Jermel Pope v. Jeffrey Krueger
Filing
Filed opinion of the court by Judge Kanne. We DENY the Government's motion to dismiss Pope's case as moot, and VACATE and REMAND the district court's denial of Pope's habeas corpus petition. On remand, the district court shall transfer Pope's case to the sentencing court for further proceedings. IT IS FURTHER ORDERED that the BOP shall revise the date of the commencement of Pope's federal sentece to August 31, 2009, and reconsider Pope's request for retroactive designation in line with the Supreme Court's decision in Setser. Diane P. Wood, Chief Judge; Kenneth F. Ripple, Circuit Judge and Michael S. Kanne, Circuit Judge. [6922381-1] [6922381] [16-4217]
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In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 16‐4217
JERMEL POPE,
Petitioner‐Appellant,
v.
JANET PERDUE,
Respondent‐Appellee.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 14‐cv‐01393 — Sara Darrow, Judge.
____________________
ARGUED NOVEMBER 29, 2017 — DECIDED MAY 3, 2018
____________________
Before WOOD, Chief Judge, and RIPPLE and KANNE, Circuit
Judges.
KANNE, Circuit Judge. Various statutes vest the Federal Bu‐
reau of Prisons (“BOP”) with the authority to make decisions
that affect aspects of a federal inmate’s sentence. In Jermel
Pope’s case, the BOP used its authority to prolong his federal
sentence. Pope argues that the BOP erroneously wielded that
authority and asks that we reconsider the BOP decisions that
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extended his sentence. Pope has completed his term of impris‐
onment and is now serving a period of federal supervised re‐
lease, so we must also consider whether Pope’s habeas corpus
petition is now moot because he is no longer housed in a fed‐
eral corrections facility.
I. BACKGROUND
On February 8, 2008, Illinois state authorities arrested Jer‐
mel Pope and charged him with pandering in violation of Il‐
linois law. While his state case was pending, a federal grand
jury returned an indictment against him for violating the fed‐
eral equivalent of the state pandering law. Both the state and
federal charges stemmed from the same events.
Pope bounced back and forth between state and federal
facilities in order to appear in both the state and federal pro‐
ceedings. These transfers were always conducted under a writ
of habeas corpus ad prosequendum. Using this writ, a sover‐
eign may take temporary custody of a prisoner in the custody
of another sovereign, for the purpose of prosecution, without
acquiring primary custody.
On June 10, 2009, a federal court sentenced Pope to 100
months’ imprisonment on the federal offense. And a few
months later, on August 24, 2009, an Illinois court sentenced
him to five years’ imprisonment on the state charge.
Then on August 31, 2009—shortly after the imposition of
his state sentence and over two months after the imposition
of his federal sentence—Pope was moved from an Illinois fa‐
cility and housed in a federal correctional center. Two hun‐
dred and sixty‐eight days later, on May 25, 2010, Pope was
returned to a state facility. These post‐sentencing changes of
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custody were not accompanied by a writ of habeas corpus ad
prosequendum.
Having returned to a state facility on May 25, 2010, Pope
then remained at the state facility for the duration of his state
sentence. On August 6, 2010—two years and six months after
his arrest—Illinois paroled Pope. That same day Pope was
turned over to federal authorities.
Notwithstanding the fact that the BOP had previously ex‐
ercised custody over Pope from August 31, 2009, to May 25,
2010, the BOP calculated the start date of his federal sentence
as August 6, 2010. The BOP also refused to give Pope credit
for time served that had already been credited to his state sen‐
tence. Later, it also denied Pope’s request that the BOP retro‐
actively designate the Illinois prison where he served his state
sentence as his place of imprisonment for his federal sentence.
This retroactive designation would have, in effect, run Pope’s
federal sentence concurrently with his state sentence.
Pope’s challenges to the BOP’s decisions have dragged on
for years. After exhausting his administrative remedies, Pope
filed this habeas corpus petition on September 29, 2014. Five
months later, the district court ordered the Government to
show cause why Pope’s writ should not be granted. In April
2015, the Government filed its response.
It was not until July 2016—21 months after Pope filed the
petition we now review, and 14 months after the Government
filed its response—that the district court returned to Pope’s
petition. It granted the petition in part, ordering the BOP to
credit Pope 30 days. It denied all but one of Pope’s additional
claims. Because the Government had failed to respond to the
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substance of that final claim, the district court gave the Gov‐
ernment additional time to respond. Finally, on December 13,
2016—over two years after Pope filed initially—the district
court denied the remainder of his petition.
Pope appealed. This Court set a briefing schedule to be
completed on September 13, 2017, and scheduled oral argu‐
ment for November 29, 2017. On November 24, 2017, the BOP
released Pope to begin serving his term of supervised release.
Then, two days before oral argument, the Government moved
to dismiss this case as moot. We now address that motion, as
well as the merits of Pope’s 28 U.S.C. § 2241 petition, which
we review de novo, Brown v. Caraway, 719 F.3d 583, 586 (7th Cir.
2013).
II. ANALYSIS
This appeal stems from the BOP’s position that Pope
should serve his federal sentence consecutively rather than
concurrently with his state sentence. To ensure that end, the
BOP commenced Pope’s federal sentence only after he was pa‐
roled by Illinois despite the fact that Pope had already spent
months in a BOP facility. It also denied his request for a retro‐
active designation. Finally, it denied him time‐served credit
against his federal sentence for time Illinois counted towards
his state sentence.
On appeal, Pope challenges each of these decisions. The
Government contests the merits of Pope’s claims and argues
that Pope’s case is now moot because he has been released
from prison.
Our analysis proceeds in two parts. We first address moot‐
ness, concluding that Pope’s petition is live. We then turn to
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the merits. There, we conclude the BOP held Pope in prison
for too long.
A. Pope’s release from prison does not render his claim moot.
The heavy burden of demonstrating mootness lies with
the party asserting it. Friends of the Earth, Inc. v. Laidlaw Envtl.
Servs. (TOC), Inc., 528 U.S. 167, 189 (2000). When a former in‐
mate still serving a term of supervised release challenges the
length or computation of his sentence, his case is not moot so
long as he could obtain “any potential benefit” from a favor‐
able decision. United States v. Trotter, 270 F.3d 1150, 1152 (7th
Cir. 2001) (“Unless we are confident that [the former inmate]
cannot benefit from success on appeal, the case is not moot.”).1
The Government cannot meet this heavy burden because
Pope can benefit from success on appeal. It is true that a find‐
ing that Pope spent too much time in prison would not auto‐
matically entitle him to less supervised release. United States
v. Johnson, 529 U.S. 53, 59–60 (2000). Nevertheless, such a find‐
ing would carry “great weight” in a § 3583(e) motion to re‐
duce Pope’s term. Id. at 60. This is enough. See United States v.
Epps, 707 F.3d 337, 345 (D.C. Cir. 2013); Mujahid v. Daniels, 413
F.3d 991, 994–95 (9th Cir. 2005).
The Government nonetheless contends that Pope has
nothing to gain on remand because he initially received a term
of supervised release below the mandatory minimum. This
argument fails because it collapses the statutory requirements
1 The Government’s reliance on Spencer v. Kemna’s mootness standard
is misplaced. See 523 U.S. 1, 7 (1998). While Pope is no longer incarcerated,
he remains on supervised release—another form of custody. Trotter, 270
F.3d at 1152. Thus, Spencer, a case in which the plaintiff was no longer in
custody at all, does not apply.
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that govern how the court must impose a sentence with those
that control how it may modify one. When the court sen‐
tenced Pope, it was bound by statute to impose a mandatory
minimum term of supervised release. See 18 U.S.C. § 3583(a)
(“The court, in imposing a sentence to a term of imprisonment
… shall include as a part of the sentence a requirement that
the defendant be placed on a term of supervised release if
such a term is required by statute … .”). But § 3583(e) also in‐
dependently authorizes the court to “terminate a term of su‐
pervised release … if it is satisfied that such action is war‐
ranted by the conduct of the defendant released and the inter‐
est of justice.” Id. § 3583(e)(1). No language from either sub‐
section suggests that Congress intended a minimum term of
supervised release “in imposing a sentence” to constrain the
court’s ability to later terminate it. United States v. Spinelle, 41
F.3d 1056, 1060 (6th Cir. 1994); United States v. Scott, 362 F.
Supp. 2d 982, 983–84 (N.D. Ill. 2005). The court, therefore,
could terminate Pope’s term of supervised release after one
year even though Pope initially received a term of supervised
release below the statutory minimum.2
The Government also argues that Pope’s challenge is moot
because the authority to modify his term of supervised release
rests with the federal sentencing court rather than the federal
habeas court. Yet it fails to explain why mootness should turn
on the identity of the court on remand, particularly when this
court could order the habeas court to transfer further proceed‐
ings to the sentencing court. Here, we need only ask whether
Pope has something to gain on remand. He does.
2 In holding today that Pope may benefit from a favorable decision,
we reject Trotter’s dicta suggesting otherwise. See 270 F.3d at 1153.
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Though Pope has been released from prison, he remains
in custody. A finding by this court that Pope spent too long in
prison would not automatically entitle him to less supervised
release. But it would carry great weight in a § 3583(e) motion
to reduce that term. That potential benefit keeps Pope’s case
alive.
B. Pope spent more time in prison than he should have.
Pope contends that he was held beyond his prison term
through three means. First, he argues that the BOP miscalcu‐
lated the start date of his federal sentence. Second, he argues
that the BOP abused its discretion by denying his request for
a retroactive designation. And third, he argues that the BOP
should have given him credit for time served that Illinois had
already credited against his state sentence. We address each
argument in turn.
1. The BOP began to run Pope’s federal sentence several months
too late.
The BOP determined that Pope’s federal sentence com‐
menced on August 6, 2010. Pope contends that the BOP in‐
stead should have begun his sentence on August 31, 2009—
the start of a 268‐day period in which he was held in federal
custody without a writ of habeas corpus ad prosequendum.
While the BOP has authority to determine when a sentence
begins to run, its exercise of that authority is bound by the
doctrine of primary custody, see Ponzi v. Fessenden, 258 U.S.
254, 260–61 (1922), and by statute, see 18 U.S.C. § 3585(a). Ex‐
amining both, we conclude that Pope’s federal sentence com‐
menced on August 31, 2009.
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a. The United States exercised primary custody over Pope on
August 31, 2009.
Under the doctrine of primary custody, an inmate’s federal
sentence may only commence after the government exercises
primary jurisdiction over him. See Loewe v. Cross, 589 F. App’x
788, 789 (7th Cir. 2014); Elwell v. Fisher, 716 F.3d 477, 481 (8th
Cir. 2013); Binford v. United States, 436 F.3d 1252, 1256 (10th Cir.
2006). In general, the sovereign that first arrests a defendant
takes primary custody over him. See United States v. Cole, 416
F.3d 894, 897 (8th Cir. 2005); Thomas v. Brewer, 923 F.2d 1361,
1366–67 (9th Cir. 1991). The arresting sovereign retains pri‐
mary custody “until [it] relinquishes its priority in some way.”
Cole, 416 F.3d at 897.
Because the decision to relinquish primary custody rests
solely with the sovereign exercising priority, see Ponzi, 258
U.S. at 260–62, we look to the intent of that sovereign to deter‐
mine if it has relinquished primary custody through a trans‐
fer. In the absence of evidence that the transferring sovereign
intended to maintain custody, we presume that the sovereign
intended to relinquish it. This presumption promotes clarity
for inmates, jailers, and courts. Clarity here is particularly im‐
portant for prisoners whose rights may depend on the sover‐
eign under whose jurisdiction they are subject. Stephens v.
Sabol, 539 F. Supp. 2d 489, 496 (D. Mass. 2008).
In this case, Illinois authorities arrested Pope on February
8, 2008. Thus, Illinois had primary custody over him starting
that day. The BOP maintains that Illinois maintained primary
custody until Pope was paroled on August 6, 2010. This could
only be the case, however, if Illinois intended to maintain pri‐
mary custody over Pope despite transferring him to the BOP
on August 31, 2009.
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Here, the transfer itself is the only compelling evidence of
Illinois’s intent, and that evidence weighs in favor of finding
that Illinois intended to relinquish primary custody. We reject
Pope’s contention that the absence of a writ of habeas corpus
ad prosequendum indicates that Illinois intended to transfer
primary custody. By the time the August 31 transfer occurred,
the need for this writ had passed because Pope’s federal and
state proceedings had concluded. Likewise, we reject the in‐
vitation by both parties to rely on recent statements made by
IDOC officials. These statements, made nearly 7 years after
the transfer, provide little insight into Illinois’s intent at the
time.
The BOP had ample opportunity in the district court to in‐
troduce evidence that Illinois intended to maintain custody
over Pope when it transferred him to the BOP on August 31,
2009. In the absence of this evidence, we presume that Illinois
intended to relinquish custody. Accordingly, we find that on
August 31, 2009, when Illinois transferred Pope without any
indication that the state intended to maintain custody, Illinois
intentionally relinquished primary custody.
b. Pope satisfied the statutory requirements for the commence‐
ment of his sentence on August 31, 2009.
18 U.S.C. § 3585(a) provides that “[a] sentence to a term of
imprisonment commences on the date the defendant is re‐
ceived in custody awaiting transportation to … the official de‐
tention facility at which the sentence is to be served.” Because
Pope had been received in primary federal custody on August
31, 2009, at the Chicago Metropolitan Correctional Center to
await transportation to the official detention facility at which
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Pope’s federal sentence was to be served, he satisfied the stat‐
utory requirements as well.
The Government insists that Pope could not have satisfied
the statute. In its view, the statute requires the BOP to desig‐
nate the inmate to a detention facility before a sentence can
commence. This argument fails as the language of the statute
contains no such requirement. It requires that the inmate be
awaiting transport to a detention facility, not that the deten‐
tion facility already be assigned. Moreover, such an interpre‐
tation would lead to unwarranted results. Under it, an inmate
could spend a lifetime in primary federal custody without
commencing his sentence if the BOP simply refused to desig‐
nate a facility.
Illinois transferred Pope to federal authorities after his
state sentencing without any indication that it intended to
maintain primary custody. In doing so, it transferred primary
custody to federal authorities. When Pope arrived at the Chi‐
cago Metropolitan Correctional Center, he also satisfied the
statutory requirements for his federal sentence to commence.
We therefore conclude that Pope’s federal sentence com‐
menced on August 31, 2009. 3
3 This holding does not upset the BOP’s ability to run federal sentences
concurrently with state sentences through designation under 18 U.S.C.
§§ 3585(a) and 3621(b). The BOP simply may not delay the commence‐
ment of the sentence of an inmate in its primary custody by failing to des‐
ignate an official detention facility.
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2. The BOP abused its discretion by misapplying 18 U.S.C.
§ 3584(a) when it denied Pope’s request for a retroactive desig‐
nation.
As he was serving his federal sentence, Pope asked the
BOP to retroactively designate the Illinois prison where he
served his state sentence as his place of imprisonment for his
federal sentence. See 18 U.S.C. § 3621. The BOP denied Pope’s
request. Pope contends that the BOP abused its discretion
when it denied his request because it considered—and drew
unwarranted inferences from—silence by the district court on
whether his federal sentence should run consecutively or con‐
currently with his state sentence.
The BOP may weigh five factors when it considers a re‐
quest for retroactive designation. In Pope’s case, the BOP con‐
sidered three factors, including “any statement by the court
that imposed the sentence … concerning the purposes for
which the sentence to imprisonment was determined to be
warranted [or] recommending a type of penal or correctional
facility as appropriate.” See 18 U.S.C. § 3621(b)(4). In consid‐
ering this factor the BOP stated that, under 18 U.S.C. § 3584(a),
“terms of imprisonment imposed at different times run con‐
secutively unless the court orders that the terms are to run
concurrently.” (R. 1 at 17.) It further noted that the federal
court did “not assert[] a position pertaining to retroactive
(concurrent) designation.” (Id.) The BOP therefore presumed
from the court’s silence that Pope’s sentence should run con‐
secutively.
The Supreme Court has explicitly prohibited the BOP
from drawing this inference for defendants who—like Pope—
had not yet received their state sentence when their federal
sentence was imposed. Setser v. United States, 566 U.S. 231, 239
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(2012).4 Thus, on this basis the BOP abused its discretion when
it considered Pope’s request for retroactive designation.
Mangum v. Hallembaek, 824 F.3d 98, 101–103 (4th Cir. 2016).
3. The BOP lawfully refused to credit time Pope served in cus‐
tody before his state sentence commenced.
Finally, Pope argues that the BOP violated federal law by
not crediting the time he spent in custody before his state sen‐
tence commenced. This argument fails.
The BOP “has the authority to determine when to give a
defendant credit against a sentence for time he has served.”
United States v. Jones, 34 F.3d 495, 499 (7th Cir. 1994). The BOP
must give credit “toward the service of a term of imprison‐
ment for any time he has spent in official detention prior to
the date the sentence commences … that has not been credited
against another sentence.” 18 U.S.C. § 3585(b) (emphasis
added). In Pope’s case, the BOP determined that Illinois had
already credited Pope for the time he served before his state
sentence. It therefore did not credit that time against Pope’s
federal sentence.
The state court’s original judgment credited Pope 534 days
against his state sentence. Pope, however, places heavy em‐
phasis on the fact that the state court amended its judgment
to remove any reference to time served. He insists that this
shows irrefutably that Illinois did not credit that time. We are
not persuaded. Like the district court, we are “skeptical that
4 During oral argument, the Government claimed for the first time that the
BOP denied Pope’s retroactive designation request before Setser. The rec‐
ord is unclear on the exact timing of the BOP’s decision. Regardless, argu‐
ments raised for the first time at oral argument are waived. See, e.g., Qual‐
ity Oil, Inc. v. Kelley Partners, Inc., 657 F.3d 609, 614 (7th Cir. 2011).
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an Illinois court could retroactively declare, in purely tech‐
nical fashion, that it had refused to credit time against a pris‐
oner’s sentence.” (R. 16 at 8.)
A less myopic view of the facts demonstrates that the
BOP’s decision was well within its discretion. Indeed, the Illi‐
nois court sentenced Pope to five years’ imprisonment. Be‐
cause Illinois gives day‐for‐day credit, he would expect to
serve two years and six months of that sentence. Illinois pa‐
roled Pope two years and six months after his arrest. This, of
course, implies that Illinois credited Pope for that time. The
state court’s original judgment suggested the same. And
when the BOP contacted the IDOC about this question, it con‐
firmed that Illinois had credited Pope for this time. Because
the state court’s amended judgment ignored that Pope had in
fact received credit for time served, the BOP did not abuse its
discretion when it assigned it little weight.
III. CONCLUSION
Because overincarceration carries great weight in a motion
to modify supervised release under 18 U.S.C. § 3538(e), Jermel
Pope’s case remains live. It has merit as well. The BOP miscal‐
culated the date Pope’s sentence commenced. But for this er‐
ror, it would have released Pope from prison months before it
eventually did. The BOP also abused its discretion when it de‐
nied Pope’s request for retroactive designation. Its decision to
deny Pope time‐served credit, however, was within its discre‐
tion.
Accordingly, we DENY the Government’s motion to dis‐
miss Pope’s case as moot, and VACATE and REMAND the
district court’s denial of Pope’s habeas corpus petition. On re‐
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mand, the district court shall transfer Pope’s case to the sen‐
tencing court for further proceedings. IT IS FURTHER
ORDERED that the BOP shall revise the date of the com‐
mencement of Pope’s federal sentence to August 31, 2009, and
reconsider Pope’s request for retroactive designation in line
with the Supreme Court’s decision in Setser.
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