Amendment, and Sixth Amendment (Assistance of Counsel Clause). Neither can his claim under the Constitution, Fourth Amendment, be entertained:

“ * * * A claim of illegal search and seizure under the [Constitution,] Fourth Amendment^] is crucially different from many other constitutional rights; ordinarily the evidence seized can in no way have 'been rendered untrustworthy by the means of its seizure and indeed often this evidence establishes beyond virtually any shadow of a doubt that the defendant is guilty. * * ” Kaufman v. United States, 394 U.S. 217, 237, 89 S.Ct. 1068, 1079, 22 L.Ed.2d 227 (1969) (from the dissent of the late Justice Black). In quoting approvingly from that dissent, the Supreme Court observed subsequently inter alia:

The disparity in particular cases between the error committed by the police officer and the windfall afforded a guilty defendant by application of the rule [excluding all evidence of the fruits of an unlawful search] is contrary to the idea of proportionality that is essential to the concept of justice.

Stone v. Powell, 428 U.S. 465, 490, 96 S.Ct. 3037, 3050, 49 L.Ed.2d 1067 (1976).

[I]n the ease of a typical Fourth Amendment claim, asserted on collateral attack [such as the applicant seeks to do here], a convicted defendant is usually asking society to redetermine an issue that has no bearing on the basic justice of his incarceration.

Ib., 428 U.S. at 491, n. 31, 96 S.Ct. at 3051, n. 31. Thus,

where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim [footnote reference omitted], a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial.

Ib., 428 U.S. at 494, 96 S.Ct. at 3052[8],

The applicant contends that “ * * * no hearing was conducted on the admissibility of this shotgun [which was the evidence he claims was obtained in an unconstitutional search and seizure and was introduced at his trial].” Nevertheless, he conceded that, in a related matter, the Supreme Court of Tennessee had ruled “ * * * that petitioner had consented to the search in which the shot-gun had been found. * * * ” Obviously, again, the federal constitutional right of the applicant in this regard was considered and adjudicated by the courts of Tennessee.

It is clear that: “ * * * A search to which an individual consents meets Fourth Amendment requirements, Zap v. United States, 328 U.S. 624, 66 S.Ct. 1277, 90 L.Ed. 477. * * *” Katz v. United States, 389 U.S. 347, 358, n. 22, 88 S.Ct. 507, 515, n. 22[22], 19 L.Ed.2d 576 (1967). Furthermore, the shotgun in question was found by a child of less than the legal age, not by a law-enforcement official: •“ * * * The essential purpose of the proscriptions in the Fourth Amendment is to impose a standard of ‘reasonableness’ [footnote reference omitted] upon the exercise of discretion by government officials, including law enforcement agents, in order 1 “to safeguard the privacy and security of individuals against arbitrary intrusions....’” * * *” Delaware v. Prouse, 440 U.S. 648, 653-654, 99 S.Ct. 1391, 1396[3], 59 L.Ed.2d 660 (1979).

The procedural vehicle utilized by the applicant as to his claim on his trial of unconstitutional deprivation of his guaranty of a right to trial by an impartial jury, Constitution, Sixth Amendment, supra, was his motion for a change of the venue of his trial; he maintains his jury was not “ * * * free from outside influence, by way of massive prejudicial media coverage. * * * )>

Again, in the aforementioned hearing, a factual determination was made on the merits of the applicant’s objection to such venue and was found by the State-Court to be without merit. Addressing this issue on the applicant’s petition for a rehearing, the Court of Criminal Appeals of Tennessee stated: the applicant’s “ * * * venue issue * * * was treated in our original opinion and we see no reason why it should be re-considered. * * * ” State of Tennessee, appellee, v. Malcolm Gray, III., and Larry Simpson, appellants, supra. That determination, falling within the scope of the applicant’s allegations herein, must be presumed also to have been correct. 28 U.S.C. § 2254(d), supra.

On preliminary consideration of the applicant’s original petition and the exhibits annexed thereto, the Court examined Malcolm Gray, plaintiff, v. James Rose, et al., defendants, no. 81-3809, and Ray Darris Thompson, et al., plaintiffs, v. James Rose, etc., et al., defendants, no. 82-3151, both this District and Division. Mr. Gray, III. was a co-plaintiff of Mr. Thompson. Both such actions were brought under the provisions of 42 U.S.C. § 1983. Any doubt as to whether either thereof constitutes a successive application under 28 U.S.C. § 2244(a) was resolved in favor of this applicant. Sanders v. United States, 373 U.S. 1, 16, 83 S.Ct. 1068, 1977[11], 10 L.Ed.2d 148 (1963). Even so, it appears plainly from such examination and consideration of such petition facially and its annexed-exhibits that the applicant is not entitled to any relief in this Court. Rule 4, 28 U.S.C. fob § 2254. The application of the petitioner, therefore, hereby is

DISMISSED summarily. Id. The petitioner will be so notified. Id. Copies of such petition and of this order shall be served by the clerk by certified mail on the respondent-warden and the attorney general and reporter of Tennessee. Id.

Should the petitioner give timely notice of an appeal, Rules 3, 4, Federal Rules of Appellate Procedure, from the judgment to be entered herein, Rule 58(1), Federal Rules of Civil Procedure, he is authorized to proceed on such appeal in forma pauper-is. Rule 24(a), Federal Rules of Appellate Procedure. Any such notice will be treated also as an application for a certificate of probable cause. Rule 22(b), Federal Rules of Appellate Procedure. Because of the fact that the applicant is a convicted murderer sentenced to a term of life-imprisonment, in that event, such certificate will ISSUE. Id.

On Motion for New Trial

The petitioner was denied all relief on his application for the federal writ of habeas corpus. See memorandum opinion, order and certification and judgment thereon of January 4, 1983 herein. The applicant served timely a motion for a new trial. Rules 59(a), (b), F.R.Civ.P.

The essence of the relief requested by the applicant was for a rehearing or reconsideration of the aforementioned judgment. Cf. Browder v. Director, Dept. of Corrections of Ill., 434 U.S. 257, 262 n. 5, 98 S.Ct. 556, 559 n. 5, 54 L.Ed.2d 521 (1978), reh. den. 434 U.S. 1089, 98 S.Ct. 1286, 55 L.Ed.2d 795 (1978). The applicant asserts therein that he failed to allege in his original petition, that he did not receive a full, fair and adequate hearing on his claims to the Criminal Court of Montgomery County, Tennessee of violations of his rights against self-incrimination, to the assistance of counsel, and to an impartial jury and that he was denied an opportunity in his trial before the same Court for full and fair litigation of his claim of violation of his right against an unreasonable search and seizure of a shotgun, because he was confused in that regard by the form no. 241 (2/77) he was required to utilize, Rule 2(c), 28 U.S.C. fol. § 2254; he claims such hearings were not full, fair, and adequate, 28 U.S.C. § 2254(d)(6), and that he was denied the opportunity for full and fair litigation of his claim under the Constitution, Fourth Amendment, Stone v. Powell, 428 U.S. 465, 494, 96 S.Ct. 3037, 3052[8], 49 L.Ed.2d 1067 (1976).

Because of such failure, this Court did not consider and rejected summarily those matters initially. The applicant is entitled to the opportunity to show under his amended petition that the ends of justice would be served by permitting further consideration of those grounds he neglected to allege. Sanders v. United States, 373 U.S. 1, 16-17, 83 S.Ct. 1068, 1078[13], 10 L.Ed.2d 148 (1963) (“Even if same ground was rejected on merits in prior application for federal collateral relief, it is open to applicant to show that ends of justice would be served by permitting redetermination of the ground, but burden is on applicant so to show.”)

Such a pro se petition is held “ * * * to less stringent standards than formal pleadings drafted by lawyers * * Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 596[2], 30 L.Ed.2d 652 (1972), reh. den. 405 U.S. 948, 92 S.Ct. 963, 30 L.Ed.2d 819 (1972). Here, under the proposed amendment, “ * * * liberty is at stake and infringement of constitutional rights is alleged * * *,” Sanders v. United States, supra, 373 U.S. at 8, 83 S.Ct. at 1073[2], The proposed amendment hereby is ALLOWED, Rules 15(a), (c), 81(a)(2), F.R. Civ.P., such judgment hereby being VACATED for that purpose. Holiday v. Johnston, 313 U.S. 342, 350, 351, 61 S.Ct. 1015, 1017, 1018, 85 L.Ed. 1392 (1941) (Even if a pro se petition for habeas corpus is insufficient in substance, “ * * * it may be amended in the interest of justice * if such amendment may render it meritorious, Gordon v. Leeke, 574 F.2d 1147, 1151—1152[2] (4th Cir.1978), cert. den. 439 U.S. 970, 99 S.Ct. 464, 58 L.Ed.2d 431 (1978); and the Court should advise the litigant how to proceed, id.)

The applicant must now show, under his amended petition, how the ends of justice will be served by further consideration of his constitutional claims, in two separate categories. The first of these relate to his claims of deprivation regarding:

(a) his right to the assistance of counsel and against self-incrimination, and,
(b) his right to an impartial jury as exemplified in the action of the Criminal Court of Montgomery County, Tennessee on his motion for a change of the venue of his trial:

The applicant did not receive a full, fair and adequate hearing on each of those contentions and may be entitled to an evi-dentiary hearing in this Court only if he shows:

(1) the merits of each such factual dispute were not resolved in the Criminal Court of Montgomery County, Tennessee;
(2) the factual determinations as to each by such Court is not supported fairly by the record as a whole;
(3) the fact-finding procedure employed by such Court is not adequate to afford hini a full and fair hearing on each;
(4) the applicant has newly-discovered evidence of a substantial basis to offer as to either or both;
(5) the material facts were as to each were not developed adequately in such Court; or,
(6) it appears for some specific reason that such Court did not afford the applicant a full and fair hearing.

See Townsend v. Sain, 372 U.S. 293, 313, 83 S.Ct. 745, 757, 9 L.Ed.2d 770 (1963). The applicant will amend further his petition to show precisely HOW he claims he did not receive a full, fair, and adequate hearing on each of the immediately foregoing federal constitutional issues.

The second showing is markedly different: the applicant must show that he was not given by the Criminal Court of Montgomery County, Tennessee:

(a) the opportunity for full and fair litigation of his claim of deprivation of his right against unreasonable search and seizure; or,
(b) although he was provided such an opportunity, there was not a full litigating of such claim of his; or,
(c) although he was provided such an opportunity, there was not a fair litigating of such claim of his.

Stone v. Powell, supra, 428 U.S. at 494, 96 S.Ct. at 3053[8]. The applicant will amend further his petition to show precisely HOW he claims he was not provided by the state of Tennessee the opportunity for full and fair litigation of his claim under the Constitution, Fourth Amendment, and whether he claims the decision thereon of the Criminal Court judge was one of fact, one of law, or one of both fact and law.

It should be understood that, at this juncture, as to the applicant’s claim of unreasonable search and seizure, this Court will not decide whether he was deprived of his guaranteed right under the Constitution, Fourth Amendment, supra: only whether the state of Tennessee afforded him a full and fair litigation of the factual issues underlying that claim. If he had no opportunity for full and fair litigation thereof, he “ * * * will not be denied relief * * * ” again at that point, O’Berry v. Wainwright, 546 F.2d 1204, 1211 (5th Cir.1977); but if he was afforded an opportunity for such full and fair litigation, he will be denied relief as to the issue under his present motion.

It should be understood furthermore that, as to the applicant’s claims of deprivation of his rights against self-incrimination, to the assistance of counsel, and to an impartial jury, this Court will not decide at this juncture whether he was deprived of such guaranteed rights under the Constitution, Sixth and Fourteenth Amendments: only whether the Criminal Court of Montgomery County, Tennessee afforded him full, fair, and adequate hearings on those claims. 28 U.S.C. § 2254(d)(6). If. each such hearing was full, fair and adequate, he will be denied relief again as to those issues under his motion; but, if each such hearing was not full, was unfair, or was inadequate, this Court may then:

“ * * * defer to the state court’s findings of fact, [but] * * * not defer to its findings of law. It is the [federal] district judge’s duty to apply the applicable federal law [in that event] to the state court fact findings independently. The state conclusions of law may not be given binding weight on [federal] habeas. * * * if

Townsend v. Sain, supra, 372 U.S. at 318, 83 S.Ct. at 760.

The applicant, challenging in his present amendment the sufficiency of the evidence adduced in such proceedings of the Criminal Court of Montgomery County, Tennessee, to support its respective determinations of the issues described hereinabove, alleged that, because of indigency and his incarceration, he is unable to produce those parts of the record pertinent to a determination of such sufficiency of the evidence to so support such determinations. 28 U.S.C. § 2254(e). Therefore, upon the filing of the additional amendments, supra, by the applicant, the attorney general and reporter of Tennessee hereby is

DIRECTED to produce such parts of the record. Id.

The applicant claims also the appeal of his judgment of conviction. The respondent shall respond to the allegations of the applicant’s petition, as amended finally, and file copies of all relevant opinions of the trial or any appellate Court of Tennessee therewith. Rule 5, 28 U.S.C. fol. § 2254.

The applicant, seeking relief under 28 U.S.C. § 2254, supra, this Court hereby DETERMINES that the interests of justice require that he be furnished with legal representation. 18 U.S.C. § 3006A(g). Good cause is seen for the appointment of Thomas E. Fox, Esq., retired (1971) deputy attorney general of Tennessee, to this representation because of the procedural intricacies involved and his wide experience in such matters. 18 U.S.C. § 3006A(b). The clerk hereby is DIRECTED to furnish such counsel forthwith with a complete copy of the file herein.

SUPPLEMENTAL MEMORANDUM AND ORDERS

The petitioner applied for habeas corpus relief which was denied. Memorandum opinion, order and certificate of January 4, 1983. That judgment was vacated on February 1, 1983 for the sole purpose of allowing the petitioner to amend his application if it were determined, in the interest of justice, that such amendment would render his application meritorious.

The Court advised the litigant how he should proceed in showing the merit of his amended petition, i.e., how the ends of justice would be served by further consideration of his constitutional claims of deprivation of his rights to the assistance of counsel and against self-incrimination and of his right to an impartial jury because he did not receive a full, fair and adequate hearing on each of those contentions in the state Court; how he was not given in such Court the opportunity for full and fair litigation of his claim of deprivation of his right against unreasonable search and seizure (or that there was not such full litigation thereof or fair litigation thereof). The Court also directed the attorney general and reporter of Tennessee to expand the trial- and hearings-record as well as copies of all prior relevant judicial opinions. Finally, this Court appointed distinguished counsel to represent the applicant, as an indigent.

Even so, the petitioner has not shown that the ends of justice will be served by permitting further consideration of the additional grounds for relief he neglected to allege in his original petition. (Although invited so to do, the petitioner proposed no further amendments to his application.)

Therefore, this Court readopts for entry its summary dismissal of the petitioner’s application, as since amended, of January 4, 1983, supra, and recertifies its certificate of probable cause of that date. It hereby is

ORDERED:

(1) that the petitioner and his counsel be so notified forthwith by the clerk of this Court, and

(2) that copies of this order be served by such clerk forthwith by certified mail on the respondent-warden and the attorney general and reporter of Tennessee. Rule 4, 28 U.S.C. fol. § 2254.

      . "No person shall be * * * compelled in any criminal case to be a witness against himself * * *.” Constitution, Fifth Amendment, supra.

        . "In all criminal prosecutions, the accused shall enjoy the right * * * to have the Assistance of Counsel for his defence.” Constitution, Sixth Amendment, supra.

      . "The right of the people to be secure in their * * * houses * * * and effects, against unreasonable searches and seizures, shall not be violated * * *.” Constitution, Fourth Amendment, supra.

      .“In all criminal prosecutions, the accused shall enjoy the right to a * * * trial, by an impartial jury * * *.” Constitution, Sixth Amendment, supra.

      . The applicant asserts: no claim that the merits of the factual dispute were not resolved in his State-Court trial; that the factfinding procedure employed by such Court was inadequate to afford a full and fair hearing; that such Court lacked jurisdiction over the person of the applicant in the State-Court proceedings or of the subject-matter thereof; that he was without counsel to represent him in such proceeding; that he did not receive a full, fair, and adequate hearing in such State-Court proceeding; or that he was denied otherwise due process of law therein. See 28 U.S.C. §§ 2254(d)(1) — (7), inclusive. Neither was that part of the record of such proceeding in which such determination of such factual issue was made, pertinent to the sufficiency of the evidence to support such factual determination, produced. 28 U.S.C. § 2254(d)(8).


source: Caselaw Access Project

license: Public Domain

text:
    Malcolm GRAY, III, Petitioner, v. James ROSE, etc., et al., Respondents.
    Civ. A. No. 3:83-0007.
    United States District Court, M.D. Tennessee, Nashville Division.
    April 17, 1985.

      Malcolm Gray, pro se.
    John F. Southworth, Jr., Asst. Atty. Gen., Nashville, Tenn., for respondents.
   MEMORANDA OPINIONS, FINDING, CONCLUSIONS, ORDER AND CERTIFICATE OF PROBABLE CAUSE

NEESE, Senior District Judge, Sitting by Designation and Assignment.

The United States Court of Appeals for the Sixth Circuit directed this Court: (1) to consider an amended petition for the federal writ of habeas corpus, a response thereto by the respondents, and the record of the proceedings in the state courts; (2) either to accept the findings-of-fact made by the state court(s) or determine its own findings-of-fact under 28 U.S.C. § 2254(d); and (3) then to resolve the remaining legal issues by applying the controlling legal-principles underlying each claim to those facts. Mandate of September 7, 1984 in Malcolm Gray, III, petitioner-appellant, v. Attorney General for the State of Tennessee; and James Rose, Warden, respondents-appellees, order of August 16, 1984 742 F.2d 1455. An amended petition, a response thereto, and the pertinent portions of the state-record herein having been filed, the Court proceeds in accordance with such mandate:

I.

A.

In his amended-petition, the applicant Mr. Malcolm Gray, III deletes all grounds urged originally except for two. First, Mr. Gray contends that the admission into evidence of his confession violated his privilege against compulsory self-incrimination and his right to the assistance of counsel, Constitution, Fifth Amendment. A lengthy evidentiary hearing was held pretrial on the merits of the factual issues relevant to the petitioner’s motion to suppress such confession; from the evidence adduced at such hearing, the Court of Criminal Appeals of Tennessee, as is evidenced by its written opinion, found

* * * that when Gray was accosted by the officers at Fort Campbell he was advised of his rights and questioned about his whereabouts on the night of the murder. He denied he was in Clarks-ville. He willingly accompanied the officers to the justice complex in Clarksville where he was again advised of his rights and informed that he was going to be interrogated about the homicide. He informed the officers he wished to call his attorney before answering any questions. The interrogation ceased. The appellant was allowed to call his attorney who was in Nashville and was informed a lineup would be hold the next day. The attorney was present at that lineup. When the appellant Gray was not identified the officers informed the attorney that their investigation revealed implication of Gray in the crime. The attorney then advised Gray to cooperate with the officials. It was the attorney’s opinion that if Gray was not involved he should assist the officers in explaining circumstances that had pointed to his involvement. The attorney then testified he had to return to Nashville but left Gray with the suggestion to cooperate in the police investigation. When the driver of Gray’s car (a Brian Deering had been stopped driving the black car with orange and red stripes the morning of the homicide) was brought in to explain his possession of Gray’s car, Gray related that he could not allow Deering to be accused. He then gave and made an inculpating statement to the officers. The officers, prior to the statement, gave Gray an opportunity to again contact his attorney but Gray was unable to make this connection. With Gray being fully advised pri- or to making the incriminating statement, with Gray’s attorney advising him to cooperate with the police, and with the officers allowing Gray to again attempt to consult with his attorney prior to his statement, the evidence supports the finding of the trial court that Gray’s confession was freely and voluntarily given. Implicit in that ruling is a rejection by the trial court that Gray’s confession was prompted by his allegation that his conversation with his attorney had been taped by police officials. In short, after a full hearing on the motion to suppress, the trial court found from all that evidence that Gray’s statement was freely and voluntarily given. The evidence supports that ruling. * * *

Opinion of March 24, 1982 in State of Tennessee, appellee, v. Malcolm Gray, III, et al., appellants, no. 80 — 184—III in the Court of Criminal Appeals of Tennessee.

The petitioner contends that the foregoing findings of basic, primary or historical facts are not entitled to a presumption of correctness because they are “not fairly supported by the record” and because he was “otherwise denied due process of law in the State court proceeding.” 28 U.S.C. § 2254(d)(8), (7). Such an allegation is sufficient to “ * * * trigger an inquiry as to whether one of the eight exceptions [of § 2254(d), supra ] are [sic] applicable. A proper resolution of such inquiry requires the district court to examine the trial record.” Loveday v. Davis, 697 F.2d 135, 138[2] (6th Cir.1983).

Having examined the state record, this Court does NOT FIND that any of the eight exceptions to the presumption of correctness of § 2254(d), supra, is applicable herein; to the contrary, this Court hereby FINDS that Mr. Gray has not established the existence of any such exception; that it does not appear otherwise that such an exception exists; and that the respondents have not admitted the existence of any such exception. See ib., 697 F.2d at 138[1] (“The eight exceptions to the presumption of correctness may be ‘found’ to exist via three methods: the applicant may establish that such exists; it shall otherwise appear that such exists; or the respondent shall admit that such exists.”). Therefore, this Court hereby

ACCEPTS the findings-of-fact stated in the aforequoted opinion of the state appellate Court.

B.

Confessions (and their use against a defendant at trial) remain a proper element in law enforcement. Rhode Island v. Innis, 446 U.S. 291, 299-300, 100 S.Ct. 1682, 1689[2], 64 L.Ed.2d 297 (1980); Miranda v. Arizona, 384 U.S. 436, 478, 86 S.Ct. 1602, 1630, 16 L.Ed.2d 694 (1966). “* * * Indeed, far from being prohibited by the Constitution, admissions of guilt by wrongdoers, if not coerced, are inherently desirable.

“ * * * Absent some officially coerced self-accusation, the Fifth Amendment privilege is not violated by even the most damning admissions. * * * ” United States v. Washington, 431 U.S. 181, 187, 97 S.Ct. 1814, 1818 [2-4], 52 L.Ed.2d 238 (1977), quoted with approval in Oregon v. Elstad, — U.S.-,-, 105 S.Ct. 1285, 1291, 84 L.Ed.2d 222 (1985). Thus, only if the inculpatory statement of Mr. Gray was involuntary, and, therefore, obtained in violation of the Constitution, Fifth Amendment, could this Court grant him relief; in considering that question, the Court must give appropriate deference to the findings-of-fact made by the state-courts. Cardwell v. Taylor, 461 U.S. 571, 572, 103 S.Ct. 2015, 2016, 76 L.Ed.2d 333 (1983).

Having accepted the aforequoted findings of the state-Court, this Court CONCLUDES that Mr. Gray's privilege against compulsory self-incrimination was not violated, because his confession was given freely and voluntarily.

C.

In support of his assistance-of-counsel claim, Mr. Gray relies upon the rule announced first in Miranda v. Arizona, supra, and refined in Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). Such latter decision adopted a per se rule that, once an accused has “ * * * expressed his desire to deal with the police only through counsel, [he] is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.” Ib., 451 U.S. at 484-485, 101 S.Ct. at 1884-1885[3, 4],

Here, there was no violation of the rule of Edwards; that rule implicates a situation wherein the police initiate further interrogation of a suspect after he has requested counsel but before counsel has been provided. The holding of Edwards is inapplicable where, as here, the accused himself — and not a police officer — initiates the further interrogation and particularly where such occurs after the accused has actually conferred with counsel. Wyrick v. Fields, 459 U.S. 42, 103 S.Ct. 394, 74 L.Ed.2d 214 (1982); United States v. Holliday, 658 F.2d 1103, 1104-1105[1] (6th Cir.1981), cert. den. sub nom. Frank v. United States, 454 U.S. 1127, 102 S.Ct. 978, 71 L.Ed.2d 115 (1981).

The relevant facts herein, as found by the state-Court and accepted by this Court, reflect that Mr. Gray initiated his further interrogation by relating to the police that he could not allow Mr. Deering to be accused of the crime being investigated. Mr. Gray’s incriminating statement resulted, not from his being denied his right to the assistance of counsel, but from actually having received the assistance of counsel and having followed his lawyer’s advice “to cooperate” with the police.

Edwards, supra, emphasized the necessity of counsel’s being made available or the accused’s having access to counsel prior to being questioned by the police, rather than holding that, once the accused has requested counsel, he may be interrogated thereafter only in the presence of counsel. Ib., 658 F.2d at 1105. Similar to the situation with Mr. Halliday, the record herein reflects that Mr. Gray’s decision to speak with the officers after ha-ving conferred with his counsel “was voluntary, knowing and intelligent.” Id.

“ * * * it may happen that a person makes statements to law enforcement officials that he later regrets, but the issue in such cases is not whether the statement was self-protective, but rather whether it was made voluntary.” United States v. Mendenthall, 446 U.S. 544, 555-556, 100 S.Ct. 1870, 1878, 64 L.Ed.2d 497 (1980), reh. den. 448 U.S. 908, 100 S.Ct. 3051, 65 L.Ed.2d 1138 (1980). The petitioner, thus, is not entitled to any relief on this first ground.

II.

For his second ground for relief, Mr. Gray maintains that the trial judge erred in admitting into evidence a shotgun which he claims had been seized by police officers in a manner which did not satisfy the demands of the Constitution, Fourth Amendment. This Court may consider such claim only if it finds that the state of Tennessee failed to provide Mr. Gray “an opportunity for full and fair litigation” thereof. Stone v. Powell, 428 U.S. 465, 494, 96 S.Ct. 3037, 3052, 49 L.Ed.2d 1067 (1976); as a result of this rather strict rule, “ * * * [i]t will be a rare case indeed in which a federal habeas court will be able to reach the merits of a Fourth Amendment claim by a state prisoner.” 17 Wright, Miller & Cooper, Federal Practice and Procedure 622, § 4263.

Mr. Gray did not file in the trial Court a pretrial motion to suppress the shotgun as evidence, see Rule 12(b)(3), Tenn.R.Crim.P., but he did object to its introduction into evidence contemporaneously with the time it was offered by the prosecution. The trial judge overruled such objection, ruling that the shotgun had been seized as a result of a search to which Mr. Gray had consented.

On direct-appeal, the Court of Criminal Appeals of Tennessee deemed this issue to have been waived because of the failure of the petitioner to have properly briefed it by citing authorities in support of his argument. See Rule 27(a)(7), Tenn.R.App.P.; Moorman v. State, 517 S.W.2d 473, 476[4] (Tenn.Crim.App.1978). Mr. Gray’s brief on appeal raised some 36 assignments of error with less than one page — nine sentences to be exact — devoted to his Fourth-Amendment claim. Not one legal authority was cited in support of this argument; neither the Fourth Amendment, nor any other provision of the federal Constitution, was mentioned.

The petitioner urges he did not receive in the courts of Tennessee an opportunity for full and fair litigation of his Fourth-Amendment claim; the thrust of his argument is that he was denied such an opportunity because there was no evidentiary support in the record for the finding of the trial judge, that he had consented to the search which yielded the shotgun. This argument, however, goes to the merits of Mr. Gray’s Fourth-Amendment claim, and the correctness or incorrectness of the state Court’s ruling on the issue is irrelevant. Dunn v. Rose, 504 F.Supp. 1333, 1337[5] (D.C.Tenn.1981).

The fact, that the Court of Criminal Appeals of Tennessee declined to consider on its merits Mr. Gray’s Fourth-Amendment claim, does not preclude the application of the rule of Stone v. Powell, supra. Actual litigation of the claim in the state courts is not required. Boyd v. Mintz, 631 F.2d 247, 250-251 (3d. Cir.1980).

The state need only have provided an opportunity for the full and fair litigation of the Fourth-Amendment issue, irrespective of whether the petitioner took advantage of that opportunity. Gates v. Henderson, 568 F.2d 830 [3], [4] (2d Cir.1977), cert. den. 434 U.S. 1038, 98 S.Ct. 755, 54 L.Ed.2d 787 (1978). So long as the state accorded the petitioner an opportunity to litigate fully and fairly whether evidence allegedly obtained in violation of the Constitution, Fourth Amendment, should have been excluded, then Stone v. Powell, precludes consideration of such issue in federal habeas corpus proceedings regardless of whether the petitioner availed himself of the opportunity so presented. Lenza v. Wyrick, 665 F.2d 804, 808 (8th Cir.1981).

The decision, whether the state of Tennessee provided Mr. Gray an opportunity for the full and fair litigation of his Fourth-Amendment claim, implicates a two-fold inquiry: first, this Court must determine whether Tennessee’s procedural-mechanism, in the abstract, presented the opportunity to raise a Fourth-Amendment claim; and secondly, the Court must determine also whether presentation of such claim was in fact frustrated by the state appellate Court by its application of a procedural-rule in a manner that, through no fault of the petitioner, deprived him of an opportunity to fully litigate his claim. Riley v. Gray, 674 F.2d 522, 526-527 (6th Cir.1982), cert. den. sub nom. Shoemaker v. Riley, 459 U.S. 948, 103 S.Ct. 266, 74 L.Ed.2d 207 (1982).

Clearly, Tennessee’s procedural-mechanism, in the abstract, presented Mr. Gray the opportunity to raise his Fourth-Amendment claim: He could have filed a pretrial motion to suppress such evidence, Rule 12(b)(3), Tenn.R.Crim.P.; he had the right to object to such evidence when it was offered at trial, see Griffin v. State, 595 S.W.2d 96, 100[9] (Tenn.Crim.App.1980) (“In the absence of an objection to the admission of the evidence, the question of the legality of a search is foreclosed.”); he was entitled to appeal his conviction and raise the adverse-ruling of the trial judge before the Court of Criminal Appeals of Tennessee, Rule 3(b), 4(a), (c), 5(b), Tenn.R. App.P.; and, lastly, Mr. Gray could have sought permission to appeal the issue to the Supreme Court of Tennessee, Rule 11(a), Tenn.R.App.P. Thus, Tennessee provided the petitioner an adequate procedural-mechanism for the litigation of his Fourth-Amendment claim.

Although Mr. Gray’s opportunity to litigate the merits of his Fourth-Amendment claim in the state appellate-Court was frustrated by that Court’s application of its waiver-rule, such was entirely legitimate. Riley v. Gray, supra, 674 F.2d at 526, n. 3. The frustration was not the product of any unreasonable or unjustified conduct on the part of the State-Court, but resulted from the fault of the petitioner who (through his counsel) did not abide by that Court’s reasonable rule regarding the briefing of issues he had chosen to raise. “ * * * Under such circumstances it cannot be held that petitioner was denied the opportunity to fully and fairly litigate the issue. * * ” Lenza v. Wyrick, supra, 665 F.2d at 809 (where the state appellate-Court refused also to consider a Fourth-Amendment issue because of improper briefing).

This Court hereby FINDS that the state of Tennessee afforded Mr. Gray an opportunity for the full and fair litigation of his Fourth-Amendment claim. Accordingly, the Court CONCLUDES that it cannot consider such claim herein. Stone v. Powell, supra.

III.

Upon a review of the state-court proceedings and of the expanded record, this Court CONCLUDES that an evidentiary-hearing is not required herein; therefore, it will make such disposition of the petition herein as justice requires. Rule 8(a), 28 U.S.C. fol. § 2254. Since Mr. Gray is not entitled to any relief, judgment will enter, denying him all relief herein. Rule 58(1), F.R.Civ.P.

Should the applicant give timely notice of an appeal herein, he is authorized to proceed thereon in forma pauperis. Rule 24(a), F.R.App.P. Any such notice will be treated also as an application for a certificate of probable cause, Rule 22(b), F.R. App.P., which certificate shall ISSUE so that the Court of Appeals will have an opportunity to determine whether its mandate has been honored meticulously by this Court. Id.

      . " * * * Section 2254(d) by its terms thus applies to factual determinations made by state courts, whether the court be a trial court or an appellate court. * * *" Sumner v. Mata, 449 U.S. 539, 547, 101 S.Ct. 764, 769[3], 66 L.Ed.2d 722 (1981).

      . Edwards is to be applied to all cases pending on direct appeal at the time it was decided (May 18, 1981). Shea v. Louisiana, — U.S.-, 105 S.Ct. 1065, 84 L.Ed.2d 38 (1985). Mr. Gray’s case was pending on direct-appeal when the decision in Edwards was rendered.

      . Rule 27(a)(7), Tenn.R.App.P., corresponds with Rule 34.1(1), U.S.Sup.Ct.R., which requires briefs to "cit[e] the authorities and statutes relied upon” and Rule 28(a)(4), F.R.App.P., requiring briefs to include “citations to the authorities, statutes and parts of the record relied on.”


author: SIFTON, District Judge.

text:
    Mohamed ISHTYAQ et alia, Petitioners, v. Alan NELSON, etc., et alia, Respondents.
    No. CV-82-2288.
    United States District Court, E.D. New York.
    Oct. 4, 1983.

      Lawyers Committee for International Human Rights by Arthur C. Helton, New York City, for petitioners.
    Raymond J. Dearie, U.S. Atty., E.D.N.Y. by Winstanley Luke, Asst. U.S. Atty., Brooklyn, N.Y., for respondents.
   SIFTON, District Judge.

This is a proceeding seeking the issuance of a writ of habeas corpus instituted by thirty-three Afghan and three Iranian nationals who claim that they are being unlawfully detained by the Immigration and Naturalization Service (“INS”). Petitioners are said to have arrived in the United States from India and Pakistan between January 1982 and May 1983 and, upon arrival, to have applied for political asylum pursuant to 8 U.S.C. § 1158(a) on the ground that they are refugees and will be persecuted in their respective home countries if they return to them. At least thirteen petitioners continue to be detained pursuant to 8 U.S.C. § 1225(b) at the INS Processing Center in Brooklyn pending determination of their applications for political asylum and the conclusion of exclusion proceedings pursuant to 8 U.S.C. §§ 1225 and 1226. Those who continue to be detained seek the issuance of a writ of habeas corpus and their immediate release on the grounds that their detention is violative of the Constitution, the federal immigration laws, the Administrative Procedure Act, 5 U.S.C. § 551 et seq. (the “Act”), and the international legal obligations of the United States as reflected in international agreements and general principles of customary international law.

The matter is currently before the Court on petitioners’ motion pursuant to Rule 56 of the Federal Rules of Civil Procedure awarding them summary judgment and the immediate issuance of a writ of habeas corpus. For the reasons to be stated, petitioners’ motion is denied.

BACKGROUND

It is undisputed for purposes of this motion that petitioners are Afghan and Iranian refugees who fled their respective countries to escape persecution following the Soviet invasion of Afghanistan in December 1979 and the change of government in Iran. They allege that they initially emigrated to either India or Pakistan. After having been denied permission to enter the United States as refugees by American diplomatic officials in India and Pakistan, the petitioners obtained false travel documents in those countries and flew to the United States. They were detained upon arrival at John F. Kennedy International Airport in New York when the INS questioned their travel documents and deemed them inadmissible pursuant to 8 U.S.C. § 1182(a)(19), (20). Exclusion proceedings were then instituted against them pursuant to 8 U.S.C. §§ 1225 and 1226. Petitioners then applied for political asylum pursuant to 8 U.S.C. § 1158(a). With respect to at least certain of the Afghan petitioners, government officials are said to have agreed that their fear of persecution upon return to Afghanistan is well-founded, but are said to have denied them entry and ordered them deported on the ground that they failed to comply with prescribed procedures for applying for refugee status abroad. Other petitioners are said to still have motions and/or appeals pending with respect to their asylum applications. As for those petitioners for whom final orders of exclusion and deportation have been issued, the INS has been unable to execute those orders in light of the refusal of India and Pakistan to accept those petitioners as deportees and is said to have released them from detention.

THE PRESENT MOTION

The standard under which a summary judgment motion is tested requires a showing “that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Federal Rules of Civil Procedure 56(c). As the Court of Appeals recently stated:

“The burden rests on the moving party to demonstrate the lack of genuine fact issue. Adickes ¶. S.H. Kress & Co., 398 U.S. 144, 157 [90 S.Ct. 1598, 1608, 26 L.Ed.2d 142] (1970). In its search of the record the court should resolve all ambiguities and inferences to be drawn from the underlying facts in the light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 655 [82 S.Ct. 993, 994, 8 L.Ed.2d 176] (1962); Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 445 (2d Cir.1980). The possibility that a factual issue may exist will not defeat the motion, rather the party opposing summary judgment must indicate that a genuine dispute as to a material fact does exist. Uncertainty as to the true state of any material fact defeats the motion. Quinn, 613 F.2d at 445.”

United States v. One Tintoretto Painting, 691 F.2d 603, 606 (2d Cir.1982) (Emphasis in original.)

There is a dispute, albeit legal rather than factual, between the parties as to the precise basis for each petitioner’s present detention. Petitioners allege that those among their number who were first detained prior to July 9, 1982, are being detained pursuant to INS internal guidelines first implemented in the New York district of the INS in January 1982. The New York district office is said to have acknowledged the application of these guidelines to these petitioners in several notations in the work files of release requests disclosed by the INS to petitioners. These guidelines are said to have been revised once in April 1982 with respect to the release of juveniles and again on June 27, 1983, to permit INS district directors to consider the release of detainees who have been issued final orders of deportation and whose departure could not be enforced by the INS. Twenty petitioners are said to have already been released pursuant to this policy revision.

Petitioners further allege that those who were first detained after July 9, 1982, are being detained pursuant to inadmissible alien detention and parole regulations published in the Federal Register on that date as an immediately effective “interim rule,” 47 Fed.Reg. 30044-46, later adopted with amendments as a final rule on October 19, 1982, 47 Fed.Reg. 46493-94, and now set forth at 8 C.F.R. §§ 212.5, 235.3 (1983).

Petitioners argue that the detention of those who were first detained prior to July 9, 1982, the date the INS first published its presently effective alien detention regulations in the Federal Register, is unlawful because that detention was originally effected pursuant to agency regulations which were not adopted in conformity with the notice and comment rulemaking provisions of the Act — an argument to which I now turn.

Petitioners do not argue that the two sets of regulations are, as applied, substantially different so that detainees have been or are being treated differently depending on which set of regulations provided the basis for their original detention. Nor do they, for purposes of this motion at least, dispute the Government’s representation that any alien entitled to release under the currently effective regulations will be released without regard for the basis for his original detention. Rather, they argue that, since the INS internal guidelines pursuant to which pre-July 9, 1982 detentions were effected were defective under the notice and comment rulemaking provisions of the Act, that procedural defect renders their continued detention unlawful.

On June 18, 1982, Judge Eugene Spellman of the United States District Court for the Southern District of Florida ruled that what was shown to be the government’s shift to a “new policy” with respect to the detention and parole of Haitian refugees was a “rule” within the meaning of § 551(4) of the Act not otherwise excepted from the Act’s rulemaking provisions and that this policy was, accordingly, unlawfully promulgated and void because the government failed to comply with the notice and comment rulemaking requirements of § 553(b) and (c) of the Act. Louis v. Nelson, 544 F.Supp. 973 (S.D.Fla.1982). This aspect of Judge Spellman's decision was later affirmed by the Court of Appeals. Jean v. Nelson, 711 F.2d 1455, 1474-83 (11th Cir.1983). Assuming arguendo that this holding is equally applicable to the shift in policy said by petitioners to have been adopted in the New York district in January 1982, it is undisputed that, as noted above, the INS, on July 9, 1982, published an immediately effective interim rule, later adopted with amendments as a final rule on October 19, 1982, which superseded the agency’s pre-existing internal guidelines first implemented in January 1982 and which from the date of publication forward governed the detention and parole of aliens detained after that date and those detained previously and still in custody. In publishing this rule the INS stated that it was doing so in compliance with Judge Spellman’s ruling in Louis v. Nelson, 47 Fed.Reg. at 30044. Assuming that this rule was validly promulgated in conformity with the Act and related regulatory requirements, a point which petitioners also contest and which will be addressed below, the promulgation of this rule served to cure and render moot any complaint petitioners may have had with respect to any invalid promulgation of a new rule with regard to aliens in January 1982, recalling that petitioners make no claim that the two sets of regulations afforded them differing treatment. Compare Brown Express, Inc. v. United States, 607 F.2d 695 (5th Cir.1979); BASF Wyandotte v. Costle, 582 F.2d 108 (1st Cir.1978); Pickus v. U.S. Board of Parole, 507 F.2d 1107 (D.C.Cir.1974). Whatever denial of rights to participate in the rule promulgation process which petitioners may have been denied as a result of the allegedly invalid promulgation of the INS internal guidelines was cured by the fact that they were offered an opportunity to comment on the rule published on July 9, 1982, as part of the Act’s rulemaking process.

However, as has already been indicated, petitioners also argue that, even as published and finally adopted, the INS’ inadmissible alien detention and parole regulations were not validly promulgated in conformity with the Act and related regulatory requirements. Accordingly, I turn to that argument.

First, petitioners assert that the regulations are “in excess of [the] authority” of the INS and thus invalid under 5 U.S.C. § 706(2)(C). Second, they assert that the regulations are “arbitrary [or] capricious” and thus invalid under 5 U.S.C. § 706(2)(A). Third, they assert that the INS has failed to show “good cause” for publishing the regulations on July 9, 1982, as an immediately effective interim rule, as the agency must do in order to justify their publication less than 30 days before their effective date. 5 U.S.C. § 553(d)(3). Fourth, they assert that publication of the regulations was defective because it failed to include the regulatory flexibility analysis required under 5 U.S.C. § 603 and failed to comply with Executive Order 12291.

Petitioners’ contention that the inadmissible alien detention and parole regulations are not within the statutory authority of the INS is based on their assertion that the regulations prescribe mandatory imprisonment of inadmissible aliens contrary to what is said to be Congress’ intent that detention be the exception rather than the rule. However, while the Court has the power under § 706 of the Act to set aside agency action in excess of statutory authority, Citizens Committee for the Hudson Valley v. Volpe, 425 F.2d 97, 102 (2d Cir.), cert. denied, 400 U.S. 949, 91 S.Ct. 237, 27 L.Ed.2d 256 (1970), I do not find that the regulations in question are ultra vires.

The Immigration and Naturalization Act, as amended, provides that every alien (other than crewmen, stowaways, and security risks who are governed by other provisions) “who [upon arrival in the United States] may not appear to the examining immigration officer at the port of arrival to be clearly and beyond a doubt entitled to land shall be detained for further inquiry to be conducted by a special inquiry officer.” 8 U.S.C. § 1225(b). The procedures for such inquiry are governed by 8 U.S.C. § 1226. See also 8 C.F.R. § 236.1. That detention of inadmissible aliens is contemplated by the federal immigration laws to be the rule rather than the exception is further indicated by the fact that the Attorney General is expressly authorized temporarily to parole into the United States “under such conditions as he may prescribe for emergent reasons or for reasons deemed strictly in the public interest any alien applying for admission to the United States....” 8 U.S.C. § 1182(d)(5). Significantly, the statute further provides:

“[S]uch parole of such alien shall not be regarded as an admission of the alien and when the purposes of such parole shall, in the opinion of the Attorney General, have been served the alien shall forthwith return or be returned to the custody from which he was paroled and thereafter his case shall continue to be dealt with in the same manner as that of any other applicant for admission to the United States.”

Id. These are in fact the statutory provisions on which the INS relied when it first published the regulations in question. See 47 Fed.Reg. at 30044.

Nor do the regulations provide for “mandatory imprisonment” as petitioners allege. The regulations state, inter alia, that “[a]ny alien who appears to the inspecting officer to be inadmissible and who arrives without documents ... or who arrives with documentation which appears on its face to be false, altered, or to relate to another person ... shall be detained in accordance with [8 U.S.C. § 1225(b) ]” and that “[p]ar-ole of such aliens may be considered in accordance with [the provisions of the regulations now set forth at 8 C.F.R. § 212.-5(a)].” 8 C.F.R. § 235.3(b). While the provisions of § 212.5(a) limit the availability of parole to aliens who have serious medical conditions, who are pregnant or juveniles, who have had relative petitions filed on their behalf, who will be witnesses in proceedings being or to be conducted by judicial, administrative or legislative bodies in the United States, or whose “continued detention is not in the public interest as determined by the district director,” such restrictiveness is not at all inconsistent with Congress’ authorization of parole “for emergent reasons or for reasons deemed strictly in the public interest_” 8 U.S.C. § 1182(d)(5). As the INS noted in its initial publication of the regulations, the legislative history of the Attorney General’s parole authority shows a Congressional intent that that authority be exercised restrictively:

“The drafters of the Immigration and Nationality Act of 1952 gave as examples situations where parole was warranted in cases involving the need for immediate medical attention, witnesses, and aliens being brought into the United States for prosecution. H.Rep. No. 1365, 82nd Cong., 2d Sess. at 52 (1952). In 1965, a Congressional committee stated that the parole provisions ‘were designed to authorize the Attorney General to act only in emergent, individual, and isolated situations, such as the case of an alien who requires immediate medical attention, and not for the immigration of classes or groups outside the limit of the law.’ 5 Rep. No. 748, 98th Cong., 1st Sess. at 17 (1965).”

47 Fed.Reg. at 30044.

Nor do I find that the detention and parole regulations are contrary to Congressional intent as evidenced in the Refugee Act of 1980, Pub.L. 96-212, 96th Cong., 1st Sess., 94 Stat. 108, which, inter alia, incorporated a new definition of the term “refugee” into the federal immigration laws and directed the Attorney General to “establish a procedure for an alien physically present in the United States ... to apply for asylum.” 8 U.S.C. § 1158(a). The Senate Report discussing the Refugee Act of 1980 specifically states:

“The Attorney General’s parole authority under Section 212(d)(5) of the Immigration and Nationality Act[, 8 U.S.C. § 1182(d)(5),] remains unchanged. Once the bill takes effect, however, the Attorney General does not anticipate using this authority with respect to refugees unless he determines that compelling reasons in the public interest related to individual or groups of refugees require that they be paroled into the United States, rather than be admitted in accordance with proposed Sections 207 or 208.”

S.Rep. No. 256, 96th Cong., 1st Sess. 17, reprinted in 1980, U.S.Code Cong. & Admin.News, 141, 157. The House of Representatives Conference Report states that, in adopting the House version of the legislation limiting the use of parole to individual refugees under the Refugee Act and requiring that in utilizing parole the Attorney General must determine that “ ‘compelling reasons in the public interest ... require that the alien be paroled into the United States rather than be admitted as a refugee,’ ... [t]he Conferees ... recognize that it does not affect the Attorney General’s authority under section 212(d)(5) of the Immigration and Nationality Act to parole aliens who are not deemed to be refugees.” H.Conf.Rep. No. 781, 96th Cong., 2d Sess. 20, reprinted in 1980, U.S.Code Cong. & Admin.News, 160, 162. It is thus manifest that the Refugee Act of 1980 was not intended to alter, and in fact was intended to reaffirm, the Attorney General’s parole authority with respect to aliens such as petitioners.

Petitioners’ argument that the regulations are invalid as “arbitrary [or] capricious” is equally unavailing. The United States Supreme Court recently characterized the scope of review of agency action in this respect as follows:

“[U]nder this standard, a reviewing court may not set aside an agency rule that is rational, based on consideration of the relevant factors and within the scope of the authority delegated to the agency by the statute_ The scope of review under [this] standard is narrow, and a court is not to substitute its judgment for that of the agency. Nevertheless, the agency must examine the relevant data and articulate a satisfactory explanation for its action including a ‘rational connection between the facts found and the choice made.’ Burlington Truck Lines v. United States, 371 U.S. 156, 168 [83 S.Ct. 239, 245, 9 L.Ed.2d 207] (1962). In reviewing that explanation, we must ‘consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.’ Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc.[, 419 U.S. 281, 285, 95 S.Ct. 438, 441, 42 L.Ed.2d 447 (1974)], Citizens Preserve Overton Park v. Volpe [, 401 U.S. 402, 416, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1971) ]. Normally, an agency rule would be arbitrary and capricious if the agency has relied on factors which Congress had not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. The reviewing court should not attempt itself to move up for such deficiencies: ‘We may not supply a reasoned basis for the agency’s action that the agency itself has not given.’ SEC v. Chenery Corp., 332 U.S. 194, 196 [67 S.Ct. 1575, 1577, 91 L.Ed. 1995] (1947). We will, however, uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned. Bowman Trans. Inc. v. Arkansas-Best Freight Systems, supra [419 U.S.] at 286 [95 S.Ct. at 442]. See also Camp v. Pitts, 411 U.S. 138, 142-43 [93 S.Ct. 1241, 1244, 36 L.Ed.2d 106] (1973) (per curiam).”

Motor Vehicle Manufacturers Association of the United States, Inc. v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29, 42-43, 103 S.Ct. 2856, 2866-67, 77 L.Ed.2d 443 (1983).

Petitioners argue that in promulgating its regulations the INS impermissibly relied on factors that Congress had not intended it to consider because, petitioners assert, the regulations were promulgated to deter aliens outside the country from legally entering the United States. See Memorandum of Law in Support of Motion for Summary Judgment at 49. However, there is no evidence that the INS published the regulations to achieve a goal of deterring aliens from lawfully emigrating to the United States. In promulgating the regulations, the INS stated that it was acting to establish an interim rule of immediate application without a 30-day public comment period in light of Judge Spellman’s prior holding that the INS detention policy was subject to and fell within the Act’s rule-making requirements, which the INS asserted “created a vacuum in the Service’s detention policy and in the enforcement of the immigration laws of the United States.” 47 Fed.Reg. at 30044. The INS then added:

“This vacuum will be prolonged unless the 30 day publication requirement is suspended. If this requirement is not suspended, a significant number of persons who were previously deterred from attempting to enter the United States illegally by the Service’s detention policy may now enter the United States without fear of being detained until publication is completed.” (Emphasis added.)

Id. Rather than indicating that the INS was seeking to deter lawfully emigration to the United States, this language indicates that the regulations were promulgated in conformity with and in furtherance of the INS’ obligation to enforce the federal immigration laws so as to deter and prevent unlawful entry by detaining aliens who may not appear to be “clearly and beyond a doubt entitled to land.” 8 U.S.C. § 1225(b).

Petitioners also argue that adoption of the regulations was “arbitrary [or] capricious” because the INS failed to address in its statement of the basis and purpose for the regulations questions raised regarding the new policy between the time they were published as an interim rule and when they were published as a final rule. This objection is founded on the requirement under § 553(c) of the Administrative Procedures Act that, “[a]fter consideration of the relevant matter presented [during the comment period], the agency shall incorporate in the rules adopted a concise general statement of their basis and purpose.” 5 U.S.C. § 553(c). In this regard it has been noted:

“It is not in keeping with the rational process to leave vital questions, raised by comments which are of cogent materiality, completely unanswered. The agencies certainly have a good deal of discretion in expressing the basis of a rule, but the agencies do not quite have the prerogative of obscurantism reserved to legislatures.”

United States v. Nova Scotia Food Products Corp., 568 F.2d 240, 252 (2d Cir.1977). The test of the adequacy of the “concise general” statement has been expressed as follows:

“We do not expect the agency to discuss every item of fact or opinion included in the submissions made to it in informal rulemaking. We do expect that, if the judicial review which Congress has thought it important to provide is to be meaningful, the ‘concise general statement of ... basis and purpose’ ... will enable us to see what major issues of policy were ventilated by the informal proceedings and why the agency reacted to them as it did.”

Id. at 252, quoting Automotive Parts & Accessories Ass’n v. Boyd, 407 F.2d 330, 338 (D.C.Cir.1968). In light of this standard I find that, in its publication of the regulations as a final rule on October 19, 1982, 47 Fed.Reg. 46493-94, the INS met its obligation to provide a “concise and general statement of their basis and purpose.” The INS noted that it had received fifteen comments from the public on the basis of its July 9, 1982 publication and summarized the views expressed. The INS also identified its position with respect to the principal objections raised, i.e., that the interim rule was not in compliance with the Act and conflicted with the United National Protocol Relating to the Status of Refugees, 19 U.S.T. 6223, T.I.A.S. No. 2322, and the Refugee Act of 1980. The INS also responded to claims regarding the breadth and effect of the regulations and addressed these claims, in part, by adopting clarifying amendments to certain provisions of § 212.5 and § 235.3. The information set forth by the INS adequately reveals the major policy issues raised during the comment period and the reasons why the INS chose to “follow one course rather than another.” Industrial Union Dep’t v. Hodgson, 499 F.2d 467, 475 (D.C.Cir.1974), quoted in Nova Scotia Food Products Corp., 568 F.2d at 253.

Petitioners also argue that the INS has failed to show “good cause” for publishing the regulations on July 9, 1982, as an immediately effective interim rule as it is required to do under the Act in order to justify their publication less than 30 days before their effective date. 5 U.S.C. § 553(d)(3). In its July 9, 1982 publication the INS stated that it was compelled to dispense with the 30 day notice requirement as a result of Judge Spellman’s decisions in Louis v. Nelson:

“On June 18, 1982, the District Court for the Southern District of Florida held that the Service’s present detention policy in regard to aliens who attempt to enter the United States illegally was ‘null and void.’ In its decision, Louis v. Nelson, No. 81-1260-CIV-EPS [544 F.Supp. 973], the Court found that the Service had not complied with the rule making provisions of the [Act] with respect to its detention policy. The court enjoined the enforcement of this policy with respect to those Haitians who were then detained in the United States.
“In its subsequent order of July 2, 1982, the court stayed for 30 days that portion of its order which enjoined enforcement of the detention policy with respect to future illegal entrants into the United States. The court expressly conditioned the stay of its order with respect to future illegal entrants upon the Service’s publication within a 30 days period of rules embodying the Service’s detention policy.
“This rule is therefore being published in compliance with and consistently with the court’s order, although the Service strongly disagrees with the analysis and conclusions of the court, strongly disagrees that the Service’s detention policy is subject to and falls within the Act’s rule making requirements, and strongly disagrees that its detention policy is null and void because the Service did not engage in formal Act rule making. Accordingly, this rule is being published ‘under protest.’ The Service has sought judicial review of this order.”

47 Fed.Reg. at 30044. With respect to its decision to publish the regulations as an immediately effective interim rule and the “good cause” justifying that decision, the INS stated:

“This rule is being published as an interim rule with comment, effect immediately upon publication, because the delays involved in customary publication would seriously impair the Service’s ability to protect the country’s borders and would be detrimental to the public interest. Accordingly, suspension of the normal 30 day publication requirement is essential under the ‘good cause’ provision of 5 U.S.C. 553(d)(3).
“The district court’s order has created a vacuum in the Service’s detention policy and the enforcement of the immigration laws of the United States. This vacuum will be prolonged unless the 30 day publication requirment is suspended. If this requirement is not suspended, a significant number of persons who were previously deterred from attempting to enter the United States illegally by the Service’s detention policy may now enter the United States without fear of being detained until publication is completed. “This potential emergency was expressly recognized by the district court in its July 2, 1982 order, where the court referred to the affidavit of Bob Graham, the Governor of Florida, as follows:
“The affidavit... states that there are between 20,000 and 40,000 Haitians in the Bahamas as well as ‘additional numbers of Haitians, Nicaraguans, El Salvadorans and other nationals currently residing in other areas within the Caribbean basin.... Consistent with the information obtained from the aforesaid reports your affiant fears a renewed influx of Haitian and other aliens into south Florida if the court’s judgment dated June 29, 1982 is not stayed....’ ”
“The court recognizes the validity of this assessment in its July 2, 1982 order at page 3:
“The appearance of an inability on behalf of the United States Government to control unlawful immigration into this country is ‘the greatest inducement to the ultimate swollen tide of undocumented aliens.’ Haitian Refugee Center v. Smith, No. 80-5683, slip op. 15182 n. 11 [676 F.2d 1023] (11th Cir. May 4, 1982). This Court does not want its Final Judgment to render INS helpless and thereby induce further migration to these shores.”
“Publication of this rule as an interim rule is therefore the only possible course of action for the Service to follow in discharging its obligation to enforce the immigration laws of the United States.”

Id.

In granting the INS’ motion for a partial stay of his June 18, 1982 order, Judge Spellman in fact expressly authorized the INS to proceed as it did in promulgating the regulations, stating:

“The Defendants shall publish notice of their intent to engage in rulemaking with regard to detention as soon as possible and in no event later than thirty (30) days from the date of this Order. Said notice shall invite comments, as provided for in Title 5 of the United States Code, but Defendants are not precluded from publishing notice pursuant to section 553(b)(3)(B), (d)(3). In other words the Defendants may utilize the good cause provisions of section (d)(3) if, in their discretion, they believe it to be necessary, but they must, within the time period established, institute notice and comment rulemaking.”

Louis v. Nelson, No. 81-1260, slip op. at 3-4 (S.D.Fla. July 2, 1982).

The INS then availed itself of the provisions of § 553(d)(3) and published the regulations as an immediately effective interim rule without 30 days notice, but provided for a subsequent 30 day comment period, closing on August 9, 1982, 47 Fed.Reg. at 30044, instituting the full range of statutory notice and comment rulemaking procedures for the promulgation of permanent rules before adopting the regulations, with amendments, as a final rule on October 19, 1982.

I conclude that, in proceeding as it did in promulgating the regulations at issue in a two-step process, the INS acted in conformity with § 553 of the Act. The decision of the Court of Appeals for the D.C. Circuit in American Federation of Government Employees v. Block, 655 F.2d 1153 (D.C.Cir.1981), is particularly instructive on this question. In Block, plaintiffs challenged the USDA’s promulgation of regulations establishing uniform poultry inspection rates on the ground that, inter alia, they had improperly been made immediately effective upon their initial publication in the Federal Register. These regulations had been issued pursuant to an order of the United States District Court for the Eastern District of Arkansas in a suit against the USDA commenced by certain Arkansas poultry processors and the Arkansas Attorney General voiding a “status quo order” previously issued by USDA directing the USDA to use uniform inspection rate standards. As the Court of Appeals noted, the USDA was, on April 3, 1979, “ordered ‘forthwith to use uniform inspection standards_’ ” 655 F.2d at 1157. The USDA then published the regulations at issue in the Federal Register on April 13,1979, “promulgating them as final and immediately effective.” Id. The Court of Appeals ruled that “the promulgation of emergency regulations by the [USDA] was a reasonable and perhaps inevitable response to the injunctive court order issued on April 3,” adding:

“Although the trial judge indicated that he was only voiding the status quo order and was not mandating the action to be taken by the Department to comply with his injunction, the absence of specific and immediate guidance from the Department in the form of new standards would have forced reliance by the Department upon antiquated guidelines, thereby creating confusion among field administrators, and caused economic harm and disruption to those northeastern processors whose inspection lines ran at varying speeds. This harm would not have been limited to those within the broiler industry but would have extended in all likelihood to the consumer in the form of poultry shortages or increases in consumer prices. We believe that the issuance of emergency regulations to ameliorate this expected harm and, at the same time, to comply with the court order did not violate section 553 of the [Act].”

Id.

By proceeding as it did here, promulgating an immediately effective interim rule and following it with a 30 day notice and comment period and the adoption of a final rule, amended in light of the public comments received, the INS fully discharged its obligations under § 553 of the Act. In light of Judge Spellman’s order explicitly instructing the INS to engage in rulemak-ing with regard to alien detention within 30 days and advising it that it could invoke § 553(d)(3) if it believed it to be necessary, as well as the circumstances involving ongoing illegal entry into the United States identified by the INS on July 9, 1982, the INS had “good cause” to dispense with the statutory 30 day lag period between publication and effectiveness. By then allowing the public 30 days to comment on the interim rule published on July 9, 1982, amending the rule in light of the comments received and publishing a final rule on October 19, 1982, the INS followed the course prescribed by the Court of Appeals in Block.

Petitioners further contend that publication of the regulations was defective because it failed to include the regulatory flexibility analysis required under 5 U.S.C. § 603 and failed to comply with Executive Order 12291. Section 603(a) of the Act provides in pertinent part that “[wjhenever an agency is required by section 553 of this title ... to publish general notice of proposed rulemaking for any proposed rule, the agency shall prepare and make available for public comment an initial regulatory flexibility analysis [which] shall describe the impact of the proposed rule on small entities.” 5 U.S.C. § 603(a). Petitioners complain that neither the July 9, 1982, nor the October 19, 1982, publication of the regulations complied with this requirement. Pursuant to § 611(b) of the Act, however, “[a]ny regulatory flexibility analysis prepared under sections 603 and 604 of this title and the compliance or noncompliance of the agency with the provisions of [chapter 6 of the Act are] not ... subject to judicial review.” 5 U.S.C. § 611(b).

Executive Order 12291, effective February 17, 1981, requires every agency to develop a “Regulatory Impact Analysis” for each “major rule” promulgated. 46 Fed. Reg. 13193, reprinted in 5 U.S.C.A. § 601(1982). A “major rule” is defined as “any regulation that is likely to result in: (1) An annual effect on the economy of $100 million or more; (2) A major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; or (3) Significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States based enterprises to compete with foreign based enterprises in domestic or export markets.” Id. Pointing to what is said to be the substantial cost of building and maintaining the detention facilities which, it is further said, will need to be built in order to have aliens detained under the regulations at issue, petitioners argue that those regulations constitute a “major rule” as defined and that, consequently, the INS’ conceded failure to develop a Regulatory Impact Analysis therefor renders the regulations null and void.

Petitioners’ argument in this regard is unavailing for two reasons. First, petitioners’ contention that the regulations will require the expenditure of public monies for construction and maintenance of detention facilities to house detained aliens to such a degree as to render those regulations a “major rule” is on this record speculative and conclusory, without any factual basis or support in the record. Second, and more significantly, section 9 of the Executive Order 12291, entitled “Judicial Review,” in conformity with 5 U.S.C. § 611(b), expressly provides that the order “is intended only to improve the internal management of the Federal government, and is not intended to create any right or benefit, substantive or procedural, enforceable at law by a party against the United States, its agencies, its officers or any person.” Id. Accordingly, petitioners are without standing to attack the regulations at issue due to any alleged failure on the part of the INS to comply with this order.

Petitioners next assert that their detention is constitutionally infirm as a violation of their rights under the due process clause of the fifth amendment since the regulations pursuant to which they are being detained are said to violate their constitutionally protected right to petition the government for political asylum and to effect an unreasonable restraint on their liberty. While it has been held that “Congress and the executive have created ... a constitutionally protected right to petition our government for political asylum [evincing] a clear intent to grant aliens the right to submit and the opportunity to substantiate their claim for asylum,” see Haitian Refugee Center v. Smith, 676 F.2d 1023, 1038 (5th Cir.1982); see also Chun v. Sava, 708 F.2d 869, 877 n. 25 (2d Cir.1983); Nunez v. Boldin, 537 F.Supp. 578, 584-87 (S.D.Tex.1982); Orantes-Hernandez v. Smith, 541 F.Supp. 351 (C.D.Cal.1982), the legislative history underlying the Refugee Act of 1980 — the statute to which petitioners point as the source of their right to apply for political asylum — indicates that the creation of such a right of whatever scope it may be is limited by the Attorney General’s discretion in paroling detainees. As such, petitioners’ argument that their prolonged detention has served to chill or otherwise detract from their right to petition for asylum must be rejected.

Nor do I find that petitioners’ continued detention violates their liberty interests under the due process clause. As the Court of Appeals for this Circuit only recently recited:

“The Supreme Court ‘has repeatedly emphasized that “over no conceivable subject is the legislative power of Congress more complete than it is over” the admission of aliens,’ Fiallo v. Bell, 430 U.S. 787, 792 [97 S.Ct. 1473, 1478, 52 L.Ed.2d 50] (1977) (citations omitted), and that ‘in the exercise of its broad power over immigration and naturalization, “Congress regularly makes rules that would be unacceptable if applied to citizens.” ’ Id. ... The limits of this legislative power are few, ‘for an alien has no constitutional right to enter or remain in this country ... [and] he may be denied entrance on grounds that would be constitutionally suspect or impermissible in the context of domestic policy....’ Fiallo v. Levi, 406 F.Supp. 162, 165 (E.D.N.Y.1975) (three-judge court), affd sub nom. Fiallo v. Bell, supra.

Bertrand v. Sava, 684 F.2d 204, 211-12 (2d Cir.1982) (citations omitted). As the United States Supreme Court emphasized in Galvan v. Press, 347 U.S. 522, 74 S.Ct. 737, 98 L.Ed. 911 (1954):

“Policies pertaining to the entry of aliens and their right to remain here are peculiarly concerned with the political conduct of government. In the enforcement of these policies, the Executive Branch of the Government must respect the procedural safeguards of due process.... But that the formulation of these policies is entrusted exclusively to Congress has become about as firmly embedded in the legislative and judicial tissues of our body politic as any aspect of our government. ..

Id. at 530-31, 74 S.Ct. at 742 (citations omitted), quoted in Bertrand v. Sava, 684 F.2d at 211. With respect to a claim not entirely unlike that raised here and in light of precedent indicating that “[t]he unusually broad Congressional power over the admission of aliens into the United States is reflected in the narrow construction by the courts of their own power to review the discretionary decisions of the Attorney General made pursuant to authority delegated to him by Congress,” the Court of Appeals has held:

“[A]s long as the Attorney General exercises his broad discretion under 8 U.S.C. § 1182(d)(5) to determine whether unad-mitted aliens may be paroled pending final determination of their applications for admission to the United States, his decision may not be challenged on the grounds that the discretion was not exercised fairly in the view of a reviewing court or that it gave too much weight to certain factors relevant to the risk of abscondence and too little to others. Indeed, section 1182(d)(5) permits the Attorney General to deny parole to all or to certain groups of unadmitted aliens on the ground that he finds no emergent or public interest reasons justifying their release on parole. The discretion may not be exercised to discriminate invidiously against a particular race or group or to depart without rational explanation from establishing policies. See Wong Wing Hang v. Immigration and Naturalization Service, 360 F.2d 715, 719 (2d Cir.1966). Such exercise of the power would not be “legitimate and bona fide” within the meaning of Kleindienst v. Mandel [, 408 U.S. 753, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972)]. But the Attorney General’s exercise of his broad discretionary power must be viewed at the outset as presumptively legitimate and bona fide in the absence of strong proof to the contrary. The burden of proving that discretion was not exercised or was exercised irrationally or in bad faith is a heavy one and rests at all times on the unadmitted alien challenging denial of parole. See Pierre v. United States, [547 F.2d 1281, 1289 (5th Cir.) (en banc), vacated and remanded to consider mootness, 434 U.S. 962 [98 S.Ct. 498, 54 L.Ed.2d 447] (1977)].”

684 F.2d at 212.

Petitioners have made no showing that the Attorney General’s discretion was not exercised or was exercised irrationally or in bad faith. In this connection, it is important to note that petitioners’ detention is by no means of an indefinite duration since, if their asylum applications are denied and exclusion proceedings against them conclude with orders being issued against them, petitioners will, as the Assistant United States Attorney represented at oral argument on the instant motion, be released from detention in the event that those orders cannot be executed. Petitioners do not, on the present motion, dispute the accuracy of this representation; and in fact the INS has, to date, been unable to execute those deportation orders which have been issued for a number of petitioners to date and has released them.

Finally, petitioners contend that their continued detention is violative of the United National Protocol Relating to the Status of Refugees, 19 U.S.T. 6223, T.I.A.S. No. 6577 (“The Protocol”) and general principles of customary international law. In particular, petitioners argue that their detention violates Article 31 of The Protocol which provides in pertinent part:

“The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened ... enter or are present in their territory without authorization, provided they present themselves without delay to the authorities or show good cause for their illegal entry or presence.
“The Contracting States shall not apply to the movements of such refugees restrictions other than those which are necessary and such restrictions shall not be applied until their status in the country is regularized or they obtain admission into another country. The Contracting States shall allow such refugees a reasonable period and all the necessary facilities to obtain admission into another country.”

While petitioners contend that the detention of those among them whose asylum applications are pending constitutes a “penalty” as that term is used in Article 31 of The Protocol, it is clearly intended to be a “restriction on movement.” In all events, under the Court of Appeals’ decision in Bertrand v. Sava, “[T]he Protocol affords the petitioners no rights beyond those they have under our domestic law.” 684 F.2d at 219. The court’s holding in this regard was based on its conclusion, first articulated in Stevic v. Sava, 678 F.2d 401 (2d Cir.1982), that the Refugee Act of 1980 “was designed, at least in part, to bring the United States into compliance with [T]he Protocol, [such] that [T]he Protocol provisions [are] not themselves a source of rights under our law unless and until Congress implements] them by appropriate legislation.” 684 F.2d at 218-19. A determination having been made that petitioners’ detention is valid under domestic law, their claims under The Protocol are untenable.

Petitioners also contend that their detention violates general principles of customary international law, citing as the sources of such principles the Universal Declaration of Human Rights, U.N. Doc. A/801 (1948), the American Convention of Human Rights, 77 Dep’t of State Bull. 28 (July 4, 1977), and the International Covenant on Civil and Political Rights, G.A.Res. 2200A (XXI), Dec. 16, 1966, U.N.Gen.Ass.Off.Rec., 21st Sess., Supp. No. 16 (A/6316), p. 52. While international law is a part of the laws of the United States that federal courts are bound to ascertain and apply in appropriate cases, The Nereide, 13 U.S. (9 Cranch) 388, 3 L.Ed. 769 (1815); The Paquete Habana, 175 U.S. 677, 20 S.Ct. 290, 44 L.Ed. 320 (1900); Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir.1980), even the principles of law to which petitioners have referred the court, assuming arguendo that they rise to the level of general principles of customary international law to be applied in American courts, see generally Filartiga v. Pena-Irala, do not compel the conclusion that petitioners’ detention is unlawful. Each of these international documents proscribe detention that is “arbitrary” or otherwise not in accordance with such procedures as are established by the applicable law, see Petitioners’ Brief at 65-67. As has been noted above, petitioners’ detention does not fit within either of these categories. Moreover, the cases cited by petitioners in which such general principles of customary international law were applied in connection with the claims of detained aliens, see Rodriguez-Fernandez v. Wilkinson, 505 F.Supp. 787 (D.Kan.1980), aff'd, 654 F.2d 1382 (10th Cir.1981); Soroa-Gonzales v. Civiletti, 515 F.Supp. 1049 (N.D.Ga.1981), are distinguishable from the instant case since each of the cited cases involved detention deemed to be indefinite. In the present case, as has already been noted, petitioners’ detention is by no means indefinite.

CONCLUSION

Petitioners’ application for an order granting them summary judgment and directing their immediate release is denied. SO ORDERED.

      . Counsel for petitioners has advised that petitioner Mohammad Amin Sayedi was released on April 27, 1983, after'posting a $2,500 bond and that petitioner Azizoddine Amiri was deported on May 3, 1983. One of the three Iranian petitioners, Freydoon Ghahrmanloo, is said to have been recently granted political asylum and released. Affidavit of Arthur C. Helton, July 12, 1983, at pp. 1-2. Twenty petitioners, Messrs. Ahmad, Ahmed, Akbar, Alami, Azizi, Batheja, Channa, Ghafar Hatemi, Satar Hatemi, Karimi, Khalid, Khwaja, Masfer Zada, Mashriqi, Naim, Nasary, Rahmani, Shabuddin, Shaghassi, and Tahir, are said to have been released by the INS pursuant to a revised detention policy adopted on June 27, 1983.

      . "Every alien ... who may not appear to the examining immigration officer at the port of arrival to be clearly and beyond a doubt entitled to land shall be detained for further inquiry to be conducted by a special inquiry officer.”

      . See note 1, supra.

      . Contrary to petitioners' assertion, Judge Spell-man did not hold in Louis v. Nelson that the provision in 8 U.S.C. § 1225(b) stating that "[e]very alien ... who may not appear to the examining officer at the port of arrival to be clearly and beyond a doubt entitled to land shall be detained for further inquiry” means only that, as petitioners have paraphrased Judge Spellman’s decision, "formal 'entry into the United States [is to] be delayed,’ — not that the alien is to be ‘incarcerated until a final determination of his admissibility.’ ” Petitioners’ Brief in Support of Motion for Summary Judgement, at p. 45. In the context of his consideration of the argument that the regulations in question were “carrying out a clear legislative mandate” for alien detention and, therefore, did not require notice and comment rulemaking under the Act, Judge Spellman in fact wrote:
      "The ‘legislative mandate’ of [section 1225(b) ] is not as clear as Defendants would lead the Court to believe.... The phrase ‘shall be detained’ could mean that an excludable alien shall be incarcerated until a final determination of his admissibility or that his entry into the United States should be delayed until inquiry is made at an exclusion hearing....
      But regardless of which view of the statute is correct, this analysis demonstrates that INS’ detention policy reflects their interpretation of the statute and, therefore, it is a rule under the [Act].”
      544 F.Supp. at 944.

      . Although Judge Spellman referred to § 553(b)(3)(B) of the Act, which affords an exception to the full panoply of notice and comment rulemaking procedures "when the agency for good cause finds ... that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest,” as well as to § 553(d)(3), which affords an exception only to the requirement that "publication or service of a substantive rule shall be made not less than 30 days before its effective date,” the INS chose to provide notice and an opportunity for subsequent comment under § 553(d)(3) and did not seek to avail itself of § 553(b)(3)(B) to escape public rulemaking entirely. The issue to be resolved here is, accordingly, limited to whether implementation of the regulations should have been delayed for at least 30 days or whether there was "good cause” to dispense with this requirement.

      . At the same time, however, the Court of Appeals ruled that the USDA had failed to offer "any justification for the issuance of permanent regulations of this breadth in response to this situation.” Id. This ruling was precipitated by the fact that, in distinction to what the INS did in the instant case, the USDA in Block “claimed for the both regulations that there emergency nature constituted good cause to forego ‘notice and other public procedure,'" id., entirely and, after their publication as an immediately effective rule, proceeded only to solicit written or oral comments for a period of 90 days without ever taking any further administrative action. In essence, whereas the INS here adopted the inadmissible alien detention and parole regulations as an immediately effective interim rule and then completed the full range of notice and comment rulemaking procedures prior to their adoption as amended as a final rule, the USDA in Block adopted its regulations in one step as a final rule allowing the public to participate in the rulemaking process only through its post hoc comments. This procedure led the Court of Appeals to state:
      "[W]e hold only that detailed regulations which respond — as these do — to much more than the exigencies of the moment must be promulgated before they are chiseled into bureaucratic stone.... [0]nce an emergency situation has been eased by the promulgation of interim rules, it is crucial that the comprehensive permanent regulations which follow emerge as a result of the congressionally mandated policy of affording public particpation that is embodied in section 553.”
      655 F.2d at 1157-58.
      The court concluded that the USDA "could have reconciled the statutory commands of the [Act] with the judicial command embodied in the [district court’s] injunctive order by promulgating these regulations and instituting notice-and-comment procedures for the promulgation of permanent rules.” 655 F.2d at 1159.

      . Petitioners have also argued that the regulations at issue are void for vagueness. "It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined.” Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 2298, 33 L.Ed.2d 222 (1972). Petitioners cite the provision of 8 C.F.R. § 235.3(b) as impermissibly vague, contending that they fail to clearly define the standards by which an immigration officer will determine whether a person "appears ... to be inadmissible” or whether his or her documentation “appears ... to be false." Since all of the petitioners appear, on the undisputed facts on this motion, to have been detained because of false documentation and since the concept of false documentation has a well developed meaning in American jurisprudence as well as in ordinary English usage, it can hardly be said that the regulatory standard is of such indefiniteness that those intended to apply it or to whom it applies are left to guess at the meaning of the rules pursuant to which they are to act. In all events, the Court of Appeals for this Circuit has recently reiterated the principle that Congress is to be afforded wide latitude in regulating the admission of aliens into the United States and that an alien ‘"may be denied entrance on grounds that would be unacceptable if applied to citizens’ ” and that an alien “ 'may be denied entrance on grounds that would be constitutionally suspect or impermissible in the context of domestic policy.’ ” Bertrand v. Sava, 684 F.2d at 211-12 (citations omitted). Viewed in this light, the regulations at issue are not so vague as to be constitutionally impermissible.