Kieffer v. Baltazar

Filing 23

MEMORANDUM (Order to follow as separate docket entry) (eo)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
HOWARD O. KIEFFER,
Petitioner,
v.
WARDEN JUAN BALTAZAR
Respondent.

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1:14-cv-01547
Hon. John E. Jones III

MEMORANDUM
March 9, 2015
Howard O. Kieffer, formerly an inmate confined in the Allenwood Low
Security United States Penitentiary in White Deer, Pennsylvania,1 filed this pro se
petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. (Doc. 1). Kieffer
argues that the Bureau of Prisons (“BOP”) has erred in calculating his federal
sentence. Id. He therefore requests that this Court order his immediate release
from custody. Id. The petition is ripe for disposition and, for the reasons set forth
below, will be dismissed.
I.

Background
In 2008, Kieffer was convicted in the United States District Court for the

District of North Dakota for mail fraud and making false statement “arising from

1

After Kieffer filed this petition, he was transferred to the Englewood Federal Correction
Institution in Littleton, Colorado. (Doc. 15).

his conduct of posing as a licensed criminal defense attorney.” United States v.
Kieffer, No. 13-1371, 2014 WL 7238565, at *1 (10th Cir. Dec. 22, 2014). Kieffer
was sentenced to fifty-one months of imprisonment (the “North Dakota sentence”).
Id. In 2009, Kieffer was convicted in the United States District Court for the
District of Colorado (the “Sentencing Court”) for wire fraud, making false
statements, and contempt of court. Id. On August 16, 2010, the Sentencing Court
sentenced Kieffer to fifty-seven months imprisonment, to be served consecutive to
his previous North Dakota sentence. Id.
Kieffer appealed his conviction and sentence to the United States Court of
Appeals for the Tenth Circuit. Id. at *2. The Tenth Circuit affirmed the
conviction, but vacated Kieffer’s sentence and remanded for resentencing pursuant
to U.S.S.G. § 5G1.3(b). Id. On August 22, 2013, the Sentencing Court conducted
a resentencing hearing. Id. At that hearing, the Sentencing Court ruled that
Kieffer
is hereby committed to the custody of the Bureau of Prisons to be
imprisoned for a term of 99 months on Counts 1 and 2. The terms of
imprisonment in this case are to be served concurrently to one another
and also concurrent to the 51 months of imprisonment that was
imposed upon and served by defendant in [connection to his North
Dakota sentence].
Just to make it clear, it is the Court’s intent that the defendant be
incarcerated for a term of 48 months for the criminal conduct he was
convicted of in Counts 1 and 2 in this case. So that’s 99 months less or
adjusted by the 51 months that he served in North Dakota for a total of
48 months.
2

Id. at *2-3.
In its written Order issued September 3, 2013, the Sentencing Court stated
that Kieffer’s ninety-nine month sentence was to be adjusted by subtracting fiftyone months based on time already served, for a total forty-eight month sentence to
be served concurrent with the North Dakota sentence. Id. at *3. After noticing
that this Order unintentionally resulted in Kieffer serving only an additional eight
month sentence, rather than the intended forty-eight months, on September 5,
2013, the Sentencing Court issued a Second Amended Judgment in an attempt to
correct the error. Id. Thereafter, the Sentencing Court issued two further
Amended Judgments on March 26, 2014 and April 4, 2014 in further attempts to
correctly impose the intended sentence. Id. at *4-5.
On May 19, 2014, Kieffer filed a motion with the Tenth Circuit to vacate the
Sentencing Court’s Amended Judgments. (Doc. 10, Ex. 6). On August 7, 2014,
while his appeal was pending with the Tenth Circuit, Kieffer filed this petition for
writ of habeas corpus, arguing that the BOP was improperly implementing his
sentence. (Doc. 1).
On December 22, 2014, the Tenth Circuit granted Kieffer’s motion, finding
that the Sentencing Court did not have authority to enter the Amended Judgments.
Kieffer, 2014 WL 7238565, at *7. Consequently, the Tenth Circuit vacated the
Sentencing Court’s Amended Judgments, and remanded with instructions for “the
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district court to enter a new and final judgment[.]” Id. at *8. As a result, on
February 20, 2015, the Sentencing Court imposed a new and final judgment,
sentencing Kieffer to eighty-eight months imprisonment, to run concurrent with the
North Dakota sentence. (Doc. 22, Ex. 2).
II.

Discussion
A challenge to the execution of a federal prisoner’s sentence by the Bureau

of Prisons may properly be raised in a petition for writ of habeas corpus under 28
U.S.C. § 2241. Burkey v. Marberry, 556 F.3d 142, 146 (3d Cir. 2009) (citing
Woodall v. Fed. Bureau of Prisons, 432 F.3d 235, 241-42 (3d Cir. 2005); Coady v.
Vaughn, 251 F.3d 480, 485 (3d Cir. 2001)). However, where a prisoner challenges
the validity of the sentence rather than its execution, such a challenge is properly
brought under 28 U.S.C. § 2255. Coady, 251 F.3d at 485.
Here, the Sentencing Court has sentenced Kieffer to imprisonment for
eighty-eight months. (Doc. 22, Ex. 2). This sentence effectively commenced on
August 16, 2010, the date of Kieffer’s initial sentencing. See, Blood v. Bledsoe,
648 F.3d 203, 208-09 (3d Cir. 2011). This means that, excluding good conduct
time, Kieffer’s sentence will end on December 16, 2017. Despite the plain terms
of this sentence, Kieffer claims the BOP is misinterpreting the sentence. (Doc. 2).
While Kieffer argues he is challenging the BOP’s implementation of his
sentence, a thorough reading of Kieffer’s petition and accompanying memoranda
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makes clear that he is in fact challenging the validity of the Sentencing Court’s
Amended Judgment, not its execution. In that vein, the oral sentence given by the
Sentencing Court was superseded by the subsequent Amended Judgments. It is
these Amended Judgments that the BOP has implemented. Kieffer argues that
these judgments are invalid, and the BOP should therefore implement the oral
judgment rendered on August 22, 2013.2
This leaves little doubt that Kieffer does not challenge the implementation of
his sentence, but instead challenges the validity and legality of Sentencing Court’s
Amended Judgments.3 Despite the language employed in Kieffer’s memoranda,
“the substance and not the form of the requested relief is ultimately controlling[.]”
Boyce v. Dembe, 47 F.App’x 155, 160 (3d Cir. 2002) (quoting Centifanti v. Nix,
865 F.2d 1422, 1429 n. 8 (3d Cir. 1989)). Essentially, Kieffer requests that this
Court declare the Sentencing Court’s final judgment void, and supersede that
sentence with this Court’s interpretation of the Sentencing Court’s oral
pronouncements. This Court does not have jurisdiction to entertain such a request.

2

In his original Memorandum of Law, Kieffer concludes that “[t]his [C]ourt should reach the
conclusion that the orally pronounced sentence, upon Mr. Kieffer’s August 22, 2013
resentencing . . . should be the only sentence to be properly executed by the Bureau of Prisons.”
(Doc. 2, p. 27). In his Supplemental Memorandum of Law, Kieffer reiterates his challenge of the
validity of his sentence by stating “[t]he fact that the court expected the BOP to take a certain
action, but was frustrated that it took another action . . . does not provide jurisdiction to
substantively modify a previously imposed sentence.” (Doc. 22, p. 10).
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Kieffer admits that the BOP had not yet implemented the Sentencing Court’s final Order.
(Doc. 22, p. 9). Plainly then, Kieffer cannot be challenging the implementation of that sentence.

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Because Kieffer challenges the validity of his sentence, not its execution, his
proper remedy lies in a Section 2255 petition with the sentencing court. See, 28
U.S.C. § 2255(a). “[U]nder the explicit terms of 28 U.S.C. § 2255, unless a § 2255
motion would be ‘inadequate or ineffective,’ a habeas corpus petition under § 2241
cannot be entertained by the court.” Cradle v. U.S. ex rel. Miner, 290 F.3d 536,
538 (3d Cir. 2002). “A § 2255 motion is inadequate or ineffective only where the
petitioner demonstrates that some limitation of scope or procedure would prevent a
§ 2255 proceeding from affording him a full hearing and adjudication of his
wrongful detention claim.” Id.
Kieffer admits that direct review of the Sentencing Court’s final sentencing
order is ongoing, and therefore he has not yet exhausted direct appeals. (Doc. 22,
p. 12). As direct appeals have not yet concluded, Kieffer clearly has not filed a
Section 2255 motion with the sentencing court. Nor has Kieffer made any
argument that a Section 2255 motion would be inadequate or ineffective, and
thorough reading of Kieffer’s memoranda reveals no basis to reach such a
conclusion.4 Consequently, this Court does not have jurisdiction to consider
Kieffer’s habeas petition, and must dismiss the petition without prejudice.

4

The only conceivable argument that a Section 2255 remedy is inadequate would rest on a delay
in submitting such a motion pending direct appeals. However, such a delay does not render a
Section 2255 motion inadequate or ineffective. E.g., Mesina v. Johns, 150 F.App’x 129, 130 (3d
Cir. 2005) (citing United States v. Pirro, 104 F.3d 297, 299 (9th Cir. 1997)).

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Finally, even assuming that this Court could adjudicate Kieffer’s 2241
petition, he would not be entitled to the relief he seeks. Kieffer requests that this
Court recognize the August 22, 2013 oral judgment as his final, valid sentence and
order the BOP to implement that sentence. (Docs. 1, 2, 18, 22). If that sentence
were implemented, Kieffer argues, he would be subject to immediate release from
custody. Id. However, the oral judgment of the Sentencing Court was quite clear:
it is the judgment of the Court that the defendant, Howard O. Kieffer,
is hereby committed to the custody of the Bureau of Prisons to be
imprisoned for a term of 99 months on Counts 1 and 2. The terms of
imprisonment in this case are to be served concurrently to one another
and also concurrent to the 51 months of imprisonment that was
imposed [by the North Dakota sentence].
(Doc. 3, Ex. B, p. 126).
Thus, the Sentencing Court effectively impose a forty-eight month sentence
beginning on August 22, 2013, not accounting for good conduct time and time that
Kieffer had spent in custody after completing his North Dakota sentence.5 See
(doc. 3, Ex. B, p. 94). The Sentencing Court’s oral sentence therefore would have
resulted in a release date of April 30, 2017, not including any credit received for
good conduct time earned while serving his sentence. Consequently, even under
the Sentencing Court’s oral sentencing, Kieffer would not be entitled to immediate
release as he argues.

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Good conduct time and time spent in custody prior to sentencing totaled 114 days. (Doc. 3, Ex.
B, p. 94).

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III.

Conclusion
A review of the record reveals that this Court does not have jurisdiction to

consider Kieffer’s petition for writ of habeas corpus. Consequently, his petition
will be dismissed without prejudice.
An appropriate Order will be entered.

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