Buitron v. Holder et al

Filing 3

ORDER REFERRING CASE to Magistrate Judge Philip M. Frazier. IT IS HEREBY ORDERED that respondents shall answer the petition or otherwise plead within thirty days of the date this order is entered. Signed by Chief Judge David R. Herndon on 10/30/2013. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
GABRIEL BUITRON,
No. 96705-080,
Petitioner,
vs.

CIVIL NO. 13-CV-00974-DRH

ERIC HOLDER, and
JAMES CROSS,
Respondents.
MEMORANDUM AND ORDER
HERNDON, Chief Judge:
In 1997, petitioner Gabriel Buitron was convicted in Mexico of aggravated
homicide; he was sentenced to imprisonment for 27 years, six months (330
months). Petitioner was transferred to the custody of the United States Bureau of
Prisons to serve the remaining 312 months of his sentence, pursuant to the Treaty
Between the United States of America and the United Mexican States on the
Execution of Penal Sentences, Nov. 25, 1976, 28 U.S.T. 7399 (hereafter “the
Treaty”), and its implementing legislation, the Transfer of Offenders to or from
Foreign Countries Act, Pub.L.No. 95-144, 91 Stat. 1212 (codified at 10 U.S.C. §
955; 18 U.S.C. §§ 3244, 4100-4115). Buitron is currently incarcerated in the
Federal Correctional Institution at Greenville, Illinois. He is now before the Court
pursuant to 28 U.S.C. § 2241 contesting the Bureau of Prison’s implementation of
his term of supervised release vis-à-vis his good conduct credits.

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More specifically, petitioner takes issue with the inclusion of a 60-month
term of supervised release, which he contends effectively extends his sentence
from 312 months to 372 months, thereby violating 18 U.S.C. § 4106A(b)(1)(C),
which dictates, “[t]he combined periods of imprisonment and supervised release
that result from such determination shall not exceed the term of imprisonment
imposed by the foreign court on that offender.” Underlying this argument is the
assertion that the term of supervised release denies petitioner the benefit of good
conduct credits because as his sentence is shortened by good conduct credits, the
period of supervised release fills in, until the combined total reaches the 312month full term ceiling imposed under Section 4106A(b)(1)(C) and the terms of
the Parole Commission’s determination.

Petitioner describes the term of

supervised release as an impermissible “indeterminate term” and “contingent
remainder” (Doc. 1-2, p. 9).
This Section 2241 petition is before the Court for preliminary review. Rule
4 of the Rules Governing Section 2254 Cases in United States District Courts
provides that upon preliminary consideration by the district court judge, “[i]f it
plainly appears from the petition and any attached exhibits that the petitioner is
not entitled to relief in the district court, the judge must dismiss the petition and
direct the clerk to notify the petitioner.” Rule 1(b) of those Rules gives this Court
the authority to apply the rules to other habeas corpus cases.
As a general matter, Section 2241 is the appropriate means by which to
challenge the execution of a sentence, while Section 2255 is to be used to
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challenge the validity of conviction and sentence. See Brown v. Rios, 696 F.3d
638, 640 (7th Cir.2012); Kramer v. Olson, 347 F.3d 214, 217 (7th Cir. 2003);
Walker v. O’Brien, 216 F.3d 626, 629 (7th Cir. 2000). Similarly, 18 U.S.C. §
3244(3) provides that challenges to the “execution” of a foreign sentence pursuant
to Section 4106A are actionable in the judicial district where the transferee is
incarcerated.

The Bureau of Prison’s calculation of good conduct credits is

usually considered to be within the reach of Section 2241. Valona v. United
States, 138 F.3d 693, 694 (7th Cir.1998). However, as explained below, the
unusual nature of a Section 4106A Parole Commission determination calls into
question whether Section 2241 is the appropriate jurisdictional basis for this
particular action.
Analysis
Analysis of the Court’s jurisdiction and the viability of the petition must
begin with the procedural history of Petitioner’s sentence, as this is the fourth
attack Buitron has waged.
Pursuant to 18 U.S.C. § 4106A(b)(1), the Parole Commission determined
petitioner’s release date and term of supervised release, using the U.S. Sentencing
Guidelines and the foreign sentence as a ceiling.

Under the Guidelines, the

sentencing range was 97-121 months, to be followed by a 3-5 year term of
supervised release. However, an upward departure was deemed appropriate and
the Commission concluded that petitioner should serve a full term of 312 months,
and a 60-month term of supervised release that would actually be capped by the
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Treaty provision that the combined terms of imprisonment and supervised
release not exceed the full term 312-month foreign sentence (Doc. 1-1, pp. 11-15).
The Commission’s complete determination was rendered June 17, 2002 (Doc. 11, pp. 12, 15).
Buitron appealed the Commission’s determination to the Court of Appeals
for the Fifth Circuit in accord with Section 4106A(b)(2)(B), which dictates that the
determination proceed as though it were a sentence. The Commission’s upward
departure was affirmed.

Buitron v. United States Parole Commission, 73

Fed.Appx. 759 (5th Cir. 2003).

None of the issues currently before the Court

were presented in the direct appeal.
In 2004, Petitioner filed what was construed as a Section 2241 petition
raising Sixth Amendment challenges to the Commission proceedings.

The

petition was dismissed due to lack of jurisdiction because the grounds for relief
should have been brought in the direct appeal to the Fifth Circuit.

Buitron v.

Veltri, Case No. 04-cv-676-WDS (S.D. Ill., Doc. 13 Filed Sept. 6, 2005). No appeal
was taken.
In 2006, Buitron filed another attack upon the validity of the sentence
conversion, challenging a wide variety of perceived constitutional defects in the
Commission’s proceedings. Petitioner improperly invoked 28 U.S.C. § 451 as the
jurisdictional basis for the petition.

The Court perceived that Buitron was

attempting to file a Section 2255 petition, and dismissed the petition for lack of

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jurisdiction. Buitron v. Warden, Case No. 06-cv-421-DRH (S.D. Ill., Doc. 3 filed
July 6, 2006). No appeal was taken.
Buitron now asserts that he is not attacking his sentence; rather, he is
asserting a treaty violation relative to how the term of supervised release and good
conduct credits are being imposed by the Bureau of Prisons.

He correctly

recognizes that 28 U.S.C. § 2255 cannot be utilized to challenge a Parole
Commission treaty determination, as the determination is not actually the
sentence. The Treaty precludes United States courts from reviewing the validity
of the underlying foreign conviction or sentence. Kass v. Reno, 83 F.3d 1186,
1191 (10th Cir. 1996).

See also 18 U.S.C. §§ 4601A(b)(1)(A), (2)(A); Cafi v.

United States Parole Commission, 268 F.3d 467, 474 (7th Cir. 2001) (a
defendant is not actually “sentenced” under Section 4106A).
According to Buitron, the Commission was “dilatory” in imposing the term
of supervised release, and the Commission did not inform the appellate court or
“the parties” of the 60-month term (Doc. 1, p. 4; Doc. 1-2, p. 4). These assertions
are clearly disproved by the documentation submitted by Petitioner (Doc. 1-2, pp.
11-15).

The term of imprisonment, the term of supervised release, how good

conduct credits are to be applied, and the ceiling on the term of supervised
release were all issued at the same time by the Commission. Although it would
have fallen to Buitron to bring the term of supervision to the attention of the
appellate court, the appellate court would have had that information before it, as
the Commission’s determination was the subject of the appeal.

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In any event,

Buitron does not otherwise explain why the issue was not raised on direct appeal
or in one of his earlier collateral attacks.
Citing Garza v. Lappin, 253 F.3d 918 (7th Cir. 2001), petitioner argues
that Section 2241 affords jurisdiction over an alleged treaty violation.

Garza

involved a challenge to a death sentence premised upon the Charter of American
States treaty. The appellate court agreed that Section 2255 was inapplicable and
Section 2241 could be used to raise the treaty-based challenge, but the court
distinguished between jurisdiction and substantive merit.

Ultimately, no

judicially cognizable right was found under the treaty and the petition failed.
Whether Buitron is attacking the Commission’s determination or how that
“sentence” is being executed by the Bureau of Prisons is debatable. The Fifth
Circuit, which handled Buitron’s direct appeal, views the calculation of the release
date as part and parcel of the Commission’s Section 4106A determination.
Cannon v. United States Dept. of Justice, 973 F.2d 1190, 1195-96 (5th Cir.
1992). However, the Fourth, Ninth and Tenth Circuits view the release date as the
Bureau of Prisons’ prerogative. Asare v. United States Parole Commission, 2
F.3d 540 (4th Cir. 1993); Ajala v. United States Parole Commission, 997 F.2d
651, 655 (9th Cir. 1993); and Trevina-Cesares v. United States Parole
Commission, 992 F.2d 1068, 1073 (10th Cir. 1993).
The Seventh Circuit has not specifically addressed this sort of jurisdictional
tangle.

However, this Court notes that in the direct appeal in Cafi v. United

States Parole Commission, 268 F.3d 467, 474-75 (7th Cir. 2001), the

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Commission’s calculus included the same sort of flexible term of supervision and
was upheld. Also, in Cafi the Seventh Circuit favorably cited the Fifth Circuit’s
decision in Cannon.
The Tenth Circuit faced an almost identical jurisdictional scenario in
Bennett v. United States Parole Commission, 83 F.3d 324, 327-328 (10th Cir.
1996), and concluded that the Fifth Circuit law controlled, rather than it’s own
interpretation, and notions of res judicata/claim preclusion were determinative.
Although this Court finds the analysis in Bennett persuasive, there is
insufficient information before the Court upon which to conclude that dismissal at
this preliminary stage pursuant to Rule 4 is appropriate. Therefore, respondents
Holder and Cross will be required to respond or otherwise plead.
IT IS HEREBY ORDERED that respondents shall answer the petition or
otherwise plead within thirty days of the date this order is entered. This
preliminary order to respond does not, of course, preclude the respondents from
presenting other arguments in response to the petition.
Pursuant to Federal Rules of Civil Procedure 4(i)(1) and (2), the Clerk of
Court is DIRECTED to: (1) personally deliver to or send by registered or certified
mail addressed to the civil-process clerk at the office of the United States Attorney
for the Southern District of Illinois a the summons, the petition, and this
Memorandum and Order; and (2) send by registered or certified mail to the
Attorney General of the United States at Washington, D.C., a copy of the
summons, the petition, and this Memorandum and Order; and (3) send a copy of

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the summons, the petition, and this Memorandum and Order by registered or
certified mail to respondent Holder and respondent Cross.
IT IS FURTHER ORDERED that pursuant to Local Rule 72.1(a)(2), this
cause is referred to a United States Magistrate Judge for further pre-trial
proceedings.
IT IS FURTHER ORDERED that this entire matter be REFERRED to a
United States Magistrate Judge for disposition, as contemplated by Local Rule
72.2(b)(2) and 28 U.S.C. § 636(c), should all the parties consent to such a
referral.
Petitioner is ADVISED of his continuing obligation to keep the Clerk (and
each opposing party) informed of any change in his whereabouts during the
pendency of this action. This notification shall be done in writing and not later
than seven days after a transfer or other change in address occurs.
IT IS SO ORDERED.

David R.
Herndon
2013.10.30
07:18:30 -05'00'

October 30, 2013.

Chief Judge
United States District Court

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