Cole v. Thomas

Filing 23

ORDER: The Court adopts Magistrate Judge Stewart's Findings and Recommendation 16 . Therefore, the petition for writ of habeas corpus is dismissed and the case is dismissed with prejudice. See 6-page order attached. Signed on 8/15/2012 by Judge Marco A. Hernandez. (mr)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION

PATRICK COLE,

No. 03:12-CV-412-ST
Petitioner,

v.
J.E. THOMAS, Warden, FCI Sheridan,
Respondent.

Stephen R. Sady
Office of the Federal Public Defender
101 SW Main Street, Suite 1700
Portland, OR 97204
Attorney for Petitioner
Natalie K. Wight
United States Attorney’s Office
1000 SW Third Avenue, Suite 600
Portland, OR 97204
Attorney for Respondent
1 - ORDER

ORDER

HERNANDEZ, District Judge:
Magistrate Judge Stewart issued a Findings and Recommendation (#16) on April 16,
2012, in which she recommends that the Court should dismiss the petition for writ of habeas
corpus (#1) and dismiss the case with prejudice. Petitioner timely filed objections to the
Findings and Recommendation. The matter is now before me pursuant to 28 U.S.C. § 636(b)(1)
and Federal Rule of Civil Procedure 72(b).
When any party objects to any portion of the Magistrate Judge’s Findings and
Recommendation (“F&R”), the district court must make a de novo determination of that portion
of the Magistrate Judge’s report. 28 U.S.C. § 636(b)(1); Dawson v. Marshall, 561 F.3d 930, 932
(9th Cir. 2009); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).
Petitioner objects to the Findings and Recommendation because the Magistrate Judge:
(1) incorrectly applied Setser v. United States, 132 S. Ct. 1463 (2012), (2) improperly relied on a
sentencing judge’s statement, (3) failed to give appropriate deference to the State’s sovereignty,
and (4) erroneously deferred to a prior district court decision denying a petition for writ of
habeas corpus. I have carefully considered Plaintiff’s objections and conclude that the objections
do not provide a basis to modify the recommendation that the complaint be dismissed with
prejudice. I have also reviewed the pertinent portions of the record de novo and find no error in
the Magistrate Judge’s Findings and Recommendation.
First, I agree with Magistrate Judge Stewart’s finding that the legality of Petitioner’s
detention has already been determined by the Southern District of Texas in his 2002 habeas
corpus petition. F&R, 7. I also do not wish to turn this court into a “de facto appellate court” to
challenge the 2002 decision, which dismissed the petition with prejudice. Id. at 8.

2 - ORDER

I also agree with Magistrate Judge Stewart’s interpretation of Setser’s holding, that “a
district court has discretion to run federal sentences consecutively to anticipated, but unimposed,
state sentences.” Id. Setser involved interpreting a section of the Sentencing Reform Act of
1984, 18 U.S.C. § 3584 1, as a limit on a district court’s existing authority to make sentences
concurrent or consecutive. Setser, 132 S. Ct. at 1467 (“Section 3584, however, is framed not as
a conferral of authority but as a limitation of authority that already exists[.]”). Thus, while
certain situations require a sentence to be concurrent or consecutive, the district court retains
discretion in all other “situations not covered[.]” Id. at 1470. Setser also discusses 18 U.S.C. §
3621, which gives the Bureau of Prisons authority “to order that a prisoner serve his federal
sentence in any suitable prison facility ‘whether maintained by the Federal Government or
otherwise.’” Id. at 1467. The implication is that the Bureau could designate a state prison as the
place of imprisonment, so that a person facing a federal sentence and is serving a state sentence,
would serve the two sentences concurrently. Id. at 1467-68.
Unlike Setser, the district court judge in Petitioner’s case was silent as to whether the
sentence would be consecutive or concurrent to the anticipated state sentence. As such, Setser
does not directly apply factually. However, the discussion of §§ 3584 and 3621 are instructive
nevertheless. In several instances, the Court states that the Bureau does not have a role in
determining whether a sentence is concurrent or consecutive. Id. at1469 (“Congress
contemplated that only district courts would have the authority to make the concurrent-vs.1

“If multiple terms of imprisonment are imposed on a defendant at the same time, or if a term of
imprisonment is imposed on a defendant who is already subject to an undischarged term of
imprisonment, the terms may run concurrently or consecutively, except that the terms may not
run consecutively for an attempt and for another offense that was the sole objective of the
attempt. Multiple terms of imprisonment imposed at the same time run concurrently unless the
court orders or the statute mandates that the terms are to run consecutively. Multiple terms of
imprisonment imposed at different times run consecutively unless the court orders that the terms
are to run concurrently.” 18 U.S.C. § 3584(a).
3 - ORDER

consecutive decision”); id. at 1470 (§ 3584 “makes no mention of the Bureau’s role in the
[concurrent-vs.-consecutive] process, the implication is that no such role exists”); id. (§ 3621 “is
a conferral of authority on the Bureau of Prisons, but does not confer authority to choose
between concurrent and consecutive sentences.”); id. (Court declines to read § 3621 as “giving
the Bureau of Prisons what amounts to sentencing authority”). Yet, it is implied from Setser that
the Bureau, through its authority in § 3621, can make decisions that would effectively result in a
concurrent or consecutive sentence, as long as the Bureau’s decision comports with § 3584.
Setser, 132 S. Ct. at 1469 (in situations expressly dictated by § 3584, “the Bureau is not free to
use its ‘place of imprisonment’ authority to achieve a different result.”). Setser does not change
the Bureau’s ability to designate the place of imprisonment under § 3621.
I agree with Judge Stewart’s conclusion that justice would not be served in allowing
Petitioner to bring another § 2241 action. Petitioner argues that in his prior habeas petition under
§ 2241, he did not have the opportunity to develop the facts in support of his petition. As
explained by Judge Stewart, “inadequate factual development” was not an issue in the 2002
petition. F&R, 7. Petitioner also argues that the 2002 decision applies an incorrect standard for
§ 2241 cases. Petitioner is correct that the court erroneously described relief under § 2241 as
“extraordinary and ‘is reserved for transgressions of constitutional rights and for a narrow range
of injuries that could not have been raised on direct appeal and would, if condoned, result in a
complete miscarriage of justice.’” Mem. Supp. Pet. Writ Habeas Corpus (“Habeas Memo”), Ex.
Q at 7. Despite this incorrect characterization of § 2241, the court correctly concluded that
Petitioner had not exhausted his administrative remedies through the Bureau, and thus relief
under § 2241 was not available. Id. at 7-8.

4 - ORDER

Petitioner also argues that the 2002 decision, and the Magistrate Judge, improperly relied
on the federal sentencing judge’s statement made years later. Because the federal sentence was
silent as to whether it was to be consecutive or concurrent to the state sentence, the Bureau
contacted the federal judge eight years after the original sentence to seek clarification. In
response, the federal judge stated that he intended the sentence to be consecutive to the state
sentence. Id. at 12. There is no authority that prevents the Bureau from contacting the
sentencing judge to request clarification. Even without this post-sentencing clarification, the
2002 decision includes other reasoning that supports the Bureau’s refusal to designate the state
prison as the place of service for his federal sentence. Id. at 14 (under § 3584, “[m]ultiple terms
of imprisonment imposed at different times run consecutively unless the court orders that the
terms are to run concurrently.”); see also Elwell v. Fisher, No. 11-2595, 2012 U.S. Dist. LEXIS
84823, at *13 (D. Minn. Apr. 25, 2012) (federal sentence “correctly deemed” as consecutive)
and Newman v. Cozza-Rhodes, No. 11-cv-3262, 2012 U.S. Dist. LEXIS 73684, at *11 (D. Colo.
May 29, 2012) (same).
Finally, state sovereignty and principles of comity does not require the Bureau to follow
the state court’s order that the sentences run concurrently. Galarza-Villanueva v. Rios, No. 1:11cv-228, 2012 U.S. Dist. LEXIS 47950 (E.D. Cal. Apr. 3, 2012) (citing Del Guzzi v. United
States, 980 F.2d 1269, 1270 (9th Cir. 1992)). In Del Guzzi, the state judge “stated that Del
Guzzi’s sentence ‘may be served in the federal prison,’ and ‘recommended that he be transported
on the first available transportation[.]’” Del Guzzi, 980 F.2d at 1270. The court held that the
state judge’s “authority was limited to sending Del Guzzi to state prison to serve his state
sentence.” Id. Here, although the state judge ordered the sentence to run concurrently with the
federal sentence, the order was beyond the judge’s authority. Habeas Memo, Ex. K at 1.

5 - ORDER

CONCLUSION
The Court adopts Magistrate Judge Stewart’s Findings and Recommendation (#16).
Therefore, the petition for writ of habeas corpus is dismissed and the case is dismissed with
prejudice.
IT IS SO ORDERED.

DATED this

day of August, 2012.

MARCO A. HERNANDEZ
United States District Judge

6 - ORDER