Chappell v. Tamez et al

Filing 11

MEMORANDUM OPINION & ORDER: 1. Plaintiff Alonzo Chappell's 28 U.S.C. § 1331 civil rights complaint [R. 1 ] is DISMISSED WITH PREJUDICE. 3. The Court shall enter an appropriate judgment. 4. This matter is STRICKEN from the active docket. Signed by Judge Gregory F. Van Tatenhove on 10/25/2013.(KJA)cc: COR, mailed paper copy to pro se filer

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION AT LONDON

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OCT 25 2D13
AT FP.ANKt:O;n

ROBER r R CAf<R

CLERK U,S. DISTRICT COURT

ALONZO CHAPPELL,
Plaintiff,

Civil No. 13-CV-97-GFVT

v.
MEMORANDUM OPINION
AND ORDER

REBECCA TAMEZ, ET AL.,
Defendants.

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Plaintiff Alonzo Chappell, proceeding without counsel, has filed a civil rights
complaint asserting claims under 28 U.S.C. § 1331, pursuant to the doctrine announced in

Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971). Chappell alleges that
the defendants miscalculated the term of his federal sentence, which he has served, and that
they caused him to serve more than four years in excess of the term to which he was
originally sentenced in 2000. 1
The Court must conduct a preliminary review of Chappell's complaint because he has
been granted pauper status and because he asserts claims against government officials. 28
U.S.c. §§ 1915(e)(2), 1915A. A district court must dismiss any claim that is frivolous or
malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief

1 On August 7,2012, Chappell was released from the custody of the Bureau of Prisons ("BOP"). See
http://www.bop.gov/iloc2/JnmateFinderServlet?Transaction=NameSearch&needingMoreList=false&FirstNam
e=alonzo&Midd1e=&LastName=chappell&Race=U&Sex=U&Age=&x= 11 O&y=25 (last visited on October
21,2013). Chappell lists his address as 212 S. 41 st Street, Louisville, Kentucky, 40212.

from a defendant who is immune from such relief. McGore v. Wrigglesworth, 114 F.3d 601,
607-08 (6th Cir. 1997).
The Court evaluates Chappell's complaint under a more lenient standard because he is
not represented by an attorney. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Burton v. Jones,
321 F.3d 569, 573 (6th Cir. 2003). At this stage, the Court accepts Chapell's factual
allegations as true, and liberally construes his legal claims in his favor. Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 555-56 (2007). Having reviewed the complaint, however, the Court
must dismiss it with prejudice because Chappell has failed to state a claim upon which relief
can be granted.

I.
On December 6, 1999, Chappell was charged in a Kentucky state court with two
counts of criminal possession of a forged instrument. On January 2, 2000, Kentucky
authorities moved to revoke Chappell's probation from a previous 10-year sentence for
first-degree robbery. On January 7, 2000, Chappell was taken into federal custody pursuant
to a writ of habeas corpus ad prosequendum to face federal bank robbery and firearms
charges filed against him in the United States District Court for the Western District of
Kentucky, at Louisville ("the Western District"). United States v. Chappell, No.
3:00-CR-I-EHJ-l (W.D. Ky. 2003). In March 2000, Chappell pleaded guilty to bank
robbery in violation of 18 U.S.C. § 2113(a) and to the use ofa firearm during a crime of
violence in violation of 18 U.S.C. § 924(c)(l). [R. 47.] In July 2000, Chappell was
sentenced to a 106-month term of incarceration to be followed by a five-year term of

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supervised release. [R. 66.] The Judgment and Commitment Order ("J&C Order") was silent
on whether the term was to be served concurrently with or consecutively to any
subsequently-imposed state sentence. Id. The Western District stated that it would defer to
the state court's decision as to whether the sentences would run concurrently or
consecutively_ Chappell did not appeal his federal sentence.
Chappell was then returned to state custody. Kentucky revoked his probation and
reimposed the original ten-year sentence for the prior bank robbery conviction, and sentenced
Chappell to one year of imprisonment on the charge of criminal possession of a forged
instrument. Both of the state criminal judgments ordered Chappell's sentences to be served
concurrently with the federal sentence. On October 15, 2000, Kentucky authorities
transferred Chappell to the custody of federal authorities, but Bureau of Prisons ("BOP")
officials subsequently determined that this transfer was made in error, and Chappell was
returned to Kentucky's custody on December 15,2000. The United States Marshals Service
filed a detainer against Chappell for his return to federal custody to serve his 106-month
sentence after he completed his state sentence. Chappell remained in Kentucky custody
serving his Kentucky sentence until some point in 2003.
During this period, Chappell sought relief in the Kentucky courts, arguing that
because he was serving his Kentucky sentence first, federal authorities were not crediting him
with time against his federal sentence, thus depriving him of the benefit of the Kentucky
court's order that his Kentucky sentence be served concurrently with his federal sentence.
The Jefferson Circuit Court denied relief, but the Kentucky Court of Appeals vacated

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Chappell's Kentucky sentence on equitable grounds in order to give practical effect to this
aspect of his sentence. Chappell v. Commonwealth, No. 2001-CA-002278-MR, 2003 WL
1227631 (Ky. App. Jan. 31, 2003). The Kentucky Supreme Court granted discretionary
review and reinstated Chappell's sentence because Chappell had been returned to federal
custody in 2003 to serve his federal sentence. Commonwealth v. Chappell, Ky., No. 2003­
SC-0454-DG, 2005 WL 629009 (Ky. Mar. 17, 2005).
Having obtained the primary relief he had sought through his transfer into federal
custody, Chappell then sought to obtain relief for the three year period from 2000 to 2003
when his custody by Kentucky officials prevented him from receiving credit against his
federal sentence. In 2004 Chappell filed a petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2241 in the Western District of Kentucky, seeking that three years of credit toward
his federal sentence. Chappell v. United States, No. 3:04-CV-PI15-H (W.D. Ky. 2004) ("the
First Chappell 2241 Petition"). Chappell alleged that the BOP and the United States had
relinquished custody over him, and he asked to be relieved from serving his federal sentence.
Chappell also argued that he had been denied his due process and equal protection rights to
have his federal and state sentences to be served concurrently in accordance with the state
judge's orders. The Western District court denied the First Chappell § 2241 Petition, stating
that under 18 U.S.C. § 3584(a), "multiple terms of imprisonment imposed at different times
run consecutively unless the court orders that the terms are to run concurrently." [R. 12; see

also Chappell v. United States, No. 3:04-CV-P115-H, 2006 WL 228937 at *1 (W.D. Ky. Jan.

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25, 2006).f Chappell did not appeal that decision.
In December 2007, Chappell filed in this Court a second petition seeking a writ of
habeas corpus under 28 U.S.C. § 2241, again arguing that the BOP should have credited his
federal sentence with the time he spent in state custody; that the BOP erred in returning him
to state custody on December 15,2000; and that he should not have been penalized for this
error by losing the opportunity to have his federal and state sentences run concurrently prior
to his return to federal custody in 2003. Chappell v. United States, No. 6:07-CV-412-KKC
(E.D. Ky. 2007) ("the Second Chappell § 2241 Petition")
This Court denied the Second Chappell § 2241 Petition, noting both that Chappell had
failed to exhaust his BOP administrative remedies, and that his arguments lacked substantive
merit. [R. 13 and 14; see also Chappell v. United States, No. 6:07-CV-412-KKC, 2006 WL
228937, at *3 (E.D. Ky. Jan. 15,2008).] The Court further observed that Chappell's
five-year sentence for using a firearm during a crime of violence in violation of 18 U.S.c. §
924(c)(1) could not run concurrently with any other sentence, whether state or federal. [R.
13, at pp. 5-6.] Chappell appealed, but the Sixth Circuit Court of Appeals affirmed. [R.21,
see also Chappell v. United States, No. 08-5160 (6 th Cir. Nov. 20, 2009).] The Sixth Circuit
concluded that Chappell should have, but failed to, exhaust his sentencing claims through the
BOP's three-step administrative remedy process, and that Chappell's 5-year sentence for
using a firearm during a crime of violence could not run concurrently with any other

2 The district court further stated, "Simply because the United States has released Petitioner from its
custody does not mean that it has somehow lost its jurisdiction over the prisoner." Chappell, 2006 WL

228937, at *1.

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sentence. [R. 21, pp. 2-3.]
On March 28,2011, Chappell filed in this Court a third petition seeking a writ of
habeas corpus under 28 U.S.c. § 2241. Chappell v. Hogsten, No. 6:11-CV-94-GFVT (E.D.
Ky. 2011) ("the Third Chappell § 2241 Petition"). Chappell again argued that the BOP
improperly denied him sentencing credit on his federal sentence from the date it was
imposed, and that the BOP had improperly refused to credit his federal sentence with the time
he spent in FCI-Manchester before he was transferred back to the Kentucky Department of
Corrections ("KDOC") for continued service of his state sentence. [R. 2.] Chappell argued
that as a result of these two errors in his sentence computation, the BOP incorrectly
calculated his maximum release date as September 3, 20l3, when his maximum prison term
actually expired in May of2009. [Id.] Thus, Chappell argued that he was being forced to
serve four additional years in prison which he should not have been required to serve.
On July 14, 2011, the Court denied the Third Chappell § 2241 Petition. [R. 9 and 10;

see also Chappell v. Hogsten, No. 6:1l-94-GFVT, 2008 WL 160650 (E. D. Ky. July 14,
2011).] The Court determined that: (1) Chappell was not entitled to credit on his federal
sentence from July 3, 2000, through November 4, 2004, because he was in federal custody
only pursuant to a writ of habeas corpus ad prosequendum, status which did not transfer him
from state custody to federal custody; (2) the BOP correctly refused to designate nunc pro

tunc the place where Chappell served his state sentence as the place where he was serving his
federal sentence; and (3) Chappell received credit on his state sentence for the time between
October 5,2000, and February 7,2001, which was the period when Chappell was in custody

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at the Federal Correctional Institution ("FCI")-Manchester until the KDOC's error was
discovered and he was transferred back to the KDOC for continued service of his state
sentence. See Chappell, 2008 WL 16065, at *6. Chappell appealed that decision, but on
October 11, 2012, the Sixth Circuit dismissed his appeal for want of prosecution. [R. 14.]

II.
On November 28,2012, Chappell filed this Bivens action in the Western District.

Chappell v. Tamez, No.3: 12-CV-798-H (W.D. Ky., 2012). Chappell alleged that while he
was an inmate at FCI-Manchester, Defendants Rebecca Tamez and Vernon Lewis, whom he
identified as employees of the Department of Justice and/or the BOP, and "John Doe," whom
he identified as a "Computation Specialist" at FCI-Manchester, violated his constitutional
rights by miscalculating his federal sentence and causing him to remain in custody four years
longer than the term imposed by the Western District. [R. 1.] Chappell alleges that the
defendants' actions violated his rights guaranteed by the Sixth, Eighth, and Fourteenth
Amendments of the U.S. Constitution. [Id., p. 5.] Chappell demands $50,000.00 in
compensatory damages, $50,000.00 in punitive damages, his attorney's fees, and all other
reliefto which he may be entitled. [Id., p. 6.]
On January 3, 2013, the Western District granted Chappell's motion to proceed in

forma pauperis, but four months later, transferred this case to this district based on the venue
considerations set forth in 28 U.S.C. § 1391(b). [R. 6, p. 2.]

III.
In this Bivens proceeding, Chappell appears to challenges not only the manner in

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which the named defendants calculated the term of his federal sentence (in relation to his
state sentence), but also the validity of his underlying sentence. Chappell states:
(11) Plaintiff alleges that his Sixth and Fourteenth Amendment rights to appeal
the erroneous sentence imposed upon plaintiff by Federal Bureau of Prisons
officials had been denied plaintiff.
(12) Plaintiff alleges that his Sixth and Fourteenth Amendment rights to the
assistance of counsel has been violated in sentencing of a criminal defendant.
Complaint, [R. 1, p. 5, ~~ 11-12 (emphasis added).]
Chappell may not pursue his claims seeking compensatory and punitive damages from
the defendants in this Bivens proceeding. In Heck v. Humphrey, 512 U.S. 477 (1994), the
Supreme Court ruled that a prisoner cannot bring a civil rights action directly challenging his
confinement, until and unless the reason for his continued confinement has been reversed on
direct appeal, expunged by executive order, declared invalid by a state tribunal, or has
otherwise been called into question by a federal court's issuance of a writ of habeas corpus.
[d. at 486-87. A claim challenging confinement must be dismissed regardless of whether the

plaintiff seeks injunctive or monetary relief. [d. at 489-90 (claim for damages is not
cognizable); Preiser v. Rodriguez, 411 U.S. 475, 488-90(1973) (claim for injunctive relief is
only cognizable under 28 U.S.c. § 2254).
Chappell did not appeal either his federal convictions for bank robbery and using a
firearm during a crime of violence or his resulting 106-month sentence, so he cannot
establish that his conviction and sentence have been reversed on direct appeal. Chappell did
not collaterally challenge his sentence in the Western District by filing a motion under 28
U.S.C. § 2255, so he cannot establish that his sentence has been called into question by a

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federal court's issuance ofa writ of habeas corpus under § 2255. Additionally, as explained
herein, Chappell has filed three unsuccessful habeas petitions under § 2241 challenging the
manner in which the BOP calculated his federal sentence, so he cannot establish that his
sentence has been called into question by a federal court's issuance of a writ of habeas corpus
pursuant to 28 U.S.C. § 2241.
Success on the claims which Chappell asserts in this Bivens proceeding would
necessarily call into question the validity of the 106-month sentence imposed by the Western
District. A federal prisoner may not bring a Bivens action that calls into question his
conviction unless he demonstrates that the conviction has been reversed on direct appeal,
declared invalid, expunged by executive order, or called into question by in a habeas corpus
proceeding. See Lanier v. Bryant, 332 F.3d 999, 1005-06 (6th Cir. 2003); Robinson v. Jones,
142 F.3d 905,907 (6th Cir.1998). Because Chappell has failed to meet this standard by
establishing that his conviction has been reversed or invalidated in some manner, his Bivens
complaint will be dismissed with prejudice.
IV.

Even assuming that the scope of Chappell's challenge is limited to the manner in
which the BOP defendants calculated the exact term of his federal sentence, the principle of
issue preclusion would bar Chappell's Bivens claims. Issue preclusion, often referred to as
collateral estoppel, "precludes relitigation of issues of fact or law actually litigated and
decided in a prior action between the same parties and necessary to the judgment, even if
decided as part of a different claim or cause of action." Gargallo v. Merrill Lynch, Pierce,

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Fenner & Smith, Inc., 918 F.2d 658,661 (6th Cir. 1990).
Four requirements must be met before issue preclusion applies: (1) the precise issue
raised in the present case must have been raised and actually litigated in the prior proceeding;
(2) determination of the issue must have been necessary to the outcome of the prior
proceeding; (3) the prior proceeding must have resulted in a final judgment on the merits; and
(4) the party against whom estoppel is sought must have had a full and fair opportunity to
litigate the issue in the prior proceeding. Cobbins v. Tenn. Dep't ofTransp. , 566 F.3d 582,
589-90 (6th Cir. 2009) (citing NA.A.C.P., Detroit Branch v. Detroit Police Officers Ass'n,
821 F.2d 328,330 (6th Cir. 1987)).
In this Bivens action, Chappell challenges the manner in which the BOP calculated the
length of his federal sentence, which is the same claim he unsuccessfully advanced in his
three prior § 2241 proceedings. Chappell has alleges that the federal officials who computed
his federal sentence (which he has now fully served) violated his federal constitutional rights,
and that he should be financially compensated for their alleged actions, but regardless of the
labels Chappell now uses, these are the same claims which he unsuccessfully asserted in his
three prior § 2241 proceedings. Thus, the first factor supporting the application of collateral
estoppel--identity ofthe issue--is satisfied.
The second factor for collateral estoppel is met because the determinations made by
this Court and the Western District in all three of Chappell's prior § 2241 proceedings were
central to the outcome of those proceedings. The third factor for collateral estoppel is
satisfied because final judgments (adverse to Chappell) were rendered in the dismissal of all

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three of Chappell's § 2241 proceedings, and Chappell did not successfully pursue appeals in
any of those three proceedings.
The fourth factor for collateral estoppel has been met because in his three prior § 2241
proceedings, Chappell had a full and fair opportunity to litigate the same issue that he raises
in this proceeding. "Where a litigant brings repeated actions based upon the same operative
facts, issue preclusion may still properly apply despite a change in legal theory or the "cast of
characters-defendants." Georgia-Pacific Consumer Products LP v. Four-U-Packaging,

Inc., 701 F.3d 1093, 1098 (6 th Cir. 2012) (citing Randles v. Gregart, 965 F.2d 90,93 (6th Cir.
1992)); see also National Satellite Sports, Inc. v. Eliadis, Inc., 253 F.3d 900, 908 (6th Cir.
2001) ("Under collateral estoppel, once an issue is actually and necessarily determined by a
court of competent jurisdiction, that determination is conclusive in subsequent suits based on
a different cause of action involving a party to the prior litigation.")
In this Bivens action, Chappell attempts to circumvent the denial of the First Chappell
§ 2241 Petition, the Second Chappell § 2241 Petition, and the Third Chappell § 2241
Petition, wherein both this Court and the Western District refused to order the BOP to credit
Chappell's federal sentence with three or four years of time which Chappell alleged he
should have received. The doctrine of issue preclusion/collateral estoppel bars such claims.
Chappell's Bivens complaint will therefore be dismissed with prejudice for failure to state a
claim upon which relief can be granted. 28 U .S.C. § 1915A.

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CONCLUSION

Accordingly, IT IS ORDERED that:

1.

Plaintiff Alonzo Chappell's 28 U.S.C. § 1331 civil rights complaint [R.1] is

DISMISSED WITH PREJUDICE.
3.

The Court shall enter an appropriate judgment.

4.

This matter is STRICKEN from the active docket.

This October 25,2013.

Signed By:

0;;-..

.Gregory F. V~~ r
United St~tj)~ Dlstnct Judg.

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