Restitution - Discretion Standard, Authority to Impose Post-Sentencing, Procedural Requirements, Remand
United States v. Reano, 01-2287 (August 14, 2002)
(Judith A. Rosenstein, FPD, Albuquerque, New Mexico)
Reano appeals the district court's imposition of restitution pursuant to 18 U.S.C. § 3664(d)(5). He claims the district court erred in entering the restitution order in the absence of any proof of loss incurred by the victim.
HELD: (1) The court reviews an order of restitution for abuse of discretion. Such abuse may occur when the trial court fails to consider the applicable legal standard upon which its discretionary judgment is based.
(2) The MVRA requires the court to order restitution in any case involving a conviction for an offense that constitutes a crime of violence as defined by 18 U.S.C. § 16(a), including assault resulting in serious bodily injury. See 18 U.S.C. § 3663(A)(a)(1). The MVRA delineates procedures for issuing and enforcing a restitution order. See § 3664(a). The government acknowledges that § 3664(a) directs that before making an order of restitution, the district court should review a complete accounting of the losses and must support its restitution order with findings of fact. The government concedes that the absence of record-based evidence in support of the restitution order renders the order erroneous, and asks the court to remand so that the district court may impose restitution based on the record. The government does not suggest that it complied with the 60 day notice requirement of § 3664(d)(1), or the 10 day notice requirement of § 3664(d)(5). Mr. Reano urges that because the government failed to follow the statutory procedures necessary to establish proof of loss or to seek a deferred restitution order, the government may no longer seek restitution.
(3) The court's authority to order restitution post-sentencing derives solely from § 3664(d)(5). Neither the government nor the district court followed the procedural requirements of the MVRA. The circuit determined it had to vacate the restitution order. A more difficult question is whether the circuit may remand. It concluded that the district court, on remand, retains the authority to order restitution presuming the introduction of evidence supporting such an award. The MVRA's primary purpose, as revealed by legislative history, is to force offenders to pay full restitution to identifiable victims of their crimes. Procedural requirements are liberally construed. The circuit concluded that the imposition of restitution at sentencing put the defendant on notice that restitution would be imposed and served as the functional equivalent of notice under the MVRA. The subsequent appeal of the order equitably tolled the 90 day period. The court remanded so the district court may hold an evidentiary hearing at which the government must present its proof, the defendant may make appropriate challenges, and the parties will create a record sufficient for any further review. Any restitution order must be ordered within 90 days of the date of issuance of the mandate.
Habeas Corpus (28 U.S.C. § 2241);
Credit For Time in Custody - Presentence, Post-Sentence, State, Federal, Interruption of Sentence, Relinquish Custody;
Sentences - Concurrent or Consecutive
Weekes v. Flemming, 01-6054 (August 14, 2002)
(James P. Moran, FPD, Denver, Colorado)
Weekes appeals from the order dismissing his habeas petition filed pursuant to 28 U.S.C. § 2241. He claims he is entitled to credit for pre-federal sentence time served under 18 U.S.C. § 3585(b), and that he is entitled to credit for time served in post-federal-sentence state incarceration under § 3585(a) and White v. Perlman, 42 F.2d 788 (10th Cir. 1930), because he has been forced to serve his federal sentence on an installment basis. The circuit rejected the first argument but found merit and reversed on the basis of the second argument.
HELD: (1) The court reviews de novo the district court's dismissal of Weekes' petition. A federal prisoner is statutorily entitled to credit for time spent in official detention prior to the date his federal sentence commences, if the detention resulted from the same offense of conviction or from another charge for which the defendant was arrested after commission of the offense of conviction, and if that time has not been credited against another sentence. See § 3585(b). Weekes received credit against a state sentence for all the time served prior to the date his federal sentence commenced, whether the commencement date be 1995 or 1999. Therefore, the circuit agreed that Weekes is not entitled to presentence credit.
(2) Weekes claims his federal sentence commenced when he was designated to be transferred to serve his time at the federal penitentiary in Lompoc on February 21, 1995, and his sentence continued to run despite the fact that the United States sent him to Idaho to serve his state sentence. The United States Attorney General has the exclusive authority to determine when a federal sentence shall begin and where the federal sentence shall be served. There is a presumption that a federal sentence imposed after a prior state sentence will be served consecutively to the state sentence. See § 3584(a). The United States Attorney General chose to begin Weekes' federal sentence on February 21, 1995, by designating a federal prison where he should serve and then transporting him to that facility. See § 3585(a). No writ of habeas corpus ad prosequendum exists. Therefore, Weekes' federal sentence began on February 21, 1995. The circuit held the United States had no duty to return Weekes to Idaho for service of his state sentence. Therefore, the interruption of his federal sentence cannot be excused. The sovereign that first acquires custody of a defendant in a criminal case is entitled to custody until it has exhausted its remedy against the defendant. This rule of comity does not destroy the jurisdiction of the other sovereign, but simply requires it to postpone its exercise of jurisdiction until the first sovereign agrees to temporarily or permanently relinquish custody. As the first arresting sovereign, Idaho initially had primary custody of Weekes. Idaho relinquished primary custody of Weekes to the United States, allowing the United States to take exclusive physical custody of Weekes without presenting either a written request for temporary transfer or a writ of habeas corpus ad prosequendum. Idaho subsequently used an ad prosequendum writ to regain custody of Weekes for the probation violation hearing, thereby indicating consent to change of custody. The state district court's subsequent sentencing order expressly provided that Weekes' state sentence should be served concurrently with a future federal sentence. Idaho then lodged a detainer expressly noting that the state sentence was concurrent, and requesting Weekes' return to the state prison upon completion of his federal sentence, further showing its relinquishment of Weekes to federal primary custody. Therefore Weekes must be given federal credit for time served since February 21, 1995, the date the federal sentence actually commenced.
(3) Section 3584(a) does not mandate how consecutive sentences are served. The United States Attorney General and the State worked that out. The United States chose to begin Weekes' federal sentence first, and Idaho expressly conceded to that arrangement. Except for the BOP's mistake in prematurely sending him to Idaho, Weekes would have served a consecutive sentence as contemplated by § 3584(a). The fact that Weekes has now completed his state obligation because of that is not the controlling factor in determining the completion date of his federal obligation.
Civil Rights (42 U.S.C. § 1983);
Summary Judgment;
Sexual Abuse Treatment Program - Fifth Amendment, Rehabilitation, Good-Time Credits;
Due Process - Own or Possess Property in Prison
Scearcy v. Simmons, 00-3161 (August 19, 2002)
Scearcy brought an action pursuant to 42 U.S.C. § 1983, alleging violation of constitutional rights by the Kansas Department of Corrections Sexual Abuse Treatment Program.
HELD: (1) The court reviews the district court's grant of summary judgment de novo.
(2) In Lile v. McCune, a Tenth Circuit panel concluded that the KDOC's policy of imposing penalties for an inmate's refusal to participate in the SATP for fear of self-incrimination violated the Fifth Amendment. A divided United States Supreme Court reversed. Four Justices stated that the question could be answered by looking to its earlier decision in Sandin v. Conner. In Sandin, the Supreme Court held that challenged prison conditions could not give rise to a due process violation, unless those conditions constitute atypical and significant hardship on inmates in relation to the ordinary incidents of prison life. The plurality in Lile concluded that penalties imposed against Lile were significantly less than potential penalties inmates faced in cases where the Supreme Court ruled that there was no Fifth Amendment violation. Justice O'Conner concurred in the judgment, but did not join the plurality. She agreed that the consequences of Lile's refusal to incriminate himself were not so great as to constitute compulsion for purposes of the Fifth Amendment. In Lile, the plurality noted that Lile's refusal to participate in the SATP for fear of self-incrimination did not extend his term of incarceration nor affect his eligibility for good-time credits. In contrast, Mr. Scearcy is subject to a prison regulation that provides for withholding of good-time credits. This is a consequence of Scearcy's own individual choice. The Constitution itself does not guarantee good-time credits for satisfactory behavior while in prison. Kansas does not make any promises regarding an inmate's ability to earn good-time credits. Mr. Scearcy had a choice of taking advantage of a benefit that KDOC provided, or to refuse that benefit in order to avoid providing what he feared would be self-incriminating statements. The SATP's policy of requiring admission of responsibility is central to the mission of rehabilitation. The pressure upon Scearcy for refusing to admit responsibility and a sexual history does not rise to a level where it is likely to compel a person to be a witness against himself.
(3) Scearcy's First Amendment claim must fail. He is free to adhere to his religion's proscription against lying. In doing so, he loses certain privileges. This does not present an infringement on the free exercise of religion. Even if it did, the circuit agreed with the district court that the requirement is reasonably related to KDOC's penalogical interests of rehabilitation.
(4) It is well settled that, while an inmate's ownership of property is a protected property interest that may not be infringed without due process, there is a difference between the right to own property and the right to possess property while in prison. Under Kansas law, Scearcy is still the owner of property even though KDOC sent his property to his relatives. Scearcy had every opportunity to say where his property should go but refused to do so.
Sentencing - Special Conditions of Supervised Release, Occupational Restriction
United States v. Erwin, 01-5221 (August 21, 2002)
Erwin was convicted of possessing ammunition with a previous felony conviction in violation of § 922(g). He was sentenced to 15 months imprisonment and three years supervised release, with a special condition that Erwin is prohibited from engaging in commercial fishing. The circuit remanded to the district court to vacate the special condition.
HELD: (1) The district court enjoys broad discretion in setting a condition of supervised release. This discretion is guided by §5F1.1 when it imposes occupational restrictions. The district court abused its discretion in imposing the prohibition on commercial fishing. Before doing so, the district court is required to determine that, without the prohibition, Erwin will continue to engage in criminal conduct similar to that for which he was convicted. The plain wording of the guideline dictates there be a connection between an occupational restriction and the conduct for which the defendant was convicted. Here, the district court did not demonstrate any such relationship.
Habeas Corpus (28 U.S.C. § 2254) - COA, Distinction Between §2254 and § 2241;
Exhaust State Remedies;
Procedural Default - Independent and Adequate, Cause and Prejudice or Actual Innocence
Hamm v. Saffle, 02-6026 (August 21, 2002)
Hamm, an Oklahoma state prisoner, seeks a COA pursuant to § 2253(c) to challenge the district court's dismissal of his § 2254 petition for writ of habeas corpus as procedurally barred. The circuit held that the petition is procedurally barred, denied the COA and dismissed the appeal.
HELD: (1) Hamm's habeas petition should be construed as a § 2241 petition because he was challenging the execution of his sentence rather than the validity of his conviction.
(2) A habeas petitioner is generally required to exhaust state remedies, whether his action is brought pursuant to § 2241 or § 2254. The exhaustion of state remedies includes administrative and state court remedies. This court cannot address defaulted claims, unless the petitioner can show cause for the default and actual prejudice, or show that failure to consider the claims will result in a fundamental miscarriage of justice. The OCCA's decision was based solely on state law and is an independent basis. For a ground to be adequate, it must be strictly or regularly followed and employed even-handedly to all similar claims. The OCCA has previously addressed the timely filing of a petition for extraordinary writ. The circuit agreed with the district court that Hamm's failure to comply with Rule 10.1(c) constituted an independent and adequate state ground that bars federal habeas review. Hamm has not argued cause or prejudice to overcome procedural bar, but states he is actually innocent of the offense for which he has been punished. He cannot show actual innocence, and therefore his petition is procedurally barred.
Civil Rights (42 U.S.C. § 1983);
Summary Judgment;
Retaliation - Adverse Employment Action
Petersen v. Utah Department of Corrections, 01-4090 (August 22, 2002)
Petersen appeals the grant of summary judgment on her claim against Utah DOC filed under 42 U.S.C. § 1983. She claims retaliation against her for opposing discriminatory treatment of a Native American co-worker. The circuit affirmed.
HELD: (1) On appeal from the grant of a motion for summary judgment, the circuit affirms unless the appellant points to evidence in the record establishing a genuine issue of material fact.
(2) There are three elements for a retaliation claim: the plaintiff engaged in protected opposition to discrimination, the plaintiff suffered an adverse employment action, and there is a causal connection between the protected activity and the adverse employment action. But an employer cannot engage in unlawful retaliation if it does not know. See Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e-3)(a).
(3) Petersen claims she is entitled to relief under § 1983 because the individual defendants took action against her in retaliation for speech protected by the First Amendment. Again, the circuit found no evidence of adverse employment action taken as a result of her complaints of racial or religious discrimination.
(4) Her equal protection claim under § 1983 fails for similar reasons.
Motion to Suppress - Review Standard, Terry Stop, Reasonableness
United States v. Neff, 01-4184 (August 22, 2002)
(Scott Keith Wilson, FPD, Salt Lake City, Utah)
Neff entered a conditional plea to one count of possession of an unregistered short-barreled shotgun in violation of 26 U.S.C. §§ 5861(d) and 5845, subject to his appeal of the denial of his motion to suppress.
HELD: (1) On appeal from the denial of a motion to suppress, the circuit views the evidence in the light most favorable to the government and accepts findings of fact unless clearly erroneous. There is no challenge to the fact findings. The only issue is whether the officer's conduct violated the Fourth Amendment. This issue is reviewed de novo.
(2) In addressing the constitutionality of an investigative stop, first, the officer's action must be justified at its inception, and second, the officer's action must be reasonably related in scope to the circumstances which justify the stop in the first place. The allowable scope of an investigative detention cannot be determined by reference to a bright line rule. If a police-citizen encounter exceeds the limits of a Terry stop, the detention becomes an arrest that must be supported by probable cause. The defendant does not contest his initial detention, but claims the police exceeded the permissible scope of a Terry stop, due to the length of detention and use of handcuffs. A Terry stop does not become unreasonable just because police use handcuffs. Also the use of guns in connection with a stop is permissible when the police reasonably believe weapons are necessary for their protection. In this case, handcuffing was legitimate. Officers had received a reliable report that the defendant was armed with a dangerous weapon.
Habeas Corpus (28 U.S.C. § 2254)
Harmless Error - Brecht Applies Under AEDPA Even When State Does Not First Apply Chapman
Herrera v. Lemaster, 98-2060 (August 23, 2002)
(Peter Schoenburg, Albuquerque, New Mexico)
Herrera, a state prisoner, brought a petition for habeas relief pursuant to 28 U.S.C. § 2254. The district court denied relief, holding that the state court's determination of harmless error was entitled to a presumption of correctness, and alternatively, that the error was harmless under Brecht. A panel of this court concluded the district court erred in presuming correct the state court's harmless error analysis. The court directed the district court, on remand, to assess whether constitutional error was harmless under Brecht after an independent review of the state court record. Herrera sought en banc review, arguing that the Brecht harmless error standard does not apply to a habeas action governed by the AEDPA when the state court did not perform harmless error analysis under Chapman v. California. The circuit granted rehearing en banc and held that the standard set out in Brecht is the appropriate one to apply.
HELD: (1) As to the state's argument regarding the good-faith exception to the exclusionary rule, when an issue has not been properly addressed, the court generally does not address it. Although some courts have considered the applicability of Leon to be a mixed question of fact and law that can be addressed for the first time on appeal, the circuit concluded that such consideration was not appropriate.
(2) The concerns that prompted the Supreme Court in Brecht to adopt a less stringent standard for harmless error assessment on collateral review are the same concerns that led Congress to pass the AEDPA. In enacting the AEDPA, Congress did not intend to alter the Supreme Court's preexisting federal habeas jurisprudence on harmless error analysis. The Brecht standard was intended to govern all federal habeas review of state court decisions, and not just those in which the Chapman analysis has been previously applied. The Supreme Court has indicated that a federal habeas court should apply Brecht even when the state court has not assessed constitutional error for harmlessness under Chapman. See Penry v. Johnson (2001).
Habeas Corpus (28 U.S.C. § 2254);
Procedural Default - Cause and Prejudice or Actual Innocence, Investigation Hampered Because Evidence in Hands of State;
Exculpatory Evidence - Brady, Government Suppression
Scott v. Mullin, 00-7103, 00-7106 (August 26, 2002)
(Randy A. Bauman, FPD, Oklahoma City, Oklahoma)
Scott appeals the denial in part of his habeas petition filed pursuant to 28 U.S.C. § 2254. He had been convicted of first degree murder and sentenced to death after the jury found the existence of two aggravating circumstances - - that the murder was committed to avoid arrest, and that Scott was a continuing threat to society. The district court denied habeas relief on multiple grounds, but granted relief on the basis that Morgan v. Illinois was violated during voir dire. The circuit affirmed the grant of habeas relief on the basis of violation of Brady. Scott claimed that the prosecution concealed material evidence of another individual's confession to the murder in violation of Brady. Scott had raised the Brady claims during Oklahoma post-conviction proceedings, and the OCCA deemed them procedurally barred. Scott had to show the claims were not, and could not, have been raised on direct appeal, and the claims support the conclusion that either the outcome of the trial would have been different but for the errors, or that he was factually innocent. The OCCA had denied the claims on the basis that it could not conclude that the claims could not have been raised on direct appeal. Nor could it conclude that the claims would have changed the outcome of the trial or that it would support a claim of factual innocence.
HELD: (1) The federal court is precluded from reviewing procedurally defaulted claims, unless the prisoner can demonstrate cause for the default and actual prejudice, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice. Cause for procedural default can exist when some objective factor external to the defense impeded counsel's efforts to comply with the state's procedural rule. The circuit had to evaluate counsel's actions in light of information counsel had or reasonably could have had at the time of the direct appeal. A defendant cannot conduct reasonable and diligent investigation to preclude a finding of procedural default when the evidence is in the hands of the state. Appellate counsel could not have raised the Brady claims on direct appeal because she was unaware of exculpatory evidence due to the state's concealment. It is not the petitioner's responsibility to uncover suppressed evidence. The state's failure to disclose the information constitutes cause to excuse procedural default.
(2) To establish a Brady violation, Scott must demonstrate that the prosecution suppressed evidence, the evidence was favorable to the accused, and the evidence was material to the defense. The prosecutor did suppress evidence. The alleged confession was favorable to him. There must be a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different. Even assuming the evidence was admissible only as impeachment, such evidence is subject to disclosure under Brady. The circuit held there was a reasonable probability that the outcome of the trial would have been different.
Habeas Corpus (28 U.S.C. § 2241);
Ex Post Facto - Pre-Parole Release, Discretion
Powell v. Ray, 01-7125 (August 28, 2002)
Powell appeals the denial of his petition for writ of habeas corpus. He does not challenge the validity of his conviction and sentence, but rather the implementation of the Oklahoma Truth in Sentencing Act. The court analyzed the petition as if it had been filed under § 2241. The Act abolished the pre-parole conditional supervision program and replaced it with specialized parole. Powell argued that the amended statute violated the ex post facto clause.
HELD: (1) The ex post facto clause is aimed at laws that retroactively alter the definition of crimes or increase the punishment for criminal acts. But the clause does not forbid any legislative change that has any conceivable risk of affecting a prisoner's punishment. The question of what legislative adjustments will be held to be of sufficient moment to transgress the constitutional prohibition must be a matter of degree. In this case, the elimination of pre-parole supervised release affected the timing of Powell's initial parole consideration. This is a critical factor for purposes of determining whether he has a valid ex post facto claim. The question is whether the elimination of the pre-parole supervised release program created more than a speculative risk that Powell's prison term would be increased. The circuit held that he failed to make such showing. The determination of whether a prisoner would be entitled to pre-parole release was wholly discretionary. Powell has failed to demonstrate that there are any significant differences between the discretionary criteria governing the two forms of release as applied to him.
Civil Rights (42 U.S.C. § 1983);
Enforce Consent Decree;
Motion For Reconsideration
Jurisdiction - Upon Settlement
Floyd and Ingram v. Ortiz, 01-1295 (August 28, 2002)
Ten named plaintiffs filed a § 1983 action against the Colorado DOC. Following negotiations and a hearing, the parties entered into a Stipulation and an Agreement in February 1982. There was a consensus that the Agreement would benefit and be enforceable by all DOC inmates, not just the named plaintiffs. The enforcement provisions required an inmate to first pursue a grievance procedure. One of the key negotiated items was relinquishment of plaintiffs' claims for interest earned on individual accounts. But because not all plaintiffs agreed to abandon the interest claims, the court labeled the Agreement a "confession of judgment" by the defendants. It has all the attributes of a consent decree. The court stated that the case could be reopened, noting that judgment had been entered for administrative purposes, thus closing the case. No separate Rule 58, F.R.Civ.P., judgment was entered. Nor was the action formally dismissed. In November 1983, a second hearing was held to consider an Amended Stipulation and Agreement. The court reopened the matter and entered the Amended Agreement. The main difference was the clarification that inmates would have separate individualized accounts within an umbrella inmate trust account. The Amended Agreement was signed and incorporated as an order of the court in March 1984. In May 2001, Ingram filed his petition seeking to enforce the terms of the Agreement and for issuance of contempt citations to the Executive Director of the DOC. The district court struck the petition based on Ingram's failure to serve the defendants. The court noted that Ingram was not a class representative, and had not attempted to contact class representatives or their former counsel. Ingram filed motions seeking an extension of time in which to appeal and addressing issues the court deemed deficient. He attached documents purporting to show his attempts at non-judicial resolution of his grievances. The district court treated the motions as a request for reconsideration and denied them.
HELD: (1) The trial court retains jurisdiction to enforce consent decrees.
(2) This appeal is timely only as to the denial of the request for reconsideration and not to the order striking the petition.
(3) A district court can retain jurisdiction over a settlement agreement if the order of dismissal shows an intent to retain jurisdiction or incorporates the settlement agreement. The Agreement in this case provided that its terms may be specifically enforced and the court shall retain jurisdiction for such purpose.
(4) Intended third party beneficiaries of consent decrees have standing to enforce those decrees. Ingram should have cited Rule 71, F.R.Civ.P., but nonetheless, he is entitled, as a present inmate for whose benefit the Agreement was entered, to seek enforcement of its terms. Moreover, enforcement of the Agreement seems to be Ingram's only remedy. He cannot file his own § 1983 action seeking to enforce it.
(5) The court reviews the district court's denial of Ingram's request for reconsideration for abuse of discretion. The state conceded that the district court's conclusion that it lacked jurisdiction was incorrect. Plaintiff's failure to comply with a local rule does not support the denial of reconsideration. A district court, by definition, abuses its discretion when it makes an error of law or when it fails to consider the applicable legal standard or the facts upon which the exercise of its discretionary judgment is based. The circuit held that the district court abused its discretion in denying plaintiff's request for rehearing.