Friedman v. Walton

Filing 21

MEMORANDUM AND OPINION: The petition for habeas relief under 28 U.S.C. § 2241 (Doc. 1) is DENIED. This cause of action is DISMISSED with prejudice. The Clerk of Court is DIRECTED to enter judgment accordingly. Signed by Magistrate Judge Clifford J. Proud on 2/20/14. (klh2)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

CHARLES FRIEDMAN,
Petitioner,
vs.
J.S. WALTON,
Respondent.

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CIVIL NO. 13-364-CJP1

MEMORANDUM AND ORDER
PROUD, Magistrate Judge:
Petitioner Charles Friedman, an inmate in the Federal Bureau of Prisons
(“BOP”) incarcerated at USP-Marion, filed a Petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2241 challenging the execution of his federal sentence.
For the reasons set forth below, the Petition is denied.
BACKGROUND
Charles Friedman is a life-long criminal with a particular penchant for
robbing banks. See United States v. Friedman, 554 F.3d 1301, 1302 n.1 (10th
Cir. 2009). He robbed a bank in Arizona in May 1986, and the next month, he
robbed another bank in Utah. Id. at 1302. He was convicted of both robberies
and sentenced to an aggregate term of imprisonment of 23 years. Id. at 1303.
For the sake of clarity, the Court will refer to these robberies as the “1986 sentence”
1

This case was assigned to the undersigned for final disposition upon consent of the parties
pursuant to 28 U.S.C. §636(c) (Doc.19).
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or “1986 case.”
Friedman was released from prison to parole in June 1998. Id. Within a
short time, Friedman was back to robbing banks. He was indicted in March 1999
in the District of Utah on three counts of bank robbery (“1999 sentence” or “1999
case”). Id. He pleaded guilty to one count of the indictment in exchange for the
dismissal of the other two counts.
imprisonment.
2009).

Id.

He was sentenced to 57 months’

United States v. Friedman, 554 F.3d 1301, 1303 (10th Cir.

Pursuant a plea agreement between Friedman and U.S. Attorney, the

sentencing judge ordered Friedman’s 1999 sentence to run concurrently with the
undischarged term of revocation in the 1986 case to be imposed by the United
States Parole Commission. Id.
Friedman was released from prison in June 2005 and placed on supervised
release. Id. Five months later, Friedman robbed yet another bank. Id. He was
indicted in December 2005 in the District of Utah (“2005 sentence” or “2005 case”).
Id. Friedman again pled guilty to the indictment, and he was sentenced on March
1, 2007 to 57 months’ imprisonment. (Doc. 12-2). That same day, Friedman was
also sentenced to 24 months’ imprisonment for violating the terms of his
supervised release in the 1999 case. (Doc. 12-1). The sentencing judge ordered
Friedman to serve the two sentences consecutively (Doc. 12-2; Doc. 12-1).
The Government appealed the 2005 sentence arguing that it was
substantively unreasonable for the district court to sentence Friedman to 57
months’ imprisonment when the guideline sentencing range was 151–188 months.
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United States v. Friedman, 554 F.3d 1301 (10th Cir. 2009).

The Court of

Appeals for the Tenth Circuit agreed, and remanded the case back to the district
court to re-sentence Friedman. Id. In July 2011, Friedman was re-sentenced to
151 months’ imprisonment (Doc. 12-3).

Friedman’s amended sentence was

affirmed on appeal (Doc. 12-4).
In computing Friedman’s sentence, the BOP determined that Friedman’s
amended sentence of 151-months in the 2005 case was to run consecutive to his
sentence of 24-months for violating his supervised release in the 1999 case (See
Doc. 1-2, pp. 3–4). Accordingly, the BOP computed that Friedman must serve an
aggregate sentence of 175 months, which commenced on March 1, 2007 (Doc. 1-2,
p. 4).
After exhausting his administrative remedies, Friedman filed a petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2241 challenging the BOP’s decision
to run his sentences consecutively (Doc. 4).
DISCUSSION
A federal prisoner’s claim that the BOP has erred in calculating his federal
sentence is cognizable under 28 U.S.C. § 2241 because the prisoner is ultimately
challenging the execution of his sentence. Romandine v. United States, 206 F.3d
731, 736 (7th Cir. 2000). The district court can grant habeas relief only upon a
showing by the prisoner that the execution of his sentence violates federal law or the
Constitution. 28 U.S.C. § 2241.

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Friedman claims that the BOP is bound by the plea agreement between him
and the United States Attorney in the 1999 case (Doc. 1-1). In that plea agreement,
the government agreed to recommend that “any sentence imposed on the instant
offense be served concurrently with any and all undischarged terms of
imprisonment, including the remainder of the undischarged term of imprisonment
due to the 1986 bank robberies.” (Doc. 1-2). According to Friedman, the plea
agreement is still in play because the 24-month sentence he received for violating
his supervised release is part and parcel of “any sentence” imposed in the 1999 case
(Doc. 1-1). He further claims that the 151-month sentence he received in the 2005
case qualifies as an “undischarged term of imprisonment,” and thus the
government must recommend that it run concurrently with the 24-month sentence
(Doc. 1-1).
The Court is skeptical that the BOP is bound by any plea agreement between
Friedman and the U.S. Attorney. And the Court seriously doubts that the language
of the plea agreement—“any and all undischarged terms of imprisonment”—
contemplated future sentences for crimes which Friedman had not yet committed.
However, the Court need not resolve these issues because even assuming that
Friedman is correct, he is still not entitled to habeas relief.
The plea agreement did not ensure that Friedman’s sentences would run
concurrently.

Instead, the plea agreement ensured only that the government

would recommend that Friedman’s sentences run concurrently, and Friedman
acknowledged that the Court was not obligated to follow the recommendation of the
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government concerning sentencing matters (Doc. 1-2, pp. 14–15). The terms of
the plea agreement reflect the fact that neither the U.S. Attorney nor the BOP have
the authority to determine whether sentences should run concurrently or
consecutively. That decision is a judicial function committed by Congress to the
discretion of the courts.

See 18 U.S.C. § 3584.

As the Supreme Court

explained, “Judges have long been understood to have discretion to select whether
the sentences they impose will run concurrently or consecutively with respect to
other sentences that they impose, or that have been imposed in other proceedings .
. . .”

Setser v. United States, 132 S.Ct. 1463, 1468 (2012).

“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.” Id. at 1470.
Here, the initial judgment in the 2005 case specified that Friedman’s
57-month sentence for bank robbery was to run consecutive to the 24-month
sentence for violating his supervised release in the 1999 case (Doc. 12-2).
Similarly, the judgment in the 1999 case also said that the sentences were to run
consecutively (Doc. 12-1). The amended judgment in the 2005 case was silent on
the issue (Doc. 12-3), and therefore the law presumes that Friedman’s sentences
are to run consecutively. 18 U.S.C. § 3584(a). Accordingly, the BOP reads the
judgments to mean what they say—Friedman must serve his sentences
consecutively.
To the extent that Friedman contends that the judgment is inconsistent with
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the judge’s intent, that is an argument that the judgment is defective. A judgment
open to collateral attack must be revised by the sentencing court under § 2255.
Unless and until the District of Utah revises the judgments, the BOP is entitled to
implement it according to its terms, as consecutive to other sentences.
CONCLUSION
Charles Friedman’s petition for habeas relief under 28 U.S.C. § 2241 (Doc. 1)
is DENIED. This cause of action is DISMISSED with prejudice. The Clerk of
Court is DIRECTED to enter judgment accordingly.

IT IS SO ORDERED.
DATED: February 20, 2014
s/ Clifford J. Proud
CLIFFORD J. PROUD
United States Magistrate Judge

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