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PATRICK COLE,
Petitioner,
v.
MARION FEATHER, Warden,
Respondent.
The petitioner, Patrick Cole, requests leave to file the attached petition for writ of
certiorari to the United States Court of Appeals for the Ninth Circuit without prepayment of
costs and to proceed informa pauperis pursuant to Rule 39. l of this Court and 18 U.S.C.
3006A(d)(7). The petitioner was represented by counsel appointed under the Criminal
Justice Act in the District of Oregon and on appeal in the Ninth Circuit Court of Appeals, and
therefore no affidavit is required.
Stephe R. Sady
Attorney for Petitioner
No.
- - - -- - - -
PATRICK COLE,
Petitioner,
v.
MARION FEATHER, Warden,
Respondent.
Stephen R. Sady
Chief Deputy Federal Public Defender
101 SW Main Street, Suite 1700
Portland, Oregon 97204
(503) 326-2123
Attorney for Petitioner
QUESTION PRESENTED
Comity requires that state and federal jurisdictions respect each others' decisions
where dual prosecutions overlap. Ponzi v. Fessenden, 258 U.S. 254, 259 (1922). In Setser
v. United States, 132 S. Ct. 1463 (2012), this Court rejected the position of the government
and the defendant that, even though the federal judge spoke on the issue, the Bureau of
Prisons (BOP), through its designation power, was authorized to decide the question of
whether a federal sentence ran concurrently with or consecutively to a yet-to-be imposed
state sentence. Relying on Setser, Mr. Cole asserted that, because his federal judgment is
silent on concurrency, and the subsequently imposed state sentences were explicitly ordered
to run concurrently with the federal sentence, the BOP violated the sentencing statutes and
the Constitution by executing the federal sentence as de facto consecutive to the state
sentence. This Court previously considered that question in Reynolds v. Thomas, 603 F.3d
1144 (9th Cir. 2010), cert. dismissed, 132 S. Ct. 1854 (2012), for over 16 months but
dismissed the case when the petitioner died. The Ninth Circuit relied on Reynolds in denying
relief in the present case, which involves the same question of exceptional importance to the
administration of the federal criminal justice system as was raised in Reynolds:
Whether, under 18 U.S.C. 3584(a), 3585, and 362l(b), the Bureau of
Prisons must administer the sentence of a federal prisoner, in order to be in
compliance with federal sentencing statutes and the Constitution, in a manner
that effectuates the subsequent judgment of the state judiciary that the state
sentence run concurrently with the previously imposed federal term of
imprisonment where the federal judgment is silent on concurrency?
TABLE OF CONTENTS
. Page
Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
1.
2.
3.
4.
5.
A.
2.
3.
4.
5.
6.
2.
3.
INDEX TO APPENDIX
Ninth Circuit memorandum opinion (April 24, 2013) ....... ... .... ..... . ... ... A-1
Denial of rehearing and rehearing en bane (June 7, 2013) .................. .. . . A-4
Oregon district court opinion (August 15, 2012) . .. .............. ...... ... . ... A-5
Oregon findings and recommendation (April 16, 2012) ....................... A-11
Texas district court opinion (March 31, 2003) .............................. A-22
BOP Program Statements (PS 5160.05 and excerpts from PS 5880.05) ........... A-41
Federal judgment in a criminal case (July 30, 1992) ...... . . . ................. A-58
State plea bargain, disposition, and orders (July 31, 1992) ............. ... ..... A-62
11
BOP letter to Mr. Cole (April 26, 1999) . . .. . . . . .. ............ .. ........... A-67
BOP letter to state prosecutor (November 24, 2000) .. . . ... .... .. . ... . . .. .. . . . .. . . . A-68
BOP letter to Mr. Cole (July 26, 2001) . .. . . .. . . . . . .. . . . . ... .... .. . .. . ... . . . .... A-69
BOP computation data .. .. . .. ... .. ... . ............ ... ........ . ........ . A-70
BOP Informal Resolution request and disposition (July 23, 2011) ... . . . . .. .... .. A-74
BOP Request for Administrative Remedy request and disposition (August 19, 2011) A-78
BOP Regional Administrative Remedy Appeal request and disposition
(November 2, 2011) . . ... ..... . ... . . . .. .. .... ... . . .. . .... . ..... . . A-80
BOP Central Office Administrative Remedy Appeal request and disposition
(January 31, 2012) . . ...... . . ..... ... .. ... .. . ...... . . ... .. . . . .. . . A-83
111
TABLE OF AUTHORITIES
Page
FEDERAL CASES
Abdul-Malik v. Hawk-Sawyer,
403 F .3d 72 (2d Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Clark v. Martinez,
543 U.S. 371 (2005) . .................... ... ....................... 31
County ofAllegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter,
492 U.S. 573 (1989) .................... ...... ..................... 15
Covell v. Heyman,
111 U.S. 176 (1884) .. . .......... . .. .. ........... ..... ..... .... .... 28
Davis v. Davis,
305 U.S. 32 (1938) ............ ....... ............................. 21
Del Guzzi v. United States,
980 F.2d 1269 (9th Cir. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 30
Dillon v. United States,
130 S. Ct. 2683 (2010) ..... . .. .. ..... ..... . . ................. 25, 26, 27
Elwell v. Fisher,
716 F.3d 477 (8th Cir. 2013) .... . .......... . ........................ 26
Fegans v. United States,
506 F.3d 1101 (8th Cir. 2007) ...... . ........................ . ....... 11
Green v. Christiansen,
732 F.2d 1397 (9th Cir. 1984) ..................................... . . . 6
Gregory v. Ashcroft,
501 U.S. 452 (1991) ...................................... . ........ 31
Kelly v. Robinson,
479 U.S. 36 (1986) ................................ .. .............. 21
IV
Kinder v. Purdy,
222 F.3d 209 (5th Cir. 2000) ....................... .. . .. . .. . ......... 9
Kremer v. Chemical Construction Corp.,
456 U.S. 461 (1982) ...................... . ........................ 21
Lankford v. Idaho,
500 U.S. 110 (1991) ............................................ 24, 25
Mempa v. Rhay,
389 U.S. 128 (1967) .... .. ... ..... ... ........................ 22, 23, 24
Oregon v. Ice,
555 U.S. 160 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Ponzi v. Fessenden,
258 U.S. 254 (1922) ........... .. ........ .. . ............ ... 3, 14, 19, 28
Reynolds v. Thomas,
603 F.3d 1144 (9th Cir. 2010), cert. dismissed,
132 S. Ct. 1854 (2012) ................... . ....... ........ .... . .. passim
Sanders v. United States,
373 U.S. 1 (1963) ..... .......... . .. . . .... . ........ ... . .. .... . . . 10, 13
Seminole Tribe ofFlorida v. Florida,
517 U.S. 44 (1996) ..... ... .. . ..... .. . ........ ........ . . ... .. .... .. 15
Setser v. United States,
132 S. Ct. 1463 (2012) . ... ... .. . .... . ..... .. .......... . . ........ passim
Strand v. Schmittroth,
251F.2d590 (9th Cir. 1957) ........ ....... ......... . . .. .... .... . ... 19
Taylor v. Sawyer,
284 F.3d 1143 (9th Cir. 2002) ....... . . . ....................... 15, 18, 20
United States v. Alverson,
666 F.2d 341 (9th Cir. 1982) . .... . ..... .. . ...... ... . ....... . . .. . . .. . 24
Ex Parte Applewhite,
729 S.W.2d 706 (Tex. Crim. App. 1987) ..... ......... ......... . ... ... .. 7
Ex parte Crossnoe,
232 S.W. 2d 855 (Tex. Crim. App. 1950) . . .................. ....... .. . . 7
FEDERAL STATUTES AND CONSTITUTION
U.S. Const. art IV, 1 .... . ..................... . ....... ......... 5, 20, 21, 22
U.S. Const. amend. V ........... .. ....... .. . . . .... .. ...... . .... . .......... 4
U.S. Const. amend. X ....... .. .................... . ...... .. ....... . . 5, 19, 30
18 U.S.C. 3553(a) ..................... . .. . ... . .......... .. ... ......... 17
18 U.S.C. 3582(c) . .. .. .. .. .. . ........... .. .................. ... .... 25, 32
18 U.S.C. 3584(a) ................ ...... .. . .. ......... . .. . .. .... ... passim
18 U.S.C. 3585(a) ... .. ................... . ........ . ..... .... 3, 6, 14, 27, 32
18 U.S.C. 3621(b) ... .. . . ....... . ..... ............. ........ ... . .... passim
VI
28
u.s.c. 1254(1) ... ..... ................. ...... ........ ...... .... ..... 3
THE FEDERALIST,
No. 45 (James Madison) (J. & A. McLean ed., 1788) . . . . . . . . . . . . . . . . . . . . 20
GAO, Eligibility and Capacity Impact Use ofFlexibilities to Reduce Inmates' Time in
Prison (February 2012) ............................... . ............ 30
Henry J. Sadowski, BOP Regional Counsel, Interaction OfFederal And State Sentences
When The Federal Defendant Is Under State Primary Jurisdiction
(July 7, 2011) ...................... . ............... ... . . ...... . .. 30
Joseph Story, 3 COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES,
1304 (Boston, Hilliard, Gray & Co. 1833) ................. . .......... 21
St. George Tucker, 1 BLACKSTONE COMMENTARIES,
Appendix (Birch & Small 1803) ..................................... 20
WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY (1993) . . .................. 32
Vll
PATRICK COLE,
Petitioner,
v.
MARION FEATHER, Warden,
Respondent.
The petitioner, Patrick Cole, respectfully requests that a writ of certiorari issue to
review the judgment of the United States Court of Appeals for the Ninth Circuit entered on
April 24, 2013, affirming the denial of habeas corpus relief for a federal prisoner who
challenged the Bureau of Prisons' denial of his administrative requests for concurrent service
of his state sentence. Appendix 1. By granting the writ, the Court would address whether
this Court's decision in Setserv. United States, 132 S. Ct. 1463 (2012), supersedes the Ninth
Circuit's majority and concurring opinions in Reynolds v. Thomas, 603 F.3d 1144 (9th Cir.
2010), cert. dismissed, 132 S. Ct. 1854 (2012), and would resolve the pervasive federal
sentencing problems regarding Executive Branch creation of de facto consecutive sentences
that neither the state nor the federal judge has ordered.
1.
Opinions Below
On March 31, 2003 , the petitioner's initial prose effort to obtain review oftheBOP's
refusal to implement the state concurrent sentences, which he filed while in state custody in
the Southern District of Texas under 28 U.S.C. 2241 , resulted in denial of his petition, with
the court finding that the petitioner had no administrative remedies to exhaust. Appendix 22.
After the petitioner was returned to federal custody many years later, Mr. Cole filed again
for habeas corpus relief under 2241 after exhausting administrative remedies, this time
while in federal custody in the District of Oregon, receiving an initial recommendation from
the magistrate judge for denial of relief. Appendix 11. On review, the Oregon district court
denied habeas corpus relief on August 15, 2012, finding the Texas court used the wrong
standard of review but deferring to the Texas court's supposed finding that the petitioner had
been denied relief for failure to exhaust available remedies. Appendix 5. On April 24, 2013,
the Ninth Circuit affirmed the denial of habeas corpus relief in an unpublished opinion based
on Reynolds and on its conclusion that Setser did not affect previous case law. Appendix 23. The Ninth Circuit denied panel and en bane rehearing on June 7, 2013. Appendix 4.
2.
Jurisdictional Statement
This Court's jurisdiction is invoked under 28 U.S.C. 1254(1) (2008).
3.
The BOP's Sentence Computation Manual, Program Statement 5880.28, can be found
in its entirety at http://www.bop.gov/policy/progstat/5880_028.pdf.
4
The records and judicial proceedings of any court of any such State, Territory
or Possession, or copies thereof, shall be proved or admitted in other courts
within the United States and its Territories and Possessions by the attestation
of the clerk and seal of the court annexed, if a seal exists, together with a
certificate of a judge of the court that the said attestation is in proper form.
Such Acts, records and judicial proceedings or copies thereof, so
authenticated, shall have the same full faith and credit in every court within the
United States and its Territories and Possessions as they have by law or usage
in the courts of such State, Territory or Possession from which they are taken.
28 U.S.C. 1738 (2006) (amended from the Act of May 26, 1790, 1 Stat. 122). The
Constitution reserves to the States authority over areas not delegated to or prohibited by the
federal government: "The powers not delegated to the United States by the Constitution, nor
prohibited by it to the States, are reserved to the States respectively, or to the people." U.S.
CONST. amend.
4.
x.
were prosecuted in state court, others in federal court. State authorities arrested him first, so
he was initially in primary state custody. Represented by the same attorney in state and
federal court, Mr. Cole pleaded guilty in state court with a plea agreement that his state
sentences would run concurrently with his federal sentence. Appendix 62. Pursuant to a writ
of habeas corpus ad prosequendum, Mr. Cole appeared in federal court and pleaded guilty
to two federal robbery counts, with an agreed upward departure to 20 years. Prior to the
federal sentencing, Mr. Cole returned to state court and received sentences of 25 years in
prison. The state judgments explicitly stated that the state sentences were to run concurrently
with his federal sentence.
Realizing that the federal sentence was not yet in place, the parties agreed to vacate
the state sentences, after which Mr. Cole was returned to federal court with a second writ of
habeas corpus ad prosequendum and received a sentence of twenty years, with no mention
that the sentence should be consecutive. Appendix 58. The presentence report included the
fact of the first 25-year concurrent state sentences, but not that the first state sentences were
vacated. The federal writ having been satisfied, Mr. Cole returned to primary state custody
the following day and received his 25-year sentences to run concurrently with the previously
imposed federal sentence, along with orders unconditionally releasing him from state custody
to begin serving his federal sentence. Appendix 62-66.
Shortly thereafter, the United States Marshal, then the BOP, took custody ofMr. Cole
and he began serving his sentence in a federal correctional institution. Under 18 U.S.C.
3585(a), his federal sentence commenced at that time: "A sentence to a term of
imprisonment commences on the date the defendant is received in custody awaiting
transportation to ... the official detention facility at which the sentence is to be served."
Once the federal sentence commences, there is no statutory provision for interruption of the
sentence except escape or some other fault of the prisoner. Green v. Christiansen, 732 F .2d
1397, 1400 (9th Cir. 1984).
For over a year of federal custody, the sentences operated exactly as anticipated: the
state sentences ran concurrently with the federal sentence, including a pre-existing state
parole violation for car burglary sentence that, by operation of Texas state law, ran
concurrently with the state robbery sentences. 2 Then, due to an error by the BOP regarding
the sequence of sentences, the BOP claimed that he was still in federal custody on the writ
and had to be returned to state custody to complete his sentences there.
The chronology up to this point follows:
1.
January 25, 1992: Mr. Cole arrested and charged in state court with
robberies;
2.
May 21, 1992: Mr. Cole appears in federal court pursuant to a writ and
pleads guilty, agreeing to an upward departure;
3.
May 22, 1992: Mr. Cole appears in state court and receives 25-year
sentences concurrent with the federal sentence and an order for release
to federal custody;
4.
July 27, 1992: The state court vacates the state sentences and release
orders so the state concurrent sentences would be entered after the
federal sentence;
5.
July 30, 1992: Mr. Cole appears in federal court pursuant to a writ and
receives the agreed upward departure sentence to 20 years;
See Ex parte Applewhite, 729 S.W.2d 706, 708 (Tex. Crim. App. 1987) (en bane)
("unless the trial court, by order, expressly makes cumulative the several punishments, they
run concurrently") (quoting Ex parte Crossnoe, 232 S.W. 2d 855 (Tex. Crim. App. 1950)).
Mr. Cole received credit on all state sentences for the time in federal custody before he was
transferred back to the state's custody.
7
6.
July 31, 1992: The state court imposes sentences of 25 years to run
concurrently with the federal sentences and unconditionally orders
release to federal custody;
7.
8.
The BOP returned Mr. Cole to state custody based on a simple error of fact: the presentence
report halted the chronology at May 22, 1992, creating the impression that the state sentence
preceded the federal sentence, when in fact the state sentence followed the federal sentence.
On April 26, 1999, the BOP responded to a letter from Mr. Cole, explaining that the transfer
occurred because he was "borrowed" from the state on the basis of a writ, even though the
state orders unconditionally released him to federal custody. Compare Appendix 67 with
Appendix 63-66. The BOP explicitly premised its denial of concurrency on 362l(b)
designation authority. Appendix 69. On November 24, 2000, the BOP refused the state
prosecutor's request for the federal sentence to run concurrently "with his state sentence
pursuant to a plea agreement regarding his state conviction." Appendix 68.
In seeking redress from the erroneous transfer, Mr. Cole filed a prose petition for
habeas corpus under 28 U.S.C. 2241 in Texas in 2002. After refusing to appoint counsel
or hold a hearing, the court denied relief. Appendix 22. As the Oregon district court later
found, the Texas court applied the wrong standard of review, using the extraordinarily
restrictive standard for successive challenges to convictions instead of the plenary review that
Purdy, 222 F.3d 209, 213 (5th Cir. 2000)). Then, the Texas court relied on the BOP's ex
parte contact with the sentencing judge, eight years after the sentencing, in seeking a
recommendation whether the BOP should run the sentence concurrently by means of nunc
pro tune designation under 362l(b). Appendix 36. In its ex parte letter, the BOP
perpetuated the error regarding the chronology. The judge stated he intended the sentences
to run consecutively, without input from Mr. Cole. In short, the Texas decision was premised
on the BOP's supposed authority under 362l(b) to decide concurrency, with no
consideration ofthe statutory and constitutional problems raised by the post-sentence ex parte
contact with the sentencing judge.
In state court, Mr. Cole eventually received a sentence reduction to nine years,
essentially time served, on the robberies but remained in state custody completing his parole
violation sentence for car burglary, which had previously run concurrently with the federal
sentence while Mr. Cole was in federal custody. When he was finally released to his federal
detainer on March 9, 2009, Mr. Cole was deemed to be just starting his federal sentence.
After his transfer to federal custody, Mr. Cole exhausted his BOP administrative remedies,
receiving different responses at each level of review; at the national level, he received
concurrent credit for the time between release from state custody on October 6, 1992, and his
return to state custody on April 27, 1993. Appendix 74, 76, 80, 83. Upon filing for habeas
corpus relief in Oregon, the federal court deferred to the Texas denial of relief in 2002,
distinguishing Setser as involving a federal sentencing order rather than silence. Appendix
7. While recognizing that the Texas court applied the wrong standard of review, the district
court relied on the Texas court's supposed finding that Mr. Cole had not exhausted
administrative remedies, Appendix 8, even though, in fact, the Texas court found, "Because
the administrative remedies required by the Bureau of Prisons appear unavailable to Cole,
the Court declines to dismiss for want of exhaustion." Appendix 29. The court found "no
authority" that prevents the BOP from basing the concurrency decision on ex parte contact
with the sentencingjudge. Appendix 9.
On appeal, Mr. Cole argued that this Court's decision in Setser foreclosed Executive
Branch creation of a de facto consecutive sentence and that Ninth Circuit precedent allowing
the BOP to thwart state sentences, in the absence of a contrary federal judgment, did not
survive Setser's reasoning. Under this Court's reasoning in Sanders v. United States, he
asserted that the earlier rulings should be re-examined in light of Setser because "the ends
of justice would be served by permitting the redetermination," especially given "an
intervening change in the law." 373 U.S. 1, 16-17 (1963). The Ninth Circuit affirmed the
district court's deference to the Texas decision under 28 U.S.C. 2244(a) based on its
conclusion that Setser did not "undermine" the ruling and that Reynolds approved of the
BOP's use of the post-sentencing contact with the sentencing judge to guide the agency's
exercise of discretion whether to run the sentences consecutively or concurrently. Appendix
2-3. The equitable grounds outlined in Sanders should have resulted in a grant of habeas
10
relief because the Texas decision was inconsistent with Setser, preceded the exhaustion of
administrative remedies, and failed to address the constitutional impediments to
post-conviction modification of the federal sentence.
5.
problems of federal sentencing: a consecutive sentence where neither the federal nor the
state judgment ordered the sentence to be served consecutively and where the state judgment
ordered the state sentence to be served concurrently. In Reynolds, Judge Fletcher concurred,
joining two other Circuits in expressing concern regarding "serious separation of powers
questions" when the BOP creates a de facto consecutive sentence. 603 F.3d at 1160-61
(citingAbdul-Malikv. Hawk-Sawyer, 403 F.3d 72, 76 (2d Cir. 2005), andFegans v. United
States, 506 F.3d 1101, 1104 (8th Cir. 2007)).
The present case involves the same common scenario with due process, separation of
powers, and comity ramifications: the defendant is arrested by state authorities and is,
therefore, in primary state custody; through a writ of habeas corpus ad prosequendum, the
defendant is placed in temporary federal custody and receives a federal sentence with no
order regarding whether the sentence is to run concurrently with or consecutively to other
sentences; and the defendant is returned to state custody, receives a sentence that the state
judge orders to run concurrently with the federal sentence, then is released to federal custody.
But the BOP then administers the sentence to run the federal time consecutively to the state
11
sentence. Mr. Cole was arrested by state authorities for robbery, then was transferred to
federal custody where he pleaded guilty to robbery and received a 20-year sentence with no
mention that the sentence would run consecutively with the pending state case. The state
judge then imposed 25-year sentences, explicitly ordering them to run concurrently with the
extant federal sentence and ordering Mr. Cole's release to federal custody to commence the
sentence. After over a year in federal custody, the BOP returned him to state custody and,
since that time, has administered the federal sentence to run consecutively to the state
sentences, in effect doubling the time of actual custody.
The BOP's procedures for dealing with a silent federal judgment involve obtaining
a non-binding judicial recommendation regarding nunc pro tune designation to the state
facility under 18 U.S.C. 3621(b). Appendix 45-46. In other words, the federal Executive
Branch, after the federal judgment is final, can nullify the state judgment that the state
sentences would be satisfied by the previously imposed federal custody. The contact with
the federal judge - in this case eight years after the sentence was imposed - does not involve
defense counsel, does not involve the prisoner's participation, and does not include any
process for assuring no factual errors are included in the BOP's presentation.
In Reynolds, the Ninth Circuit construed the relevant sentencing statutes to permit the
BOP to make the decision to run the sentences consecutively under 362l(b)
notwithstanding the federal court's silence at the time of sentencing and the state court's
order that the state sentence run concurrently with the federal sentence. 603 F.3d at 1159.
12
In Setser, however, this Court rejected the underpinnings of the Reynolds decision. It should,
therefore, be considered "an intervening change in the law" under Sanders:
This case involves the central purposes for certiorari. The Ninth Circuit decisions conflict
with intervening Supreme Court authority in Setser, so far departing from the rules of
precedent to require the exercise of this Court's supervisory power.
The issue is of exceptional importance because federal sentencing issues related to
concurrency are pervasive, frequently misunderstood, and result in unfairness and waste.
The solution is simple: based on mainstream principles of statutory construction, applied with
due respect for the federal constitutional principles of finality, comity, separation of powers,
and due process, the Court should foreclose post-sentence federal action that thwarts a later
state judgment that its sentence should run concurrently:
13
Therefore, the federal statutes must either be construed to bar the BOP
from designating the place of incarceration under 18 U.S.C. 362l(b)
in a manner inconsistent with the subsequent state judgment, or, to
achieve the same result, to recognize that a subsequent sentence ordered
to run concurrently with a federal sentence must be respected under 18
U.S.C. 3585(b), or the federal statutes violate the Constitution to the
extent they thwart the subsequent state concurrent sentence.
The statutes and constitutional provisions underlying this simple solution effectuate this
Court's recognition that proper respect for the dual sovereignties of States and the federal
government requires that subsequent judgments - whether state or federal - must be fully
honored:
We live in the jurisdiction of two sovereignties, each having its own system of
courts to declare and enforce its laws in common territory. It would be
impossible for such courts to fulfill their respective functions without
embarrassing conflict unless rules were adapted by them to avoid it . . . . The
situation requires, therefore, not only definite rules fixing the powers of the
courts in cases of jurisdiction over the same person and things in actual
litigation, but also a spirit of reciprocal comity and mutual assistance to
promote due and orderly procedure.
Ponzi v. Fessenden, 258 U.S. 254, 259 (1922). By allowing each sovereign to impose as
much, or as little, punishment as that sovereign sees fit, the Court also protects the separation
of powers by foreclosing an agency of the Executive Branch - the BOP - from adopting the
14
judicial function of determining the length of the sentence a defendant serves. The Court
should grant certiorari to establish that, based on this Court's opinion in Setser, the relevant
sentencing statutes must be construed to require the BOP to administer the sentence of a
federal prisoner to effectuate the subsequent judgment of a state court that the state sentence
run concurrently with a previously imposed federal judgment that did not order the sentence
to run consecutively.
A.
holding of its prior decisions. Seminole Tribe of Florida v. Florida, 517 U.S. 44, 66-67
( 1996) (noting the precedential effect of the rationale upon which prior decisions ofthe Court
are based); County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh
Chapter, 492 U.S. 573, 668 (1989) ("As a general rule, the principle of stare decisis directs
us to adhere not only to the holdings of our prior cases, but also to their explications of the
governing rules of law") (Kennedy, J., concurring and dissenting). Under stare decisis,
Setser's reasoning and mode of analysis control. This Court's intervening decision in Setser
invalidated the reasoning of Reynolds, as well as cases such as Del Guzzi v. United States,
980 F.2d 1269 (9th Cir. 1992), and Tay lor v. Sawyer, 284 F.3d 1143 (9th Cir. 2002), to the
extent the Ninth Circuit approved BOP action that thwarted a state sentence in the absence
of a contrary federal judgment. Although the Ninth Circuit found that Setser "did not
undermine" the Texas court's ruling (Appendix 2), the Texas court, as did Reynolds,
15
expressly relied on the BOP's designation authority under 3621(b) to make concurrency
decisions and approved of post-sentencing ex parte judicial action to trump the state
judgment that the sentences should run concurrently. Appendix 33-36. By inappropriately
limiting the scope of Setser, which expressly rejected 362l(b) as creating executive
authority to make the concurrent-consecutive decision and read 3584(a) as requiring the
concurrent-consecutive issue to be decided "up front," the Ninth Circuit has failed to comply
with this Court's prior rulings, both on the precedential effect of its rulings and on the
reasoning and rationale articulated in its governing decision.
1.
In its narrowest holding, Setser reversed a generation of Ninth Circuit authority that
assumed that district courts lack authority to declare that a federal sentence should run
consecutively to or concurrently with a yet-to-be-imposed sentence. 132 S. Ct. at 1468
(abrogating United States v. Eastman, 758F.2d1315, 1317 (9th Cir. 1985)). This Court in
Setser relied on the distinction between judicial authority to declare whether a sentence is
16
subsequent state judgment that its sentence runs concurrently with a federal sentence, thereby
undermining statutory and constitutional respect due to state courts. This Court recognized
that, by forbearing to order a sentence to be concurrent or consecutive, a federal court leaves
to the state court the decision whether its own state sentences should run concurrently with
an already-imposed federal sentence. Setser, 132 S. Ct. at 1471-72 & n.6.
Inrejectingthe government's claim that 362l(b) gave the BOP the power to resolve
the concurrent-consecutive question, this Court found in Setser that the plain language of
3584(a) meant the decision was judicial, not executive: "When 3584(a) specifically
addresses decisions about concurrent and consecutive sentences, and makes no mention of
the Bureau's role in the process, the implication is that no such role exists." 132 S. Ct. at
1470. Repeatedly, Setser made clear that sentencing courts, and not the BOP, are the arbiters
of the concurrent-consecutive sentencing decision:
"[T]he Bureau is not charged with applying [the sentencing factors of]
3553(a). . . . It is much more natural for a judge to apply the
3553(a) factors in making all concurrent-vs.-consecutive decisions,
17
than it is for some such decisions to be made by a judge ... and others
by the Bureau of Prisons .... " Id. at 1470-71.
The Ninth Circuit's conclusion that Setser did not undermine Reynolds fails to implement
this Court's ruling and rationale as required by stare decisis . The Reynolds majority
explicitly approved and relied on the BOP's authority to make the decision regarding
concurrent or consecutive service of a sentence using the 362l(b) nunc pro tune
designation authority, noting Taylor found no conflict with the full faith and credit doctrine.
The Ninth Circuit' s disregard for the full faith and credit statute in both Reynolds and
Taylor cannot survive Setser' s repeated rej ection of BOP sentencing authority under
3621 (b ). In Setser, the Court recognized the importance ofthe State's subsequent decision,
based on the federal court's previous action, to decide for itself the appropriate state
sentence: "In our American system of dual sovereignty, each sovereign -whether the Federal
Government or a State - is responsible for 'the administration of [its own] criminal justice
syste[m]."' 132 S. Ct. at 1471 (alterations in original) (quoting Oregon v. Ice, 555 U.S. 160,
18
170 (2009) ). Dual sovereignty is a long-established principle that protects each jurisdiction's
rightto exact as much, or as little, punishment as it deems proper. Ponzi, 258 U.S. at259-61;
see also Strand v. Schmittroth, 251 F .2d 590, 605 (9th Cir. 1957) (there is no federal
supremacy in criminal justice because the state and the central government are dual
sovereigns in the identical territory).
The interrelated doctrines of dual sovereignty, federalism, comity, and full faith and
credit establish that a federal agency cannot constitutionally supersede the subsequent state
sentencing decision of a state judge. Rather, the state and federal sovereigns must co-exist
and interact with complete mutual respect. Ponzi, 258 U.S. at 259-60. In effect, the system
of primary jurisdiction operates in criminal law analogously to commercial liens - once the
first jurisdiction acts, the second is free to act independently and fully based on the previous
final disposition. Ponzi, 258 U.S. at 260 ("The chief rule which preserves our two systems
of courts from actual conflict of jurisdiction is that the court which first takes the subjectmatter of the litigation into its control, whether this be person or property, must be permitted
to exhaust its remedy, to attain which it assumed control, before the other court shall attempt
to take it for its purpose.").
In the area of general law enforcement outside areas of exclusive federal jurisdiction,
this Court in United States v. Lopez noted that "under our federal system, the States possess
primary authority for defining and enforcing the criminal law." 514 U.S. 549, 561 n.3
(1995). This observation is consistent with the Tenth Amendment's reservation of powers
19
to the States. See St. George Tucker, 1 BLACKSTONE COMMENTARIES, Appendix, at 186-87
(Birch & Small 1803) (the punishment for State "[c]rimes and misdemeanors," in all cases
not exclusively within federal jurisdiction, "belongs to the state jurisprudence"); THE
FEDERALIST, No. 45 at 82 (James Madison) (J. & A. McLean ed., 1788) ("The powers
reserved to the several States will extend to all the objects, which, in the ordinary course of
affairs, concern the lives, liberties, and properties of the people; and the internal order ... of
the State."). Each sovereign has the power to impose as much or as little punishment for the
crime as the sovereign desires.
The federal government's ability to set punishment was not compromised or
constrained where, as in the present case, the federal sentencing judge determined that 240
months incarceration was appropriate. The Ninth Circuit's disregard for the state court is
based on the incorrect premise that respect for a state sentence is a "limit" on federal
authority. See Taylor, 284 F.3d at 1153 ("We hold that the [Full Faith and Credit] Act does
not apply to an attempt to enforce a state criminal sentence to limit a federal sentence for a
federal crime.") (cited in Reynolds, 603 F.3d at 1150-52). But respect forthe state court does
not "limit" the federal sentence. The state sentence subsequently ordered to run concurrently
does not impact the federal sentencing authority because the federal 240 months must be
served. The State interest is simply that its conviction and sentence do not require more than
the time previously imposed by the federal court. The federal government must give effect
to the State's concurrent sentence because the subsequent sentencing only asserted the State's
20
own power, with no concomitant diminution of federal authority. See Kelly v. Robinson, 479
U.S. 36, 4 7 (1986) ("The right to formulate and enforce penal sanctions is an important
aspect of the sovereignty retained by the States."); Youngerv. Harris, 401U.S.37, 44 (1971)
("[T]he National Government will fare best ifthe States and their institutions are left free to
perform their separate functions in their separate ways.").
Federal post-judgment action that trumps a subsequent state concurrent sentence
would violate the principle of full faith and credit for sovereign judgments. From the first
days of the Republic, Congress extended the Full Faith and Credit Clause to the federal
government by statute. See 28 U.S.C. 1738; Davis v. Davis, 305 U.S. 32, 39-40 (1938).
The full faith and credit obligation "requires federal courts to give the same preclusive effect
to state court judgments that those judgments would be given in the courts of the State from
which the judgments emerged." Kremer v. Chem. Constr. Corp. , 456 U.S. 461 , 466 (1982).
The evils of introducing a general system of re-examination of the judicial
proceedings of other states, whose connexions are so intimate, and whose
rights are so interwoven with our own, would far outweigh any supposable
benefits from an imagined superior justice in a few cases. Motives of this sort,
founded upon an enlarged confidence, and reciprocal duties, might well be
presumed to have entered into the minds of the framers of the confederation,
and the constitution. They intended to give, not only faith and credit to the
public acts, records, and judicial proceedings of each of the states, such as
belonged to those of all foreign nations and tribunals; but to give to them full
faith and credit; that is, to attribute to them positive and absolute verity, so that
they cannot be contradicted, or the truth of them be denied, any more than in
the state, where they originated.
Joseph Story, 3 COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES, 1304, at
187 (Boston, Hilliard, Gray & Co. 1833) (emphasis in original; footnotes omitted). By
21
disregarding the properly imposed state judgment that the state offense required no more
incarceration than had previously been imposed, the BOP violated the integrity of the state
proceedings and deprived the resulting judgment of the "positive and absolute verity"
required by the Full Faith and Credit Act.
3.
The BOP's Reliance On Its Ex Parte Contact With The Sentencing Judge
Eight Years After The Sentencing Hearing Violated The Full Range Of
Sentencing Due Process Protections.
Based on Reynolds, the Ninth Circuit found that the executive agency's ex parte
contact with the sentencing judge eight years after the sentencing hearing raised no problems
under Setser, even though the purpose was to provide non-binding guidance for executive
creation of a concurrent or consecutive sentence. Appendix at 2-3. In Setser, this Court held
that "[w]hen 3584(a) specifically addresses decisions about concurrent and consecutive
sentences, and makes no mention of the Bureau's role in the process, the implication is that
no such role exists." 132 S. Ct. at 1470. To the same extent, the designation statute is silent
on concurrent-consecutive questions, leaving the implication that no role exists for the BOP
making such decisions through designation authority. 18 U.S.C. 3621(b)(4)(A) & (B).
After Setser, Reynolds cannot authorize the BOP to increase the length ofthe period of actual
custody based on post-hearing ex parte contact with the sentencing judge.
Most basically, any post-sentencing proceeding that can result m additional
incarceration constitutes a critical stage requiring the participation of counsel. Mempa v.
Rhay, 389 U.S. 128, 133-34 (1967). In fact, Mempa involved a post-sentencing proceeding
22
where the need for counsel arose because the sentencing judge would make a
recommendation that would affect the period of confinement, id. at 135, just as the judge
made a recommendation in the present case that effectively doubled the period of
incarceration. In Mempa, this Court described the defense attorney's essential role in a
proceeding that involved a non-binding judicial recommendation to advocate for the
defendant:
[T]he sentencing judge is required by statute, together with the prosecutor, to
furnish the Board with a recommendation as to the length of time that the
person should serve, in addition to supplying it with various information about
the circumstances of the crime and the character of the individual. Wash. Rev.
Code 9.95.030. We were informed during oral argument that the Board
places considerable weight on these recommendations, although it is in no way
bound by them. Obviously to the extent such recommendations are influential
in determining the resulting sentence, the necessity for the aid of counsel in
marshaling the facts, introducing evidence of mitigating circumstances and in
general aiding and assisting the defendant to present his case as to sentence is
apparent.
Mempa, 389 U.S. at 135. In the present case, defense counsel's function would have
included presenting the correct sequence of sentencing, reminding the court of the
presentence report's notation of the state concurrent sentences, and advocating for the
coordinated resolution of both state and federal cases based on the stipulated upward
departure in the federal case to accommodate the state plea bargain.
Just as the Washington statute in Mempa provided for a judicial recommendation, the
BOP based its procedure on the federal sentencing statute's provision for judicial
recommendations on designation. 18 U.S.C. 362l(b)(4). As anticipated in Mempa, the
23
absence of counsel resulted in unfairness, especially given the Court's concern that rights
may be lost "if not exercised at this stage." 389 U.S. at 135. Once the BOP had the judicial
recommendation and acted on it, Mr. Cole lacked counsel, resulting in a lack of evidence and
advocacy in the Texas district court, which ultimately received deference from the Oregon
courts. The factual errors that the BOP incorporated into its contact with the sentencing
judge in the present case vividly illustrate the need for full due process at proceedings
affecting the length of time in custody.
The Ninth Circuit's approval of the ex parte contact regarding the length of sentence
runs counter to this Court's precedent regarding adversary sentencing proceedings. Lankford
v. Idaho , 500 U.S. 110, 127 (1991) (describing "the critical role that the adversary process
plays in our system of justice") (citing Gardner v. Florida, 430 U.S. 349, 360 (1977)).
Contacts by government agents with a sentencing judge regarding the time that should be
served violate a criminal defendant's fundamental due process rights. Lankford, 500 U.S.
at 126 ("Notice of issues to be resolved by the adversary process is a fundamental
characteristic of a fair procedure."); see United States v. Alverson, 666 F.2d 341, 348-50 (9th
Cir. 1982) (finding due process violation from ex parte contact by government agent with
sentencing judge) (citing United States v. Wolfson, 634 F.2d 1217, 122 1 (9th Cir. 1980)).
In this case, the agents of the same Department of Justice that prosecuted Mr. Cole contacted
the sentencing judge, with no notice to opposing counsel or to the defendant, and obtained
a statement that is now being used to nearly double Mr. Cole's time in custody.
24
Setser's reasoning rests on the assumption that, for consecutive and concurrency
questions, the federal judgment imposed based on the sentencing hearing is the final word.
See Dillon v. United States, 130 S. Ct. 2683, 2690 (2010) ("[A]judgment of conviction that
includes [a sentence of imprisonment] constitutes a final judgment and may not be modified
by a district court except in limited circumstances") (citing 18 U.S.C. 3582(c)). Otherwise,
this Court would not have pointed to the comity interest in deciding the concurrency
question, or forbearing to rule on the subject, "up front," before the state imposes sentence.
Setser, 132 S. Ct. at 1471. The requirement of an "up front" decision prevents the high risk
of error, which provides the strongest reason for the notice and adversary proceedings
required during sentencing. Laniford, 500 U.S. at 127. Here, the federal sentencingjudge
knew of the concurrent state sentences at the time of sentencing from the presentence report,
but may well have forgotten eight years later with no advocate for the defense to point out
the presentence report paragraph on the state concurrent sentences and that the agreed
upward departure was premised on the state plea bargain for concurrent sentences. The
Court should reverse the Ninth Circuit's approval ofpost-sentencing ex parte procedures that
increase the actual time of custody and thwart the State's decision that its sentencing interests
are fully served with a concurrent sentence.
25
4.
In Reynolds, both the majority and the concurrence assumed that the third sentence
in 3584(a) applied to yet-to-be-imposed sentences. 603 F.3d at 1148, 1154-55, 1158, 1161.
Setser rejected that assumption. In Setser, the Court held that 3584(a) did not encompass
all sentencing authority, but only addressed multiple terms of imprisonment imposed, as
stated in the subsection's first sentence, at the same time or "on a defendant who is already
subject to an undischarged term ofimprisonment." In explaining the scope of the subsection,
the Court stated in Setser, "And the last two sentences of 3584 (a) say what will be
assumed in those two common situations if the court does not specify that the sentence is
concurrent or consecutive." 132 S. Ct. at 1470. Thus, this Court has explicitly rejected the
reading, which the concurrence saw as "not an implausible construction" of the statute.
Reynolds, 603 F.3d at 1159 (Fletcher, J., concurring); see Elwell v. Fisher, 716 F.3d 477,
484-87 (8th Cir. 2013) (the BOP "correctly interpreted the district court's silence as requiring
consecutive sentences pursuant to 3584(a)," subject to 362l(b) discretion based on a
judicial recommendation). What was once not implausible in Reynolds - that the third
sentence applied to yet-to-be-imposed sentences - is now irreconcilable with language in
that is final cannot be modified unless limited statutory circumstances are established. 130
S. Ct. at 2690. The statutory limitations on reopening proceedings to make the sentence de
facto consecutive based on a recommendation implicate constitutional protections related to
the finality of judgment, especially where the federal sentence had commenced under
3585(a). See United States v. Bergmann, 836 F.2d 1220, 1221-22 (9th Cir. 1988) (oral
5.
In Setser, both parties agreed that the BOP, not the sentencingjudge, had the authority
to decide the issue of concurrency in the context of the federal and state sentences where the
federal judgment ordered a consecutive sentence. Setser, 133 S. Ct. at 1467. As a
consequence, the Court appointed an amicus curiae, who argued that the federal judge, not
the BOP, had the authority to decide the concurrency question regarding a yet-to-be-imposed
state sentence. The Court adopted the amicus curiae position, ruling that the federal judge,
by deciding concurrency "up front", provided the subsequent state sentencingjudge with the
27
baseline of the federal sentence upon which the following state sentence would be imposed.
Because the federal judgment spoke to the concurrency issue in Setser, and no party argued
for respect for the state court judgment, the Court did not fully address the constitutional and
statutory reasons that the BOP could not lawfully trump a state judgment of concurrency
where the federal judgment was silent on the concurrent-consecutive issue.
In its ruling, the Court implicitly recognized respect for the state sentence by finding
that the federal decision had to be made "up front." Setser, 132 S. Ct. at 1471. The federal
court could either make the concurrency decision or decide to "forbear" making such a
decision, using the same language as in Ponzi on "forbearance" in the context of state and
federal dual prosecutions. Compare Setser, 132 S. Ct. at 1472 n.6 (the district court may
"forbear" from exercising the power to make the concurrent-consecutive decision regarding
an anticipated sentence) with Ponzi, 258 U.S. at 260-61 (noting the "forbearance" of courts
with co-ordinate jurisdictions that avoids interference with the principle of comity) (quoting
Covell v. Heyman, 111U.S.176, 182 (1884)). The constitutional and statutory interests in
the integrity of the state judgment should govern where, as here, the federal judgement did
not declare on the concurrent-consecutive issue.
While Setser was pending, this Court considered a petition raising the same question
regarding Executive Branch creation of de facto consecutive sentences where, in the face of
federal silence in the federal judgment, post-sentence federal action thwarts the later state
judgment that the sentences should run concurrently. In Reynolds, upon which both the
28
district court and the Ninth Circuit relied in the present case, this Court held the petition for
certiorari filed on November 12, 2010, through nine relistings until Mr. Reynolds died,
resulting in an order dismissing the petition for certiorari on April 2, 2012. Reynolds v.
Thomas, Clerk's Docket Sheet, Sup. Ct. No. 10-7502. The present case should be reviewed
to fill the missing piece of concurrent-consecutive analysis based on the interests of
federalism, separation of powers, comity, and full faith and credit for the judgments of coequal state sovereigns.
B.
The reality of prisoners serving consecutive sentences that have not been ordered by
either the state or federal judge, but only resulted from the administrative decisions of the
same Department of Justice that prosecuted the case, cries out for this Court's response. In
Reynolds, Judge Fletcher concurring joined two other Circuits in calling for Congress to
address legislatively the troubling BOP practices that convert concurrent sentences into de
29
facto consecutive sentences. Reynolds, 603 F.3d at 1160-61. This concern is not new: over
twenty years ago, a judge concurred to decry the injustice of a BOP de facto consecutive
sentence that resulted in a defendant spending years in prison that "neither the federal nor the
state sentencing court anticipated." Del Guzzi, 980 F.2d at 1271 (Norris, J., concurring).
This Court should definitively construe the relevant sentencing statutes to remedy this
anomalous injustice without new legislation.
The need for clarity in this area has long been recognized by the players in the federal
criminal justice system. The BOP itself has described the current state of the concurrentconsecutive law as "probably the single most confusing and least understood federal
sentencing issue." Henry J. Sadowski, BOP Regional Counsel, Interaction OfFederal And
State Sentences When The Federal Defendant Is Under State Primary Jurisdiction, at 1 (July
7, 2011). The Government Accountability Office has identified the BOP's decisions to run
sentences concurrently or consecutively as creating potential over-incarceration given that,
during the 2011 fiscal year, 386 requests to serve sentences concurrently were denied. GAO,
Eligibility and Capacity Impact Use of Flexibilities to Reduce Inmates ' Time in Prison, at
29 (February 2012). Criminal defense attorneys frequently admit to confusion and mistakes
based on the lack of clarity in this area of the law. See Brief of the Ninth Circuit Federal
Public And Community Defenders And The Arizona Attorneys For Criminal Justice In
Support of Petition for a Writ of Certiorari, Reynolds v. Thomas, 132 S. Ct. 1854(2010) (No.
10-7502), 2010 WL 5178045, at *6-8.
30
2.
The present case starkly presents the relevant issues that should have resulted in a
fresh look at the Ninth Circuit's construction of the sentencing statutes in light of Setser.
Two of this Court's rules of statutory construction should have guided the Ninth Circuit to
a different result based on the facts of this case.
First, in the context of federalism, this Court has recognized a rule of statutory
construction requiring a clear statement from Congress where federal regulation impinges
on an area traditionally within the States ' police power. Gregory v. Ashcroft, 501 U.S. 452,
460-61 (1991). The federal statute on concurrent and consecutive sentences includes not a
whisper suggesting that post-sentencing federal action can trump a subsequent state
concurrent sentence where the federal judgment is silent on the subject. 18 U.S.C. 3584.
Since the States are at least co-equal in the area of criminal justice, Lopez, 514 U.S. at 561
n.3, the absence of any statutory authority for federal actors to trump a state court decision
regarding concurrency should foreclose the Ninth Circuit's interpretation.
Second, under the doctrine of constitutional avoidance, the Court should construe the
relevant sentencing statutes to avoid the serious constitutional problems raised by executive
sentencing that thwarts a subsequent state judgment. See Clark v. Martinez, 543 U.S. 371 ,
3 80-81 (2005). The post-sentencing administrative procedures that decide the actual period
of incarceration - not the place or conditions of incarceration - impinge upon basic statutory
as well as constitutional protections: the full faith and credit statute and comity requirements
31
of respect for state actions; the Tenth Amendment's reservation of State's rights; the
separation of powers violated by executive action that decides the length of incarceration;
the broad array of procedural due process protections missing from the post-sentencing
actions regarding quintessential sentencing issues.
Applying these rules of construction, in light ofSetser, the Court has alternative routes
to relief: 1) 18 U.S. C. 3 621 (b) should be construed to bar exercise of designation authority
that thwarts subsequently imposed state concurrent sentences; 2) 18 U.S.C. 3584(a),
3582(c), and 3585(a) should be construed to bar post-judgment federal action that extends
the period of actual incarceration by rendering a subsequent state concurrent sentence in fact
consecutive; or 3) 18 U.S.C. 3585(b) should be construed to permit sentence calculations
that respect subsequent concurrent state sentences by treating cross-referenced judgments as
not "another sentence." 3 Without such construction, the statutes are unconstitutional as
applied to Mr. Cole.
Where, as in the present, the state judgment expressly references the federal judgment,
the plain meaning of 3585(b) should allow credit because the sentence is not "another" in
the common meaning of "different or distinct from the one first named or considered."
WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY at 89 (1993). The term is at least
amenable to that construction in the context of the rules of construction on federalism and
constitutional avoidance.
32
3.
Mr. Cole is living a nightmare. Over twenty years ago, his attorney negotiated a deal
to resolve both state and federal cases that imposed a stiff sentence for his crimes but
contemplated release, with good time credits, after serving about seventeen years in prison.
He is now working on twenty-two years of actual custody, with a projected release date in
2025. No judge ever ordered his sentences to be served consecutively; the only reason Mr.
Cole agreed to a substantial upward departure on his federal sentence was to provide the base
upon which the state concurrent sentences would be served.
Mr. Cole has calmly and consistently resorted to the BOP and to the courts for help.
The BOP changed its theory for denying concurrency with the state sentences at every level
of administrative review. The Texas district court used the wrong standard of review, then
the Oregon district court deferred to the Texas court on an exhaustion ground that the Texas
court explicitly did not rely upon. On appeal, the panel did not re-examine this Court's prior
cases that are inconsistent with the express language of Setser.
Mr. Cole should have been released to supervision four years ago. This Court should
grant certiorari not only to bring order to a chaotic area of law but to bring justice to an
individual who is suffering incarceration grossly disproportionate to his plea bargain and to
his crimes.
33
6.
Conclusion
For the foregoing reasons, the Court should issue a writ of certiorari for plenary
review of the Ninth Circuit's ruling or, in the alternative, grant certiorari, vacate the
judgment, and remand the case for consideration in light of the underlying reasoning of
Setser.
Dated this 3rd day of September, 2013.
Stephen . Sady
Attorney for Petitioner
34
No.
PATRICK COLE,
Petitioner,
v.
MARION FEATHER, WARDEN,
Respondent.
I, Stephen R. Sady, counsel of record and a member of the Bar of this Court, certify
that pursuant to Rule 29.3 , service has been made of the within PETITION FOR WRIT OF
CERT! ORARI on the counsel for the respondent by hand-delivery on September 3, 2013, an
exact and full copy thereof addressed to:
Natalie K. Wight
Kelly A. Zusman
Assistant U.S. Attorneys
1000 SW Third, Suite 600
Portland, Oregon 97204
1
and by depositing in the United States Post Office, in Portland, Oregon on September 3,
2013, first class postage prepaid, an exact and full copy thereof addressed to:
Donald B. Verrilli, Jr.
Solicitor General of the United States
Room 5614
Department of Justice
950 Pennsylvania Avenue, N. W.
Washington, DC 20530-0001
Further, the original and ten copies were mailed to the Honorable William K. Suter,
Clerk of the United States Supreme Court, by depositing them in a United States Post Office
Box, addressed to 1 First Street, N.E., Washington, D.C., 20543, for filing on this 3rd day
of September, 2013, with first-class postage prepaid.
Dated this 3rd day of September, 20
Stephen . Sady
Attorney for Petitioner
Subscribed and sworn to before me this 3rd day of Septembe1
OFFICIAL SEAL
JILL C DOZARK
NOTARY PUBLIC-OREGON
COMMISSION NO. 442717
MY COMMISSION EXPIRES OCTOBER 28, 2013
Case: 12-35678
04/24/2013
ID: 8603337
DktEntry: 26-1
Page: 1 of 3
FILED
APR 24 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
No. 12-35678
PATRICK D. COLE,
Petitioner - Appellant,
v.
MEMORANDUM*
J.E. THOMAS, Warden,
Respondent - Appellee.
The Honorable Lee H. Rosenthal, District Judge for the U.S. District
Court for the Southern District of Texas, sitting by designation.
A-1
Case: 12-35678
04/24/2013
ID: 8603337
DktEntry: 26-1
Page: 2 of 3
A-2
Case: 12-35678
04/24/2013
ID: 8603337
DktEntry: 26-1
Page: 3 of 3
due process violation. See, e.g., Reynolds, 603 F.3d at 1153 (W. Fletcher, J.,
concurring) (The federal Bureau of Prisons (BOP) acted properly in construing
the sentencing judges answer to the BOPs letter.).
AFFIRMED.
A-3
Case: 12-35678
06/07/2013
ID: 8659044
DktEntry: 28
Page: 1 of 1
FILED
JUN 07 2013
No. 12-35678
PATRICK D. COLE,
Petitioner - Appellant,
v.
J.E. THOMAS, Warden,
ORDER
Respondent - Appellee.
The Honorable Lee H. Rosenthal, District Judge for the U.S. District
Court for the Southern District of Texas, sitting by designation.
A-4
Case 3:12-cv-00412-ST
Document 23
Filed 08/15/12
Page 1 of 6
PATRICK COLE,
No. 03:12-CV-412-ST
Petitioner,
ORDER
v.
J.E. THOMAS, Warden, FCI Sheridan,
Respondent.
Stephen R. Sady
Office of the Federal Public Defender
101 SW Main Street, Suite 1700
Portland, OR 97204
Attorney for Petitioner
Natalie K. Wight
United States Attorneys Office
1000 SW Third Avenue, Suite 600
Portland, OR 97204
Attorney for Respondent
1 - ORDER
A-5
Case 3:12-cv-00412-ST
Document 23
Filed 08/15/12
Page 2 of 6
2 - ORDER
A-6
Case 3:12-cv-00412-ST
Document 23
Filed 08/15/12
Page 3 of 6
I also agree with Magistrate Judge Stewarts interpretation of Setsers holding, that a
district court has discretion to run federal sentences consecutively to anticipated, but unimposed,
state sentences. Id. Setser involved interpreting a section of the Sentencing Reform Act of
1984, 18 U.S.C. 3584 1, as a limit on a district courts existing authority to make sentences
concurrent or consecutive. Setser, 132 S. Ct. at 1467 (Section 3584, however, is framed not as
a conferral of authority but as a limitation of authority that already exists[.]). Thus, while
certain situations require a sentence to be concurrent or consecutive, the district court retains
discretion in all other situations not covered[.] Id. at 1470. Setser also discusses 18 U.S.C.
3621, which gives the Bureau of Prisons authority to order that a prisoner serve his federal
sentence in any suitable prison facility whether maintained by the Federal Government or
otherwise. Id. at 1467. The implication is that the Bureau could designate a state prison as the
place of imprisonment, so that a person facing a federal sentence and is serving a state sentence,
would serve the two sentences concurrently. Id. at 1467-68.
Unlike Setser, the district court judge in Petitioners case was silent as to whether the
sentence would be consecutive or concurrent to the anticipated state sentence. As such, Setser
does not directly apply factually. However, the discussion of 3584 and 3621 are instructive
nevertheless. In several instances, the Court states that the Bureau does not have a role in
determining whether a sentence is concurrent or consecutive. Id. at1469 (Congress
contemplated that only district courts would have the authority to make the concurrent-vs.1
If multiple terms of imprisonment are imposed on a defendant at the same time, or if a term of
imprisonment is imposed on a defendant who is already subject to an undischarged term of
imprisonment, the terms may run concurrently or consecutively, except that the terms may not
run consecutively for an attempt and for another offense that was the sole objective of the
attempt. Multiple terms of imprisonment imposed at the same time run concurrently unless the
court orders or the statute mandates that the terms are to run consecutively. Multiple terms of
imprisonment imposed at different times run consecutively unless the court orders that the terms
are to run concurrently. 18 U.S.C. 3584(a).
3 - ORDER
A-7
Case 3:12-cv-00412-ST
Document 23
Filed 08/15/12
Page 4 of 6
consecutive decision); id. at 1470 ( 3584 makes no mention of the Bureaus role in the
[concurrent-vs.-consecutive] process, the implication is that no such role exists); id. ( 3621 is
a conferral of authority on the Bureau of Prisons, but does not confer authority to choose
between concurrent and consecutive sentences.); id. (Court declines to read 3621 as giving
the Bureau of Prisons what amounts to sentencing authority). Yet, it is implied from Setser that
the Bureau, through its authority in 3621, can make decisions that would effectively result in a
concurrent or consecutive sentence, as long as the Bureaus decision comports with 3584.
Setser, 132 S. Ct. at 1469 (in situations expressly dictated by 3584, the Bureau is not free to
use its place of imprisonment authority to achieve a different result.). Setser does not change
the Bureaus ability to designate the place of imprisonment under 3621.
I agree with Judge Stewarts conclusion that justice would not be served in allowing
Petitioner to bring another 2241 action. Petitioner argues that in his prior habeas petition under
2241, he did not have the opportunity to develop the facts in support of his petition. As
explained by Judge Stewart, inadequate factual development was not an issue in the 2002
petition. F&R, 7. Petitioner also argues that the 2002 decision applies an incorrect standard for
2241 cases. Petitioner is correct that the court erroneously described relief under 2241 as
extraordinary and is reserved for transgressions of constitutional rights and for a narrow range
of injuries that could not have been raised on direct appeal and would, if condoned, result in a
complete miscarriage of justice. Mem. Supp. Pet. Writ Habeas Corpus (Habeas Memo), Ex.
Q at 7. Despite this incorrect characterization of 2241, the court correctly concluded that
Petitioner had not exhausted his administrative remedies through the Bureau, and thus relief
under 2241 was not available. Id. at 7-8.
4 - ORDER
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Case 3:12-cv-00412-ST
Document 23
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Page 5 of 6
Petitioner also argues that the 2002 decision, and the Magistrate Judge, improperly relied
on the federal sentencing judges statement made years later. Because the federal sentence was
silent as to whether it was to be consecutive or concurrent to the state sentence, the Bureau
contacted the federal judge eight years after the original sentence to seek clarification. In
response, the federal judge stated that he intended the sentence to be consecutive to the state
sentence. Id. at 12. There is no authority that prevents the Bureau from contacting the
sentencing judge to request clarification. Even without this post-sentencing clarification, the
2002 decision includes other reasoning that supports the Bureaus refusal to designate the state
prison as the place of service for his federal sentence. Id. at 14 (under 3584, [m]ultiple terms
of imprisonment imposed at different times run consecutively unless the court orders that the
terms are to run concurrently.); see also Elwell v. Fisher, No. 11-2595, 2012 U.S. Dist. LEXIS
84823, at *13 (D. Minn. Apr. 25, 2012) (federal sentence correctly deemed as consecutive)
and Newman v. Cozza-Rhodes, No. 11-cv-3262, 2012 U.S. Dist. LEXIS 73684, at *11 (D. Colo.
May 29, 2012) (same).
Finally, state sovereignty and principles of comity does not require the Bureau to follow
the state courts order that the sentences run concurrently. Galarza-Villanueva v. Rios, No. 1:11cv-228, 2012 U.S. Dist. LEXIS 47950 (E.D. Cal. Apr. 3, 2012) (citing Del Guzzi v. United
States, 980 F.2d 1269, 1270 (9th Cir. 1992)). In Del Guzzi, the state judge stated that Del
Guzzis sentence may be served in the federal prison, and recommended that he be transported
on the first available transportation[.] Del Guzzi, 980 F.2d at 1270. The court held that the
state judges authority was limited to sending Del Guzzi to state prison to serve his state
sentence. Id. Here, although the state judge ordered the sentence to run concurrently with the
federal sentence, the order was beyond the judges authority. Habeas Memo, Ex. K at 1.
5 - ORDER
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Case 3:12-cv-00412-ST
Document 23
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CONCLUSION
The Court adopts Magistrate Judge Stewarts Findings and Recommendation (#16).
Therefore, the petition for writ of habeas corpus is dismissed and the case is dismissed with
prejudice.
IT IS SO ORDERED.
DATED this
MARCO A. HERNANDEZ
United States District Judge
6 - ORDER
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Case 3:12-cv-00412-ST
Document 16
Filed 04/16/12
Page 1 of 11
Respondent.
Stephen R. Sady
Chief Deputy Federal Public Defender
101 S.W. Main Street, Suite 1700
Portland, Oregon 97204
Attorney for Petitioner
S. Amanda Marshall
United States Attorney
Natalie K. Wight, Assistant United States Attorney
1000 SW Third Avenue, Suite 600
Portland, OR 97204-2902
Attorneys for Respondent
1 - FINDINGS AND RECOMMENDATION
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Case 3:12-cv-00412-ST
Document 16
Filed 04/16/12
Page 2 of 11
Melick
Id.
Petitioners
Exhibit A.
On May 21, 1992, petitioner appeared in federal court pursuant
to a writ of habeas corpus ad prosequendum and entered guilty pleas
to
all
four
counts
against
him.
Petitioners
Exhibit
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B.
Case 3:12-cv-00412-ST
Document 16
Filed 04/16/12
Page 3 of 11
Melick
Melick Declaration, p. 4.
While
Id.
Id at 4-5.
Petitioners Exhibit J.
Thus, it appears as
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Case 3:12-cv-00412-ST
Document 16
Filed 04/16/12
Page 4 of 11
the
imposition
of
the
1992
state
and
federal
his
transfer
to
FCI-Bastrom
Petitioners Exhibit L, p. 2.
on
October
16,
1992.
Id at 9-10.
In
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Case 3:12-cv-00412-ST
Document 16
Filed 04/16/12
Page 5 of 11
be
consecutive,
petitioners request.
prompting
the
BOP
to
deny
Id at 5.
However, he remained
prior
35-year
sentence
stemming
from
the
1988
vehicular
that
concurrently.
his
state
and
Respondents
federal
Exhibit
sentences
2.
That
should
district
run
court
Petition
and
dismissed
the
case
with
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Case 3:12-cv-00412-ST
Document 16
Filed 04/16/12
Page 6 of 11
Id at Attachment 2, p. 1.
Petitioner
alleges that the BOP acted unlawfully by: (1) failing to effectuate
the State of Texas relinquishment of primary custody to federal
custody; (2) failing to effectuate the subsequent judgment of the
state court and its intent that the state sentence run concurrently
with the federal sentence; and (3) converting his concurrent state
sentences to consecutive sentences.
FINDINGS
Successive 2241 petitions by federal prisoners are subject
to threshold dismissal under the Finality of Determination doctrine
set forth in 28 U.S.C. 2244(a).
That statute
provides as follows:
No circuit or district judge shall be required
to entertain an application for a writ of
habeas corpus to inquire into the detention of
a person pursuant to a judgment of a court of
the United States if it appears that the
legality of such detention has been determined
by a judge or court of the United States on a
prior application for a writ of habeas corpus,
except as provided in section 2255.
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Case 3:12-cv-00412-ST
Document 16
Filed 04/16/12
Page 7 of 11
not
compelled,
to
decline
to
The judge is
entertain
such
an
373
U.S.
1,
12
(1963)
(internal
citations
omitted).
This case involves the same claims that petitioner raised in
his 2002 habeas corpus Petition which the Southern District of
Texas rejected on their merits.
Respondents Exhibit 1, p. 8.
Id at 18.
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Case 3:12-cv-00412-ST
Document 16
Filed 04/16/12
Page 8 of 11
A duplicative petition
authority
when
it
makes
the
judicial
court
has
discretion
decision
regarding
run
federal
sentences
Id
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Case 3:12-cv-00412-ST
Document 16
Filed 04/16/12
Page 9 of 11
Id
Id at
Furthermore,
the BOP did not simply act on its own and decide to impose a
consecutive sentence.
that,
contrary
to
petitioners
argument,
Melick
Thus, it is
the
federal
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Case 3:12-cv-00412-ST
Document 16
Filed 04/16/12
Page 10 of 11
138
F.3d
693,
695
(7th
Cir.
1998)
2244(a)
bars
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Case 3:12-cv-00412-ST
Document 16
Filed 04/16/12
Page 11 of 11
RECOMMENDATION
For the reasons identified above, the Petition for Writ of
Habeas Corpus (docket #1) should be dismissed and a judgment should
be entered dismissing this case with prejudice.
SCHEDULING ORDER
The Findings and Recommendation will be referred to a district
judge.
If no objections
Janice M. Stewart
Janice M. Stewart
United States Magistrate Judge
A-21
~ !- :~
Souti; .
f .
MAR ~1 1 ~C ~/i
v.
Respondent.
I.
BACKGROUND
Cole is currently in custody of the Texas Department of Criminal Justice- Institutional
Division ("TDCJ-ID"), at the Estelle Unit in Huntsville, Texas, where he is serving two
1
l (
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twenty-five year sentences for committing robbery in violation of state law. Cole also has
a federal conviction that is related to the robbery charges. Cole does not contest his state or
his federal conviction. Instead, he challenges the administration of his federal sentence by
the United States Bureau of Prisons. Cole's custodial history is summarized briefly below.
In January 1992, state law enforcement officers arrested Cole in Dallas County, Texas.
Cole was detained in state custody and charged with two counts of aggravated robbery in
state court cause numbers F92-33548 and F92-33571. Cole concedes that, at the time that
he committed these offenses, he was on parole from state prison for other, undisclosed
offenses. While Cole's state prosecution was underway, state officials transferred him to
federal court more than once, pursuant to a writ of habeas corpus ad prosequendum, where
he faced federal charges in connection with his crime spree.
On May 14, 1992, federal authorities filed a four-count superseding criminal
information against Cole in the United States District Court for the Northern District of
Texas, Dallas Division, charging him with two counts of obstructing or affecting commerce
by committing a robbery in violation of 18 U.S.C. 1915(a) (counts one and two); using a
firearm during the commission of a crime of violence in violation of 18 U.S.C. 924(c)(l)
(count three); and being a felon in possession of a firearm in violation of 18 U.S.C. 922(g)
and 924(a)(2) (count four). (Docket Entry No. 7, Exhibit 1, Indictment in United States v.
Cole, Criminal Action No. 92-226-T (N.D. Tex.)). On May 21, 1992, Cole entered a plea
of guilty in federal court to all four counts of the information, pursuant to a written plea
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agreement. (Docket Entry No. 7, Exhibit 2, Plea Agreement). Under the terms of that plea
agreement, the government, Cole, and his attorney agreed, pursuant to Rule 11 (e )( 1)(C) of
the Federal Rules of Criminal Procedure, to a sentence of twenty years in the custody of the
Bureau of Prisons. (See id.
at~
4).
The Probation Office prepared a Presentence Report ("PSR") in connection with the
federal charges filed against Cole, a summary of which reflects the following facts
underlying his offenses:
From December 21, 1991 through about January 24, 1992, Cole and
Scott Nathan Wehmhoefer were involved in armed robberies in Dallas and
Denton Counties. Cole was the trigger in several robberies and normally drove
the getaway car. The men used either Cole's white Mustang or W ehmhoefer' s
black Fiat. Typically, Wehmhoefer would enter the store, ask for change, and
then rob the clerk. Initially, the men stated that they used a toy gun. Later,
they obtained two guns from a pawn shop which were used in the later
robberies.
On December 29, 1991, Cole drove Wehmhoefer to the Eckerd' s Drug
Store located at 9735 North Central Expressway. Wehmhoefer entered the
store, approached the store employee and asked for change for a dollar. Cole
acted as lookout. When the cash register was opened, W ehmhoefer drew what
appeared to be a semi-automatic pistol, placed it against the employee's throat,
and demanded all the money in the register or he would shoot her.
Wehmhoefer was given about $50 from the register. Wehmhoefer fled from
the store and entered the getaway car driven by Cole.
On January 22, 1992, Cole purchased a .38 caliber semi-automatic
pistol and a Davis Industries P-380 semi-automatic pistol from the Forest
A venue Pawn Shop.
On January 24, 1992, Cole drove Wehmhoefer in Wehmhoefer's black
1982 Fiat to the Eckerd's Drug Store located at 2428 Gus Thomasson Road.
Wehmhoefer entered the store, approached the store employee and asked for
change for a dollar. Cole acted as lookout. When the cash register was
3
A-24
opened, Wehmhoefer reached over and grabbed about $124 and then ran out
of the store. A witness saw Wehmhoefer getting into the front seat of the Fiat
driven by Cole. Wehmhoefer fired several shots from the passenger side of the
Fiat at the witness with a .38 caliber semi-automatic pistol which Cole had
handed to him. Although the witness was not struck, Wehmhoefer and Cole
were able to escape.
From December 21, 1991, through January 24, 1992, Cole and
Wehmhoefer committed about 12 robberies of primarily Kroger Food and
Eckerd Drug Stores. The total loss was about $7,694.
(Docket Entry No. 7, Appendix) (internal citations omitted). Cole does not dispute the
underlying facts set forth in the PSR.
On May 22, 1992, the day after he entered his guilty plea in federal court, Cole
pleaded guilty to both of the aggravated robbery charges lodged against him in the 292nd
District Court for Dallas County, Texas. Although the record does not disclose the sentences
that Cole received that day, if any, exhibits presented by the petitioner confirm that the State
later agreed to a motion for new trial filed by the defendant, which the trial court granted on
July 27, 1992, vacating those sentences. (See Docket Entry No. 10, Exhibits 1 & 2).
On July 30, 1992, the United States District Court for the Northern District of Texas
sentenced Cole to 240 months in the Bureau of Prisons ( 180 months on counts one and two;
60 months on count three to run consecutive to counts one and two; and 120 months on count
four to run concurrent with counts one and two), to be followed by a three-year term of
supervised release, no fine, and a $200 mandatory special assessment. (Docket Entry No. 7,
Exhibit 3, Judgment). Following Cole's sentencing in federal court, Cole pleaded guilty on
July 31, 1992, in both of his state court cases to the "reduced charge" of "robbery," and was
4
A-25
sentenced to serve two, concurrent twenty-five year terms of imprisonment. (Docket Entry
No. 1, Exhibits). The state court ordered these state sentences to run concurrent with Cole's
federal sentence. (See id.). The state court further issued an order directing the Dallas
County Sheriff to deliver Cole to the United States Marshal to begin serving his time. (See
id.).
Cole reports that, initially, he was taken to a federal hold-over facility in Mansfield,
Texas. The Bureau of Prisons assigned him to the Federal Correctional Institution at Bastrop
and, later, to the Federal Correctional Institution at Three Rivers. Fourteen months into his
federal sentence, in or around October of 1993, Bureau of Prisons officials returned Cole to
state custody. He remains in TDCJ-ID.
Exhibits attached to the petition demonstrate that, in early 1999, Cole complained
about the transfer from federal custody to TDCJ-ID, asking for an explanation. In a letter
dated April 26, 1999, a Bureau of Prisons official explained that the transfer was made after
federal authorities realized that Cole had been "erroneously designated to a federal facility,"
and that he belonged to the State of Texas. (Docket Entry No. 1, Exhibit). The Bureau of
Prisons further informed Cole that, upon the completion ofhis state court sentence, he would
return to federal custody to complete his federal sentence. (See id.).
Concerned about whether he was continuing to receive "federal time credit" while in
state custody, Cole filed a request with the Bureau of Prisons, asking for a nunc pro tune
designation ofTDCJ-ID as the place of service for his federal sentence. (Docket Entry No.
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1, at 3 & Memorandum at 2). The Bureau of Prisons reportedly denied this request in July
of 2001. (Docket Enny No. I, at 3 & Exhibit).
On August 12, 2002, Cole filed the pending petition for a writ of habeas corpus under
28 U .S.C. 2241, challenging the administration of his federal sentence. Cole complains
that the Bureau of Prisons erred by unlawfully transferring him to TDCJ-ID after he had
already served fourteen months of his federal sentence. In particular, Cole argues that the
unauthorized transfer violates 18 U.S.C. 3231 & 3585(a). He adds that the transfer
violates due process by depriving him of the ability to serve his state and federal sentences
concurrently and by forcing him to serve his federal sentence in a "piecemeal fashion." The
respondent has filed an answer to the petition, arguing that Cole is not entitled to habeas
corpus relief. The parties' contentions are discussed below.
II.
any justice thereof, the district courts and any circuit judge within their respective
jurisdictions . .. ." 28 U.S.C. 224l(a). A petition for a writ of habeas corpus under 28
U.S.C. 2241 is the correct mechanism for challenging the manner in which a sentence is
executed. See Jeffers v. Chandler, 253 F.3d 827, 830 (5th Cir.) (comparing collateral attacks
upon a conviction or sentence based on errors at trial or sentencing, which are governed by
28 U.S.C. 2255, with habeas corpus petitions challenging the manner in which a sentence
is executed, which are governed by 28 U.S.C. 2241), cert. denied, 534 U.S. 1001 (2001).
A-27
However, "[t]he writ of habeas corpus shall not extend to a prisoner unless - ... [h]e is in
custody in violation of the Constitution or laws or treaties of the United States ... ." 28
U.S.C. 2241(c)(3). Thus, the writ of habeas corpus envisioned by 28 U.S.C. 2241 is
considered "extraordinary and 'is reserved for transgressions of constitutional rights and for
a narrow range of injuries that could not have been raised on direct appeal and would, if
condoned, result in a complete miscarriage of justice. '" Kinder v. Purdy, 222 F.3d 209, 213
(5th Cir. 2000) (quoting United States v. Vaughn , 955 F.2d 367, 368 (5th Cir.1992)), cert.
III.
DISCUSSION
A.
Exhaustion of Remedies
The Fifth Circuit has determined that a habeas corpus petitioner seeking relief under
28 U.S.C. 2241 "must first exhaust his administrative remedies through the Bureau of
Prisons." Rourke v. Thompson , 11F.3d47, 49 (5th Cir. 1993)(citing United States v. Gabor,
905 F.2d 76, 78 n.2 (5th Cir. 1990) (citations omitted)); see also Lundy v. Osborn, 555 F.2d
534, 534-35 (5th Cir. 1977) ("[G]rievances of prisoners concerning prison administration
should be presented to the Bureau [of Prisons] through the available administrative channels.
Only after such remedies are exhausted will the court entertain the application for relief in
an appropriate case.") (citations omitted). The Bureau of Prisons has established a threetiered administrative remedy procedure for federal prisoners. See 28 C.F.R. 542.10 -
A-28
542.19. Administrative remedies have not been exhausted until the inmate's claim has been
filed and denied at all levels. See 28 C.F.R. 542.15; Rourke, 11 F.3d at 49.
The respondent notes that Cole has not exhausted his administrative remedies in this
case. Cole does not dispute that he has failed to exhaust his administrative remedies. Nor
does he attempt to establish that an exception to the exhaustion requirement applies.
"Exceptions to the exhaustion requirement are appropriate where the available administrative
remedies either are unavailable or wholly inappropriate to the relief sought, or where the
attempt to exhaust such remedies would itself be a patently futile course of action." Fuller
v. Rich, 11 F .3d 61, 62 (5th Cir. 1994). While the respondent stops short of waiving the
exhaustion requirement in this instance, the respondent appears to concede that the
administrative remedies established by the Bureau of Prisons are unavailable to Cole, who
remains incarcerated in TDCJ-ID, and not in federal custody. (Docket Entry No. 7, at 6).
Because the administrative remedies required by the Bureau of Prisons appear unavailable
to Cole, the Court declines to dismiss for want of exhaustion.
B.
At the outset, Cole complains that the Bureau of Prisons' decision to return him to
state custody violates 18 U .S.C. 3231 and 3585(a). Because neither one of these statutes
provides a remedy for Cole, these claims are easily dispatched.
Section 3231 of United States Code Title 18 provides that "(t]he district courts of the
United States shall have original jurisdiction, exclusive of the courts of the States, of all
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offenses against the laws of the United States." Nothing in this provision governs the Bureau
of Prisons' authority to transfer a prisoner from federal to state custody or to determine that
a prisoner must serve his state sentence first before a federal sentence starts. The cases cited
by Cole do not demonstrate otherwise. (Docket Entry No. 10, at 4-5).
In support of his contention that he is entitled to habeas corpus relief for violations of
18 U.S.C. 3231, Cole cites to various cases for the proposition that, where a defendant has
been charged with violating the laws of dual sovereigns, the one assuming jurisdiction first
may, as a matter of comity, waive jurisdiction and defer to the second. See, e.g. , United
States v. Warren, 610 F.2d 680 (9th Cir. 1980); Hall v. Looney, 256 F.2d 59 (10th Cir. 1958);
United States v. Robinson, 74 F. Supp. 427 (W.D. Ark. 1947). None of these cases mention
18 U .S.C. 3231, and none establish that habeas corpus relief is available for an alleged
breach of that statute. Accordingly, Cole has not shown that he is entitled to federal habeas
corpus relief for an alleged violation of 18 U.S.C. 3231.
Section 3585(a) of United States Code Title 18 governs the calculation of a federal
term of imprisonment, providing that "[a] sentence to a term of imprisonment commences
on the date the defendant is received in custody awaiting transportation to, or arrives
voluntarily to commence service of sentence at, the official detention facility at which the
sentence is to be served." Cole appears to argue that, because he was "received in custody"
of the Bureau of Prisons following his state sentencing, his federal term of imprisonment
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commenced at that time, making his return to state custody illegal. Cole cites no valid
authority for this proposition.
Cole reasons that, by returning him to state custody, the Bureau of Prisons has
breached its "duty" under I 8 U.S.C. 3585(a) in some unspecified way. (Docket Entry No.
10, at 6). In support, he cites several cases which concern the calculation of a prisoner's
sentence once he is taken into federal custody. See e.g., Thomas v. Whalen, 962 F.2d 362 (4th
Cir. 1992); Pinaud v. James, 851 F.2d 27, 30 (2d Cir. 1988); Salley v. United States, 786
F.2d 546 (2d Cir. 1986). Cole also points to Pungitore v. United States, 910 F.2d 1084,
1118-19 (3d Cir. 1990), which comments briefly on a district court's authority to impose a
sentence that runs consecutive to an unexpired state sentence. None of these cases hold that
the Bureau of Prisons violates 18 U.S.C. 3585(a) when it transfers a prisoner to state
custody to begin serving a sentence there. Cole's reliance on these cases is therefore flawed.
Cole cites no authority, and the Court's research has not uncovered any, which holds
that the Bureau of Prisons has a duty under 3285(a) to retain custody of a prisoner once it
has determined that he belongs in state custody, and not in a federal facility. Accordingly,
Cole has not shown that he is entitled to federal habeas corpus relief for any alleged violation
of 18 U.S.C. 3285(a).
C.
Cole complains further that the Bureau ofPrisons has violated his right to due process.
To establish a violation of the Due Process Clause where a federal actor such as the
10
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respondent is involved, a petitioner must have been deprived of a liberty or property interest
protected under the Fifth Amendment. See American Mfrs. Ins. Co. v. Sullivan, 526 U.S. 40,
59, 119 S.Ct. 977, 989, 143 L.Ed.2d 130 (1999). In this case, Cole complains that the Bureau
of Prisons has violated his right to due process as follows: ( 1) by denying him the right to
serve his state and federal sentences concurrently or to otherwise designate TDCJ-ID as the
place of service for his federal sentence; and (2) by forcing him to serve his federal sentence
in a "piecemeal fashion." Assuming that a protected liberty interest is implicated by Cole's
allegations, his claims are examined separately below.
1.
Cole notes that the state court ordered his state sentences to run concurrent with the
sentence imposed by the federal district court. Cole argues that, by transferring him from
federal to state custody and by refusing to designate TDCJ-ID as the place of service for his
federal sentence, the Bureau of Prisons is forcing him to serve the federal sentence
consecutive to the state sentence, denying him the right to serve his state and federal
sentences concurrently.
Although Cole's state court judgment expressly provides that his state sentences were
to be served concurrent with his federal sentence, both the written plea agreement and the
judgment entered in Cole's federal case are silent as to whether that sentence was intended
to be served concurrent with or consecutive to his state court punishment. (Docket Entry No.
7, Exhibits 2 & 3). After Cole registered a complaint about this issue with the Bureau of
11
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Prisons, requesting a nunc pro tune designation which would allow him to serve his federal
sentence concurrently while serving his state sentence in TDCJ-ID, officials conducted an
investigation to determine whether Cole's federal sentence was intended to run concurrent
with his state sentence. When asked by Bureau of Prisons officials whether Cole's federal
sentence was intended to run concurrent with his state court punishment, the district court
that presided over Cole's federal criminal proceeding emphasized that he intended the federal
sentence "to be served consecutive to any time spent in state custody, not concurrent."
(Docket Entry No. 7, Exhibit, Letter dated October 17, 2000).
As one circuit court has noted, "[t]he law governing prisoners subject to multiple
sentences, particularly prisoners subject to multiple state and federal sentences, is hardly a
model of clarity." McCarthy v. Doe, 146 F.3d 118, 120 (2d Cir. 1998). It is clear that, where
multiple sentences are imposed by dual sovereigns, the Due Process Clause does not entitle
a criminal defendant to concurrent state and federal sentences. See United States v. Mun, 41
F.3d 409, 413 (9th Cir. 1994), cert. denied, 514 U.S. 1077 (1995). Because a defendant has
no right to serve state and federal sentences concurrently, due process is not violated when
the government refuses him an opportunity to serve his state and federal sentences
simultaneously. See id. (citing United States v. Smith, 5 F.3d 259, 261 (7th Cir. 1993)).
Likewise, to the extent that Cole's state court judgment indicates that his state and federal
sentences are to run concurrently, it is well established that a state court judge does not have
the authority to force a state sentence to run concurrent with a federal sentence of
12
A-33
imprisonment. See Taylor v. Sawyer, 284 F.3d 1143, 1151 , 1153 & n.11 (9th Cir.2002);Jake
v. Herschberger, 173 F.3d 1059, 1065 (7th Cir.1999); McCarthy, 146 F.3d at 120-21; United
Statesv. Yates,58F.3d542,550(10thCir.1995);DelGuzziv. UnitedStates,980F.2d 1269,
1270 (9th Cir. 1992); United States v. Sackinger, 704 F.2d 29, 32 (2d Cir. 1983).
In an effort to clarify the imposition of multiple sentences of imprisonment on a
criminal defendant, Congress enacted 18 U.S.C. 3584, which provides as follows:
States v. Brown, 920 F.2d 1212, 1215-17 (5th Cir.), cert. denied, 500 U.S. 925 (1991); see
also United States v. Williams, 46 F.3d 57, 58-59 (10th Cir.), cert. denied, 516 U.S. 826
13
A-34
(1995); United States v. Ballard, 6 F.3d 1502, 1506-10 (11th Cir. 1993). Other courts
disagree.' See United States v. Clayton, 927 F.2d 491 , 492 (9th Cir. 1991) (holding that
Congress did not vest federal courts with authority to impose federal sentence to run
consecutively to a state sentence that has not yet been imposed); Cozine v. Crabtree, 15 F.
Supp.2d 997, 1006 (D. Or. 1998) (fo11owing Clayton). Nevertheless, while there appears to
be a split of authority on this issue, any conflict is illusory where, as here, the federal
judgment makes no provision for the sentence is to run concurrently with or consecutive to
a state court term of imprisonment. See Romandine v. United States, 206 F.3d 731, 738 (7th
Cir. 2000). By statute, there is a presumption that "[m]ultiple terms of imprisonment
imposed at different times run consecutively unless the court orders that the terms are to run
concurrently." Id. (quoting 18 U.S.C. 3584(a)). ln other words, because Cole's federal
judgment is silent as to whether the sentence is intended to run concurrently with or
consecutive to any forthcoming state sentence, his federal sentence is presumed to run
consecutively under 18 U.S.C. 3584(a) to his state court sentence. Thus, under the facts
present in this case, Cole cannot show that the Bureau of Prisons violated due process by
In this case, Cole concedes that he relies primarily on United States v. Clayton, 927 F .2d 491
(9th Cir. 1991) and Cozine v. Crabtree, 15 F. Supp.2d 997 (D. Or. 1998). (Docket Entry No.
10, at 7). In deciding that district courts have the discretion to determine whether a federal
sentence should run concurrent with or consecutive to a forthcoming state sentence, the Fifth
Circuit has expressly declined to follow Clayton and other cases like it. See United States
v. Hernandez, 234 F.3d 252, 256 & n.5 (5th Cir. 2000); United States v. Brown, 920 F.2d
1212, 1217 (5th Cir.), cert. denied, 500 U.S. 925 (1991). Because this Court is bound by
Fifth Circuit precedent, Cole's reliance on Clayton is misplaced.
14
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failing to honor the state court's judgment that the state sentence run concurrent with his
federal sentence.
Likewise, Cole does not establish that the Bureau of Prisons violated his rights by
refusing to designate TDCJ-ID as the place for service of his federal sentence. The Bureau
of Prisons has broad discretion to designate the place of confinement for purposes of serving
a federal sentence of imprisonment. See Barden v. Keohane, 921 F.2d 476, 483 (3d Cir.
1990) (outlining procedures for obtaining a nunc pro tune designation from the sentencing
court to designate a state institution as the facility for service of a federal sentence). As noted
above, the Bureau of Prisons entertained Cole's request for a nunc pro tune designation of
TDCJ-ID as the facility for service of his federal sentence. The Bureau of Prisons rejected
Cole's request after the federal district court clarified that he intended Cole's federal sentence
to run consecutive to the time served on his state court convictions. (Docket Entry No. 7,
Exhibit 4). Such a decision by the Bureau of Prisons is "plainly and unmistakably" within
that agency's discretion and courts "cannot lightly second guess a deliberate and informed
determination by the agency charged with administering federal prison policy." Taylor v.
Sawyer, 284 F.3d 1143, 1149 (9th Cir. 2002), cert. denied,-U.S. - , 123 S.Ct. 889 (2003).
Because the Bureau of Prisons relied at least in part upon the intent of the federal
sentencing court in reaching its decision, this Court cannot say that it was an abuse of
discretion to refuse Cole's request for a nunc pro tune designation of TDCJ-ID as the place
for service of the federal sentence. Accordingly, Cole has failed to establish that the Bureau
15
A-36
of Prisons violated the Due Process Clause in connection with its decision to return him to
TDCJ-ID or with regard to its refusal to designate that state facility as the place for service
of his federal sentence.
2.
Cole complains further that, by transferring him to state custody after his incarceration
in a federal facility for fourteen months, the Bureau of Prisons has violated his right to due
process by forcing him to serve his sentence in a "piecemeal fashion." This claim has no
merit.
There is some authority for the rule that a prisoner cannot be required to serve his
sentence in installments. See Dunne v. Keohane, 14 F.3d 335, 336 (7th Cir. 1994), cert.
denied, 511 U.S. 1149 (1994). Under this rule, the government is not permitted to delay the
expiration of a defendant's sentence either by postponing the commencement of the sentence
or by releasing the prisoner for a time and then reimprisoning him. See id. (citations omitted).
"Commonly traced in origin to the Fifth Circuit's decision in Shields v. Beto, 370 F.2d 1003
(5th Cir. 1967), this theory employs the fictive notion that by prolonged failure to incarcerate
a convict who 'owes it time' (either original or 'interrupted') a government may 'waive its
jurisdiction' to do so, thereby making any later incarceration one effected without jurisdiction
and so a violation of due process." Hawkins v. Freeman, 195 F.3d 732, 744-45 (4th Cir.
1999). There is, however, a significant culpability requirement imposed on this common law
16
A-37
rule. To prevail on a claim that a sovereign has violated the rule prohibiting the incremental
service of a prison sentence,
it is not sufficient to prove official conduct that merely evidences a lack of
eager pursuit or even arguable lack of interest. Rather the waiving state's
action must be so affirmatively wrong or its inaction so grossly negligent that
it would be unequivocally inconsistent with "fundamental principles ofliberty
and justice" to require a legal sentence to be served in the aftermath of such
action or inaction.
Fabian v. Reed, 714 F.2d 39, 41 (5th Cir. 1983) (quoting Piper v. Estelle, 485 F.2d 245, 246
(5th Cir. 1973)). No such disinterest or inaction has been demonstrated here on the Bureau
of Prisons' part; nor does Cole identify any action by the Bureau of Prisons that is so
affirmatively wrong as to conflict with fundamental principles of liberty and justice. See
Fabian, 714 F .2d at 41 (explaining that, where a prisoner is merely transferred between two
sovereigns, "simple bifurcation" of sentences does not violate due process). Accordingly,
Cole has not shown that his transfer from federal to state custody violates the rule against
installment sentences. It follows that he is not entitled to federal habeas corpus relief on
these facts. Accordingly, the respondent's motion to dismiss is granted.
IV.
The petitioner has filed a motion for appointment of counsel. (Docket Entry No. 8).
Habeas corpus proceedings in federal court are civil actions and, as such, there is no absolute
constitutional right to the assistance of counsel. See Pennsylvania v. Finley, 481 U.S. 551,
555, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987) ("Our cases establish that the right to appointed
17
A-38
counsel extends to the first appeal ofright, and no further."); see also Browder v. Department
ofCorrections ofIllinois, 434 U.S. 257, 269, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978); Fairman
v. Anderson, 188 F.3d 635, 642 (5th Cir. 1999) (explaining that "there is no constitutional
right to counsel on habeas review"). Cole in his response to respondent's motion adequately
raised the pertinent issues, which the Court has exhaustively researched and considered.
Appointment of counsel would not further prosecution of Cole's claims. Accordingly, his
The petitioner has also filed a motion for an evidentiary hearing. (Docket Entry No.
9). "To receive a federal evidentiary hearing, the burden is on the habeas corpus petitioner
to allege facts which, if proved, would entitle him to relief." United States v. Tubwell, 37
F.3d 175, 179 (5th Cir. 1994) (citing Ellis v. Lynaugh, 873 F.2d 830, 840 (5th Cir.), cert.
denied, 493 U.S. 970 (1989)). An evidentiary hearing is not required if the record is
complete or the petitioner raises only legal claims that can be resolved without the
presentation of additional evidence. ld.
This Court has been able to resolve all issues raised in this case by referring to the
pleadings and exhibits filed by the parties. Because there is no issue remaining which
requires the presentation of additional evidence, Cole's request for an evidentiary hearing is
denied.
V.
18
A-39
1.
2.
DENIED.
3.
DENIED.
4.
The petition for a writ of habeas corpus is DENIED, and this case is
___,_, 2003.
UNITED STA
19
A-40
Program
Statement
OPI:
NUMBER:
DATE:
SUBJECT:
CPD
5160.05
1/16/2003
Designation of State
Institution for
Service of Federal
Sentence
4.
a.
Directive Rescinded
PS 5160.04
b.
Directives Referenced
PS 5100.07
A-41
PS 5160.05
1/16/2003
Page 2
PS 5800.07
PS 5880.28
PS 5880.30
PS 5880.32
PS 7300.09
5.
STANDARDS REFERENCED
A-42
PS 5160.05
1/16/2003
Page 3
terms of imprisonment are to run consecutively to or concurrently
with one another, the sentences run consecutively
(see 18 U.S.C. 3584). (This applies only to federal offenses
committed on or after November 1, 1987.)
c. When a federal judge orders or recommends a federal sentence
run concurrently with a state sentence already imposed, the Bureau
implements such order or recommendation, ordinarily by
designating the state facility as the place to serve the federal
sentence. United States v. Hardesty, 958 F.2d 910 (9th Cir. 1992).
d. For federal offenses that occurred prior to
November 1, 1987, and there is a previously imposed sentence in
existence at the time of federal sentencing and the federal judge is
silent as to whether multiple terms run concurrently or
consecutively, the RISA will have to research the record and make a
determination regarding concurrency.
e. No concurrent designation will be considered when statutory
language mandates consecutive service or the U.S. Sentencing
Guidelines require consecutive service.
f. Authority for commencement of a sentence once a facility is
designated is found in 18 U.S.C. 3585(a) and 3568 (repealed).
18 U.S.C. 3585(a), states,
A sentence to a term of imprisonment commences on the date
the defendant is received in custody awaiting
transportation to, or arrives voluntarily to commence
service of sentence at, the official detention facility at
which the sentence is to be served.
18 U.S.C. 3568, states in part,
The sentence of imprisonment of any person convicted of an
offense shall commence to run from the date on which such
person is received at the penitentiary, reformatory, or
jail for service of such sentence.
g. Just as the federal government has no authority to prescribe
when a state sentence will commence, the state has no authority to
order commencement of a federal sentence
(see 18 U.S.C. 3585(a) & 3568 (repealed)).
A-43
PS 5160.05
1/16/2003
Page 4
8. AUTHORITY FOR DESIGNATIONS. The Bureaus authority to designate
a state institution for concurrent service of a federal sentence is
delegated to Regional Directors.
#
A-44
PS 5160.05
1/16/2003
Page 5
(1) Court Order. The sentencing court orders, on the Judgment
& Commitment Order or the Judgment in a Criminal Case (J&C), that
the federal sentence be served concurrently with a state sentence.
The court may make clear its intent by using language similar to:
#
A-45
PS 5160.05
1/16/2003
Page 6
(a) In Barden, the court held that the Bureau must consider
an inmate's request for concurrent service of the state and federal
sentences.
#
A-46
PS 5160.05
1/16/2003
Page 7
sentence, or custody in operation, during any time in which the
inmate requests concurrent designation).
(5) State Request. Occasionally, a Regional Office receives a
request from a state jurisdiction indicating that the
state and federal sentences are to be served concurrently, whether
by state court order or department of corrections referral.
(a) The RISA will gather and review all information
pertaining to the federal and state sentences. After reviewing this
information carefully, if necessary, the RISA will correspond with
the federal sentencing court to ascertain whether it has any
objections to the federal and state sentences running concurrently.
A courtesy copy of this correspondence will be forwarded to the
appropriate U.S. Attorney. (The same procedures apply as outlined
in subsections 4.c. and d., Inmate Request.)
(b) If the court has no objections, the state institution
may be designated as the place to serve the federal sentence
concurrently with the state sentence, according to the procedures
detailed in this Program Statement.
Note:
A-47
PS 5160.05
1/16/2003
Page 8
#
#
#
#
#
the
the
the
the
any
A-48
PS 5160.05
1/16/2003
Page 9
would make the inmate "past due" for release, such designation will
be retroactive to a point in time that the sentence, when calculated
in the same manner as any other sentence, results in a release date
that affords the institution time to conduct normal release
processing.
(10) If the D.C. Superior Court recommends designation of a
state institution for service of a D.C. sentence, the RISA in the
appropriate region will gather and review all information pertaining
to the D.C. sentence. If it is determined that a nunc pro tunc
designation is warranted, a copy of the designation letter along
with other relevant information will be forwarded to the D.C.
Records Center (DCRC) for computation of the D.C. sentence. The
DCRC will maintain an administrative file, compute the sentence, and
will be responsible for all computation updates.
Should an update be required to the D.C. state concurrency
sentence computation, the RISA will provide all appropriate
documentation to the DCRC. Once the DCRC updates the sentence
computation, they will notify the RISA via GroupWise.
c. Files. The RISA is to maintain a file on all state
concurrency cases. Each file will contain the following:
#
#
#
#
#
A-49
PS 5160.05
1/16/2003
Page 10
#
#
#
#
#
#
Sentence Computation.
#
#
#
#
(1) The RISA has the final approval for state recommendations
for EGT. EGT awards for inmates in state institutions must be
consistent with the requirements for those in federal institutions
(see the sentence computation manual).
(2) The maximum amount of Statutory Good Time (SGT) or Good
Conduct Time (GCT) an inmate is entitled to receive will be awarded
unless documentation provided by state authorities recommends a
forfeiture of SGT or disallowance of GCT based on the inmate's
behavior.
After reviewing the documentation provided by the state, the
RISA will determine, in consultation with the Regional Discipline
Hearing Administrator or Regional Counsel, whether some or all of
the SGT or GCT should be forfeited/disallowed.
e.
Release
A-50
PS 5160.05
1/16/2003
Page 11
(2) If the federal term expires prior to the inmates release
from the non-federal jurisdiction, the RISA is to notify the state
department of corrections, the USMS, and the USPC (if necessary).
The RISA will complete the appropriate release paperwork as it
pertains to the confinement portion of the federal sentence. Upon
receiving the release notification, the USMS will withdraw the
detainer.
f. Monitoring. The RISA will establish a system to monitor
release dates of concurrent sentences so that timely notification
will be made to state authorities, the USMS, and the USPC (if
necessary). This may be accomplished by using:
#
#
#
A-51
PS 5160.05
1/16/2003
Page 12
A return to the state means that the federal sentence should be
considered as not having commenced since transfer to the Bureau was
in error and the prisoner should have been returned to the state
after federal sentencing as a required condition of the federal writ
(see Crawford v. Jackson, 589 F.2d 693 (D.C. Cir. 1978)). The
federal J&C will be lodged as a detainer, through the USMS, with the
state authorities. If the federal court recommends concurrent
service of the federal and state sentences, the case should be
referred to the appropriate RISA.
/s/
Kathleen Hawk Sawyer
Director
A-52
PS 5160.05
1/16/2003
Attachment A, Page 1
Sample Letter to U.S. Marshal
Date
Inmates Name
Register Number
Docket Number
Offense
Sentence
Judicial District
Sentence Begins
Release Date
Designated Facility
:
:
:
:
:
:
:
:
:
:
Regional Director
STATE CORRECTIONAL AUTHORITY: This is for notification purposes
only and does not limit your discretion in any decision affecting
this offenders classification, work, and quarters assignments or
other treatment and programs.
A-53
PS 5880.28
(CN-03) February 14, 1997
Page 1 - 31
e. Multiple Sentences of Imprisonment. The statute that
governs the manner in which multiple sentences of imprisonment
may be imposed is 18 U.S.C. 3584.
*
(1)
A-54
PS 5880.28
(CN-03) February 14, 1997
Page 1 - 32
concurrently or consecutively, they will run
consecutively unless the statute specifies
otherwise.
This subsection allows the court flexibility
in sentencing when multiple terms of imprisonment are imposed and
codifies the rules to follow if the court remains silent.
*
Sentences that are imposed as the result of a
single trial on the counts within a single indictment are
considered to have been imposed at the same time, regardless of
whether they are imposed at different times on the same date or
on a later date.
Sentences that are imposed on the same date,
or on different dates, based on convictions arising out of
different trials, are considered to have been imposed at
different times even if the trials arose out of the same
indictment.
The court's sentencing flexibility, in
addition to applying to federal undischarged terms of
imprisonment, also extends to those prisoners who have nonfederal undischarged terms of imprisonment.
The court may, for a prisoner who is serving
a non-federal undischarged term of imprisonment while "on loan"
to the federal government under the jurisdiction of a federal
writ of habeas corpus ad prosequendum, impose the federal
sentence to run concurrently with, or consecutively to, the other
undischarged term of imprisonment. Upon receipt of the judgment
A-55
PS 5880.28
(CN-03) February 14, 1997
Page 1 - 32A
and commitment from the U. S. Marshals' Service that orders the
federal sentence to be served concurrently with the non-federal
sentence, the RISA shall, in accordance with 18 U.S.C. 3621(b),
designate the non-federal facility as the place to serve the
federal sentence and complete the other procedures required by
the Program Statement on Designation of State Institution for
Service of Federal Sentence, for executing this type of
concurrent sentence.
On occasion, a federal court will order the
federal sentence to run concurrently with or consecutively to a
not yet imposed term of imprisonment. Case law supports a
court's discretion to enter such an order and the federal
sentence shall be enforced in the manner prescribed by the court.
If the just imposed federal sentence is ordered to run
concurrently with a non-existent term of imprisonment, then the
RISA shall designate the non-federal place as the place to serve
the federal sentence as of the date that the federal sentence was
imposed. If the federal sentence is silent, or ordered to run
consecutively to the non-existent term of imprisonment, then the
federal sentence shall not be placed into operation until the
U.S. Marshals' Service or the Bureau of Prisons gains exclusive
custody of the prisoner.
Regardless of whether the court orders the
federal sentence to be served consecutively to, or concurrently
with, the non-federal non-existent or undischarged term of
A-56
PS 5880.28
(CN-03) February 14, 1997
Page 1 - 33
imprisonment, the prisoner shall be returned to the non-federal
jurisdiction until the prisoner is released (completes the
undischarged term of imprisonment) from the non-federal term.
Federal courts sometime order a portion of
the federal sentence to run concurrently with or consecutively to
another federal sentence or a non-federal sentence. The Bureau
of Prisons will attempt to accommodate a court's intent as fully
as possible. Since the possible number of ways of imposing a
portion of a sentence concurrently with or consecutively to
another sentence are numerous, staff should refer such sentences
to the RISA for assistance.
*
(2) Subsection (c) of Section 3584 provides the
rules for the treatment (calculation) of multiple sentences and
states,
Multiple terms of imprisonment ordered to run
consecutively or concurrently shall be
treated for administrative purposes as a
single, aggregate term of imprisonment.
*
A-57
o
'
Case
'.)1
J;
of _--=..;TE=..:.X::..,:A=.S.....!a:....:t:........=..:Da::....:l~l.:::.:as:::.--_
V.
PATRICK GLENN COLE (0.1)
Case Number:
3:92-CR-226- T
Russ Henrichs
(Name of Defendant)
Defendants Attorney
THE DEFENDANT:
!I pleadedguiltytocount(s) One (1), Two (2), Three (3), and Four (4) _ _ _ _ _ _ _ _ _ .
wClsfoundgu!ltyoncoL!nt(s) _, ___. __.~_ .... ___ -..:_-.-.--------. - - - - . - - . - - . after~.
plea of not guilt~'.
.
. Accordingly, the defendant is adjudged guilty of such count(s), which involve the following offenses:
Date Offense
Concluded
Nature of Offense
Count
Number(s)
.,
One (1)
Two (2)
Three (3)
12/91
'.
01/92
18 UsfrSe!4ion. 922(g)(l)
01/92
Four (4)
_ _ _.@.'d.i-Seaj.o~-92.4~-aJ-(-2-)--,Con.vj.c.ted-Ee-1on----~------------------
~;~~ ~ .)~
- - ; II
~.!.! j":':'
O~J
'.:.)><:;
.:.:: UJ
{Tij~ de+enda~O$ sentenced as provided in pages 2 through __4__ of this judgment. The sentence is
o
00
00
:.
.:..-;~
c:s
,)
Th~:ctefenda.n}
. .
ri:t
567-08-8714
r ....'..;"
...
A-58
C "
.'a
t ... '~'
OJ
_.V.L.
':~.iCas
i):puty
Defendant:
PATRICK GLENN COLE (01)
Case Number: 3:92-CR-226- T
IMPRISONMENT
- --
-.~
The defendant is hereby committed to the custody of th,e Untted States Bureau of Prisons to be imprisoned for
a term of .
Two hundr(~d forty \ 240) months'
,
Count 1 and 2
Count 3
Count 4
r:::::: The defendant shall surrender to the United States marshal for this district.
=
=
= =
=
=
a.m.
at
p.m. on ,_._ _ _ _ _"--______
as notified by the United States marshal.
The defendant shall surrender for service of sentence at the institution designated by the Bureau of Prisons.
before 2 p.m. on _ _ _ _ _ _ _ _ __
as notified by the United States marshal.
as notified by the probation office.
to
_____________________
_________ at
By~_--__~-~-----------Deputy Marshal
A-59
upon release from imprisonment, the. defendant shall be on supervised release for a term of'- -'- -_ _
.. Ibree ( 3L y;ea t'-s
While on supervised release, the defendant shall not commit another federal, state, or local crime and shall not
illegally possess a controlled substance. The defendant shall comply with the standard conditions that have been
adopted by this court (set forth below). If this judgment imposes a restitution obligation, it shall be a condition of
supervised release that the defendant pay any such restitution that remains unpaid at the commencement of the
term of supervised release. The defendant shall comply with the following additional conditions:
X The defendant shall report in person to the probation office in the district to which the defendant is released
within 72 hours of release from the custody of the Bureau of Prisons.
::::J Th.a defendai It shaii pay any fines that remain unpaid at the commencement of the term of supervised release.
~ The defendant shall not possess a firearm or destructive device.
The defendant shall participate in a program approved by the U.S, Probation Office
for treatment of narcotic or drug or alcohol dependency which will include testing
for the detection of substance .use or abuse', Based on the defendant I s present and
projected ability to pay, he is not ordered to reimburse the government for expenses,
The defendant shall participate jn ~ mental health treatment program as approved
and directed by the probation offjca~.
STANDARD CONDITIONS OF SUPERVISION
While me defendant is on supervised release pursuant to this judgment. the defendant Shall nol commit another federal. state or local crime. In additIOn:
1) the defendant shall not leave the judicial district without the permission of the court or probation officer:
2) tile defendant shall report to the probation officer as directed by the court or probation offqr and shall submit a truthful and complete written report W11T1,n
the first five days of each month:
31 tile defendant shall answer truthfully all inquiries by the prObation officer and follow the instructions of the probation officer:
o~her
famil'! reSlYlnsibilities;
5; :1',,, a,.~;,=r~;;.m ",....1I ..-on, r69uia.ty at a lawful oc:cupatt:JH unle;s :~xcUsed by ttre prooation officer for sd'looIing. training. or other acceptable rea,sons
6) the defenda.nt shall notify the probation officeI' within 72 hours ot any change in residence or ef'l'1P/oyment:
71 tl1e detendam shall refrain from excessive use ot alcohol and shaH not purchase. possess. use. distribute. or administer any narcolre or other controllec
substance. or any paraphemalia related to such substances. except as prescribed by a phySician;
8) the defendant shall not IreQuent places where controlled subslanees are illegally sold. used. distributed. or administered:
9) 1I1e defendant shall not aSSOCiate with anypersons engaged in criminal activity. and shall not associate with any person convicted of a felony unless
granted permiSSIOn to do so tly the probation officer;
'.10) the defendant shall permjJ a probation officer to visit him or her at any time at home Of elsewhere and shall permit confrscatlQll of any co'ltraband observ~:::
In pIa," view by tne prObatIOn offlGo!r;
1I I the defendant shall notify the probation officer within seventY-two hours of being arrested or nl . .ctin .....-!:'y ~~ -.;;t.o' ....!'lenl dTfrcer;
12) thed.l!~otI"nt ~-an:er i,"utlny agntement to act as an informer or a s,?eCial agent of slaw enforcement agency withOut ttIe permls~ of the cou~.
13) as directed by the probation officer. 1M defendant snail notiiy third parties of ri$ks that may be occasioned by the detendant's criminal r8COfCl or per$Ol'lll
hiStory or charactenstics. and shall penniI the probation offictlr to meke such notifications and to contirm the ~'S complratq WIth SUCtI nOtlhcaloOD
requirement.
.I.IC;~,W"'"""",
A-60
....;. .. .'
--
..
Dt:.lendant:
JC... ",.nent-Page
::..!::,!.:...;..:..~-==--":.
4 . of
Case Number:
-::
4
---
STATEMENT OF REASONS
fj~dings
: . The court adopts the factual findings and guideline application in.the presentence report e~ept
(see attachment, if necessary):
to 137
months
pl us mandatory 60 months
a;
to $ 250,000
Fine is waived or is below t.he guideline range, because. of the defendant's inability to pay.
Restitution: S
o The sentence is within the guideline fc.ngn th?~~':?r\g~ exc~ec!s 2~rno!l!hs, and
for the j~Jiiowing re~lson(s): . .
..
t:19 se!1t(!l1C'2
is imposed
OR
A-61
Drawer !17
vi?EJrrz.,'t.J!,,
Gllf'NN
PLEA B
TO THE DONORABLE JUDGE OF
GAIN AGREEMENT
\s~~~. G!JU~~.:
~-
Comes now Defendant, Counsel for Defendant, and Counsel for State
herein and would show that a plea bargain agreement has been entered
into between the undersigned, and that under the terms of said agreement the defendant agrees and requests that a presentence investigation report not be made, and both sides agree they will waive their
right to a jury trial and agree to and recommend the following:
Defendant will plead
guilty
contendere
- - - - - - nolo
years
i../
-~;;,,,._
NO PROBATION
PROBATION TO BE GRANTED FOR
years subject to all
the terms and conditions imposed by the trial court.
Further, the judge, as~provided by Article 42.12, Sec. li
V.A.C.C.P., may at anytime during the period of probation
alter or modify the conditions.
supervised work or community service for
hours as
provided by Article 42.12, Sec. 16 and 17 V.A.C.C.P.
SHOCK PROBATION TO BE GRANTED
days after sentence,
subject to good behavior of defendant while incarcerated.
participation in SPECIAL
v'
...e_n_d""'a"""""".
~J1\.
Conviction to be as follows:
V Felony
- - - - Non-conviction Deferred
Probation
'!!r
"'
Misde
nor
f.-
12..e-rv
~,4y..G<.
"'Lwni.d.
)=4i..-"P.::ii;..
The undersigned certify they have read the terms of the above agree-
~ii&~;~:~~=~ly contaio.
By
ll
~;Lement
1'-<bf:Y
1( ._J~l;?
Assistant District Attorney
a;91
A-62
JuDG~......,../
.n
. I
Case 4:02-cv-03056 r-Document
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A-63
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Case 4:02-cv-03056
1
'
...,_
NO.
F92-33548-V
292ndJudicial
--------DISTRICT
VS.
COURT
DALLAS COUNTY,TEXAS
_ _ _J_u'"'ly.___ _ _
TERM ,A. D,
19_92_
92
25
-------- Division,
3-92-CR-226-T
District of Texas,
---------=-----entered
Northen
---~Ju~l...._~3~0.___ _ _ _ _ _ _ _~19_9_2_,
deliver this
prison~r
their
31st
day of
July
--~~-'------
DALLAS
A.D., 19 92,.
-----r
COURT
UNT
\
DIRECTING SHERIFF TO DELIVER PRISONER TO UNITED STATES MARSHAL
A-65
r. I4:02-cv-03056
. I
Case
Document 1
-
- ./:!.
""'
NO. F92-33571-V
292nd Judicial
--------DISTRICT COURT
vs.
DALLAS COUNTY,TEXAS
_ _ _J_u_l~y____ TERM,A.D.,
19 92
---
92
25
~---'=-----------~
3-92-CR-226-T
~-~N-o~r-th~e-n,______~
District of Texas,
Division, entered
Deft to be Sentenced 07 /30
19 __9_2_,
for the offense of ~~R~ob~b~e~r.._________________________________
------------------------------
~---------
07/30/92
Texas, who now has custody
---31st
COURT
A-66
Patrick Cole
State Number 493342
3060 FM 3514
Beaumont, Texas 77705
Dear
lir.
Cole:
~c--,~
Karen Weathers
Inmate Systems Specialist
A-67
Case 3:12-cv-00412-ST
Document 19-1
Filed 05/08/12
A-68
Page 2 of 2
l"''
'
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.:~~~
Patrick Cole
TDCJ NO. 493342
Estelle High Security Unit
264 FM 3478
Huntsville, Texas
77320-3322
Dear Mr. Cole:
We have received your request for concurrent (nunc pro tune)
designation of your federal sentence.
When reviewing cases for possible concurrent designation to a
state facility, we consider the available information, consistent
with Title 18, U.S.C. 3621, Imprisorunent of a convicted person.
We are also provided guidance in Program Statement 5160.04,
Designation of State Institution for Service of Federal Sentence.
In your specific case, we find commencement of your federal
sentence by way of concurrent designation not consistent with the
goals of the criminal justice system.
Concurrent designation of your federal term is denied.
z;~
Gail Haynes
Inmate Systems Administrator
A-69
SHEW3 540*23 *
PAGE 001
*
SENTENCE MONITORING
COMPUTATION DATA
AS OF 06-21-2011
06-21-2011
11:14:15
PATRICK GLENN
: 697641DA2
: SHE/A-DES
: UNIT. 4
: NO
010 ------------------------
NON-COMMITTED.:
FELONY ASSESS
$200.00
RESTITUTION .. :
PROPERTY:
SERVICES:
NO
NO
COSTS
$00.00
AMOUNT:
$00.00
G0002
A-70
SHEV"73 540*23 *
PAGE 002
*
SENTENCE MONITORING
COMPUTATION DATA
AS OF 06-21-2011
*
*
06-21-2011
11:14:15
PATRICK GLENN
010 --------------------------
: 03-09-2009
: AGGREGATE GROUP 800
240 MONTHS
:
20 YEARS
:
:
3 YEARS
"'
: 12-29-1991
G0002
0
0
941
108
08-10-2026
03~08-2029
A-71
, SHEl1!3 540*23 *
*
PAGE 003
REGNO .. :
23028~077
SENTENCE MONITORING
COMPUTATION DATA
AS OF 06-21-2011
NAME: COLE,
*
*
06-21-2011
11': 14: 15
PATRICK GLENN
G0002
A-72
SHEW3 540*23 *
PAGE 004 OF 004 *
SENTENCE MONITORING
COMPUTATION DATA
AS OF 06-21-2011
*
*
06-21-2011
11:14:15
PATRICK GLENN
001
09-20-2010
TEXAS DEPT OF CORR
CENTRAL COORDINATION UNIT
8610 SHOAL CREEK BLVD
AUSTIN, TX 78711
PHONE NUMBER.: (512) 406-5356
GOOOO
A-73
ATTACHMENT 1
SHE 1330.13
May 15, 2002
INFORMAL RESOLUTION
NOTICE TO INMATE:
You are advised that prior to filing a Request
for Administrative Remedy Form (BP-9), you MUST attempt to
informally resolve your complaint through your Correctional
Counselor.
1..
r6.9
'
2.
STATE WHAT ACTION YOU WANT STAFF TO TAKE TO CORRECT THE
SITUAr_ION.
~ "-./
[ ( l/Vt;e.-
*****************************************************************
4.
CORRECTIONAL COUNSELOR'S COMMENTS.
INDICATE BELOW WHAT STEPS WERE TAKEN TO INFORMALLY RESOLVE THE
ISSUE.
INCLUDE PROGRAM STATEMENTS REFERENCED OR OTHERWISE
UTILIZED IN THE ATTEMPT TO INFORMALLY RESOLVE THE ISSUE.
INFORMAL RESOLUTION
FOLLOWING REASON;
:2rt +l
W~IRCLE
dultJ rf5f!J11~
CORRECT-I-ON-<--A-L_C_O_U_,_N-1-S-E_L_O_R_:
DATE: 25 ,
<
II
~R~,~~~_____,,~-/
A-74
UNIT MA!
fc-or\\
When the USM took you fol'f'lt the state on Fed Writ you were a primary state inmate. When the state
sentenced you to 25 years concurrent with the Federal sentence you did not have a Federal sentence to
run concurrent with and you were still a primary state inmate. Your federal judgment is silent and is
consecutive to your state sentence.
cannot be credited toward your federal sentence. Your federal sentence could not start before you
completed your state sentence.
A-75
Patrick
Cole
From: _ _
_____
__________
23028-077
REG. NO.
FCI Sheridan
4B
UNIT
INSTITUTION
Intormal resoiut~on was attempted and denied on 7-23-11 (see attached BP8).
I am filing this BP9 because my federal sentence has expired and I should be
immediately released. I REQUEST EXPEDITED PROCESSING OF THIS BP9 DUE TO THE
FACT THAT I SHOULD BE IMMEDIATELY RELEASED.
The following is a summary of factual history of events that clearly shows that
my federal sentence has expired. I was arrested by Texas state authorities in
January 1992. I was sentenced to two 25-year state sentences on May 22, 1992
to be ran concurrent with the federal sentence I had plea bargained to receive
on July 30, 1992.
THIS STATE SENTENCE GIVEN ON MAY,22,1992 WAS DISMISSED ON
JULY 27, 1992. SEE ATTACHMENTS 2a & 2b.
So, on the date of FEDERAL SENTENCING (July 30,1992) I had not been sentenced
on the State charges because the prior sentencing had been dismissed on
July 27, 1992 as attachments 2a & 2b clearly show. So on the morning of
July 30, 1992 I was in State custody housed at the Dallas County Jail.
The US Marshals picked me up from the Dallas Co. Jail persuant to a writ of
ad prosequendum, took me to federal court where I received a 240 month sentence
(said sentence was silent regarding any other charges pending), and then after
sentencing that same afternoon in federal court, I was return d to,t
7- :Z i - j I
( BP9 continued--"'o~n'--"'a..__,t,,_,t""'a,._,c"'"'h""m'""e""-"-"n_,,,t'------="lJ--f-\..._.....,,,.,,,~,,,__-b-~~=-oATE
Part B- RESPONSE
DATE
If dissatisfied with this response, you may appeal to the Regional Director. Your appeal must be received in the Regional Office within 20 calendar days of the date of this response.
CASE NUMBER: _ _ _ _ _ _ _ _ __
CASE NUMBER: _ _ _ _ _ _ _ _ __
Part C- RECEIPT
Return to:
LAST NAME, FIRST, MIDDLE INITIAL
REG. NO.
A-76
UNIT
INSTITUTION
tK:J/t
[<___ ~50'
7
A-77
. --0 ? {
~;}.__7~//
SHE-650502-Fl
This is in response to your Request for Administrative Remedy dated July 27, 2011, wherein you allege
your federal sentence has expired. As relief, you request to be immediately released from federal
custody.
A review of your file shows the United States Marshals Service (USMS) borrowed you via Writ of
Habeas Corpus Ad Prosequendum from the Texas Department of Corrections, where you were serving a
state sentence.
A federal sentence does not begin to run when a federal defendant is produced for prosecution by a
Federal Writ of Habeas Corpus Ad Prosequendum from state custody. Thomas v. Whalen, 926 F.2d 358
(4th Cir. 1992); Thomas v. Brewer, 923 F2d 1361 (9th Cir. 1991); Barden v. Keohane, 921 F .. 2d (3d Cir.
1990; Salley v. United States; Hernandez v. United States Attorney General, 689 F.2d 915 (10 Cir.
1982); Roche v. Sizer, 675 F.2d 507 (2d Cir. 1982); Chambers v. Holland, 920 F.Supp. At 622. The
state authorities retain primary jurisdiction over the prisoner; federal custody does not commence until
the state authorities relinquish the prisoner on satisfaction of the state obligation. See Del Guzzi v.
United States, 980 F.2d 1269 (9th Cir. 1992); Thomas v. Whalen, 926 F.2d 358 (4th Cir. 1992);
Hernandez v. United States Attorney General, supra; Roche v. Sizer, supra; Craford v. Jackson, 589 F2d
583 (D.C. Cir 1978), cert denied, 441 U.S. 934 (1979); Cobb v. United States, 583 F.2d 695 (4th Cir.
1978); Chambers v. Holland, supra; Shumate v. United States, 893 F.Supp. 137 (N.D.N.Y. 1995); Miller
v. United States, 826 F.Supp. 636 (N.D.N.Y. 1993). See also Bowman v. United States, 672 F.2d
1145, 1153-154 (3d Cir. 1982). The sovereign which first arrested the offender has primary jurisdiction
over the offender, unless that sovereign relinquishes it to another sovereign by, for example, ba~ release,
dismissal of the state charges, parole release, or expiration of state sentence. United States v. Warren,
610 F.2d 680 (9th Cir. 1980); Chambers v. Holland, 920 F.Supp. at 622; United States v. Smith, 812
F.Supp. 368 (E.D.N.Y. 1993). When a prisoner is borrowed from the primary custodian via a Writ of
Habeas Corpus Ad Prosequendum, principles of comity require the return of the prisoner to the primary
custodian when the prosecution has been completed.
On July 27, 1992, the state court agreed with your motion concerning your state sentence and granted
you a new trial, they did not dismiss your state case. You remained in primary custody of the State of
Texas.
On July 30, 1992, the United States District Court, Northern District of Texas, sentenced you to a term
of 240 months and you were returned to the primary custody of state authorities.
On July 31, 1992, the State of Texas, Dallas County, sentenced you to a term of 25 years concurrent to
1
A-78
A-79
From: _P_a_t_r~i"'.""c:-::k__C_o_l_e__________
23028-077
REG. NO.
FCI Sheridan
4B
INSTITUTION
UNIT
I am appealing because the fact that the Texas state authorities released
me to the US Marshals on or about August 10, 1992 for service of my
federal sentence is being totally disregarded. On the morning of
August 10, 1992, the State of Texas had sole custody of me. However,
Texas released all custody of me to the USMS when the Dallas County Sheriff
delivered me to federal 'custody at.the federal holdover facility in
Mansfield, Tx on the afternoon of August 10, 1992 pursuant to the.ORDER
given/made by the Texas sentencing Court on July 31,1992 (see attachments
to the BP9 cited as Attachment 3c & 4c) ordering the Dallas Sheriff to deliver
me to the USMS FOR SERVICE AND COMMITMENT OF THE .FEDERAL SENTENCE IN
FEDERAL CAUSE II 3-92-CR-226-T.
It is clear that the State of Texas intended to,.
and did, in fact., release me to federal custody .on or about. August 10, 1992
when I was delivered to the USMS for service and Commitmentof my
federal sentence by the Dallas County .Sheriff pursuant.to the Texas state
sentencing Court's Order directing me to be. released to the USMS .for serv~ce
of my federal sentence. The record shows that, thereafter, on 10-16-92 I was
designated and imprisoned at FCI Bastrop, Tx. My il-rfl~fi~e began,I was in BOP cuS:o<
8-29-2011
p~
Q ....
Cd
DATE
SIGNATURE OF REQUESTER
Part B-RESPONSE
REGIONAL DIRECTOR
DATE
If dissatisfied with this response, you may appeal to the General Counsel. Your appeal must be received in the General Counsel's Office within 30 calendar
days of the date of this response.
CASE NUMBER:---------
---------------------~------------------------------------~----
Part C-RECEIPT
REG. NO.
UNIT
INSTITUTION
SUBJECT:----------------------------------------~
A-80
650502-Rl
FCI Sheridan
This is in response to your Regional Administrative Remedy
Appeal of the Warden's response dated August 19, 2011.
You are
requesting prior custody credit from the date of your erroneous
commitment to the Bureau of Prisons (BOP). You request to be
immediately released from custody.
We have thoroughly investigated your appeal. In the course of
our investigation we learned that you previously litigated the
issue of the execution of your federal sentence in Federal
District Court for the Southern District of Texas, CV H-0203056, Patrick Glenn Cole v. Director, Bureau of Prisons. As
here, your claim was that your designation to the Bureau of
Prison, was done in error and your return to state custody
violated your due process rights by denying you the ability to
serve your federal and state sentence concurrently. Prior to
your filing the litigation, you had written to the Bureau of
Prisons seeking a concurrent designation of your sentence.
In
September 2000, the Bureau contacted Judge Robert B. Maloney,
the sentencing judge to determine the court's intent. Judge
Maloney informed the Bureau it was his intent that your federal
sentence was to be served consecutively to your state sentence.
The decision to make a federal sentence concurrent is solely
within authority of the federal sentencing court. Although, the
Texas state court ordered your state term to be served
concurrently to your federal sentence, the state court has no
authority to force a federal sentence to be served ih any manner
not intended by the federal court. On March 31, 2003, the Judge
in CV H-02-03056, dismissed your case finding the Bureau's
action to return you to ~he State of Texas did not violate the
law or your due process rights.
The following facts apply to your case. On January 2~, 1992, you
were arrested by State of Texas law enforcement officials. On
May 21, 1992, you were released to the United Sta~es Marshals
via writ of habeas corpus ad prosequendum.
While on federal
writ, you remained in the primary or exclusive custody of Texas
state officials. You were sentenced in federal court on July 30,
1992, to a term of 240 months. This order was left silent, which
the Bureau of Prisons interprets as consecutive. During the
period of time you were on writ to federal court, your attorney
filed a Motion for New Trial and entered into a Plea Agreement
regarding your state sentences, which had originally been
imposed on May 22, 1992.
You were re-sentenced on the Texas
cases on July 31, 1992, to a term of 25 years, in Case F9233571, and Case F-92333548 to run concurrently with each other
and with the federal sentence imposed on May 21, 1992.
A-81
- t
The state judge ordered you into the custody of the U.S.
Marshals and you were erroneously committed to the BOP for
service of your federal sentence on August 10, 1992. However,
while in federal custody your state sentence continued to run
without interruption. This commitment mistake was discovered and
in 1993 you were returned to exclusive primary custody of the
Texas Department of Corrections (TXDOC) for completion of your
state term. All the time spent in federal custody was credited
to your state sentence. You completed your state sentence and
were released on March 9, 2009, to exclusive federal custody at
which time your federal sentence began to run.
According to law, the Bureau of Prisons cannot credit your
federal sentence with time in custody that was credited to
another sentence. Title 18 U.S.C. 3585(b), Credit for Prior
Custody, states, "Defendant shall be given credit toward the
service of a term of imprisonment for any time he has spent in
official detention prior to the date the sentence commences .
. that has not been credited against another sentence." Program
Statement 5880.28, Sentence Computation Manual-CCCA, states,
"Time spent in custody under a writ of habeas corpus from nonfederal custody will not in and of itself be considered ~or the
purpose of crediting presentence time. The primary reason for
writ custody is not the federal charge.
The federal court
merely borrows the prisoner under the provisions of the writ for
secondary custody." Because the sent~ncing judge did not intend
the federal sentence to be concurrent with the state sentence,
your computation is correct as it is computed and your release
date is correct.
Based on the above information, your request for admini9trative
remedy is denied.
If dissatisfied with this response, you may
appeal to the Office of the General Counsel, Bureau of Prisons,
320 First Street, NW, Washington, D.C., 20534. Your appeal must
be received in the General Counsel's Office within 30 days of
the date of this response.
DATE
~ Robe~~J'M~
A-82
Regional Director
U.S. iJepartment
Cole, Patrick G.
From:-----------------
23028-077
REG. NO.
4B
FCI Sheridan
UNIT
INSTITUTION
b'
IJ. - 1 J- - It
DATE
SIGNATURE OF REQUESTER
Part B-RESPONSE
NOV 2 2 2on
DATE
GENERAL COUNSEL
CASE NUMBER: - - - - - - - - -
Part C-RECEIPT
CASE NUMBER: - - - - - - - - Return t o : - - - - - - - - - - - - - - - - - LAST NA!v!E, FIRST, MIDDLE INITIAL
REG. NO.
SUBJECT:------- - - - - - - - -
UNIT
INSTITUTION
------------------------------~-----~-----------~----~--------
A-83
RP-?'.<111'.i\
. Amiumation - Attachnent A
In the response to my BP 10 (650502-Rl) there are three reasons given as to why
my time has not been running since Aug. 10, 1992 when I entered and was designated
to FCI Bas tr op:
My federal sentence began running in Aug. 1992 and has ran since due to the fact
that the federal government had sole custody and jurisdiction of me when the State
released all claim to me on Aug. 10, 1992.
That is the issue at hand.
I request immediate release from federal prison by being given time credit
to my federal sentence from Aug. 1992 to now.
Attachment A to BP 11
Patrick Cole 23028-077
A-84
A-85
custody credits from January 25, 1992 to January 26, 1992, since
it was not awarded to any other sentence and from October 16,
~992 through August 27, 1993, for time spent erroneously
designated at a BOP facility.
Your sentence has been computed
as directed by federal statute and Program Statement 5880.28,
Sentence Computation Manual (CCCA of 1984).
Accordingly, your appeal is denied.
20l2'
atts, Administrator
Inmate Appealsc~)Y
A-86