Alexander v. Flowers

• Court: Court of Appeals for the Tenth Circuit
• Decided: February 24, 2000
• Docket: 99-6392
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS FEB 24 2000 TENTH CIRCUIT PATRICK FISHER Clerk

HAYWOOD ALEXANDER,

Petitioner-Appellant, No. 99-6392 v. (W. District of Oklahoma) (D.C. No. CIV-97-512-L) A. M. FLOWERS,

Respondent-Appellee.

ORDER AND JUDGMENT *

Before BRORBY, KELLY, and MURPHY, Circuit Judges.

After examining Petitioner’s brief and the appellate record, this panel has

determined unanimously that oral argument would not materially assist the

determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).

The court therefore orders the case submitted without oral argument.

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. Haywood Alexander, proceeding pro se , appeals the district court’s denial

of his Petition for Contempt of Court. 1 Additionally, although the district court

denied Alexander’s motion to proceed in forma pauperis on appeal, Alexander

has renewed that request by filing a motion to proceed in forma pauperis with

this court. 2 Alexander’s motion to proceed in forma pauperis is granted.

Alexander pleaded guilty to one count of conspiracy to distribute cocaine

base and heroin in violation of 21 U.S.C. § 846 and one count of money

laundering in violation of 18 U.S.C. § 1956(1)(1)(A). At sentencing, the court

imposed a two-level enhancement pursuant to § 2D1.1 of the United States

Sentencing Guidelines because Alexander possessed a dangerous weapon during

commission of the drug offenses. The court sentenced Alexander to a term of

168 months’ incarceration on each count, to run concurrently.

On April 7, 1997, Alexander filed a petition for a writ of habeas corpus

pursuant to 28 U.S.C. § 2241 (the “habeas petition”) with the United States

District Court for the Western District of Oklahoma. In the habeas petition,

1 Alexander’s petition was amended to include a Petition for Rule to Show Cause.

Although Alexander has also filed an application seeking a certificate of 2

appealability (“COA”), a federal petitioner does not need to obtain a COA to appeal issues relating to a petition for writ of habeas corpus brought pursuant to 28 U.S.C. § 2241. See McIntosh v. United States Parole Comm., 115 F.3d 809 n.1 (10th Cir. 1997). Accordingly, Alexander’s application for certificate of appealability is dismissed as moot.

-2- Alexander contended that he had completed a residential drug treatment program

administered by the Bureau of Prisons (“BOP”) and thus, was eligible for a

reduction in his term of incarceration pursuant to 18 U.S.C. § 3621(e)(2)(B).

Alexander’s eligibility for the sentence reduction was contested by Appellant

who, relying on the sentence enhancement, claimed Alexander had been

convicted of a violent crime and therefore was ineligible. See 18 U.S.C. §

3621(e)(2)(B) (limiting those eligible for the sentence reduction to prisoners

“convicted of a nonviolent offense”).

Shortly after the magistrate judge issued his Findings and

Recommendations but before the district court had ruled on Alexander’s habeas

petition, this court resolved the sentence-enhancement issue raised by Alexander

in his habeas petition. See Fristoe v. Thompson , 144 F.3d 627, 630-632 (10th

Cir. 1998) (holding that BOP may not use a sentence enhancement to treat

nonviolent offenders as though they had been convicted of a violent offense).

The district court remanded the matter to the BOP for a redetermination of

Alexander’s eligibility in light of Fristoe .

Upon reconsideration of Alexander’s eligibility, the BOP determined that,

notwithstanding Fristoe , Alexander was not eligible for a sentence reduction

because an outstanding detainer, issued against him by the state of Texas,

precluded him from participating in the community-based treatment phase of the

-3- residential drug treatment program. The BOP, therefore, again denied Alexander

a sentence reduction. Alexander then filed a Petition for Contempt of Court. In

his petition, Alexander claimed the BOP’s refusal to consider him eligible for a

sentence reduction is contrary to the district court’s order dated May 28, 1998,

wherein the case was remanded to the BOP for further proceedings. Alexander

also argued that the outstanding Texas detainer could not be used to deny him

eligibility and that the BOP had waived it’s right to rely on the detainer to

support the denial of his sentence reduction.

The district court denied Alexander’s Petition for Contempt of Court. The

court stated that its order remanding the matter to the BOP for further

proceedings did not foreclose the BOP from denying Alexander the sentence

reduction on grounds other than the sentence enhancement. The district court,

after concluding that the issue had not been waived, also held that the BOP did

not exceed its statutory authority when it relied on the Texas detainer to deny the

sentence reduction.

-4- Upon de novo review of Alexander’s appellate brief, the district court’s

orders, and the entire record on appeal, this court affirms the denial of

Alexander’s Petition for Contempt of Court and Petition for Rule to Show Cause

for substantially the reasons set forth in the district court’s Order dated

September 28, 1999.

ENTERED FOR THE COURT:

Michael R. Murphy Circuit Judge

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