Isaac Hunter v. Rebecca Tamez

Filing

PUBLISHED OPINION FILED. [09-11026 Affirmed] Judge: EHJ , Judge: TMR , Judge: CH. Mandate pull date is 11/29/2010 [09-11026]

Isaac Hunter v. Rebecca Tamez

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
October 4, 2010 N o . 09-11026 Lyle W. Cayce Clerk

I S A A C LEIGH HUNTER, P e t it io n e r - Appellant v. R E B E C C A TAMEZ, Warden, Federal Correctional Institution - Fort Worth, R e s p o n d e n t - Appellee

A p p e a l from the United States District Court for the Northern District of Texas

B e fo r e JONES, Chief Judge, and REAVLEY and HAYNES, Circuit Judges. H A Y N E S , Circuit Judge: A p p e lla n t Isaac Leigh Hunter, federal prisoner # 35789-180, appeals from t h e district court's denial of his application for a writ of habeas corpus pursuant t o 28 U.S.C. § 2241. Hunter filed his § 2241 application in an effort to challenge t h e decision of the Federal Bureau of Prisons ("BOP") to deny him credit, t h r o u g h a nunc pro tunc order, against his federal sentence for time served in T e x a s state custody on unrelated state convictions. Specifically, Hunter argues t h a t the BOP's denial of credit violates the United States Constitution in that t h e decision (1) violates principles of federalism by failing to give effect to the in s t r u c t io n of the state sentencing judge that Hunter serve his state sentence c o n c u r r e n t ly with his federal sentence, and (2) runs contrary to the separation

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No. 09-11026 o f powers doctrine by allowing the executive branch of the federal government, r a t h e r than the judicial branch, to determine the length of his sentence. W h ile we acknowledge the concerns expressed by other circuits regarding t h e BOP's policies for determining whether to credit time served for a state s e n te n c e against a subsequent federal sentence, we conclude that none of those c o n c e r n s are present here. The district court correctly denied Hunter's

a p p lic a t io n , and its judgment is therefore AFFIRMED. I . Facts & Procedural History H u n t e r was arrested by officers of the City of Hillsboro, Texas, Police D e p a r t m e n t on March 13, 2003 and charged with retaliation. After being

r e le a s e d on bond on this charge, Hunter was again arrested on July 13, 2003, by H ills b o r o police and charged with aggravated assault with a deadly weapon; he w a s retained in state custody at that point. Acting pursuant to a search warrant issued in connection with the a g g ra v a te d assault charge, law enforcement officers searched Hunter's home and d is c o v e r e d 19.51 grams of crack cocaine. On August 12, 2003, Hunter was in d ic t e d in the United States District Court for the Western District of Texas on a charge of possession with intent to distribute more than five grams of crack c o c a in e . State authorities transferred Hunter to temporary federal custody p u r s u a n t to a writ of habeas corpus ad prosequendum on August 26, 2003. Hunter pleaded guilty to the single federal charge and was sentenced to eightys e v e n months imprisonment on that charge on February 11, 2004. The district ju d g e was silent as to whether the federal sentence was to run concurrently with o r consecutively to any future state sentence. After sentencing, Hunter was t r a n s fe r r e d back to state custody. H u n t e r pleaded no contest in state court to the retaliation and assault c h a r g e s . On June 28, 2004, pursuant to a plea agreement, the state judge s e n te n c e d Hunter to four years imprisonment on each count, to run concurrent 2

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No. 09-11026 w it h each other and with Hunter's federal sentence. The state court also

c r e d it e d Hunter with 466 days against his retaliation sentence and 338 days a g a in s t his assault sentence for time spent in custody, including in federal c u s t o d y , prior to sentencing. Hunter was transferred to the Texas Department o f Criminal Justice, Institutional Division, and began serving his state sentence. O n August 18, 2006, while Hunter was in state prison, a United States P r o b a t io n Officer advised Hunter in writing that his service in state custody s h o u ld be credited against his federal sentence pursuant to the terms of his state s e n te n c e .1 O n July 26, 2007, Hunter completed his state term of imprisonment and w a s delivered into the custody of the BOP. At that time, the BOP credited none o f Hunter's state sentence against his federal sentence. Hunter filed an

a p p lic a t io n for writ of habeas corpus in the United States District Court for the N o r t h e r n District of Texas seeking credit against his federal sentence for the t im e he spent in state custody. In response, the BOP initiated administrative p r o c e e d in g s to determine whether to designate nunc pro tunc the state prison a s the place of service of Hunter's federal sentence pursuant to the procedure d e v is e d by the Third Circuit in Barden v. Keohane, 921 F.2d 476 (3d Cir. 1990).2 H u n te r consequently withdrew that habeas corpus application, and the district c o u r t dismissed it without prejudice. As part of the Barden procedure, the BOP c o n t a c t e d the federal district judge who imposed Hunter's federal sentence to

The sequence of events as pled by Hunter belies any suggestion that Hunter relied in any respect on the probation officer's letter in entering his state plea. As we recently explained in Pierce v. Holder, "[w]here a federal sentence was imposed before a state sentence, the BOP may indirectly award credit for time served in state prison by designating nunc pro tunc the state prison as the place in which the prisoner serves a portion of his federal sentence." No. 08-50435, 2010 WL 3093307, at *1 (5th Cir. Aug. 9, 2010) (citing Barden, 921 F.2d at 480 and Rodriguez v. Pitzer, 76 F. App'x 519, 520 (5th Cir. 2003) (unpublished)); see also BOP Program Statement 5160.05, ¶ 9(b)(4) (explaining nunc pro tunc procedure).
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No. 09-11026 a s c e r t a in whether that judge intended the federal sentence to run consecutively t o or concurrently with the state sentence. The district judge notified the BOP t h a t he had no opinion on the question. After reviewing the statutory factors, t h e BOP ultimately denied Hunter nunc pro tunc designation and rejected his a d m in is t r a t iv e appeal of that decision. O n June 15, 2009, Hunter filed a second application for a writ of habeas c o r p u s -- t h e subject of this appeal--in the United States District Court for the N o r t h e r n District of Texas, where he is confined. The district court correctly c o n s t r u e d this filing as a § 2241 habeas corpus application. See United States v . Gabor, 905 F.2d 76, 77­78 (5th Cir. 1990). After the federal warden's response a n d Hunter's traverse were filed, the district court evaluated and denied the a p p lic a tio n . The district court entered final judgment and purported, sua

s p o n t e , to deny a certificate of appealability ("COA"). However, as Hunter p o in te d out in filings made in this court, "[a] COA is not required to appeal the a denial of a § 2241 petition." Pack v. Yusuff, 218 F.3d 448, 451 n.3 (5th Cir. 2 0 0 0 ). The district court consequently vacated its order denying a COA. We h a v e jurisdiction over Hunter's timely appeal pursuant to 28 U.S.C. § 1291. I I . Standard of Review W e review de novo the district court's denial of a § 2241 habeas corpus a p p lic a t io n on the pleadings. Pack, 218 F.3d at 451. We may affirm the district c o u r t's denial of relief on any ground supported by the record. See Scott v. J o h n s o n , 227 F.3d 260, 262 (5th Cir. 2000); see also Davis v. Quintana, 334 F. A p p 'x 633, 634 (5th Cir. 2009) (unpublished) (applying general rule of Scott to § 2241 context); Edge v. Stalder, 83 F. App'x 648, 648 (5th Cir. 2003) (u n p u b lis h e d ) (same). I I I . Discussion H u n t e r 's pro se § 2241 application and briefing before this court make w h a t can be characterized as two distinct arguments regarding his entitlement 4

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No. 09-11026 t o a credit, through the Barden nunc pro tunc procedure, against his federal s e n te n c e for time served in state prison. First, Hunter argues that the BOP's r e fu s a l to give effect to the state sentencing court's express intention that his s t a t e sentence run concurrently with his federal sentence violates, at least in the a b s e n c e of a contrary order from the federal sentencing court, constitutional p r in c ip le s of federalism. Second, Hunter argues that the fact that the BOP, an e x e c u t iv e branch agency of the Department of Justice, holds the effective power t o determine whether his state and federal sentences should run concurrently v io la t e s the constitutional principle of the separation of powers between the ju d ic ia l and executive branches. After a thorough analysis, we conclude that the c ir c u m s t a n c e s of this case, analyzed under the Constitution and relevant p r e c e d e n t s , do not support reversal. A. F ed e r a lis m H u n t e r argues that the principles of federalism and comity between the s t a t e and federal government as dual sovereigns require the BOP to give effect t o the state sentencing court's direction that his term of imprisonment on his sta t e conviction run concurrently with his already-imposed term of

im p r is o n m e n t on his federal conviction. This argument is foreclosed by our c ir c u i t 's precedent. In Leal v. Tombone, we rejected essentially the same

a r g u m e n t , citing and quoting decisions of the Second, Seventh, Ninth, and Tenth C ir c u it s that addressed in substantial detail the questions of federalism posed b y exactly this scenario. 341 F.3d 427, 428­30 & nn. 13 & 19 (5th Cir. 2003) (per c u r ia m ) (citing and quoting Taylor v. Sawyer, 284 F.3d 1143 (9th Cir. 2002); J a k e v. Herschberger, 173 F.3d 1059, 1066 (7th Cir. 1999); Del Guzzi v. United S ta te s , 980 F.2d 1269, 1270 (9th Cir. 1992); Bloomgren v. Belaksi, 948 F.2d 688, 6 9 0 ­ 9 1 (10th Cir. 1991); Pinaud v. James, 851 F.2d 27, 30 (2d Cir. 1988)). We q u o t e d with particular approval the Tenth Circuit's decision in Bloomgren, w h ic h held in no uncertain terms that "`the determination by federal authorities 5

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No. 09-11026 t h a t [the defendant's] federal sentence would run consecutively to his state s e n te n c e is a federal matter which cannot be overridden by a state court p r o v is io n for concurrent sentencing on a subsequently-obtained state

c o n v ic t io n .'" Leal, 341 F.3d at 429 (quoting 948 F.2d at 691). The Eighth Circuit h a s , since Leal, joined those circuits, see Fegans v. United States, 506 F.3d 1101, 1 1 0 4 (8th Cir. 2007) ("It is well-settled that the state court's intent is not b in d in g . . . ."). The Ninth Circuit has, moreover, recently reaffirmed its decision in Taylor. See Reynolds v. Thomas, 603 F.3d 1144, 1148­49 (9th Cir. 2010). Hunter cites no contrary circuit authority. We must, therefore, reject this a rg u m en t. B. S e p a r a tio n of Powers H u n t e r next contends that it violates the doctrine of separation of powers fo r the BOP, the Attorney General's designee and an executive-branch agency o f the Department of Justice, to hold, through its nunc pro tunc authority, the p o w e r to determine whether his state and federal sentences should run c o n c u r r e n t ly . Hunter argues that the authority to determine a federal prisoner's s e n te n c e rests exclusively with the judicial branch and that it is improper for an a r m of the branch of government that prosecuted him to be charged with d e t e r m in in g part of his sentence. Hunter relies on decisions from the Second a n d Eighth Circuits expressing concerns about the propriety of this mechanism, a n d the district court here agreed that such concerns exist. See Abdul-Malik v. H a w k - S a w y e r , 403 F.3d 72, 76 (2d Cir. 2005); Fegans, 506 F.3d at 1104.3 But H u n te r ignores the fact that, pursuant to the sentencing statutes and our c ir c u it 's precedent, his request to the BOP for a nunc pro tunc designation is t a n t a m o u n t to a request for post-sentencing leniency, which is, in the scheme of A m e r ic a n government, the proper domain of the executive branch, not the
One judge in the Ninth Circuit recently expressed similar reservations. See Reynolds, 603 F.3d at 1160 (Fletcher, J., concurring).
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No. 09-11026 ju d ic ia l branch. There is, therefore, no separation of powers problem presented b y the facts of this case. T h is conclusion flows from two premises. First, Hunter was effectively s e n te n c e d to a consecutive sentence. As we explained in Free v. Miles,

" [w ]e ll-s e t tle d federal law presumes that when multiple terms of imprisonment a r e imposed at different times, they will run consecutively unless the district c o u r t specifically orders that they run concurrently. . . . The district court must s p e c ify in its sentencing order that sentences run concurrently; otherwise, they r u n consecutively." 333 F.3d 550, 553 (5th Cir. 2003) (citing 18 U.S.C.

§ 3584(a)). As in Free, the district court here offered no opinion as to whether H u n te r 's sentences should run consecutively or concurrently, and, "[a]ccordingly, [h is ] state and federal sentences ran consecutively, because the district court did n o t specify otherwise." Id.4 Second, inasmuch as Hunter was properly sentenced t o a consecutive term of eighty-seven months of federal imprisonment, his r e q u e s t to the BOP for a nunc pro tunc designation that would effectively reduce h is term of imprisonment can properly be regarded as a request for clemency. The Constitution unquestionably vests the discretionary power to commute a s e n te n c e in the executive branch. See U.S. CONST. art. II, § 2, cl. 1; see, e.g.,

S c h ic k v. Reed, 419 U.S. 256, 266-68 (1974). As the Court explained in Schick, [a] fair reading of the history of the English pardoning power, from w h ic h our Art. II, § 2, cl. 1, derives, of the language of that clause it s e lf, and of the unbroken practice since 1790 compels the c o n c lu s io n that the power flows from the Constitution alone, not fr o m any legislative enactments, and that it cannot be modified, a b r id g e d , or diminished by the Congress. Additionally,

We also note that, under this circuit's precedent, the district court is permitted to order a federal sentence to run consecutively or concurrently to an anticipated subsequent state sentence at the time of the federal sentencing. See United States v. Brown, 920 F.2d 1212, 1217 (5th Cir. 1991) (per curiam). Courts in certain other circuits are barred from doing so by their precedent, which may contribute to the concerns those circuits have expressed. See Reynolds, 603 F.3d at 1158­59 (Fletcher, J., concurring).

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No. 09-11026 c o n s id e r a t io n s of public policy and humanitarian impulses support a n interpretation of that power so as to permit the attachment of a n y condition which does not otherwise offend the Constitution. The plain purpose of the broad power conferred by § 2, cl. 1, was to a llo w plenary authority in the President to "forgive" the convicted p e r s o n in part or entirely, to reduce a penalty in terms of a specified n u m b e r of years, or to alter it with conditions which are in t h e m s e lv e s constitutionally unobjectionable. 4 1 9 U.S. at 266; see also, e.g., Daniel T. Kobil, The Quality of Mercy Strained: W r e s tin g the Pardoning Power from the King, 69 TEX. L. REV. 569, 575­604 (1 9 9 1 ) (tracing the development of the federal clemency power in the executive b r a n c h from its historical origins). Taking these two principles together, we find n o separation of powers problem on the facts of this case: Hunter was sentenced, a lb e it implicitly, to a consecutive federal sentence and then asked the BOP to e ffe c t iv e ly reduce his sentence below that actually imposed by the judicial b r a n c h . The BOP declined. Contrary to Hunter's arguments, it was, in the c o n s t it u t io n a l scheme of the United States Constitution, entirely proper for an e x e c u t iv e branch agency to be charged with the discretionary authority to handle H u n te r 's request for clemency in the administration of his sentence.5 C. V o lu n ta r in e s s of State Plea H u n t e r finally suggests in passing that the BOP's failure to credit the time t h a t he served as a state prisoner against his federal sentence seriously u n d e r m in e s the voluntariness of his guilty plea in state court. He argues that a ll parties to the state proceeding, including the state sentencing judge, u n d e r s t o o d that his state sentence would run concurrently with his federal s e n te n c e , and that Hunter's guilty plea was predicated on this understanding.

The BOP's decision to deny a request for nunc pro tunc designation in the face of a federal sentence ordered to run concurrently with a state sentence would, of course, present a very different situation. Cf. Schick, 419 U.S. at 267 ("Of course, the President may not aggravate punishment . . . ."). But that is simply not the case before us.

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No. 09-11026 W h ile possibly true, the voluntariness of Hunter's state plea is, as he a p p e a r s to acknowledge, not a proper subject of this § 2241 proceeding because H u n te r is no longer "in custody" on his state conviction as that section requires. See Maleng v. Cook, 490 U.S. 488, 491­92 (1989); 28 U.S.C. § 2241(c). Whatever m a y be the proper remedy--if any exists--to the asserted defects in Hunter's s t a t e plea, this § 2241 habeas corpus application is not that. IV. Conclusion F o r the reasons stated above, the district court's judgment denying the a p p e lla n t 's application for writ of habeas corpus is AFFIRMED.

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