Kirk Koskella v. M. Travis Bragg

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UNPUBLISHED OPINION FILED. [09-51065 Affirmed ] Judge: PEH , Judge: JES , Judge: CH Mandate pull date is 10/13/2010; denying motion for bail pending appeal filed by Appellant Mr. Kirk Irving Koskella [6515593-2] [09-51065]

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Kirk Koskella v. M. Travis Bragg Doc. 0 Case: 09-51065 Document: 00511241611 Page: 1 Date Filed: 09/22/2010 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED N o . 09-51065 S u m m a r y Calendar September 22, 2010 Lyle W. Cayce Clerk K I R K IRVING KOSKELLA, P e titio n e r-A p p e lla n t v. M . TRAVIS BRAGG, Warden, R e s p o n d e n t -A p p e lle e A p p e a l from the United States District Court fo r the Western District of Texas U S D C No. 3:08-CV-478 B e fo r e HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges. P E R CURIAM:* K ir k Irving Koskella, federal prisoner # 08480-081, pleaded guilty p u r s u a n t to a written plea agreement to conspiring to defraud the Internal R e v e n u e Service, in violation of 18 U.S.C. 371, and wire fraud, in violation of 1 8 U.S.C. 1343. The United States District Court for the District of Utah s e n te n c e d him to a total of 120 months of imprisonment. He appeals the district c o u r t's dismissal of his 28 U.S.C. 2241 petition for writ of habeas corpus. Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. * Dockets.Justia.com Case: 09-51065 Document: 00511241611 Page: 2 No. 09-51065 Date Filed: 09/22/2010 K o s k e lla has not briefed any challenge to the dismissal of his claims that t h e Bureau of Prisons (BOP) refused to provide him a statement of account, fa ile d to apply his payments toward the restitution obligation, and violated p r o v is io n s of the Fair Debt Collection Practices Act. Accordingly, he has a b a n d o n e d those issues. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1 9 9 3 ). K o s k e lla claims that he is entitled to release from custody as a result of t h e district court's failure to hold a proper hearing regarding the restitution a m o u n t , his nonappearance at the resentencing hearing, the absence of a d e t e r m in a t io n of the loss amount, and the length of the sentence imposed for C o u n t One. Such claims relate to errors that allegedly occurred at or prior to s e n te n c in g (or, here, resentencing) and thus are not properly raised in a 2241 p e t it io n . Reyes-Requena v. United States, 243 F.3d 893, 900 (5th Cir. 2001). Similarly, to the extent he challenges the sentencing court's imposition of r e s t it u t io n , his claim is directed at an aspect of his sentence and not the e x e c u t io n of his sentence. See Cox v. Warden, Federal Detention Center, 911 F.2d 1 1 1 1 , 1114 n.5 (5th Cir. 1990). Because Koskella does not contend that he was c o n v ic t e d of an offense that is nonexistent or that his claim was foreclosed by c ir c u it law, Koskella does not meet the essential criteria for supporting a claim u n d e r the savings clause of 28 U.S.C. 2255. See Reyes-Requena, 243 F.3d at 904. T h u s , to the extent that Koskella's claims challenging the restitution and lo s s amounts, the resentencing hearing, and the length of his sentence are c o n s t r u e d as having been filed pursuant to 2241, that portion of his 2241 p e t it io n was an unauthorized action which the district court was without ju r is d i c t io n to entertain. See United States v. Early, 27 F.3d 140, 141-42 (5th C ir . 1994). Koskella therefore has appealed, in part, "from the denial of a m e a n in g le s s , unauthorized" action. Id. at 142. Accordingly, we affirm the d is m is s a l of these 2241 claims on an alternative basis. 2 See id.; see also Case: 09-51065 Document: 00511241611 Page: 3 No. 09-51065 Date Filed: 09/22/2010 B r e w s te r v. Dretke, 587 F.3d 764, 769 n. 3 (5th Cir. 2009) (noting this court's p r a c t ic e of affirming the district court on alternative grounds when those g r o u n d s are supported by the record), cert. denied, 130 S. Ct. 3368 (2010). K o s k e lla also seeks immediate release from custody as a result of the B O P 's alleged breach of the plea agreement, specifically, its provision that the G o v e r n m e n t would not oppose Koskella's "request to choose the correctional fa c ilit y where he will be incarcerated." Even if it is assumed that Koskella's c la im of a breach by the BOP was properly presented under 2241, Koskella has n o t established that he is entitled to relief. First, the Due Process Clause does n o t, by itself, endow a prisoner with a protected liberty interest in the location o f his confinement. Meachum v. Fano, 427 U.S. 215, 225 (1976). A prisoner has n o constitutional right to be housed in a particular facility. See Tighe v. Wall, 1 0 0 F.3d 41, 42 (5th Cir. 1996). Second, as the district court correctly d e t e r m in e d , the BOP did not breach the plea agreement executed between K o s k e lla and the United States Attorney for the District of Utah. Koskella's p r e s e n t assertion that the plea agreement requires the BOP to assent to his w is h e s and designate a place or type of imprisonment consistent therewith is c o n t r a r y to his understanding, expressed in open court and under oath, that the p le a agreement did not amount to a binding promise on the BOP. By exercising it s authority pursuant to 18 U.S.C. 3621(b), the BOP did not breach the plea a g r e e m e n t. Third, Koskella's claim that the BOP violated 3621(b) in denying h is placement request because of his "significant financial resources" misreads t h a t statute. See 3621(b) ("In designating the place of imprisonment or making t r a n s fe r s under this subsection, there shall be no favoritism given to prisoners o f high social or economic status."). Koskella has not established that he is e n tit le d to any of the relief requested in the district court. K o s k e lla additionally contends that through several unwarranted t r a n s fe r s and the theft and destruction of his papers, BOP staff retaliated a g a in s t him and prevented him from seeking judicial redress. Because these 3 Case: 09-51065 Document: 00511241611 Page: 4 No. 09-51065 Date Filed: 09/22/2010 is s u e s are raised for the first time on appeal, we will not consider them. See L e v e r e tte v. Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir. 1999). W e caution Koskella that any future frivolous, repetitive, or otherwise a b u s iv e filings may result in the imposition of sanctions, including dismissal, m o n e ta r y sanctions, and restrictions on his ability to file pleadings in this court o r any court subject to this court's jurisdiction. The judgment of the district c o u r t is AFFIRMED. Koskella's motion for bail pending appeal and all other o u ts t a n d in g motions are DENIED, and a SANCTION WARNING IS ISSUED. 4

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