Kuehner v. Guzik

• Court: Court of Appeals for the Tenth Circuit
• Decided: December 23, 1999
• Docket: 99-6181
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS DEC 23 1999 TENTH CIRCUIT PATRICK FISHER Clerk

DANIEL RAY KUEHNER,

Petitioner-Appellant,

v. No. 99-6181 (W. Dist. of Oklahoma) BOB GUZIK; FEDERAL BUREAU (D.C. No. 98-CV-1188-T) OF PRISONS,

Respondents-Appellees.

ORDER AND JUDGMENT *

Before TACHA, McKAY, and MURPHY, Circuit Judges.

After examining Petitioner’s brief and appellate the 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* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata and collateral estoppel.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. Daniel Ray Kuehner, proceeding pro se , appeals the district court’s

dismissal of his 28 U.S.C. § 2241 habeas petition. 2 Additionally, although the

district court denied Kuehner’s motion to proceed in forma pauperis on appeal,

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

with this court. Kuehner’s motion to proceed informa pauperis is granted.

On October 6, 1995, shortly before he was scheduled to be released on

probation from a Texas state prison, Kuehner was taken into custody by the

United States Marshal’s Service on a federal charge of conspiracy to commit wire

fraud. Kuehner pleaded guilty to the federal charge and was sentenced by the

United States District Court for the Eastern District of North Carolina to a term

of twenty-seven months’ imprisonment and, upon release from imprisonment,

ordered placed on supervised release for a term of three years. Kuehner was in

federal custody from October 6, 1995, through April 27, 1996, at which time he

was released back to the state of Texas to finish his state-imposed sentence. On

November 7, 1997, Kuehner was released from state custody back into the

custody of the U.S. Marshals Service to begin serving his federal sentence.

2 Although Kuehner has also filed a petition seeking a certificate of appealability (“COA”) so he can appeal the district court’s denial of his § 2241 habeas petition, a petitioner does not need to obtain a COA to appeal the denial of 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, 810 n.1 (10th Cir. 1997). Accordingly, Kuehner’s motion for certificate of appealability is dismissed as moot.

-2- Kuehner was released from incarceration on October 23, 1999 and is currently

serving his term of supervised release.

Kuehner filed the instant § 2241 petition (the “habeas petition”) with the

United States District Court for the Western District of Oklahoma. In the habeas

petition, Kuehner challenged the computation of his federal sentence, arguing

that the time he spent in federal custody has not been credited toward his federal

sentence. Additionally, he claimed that his guilty plea to the federal charge was

not made knowingly and voluntarily because he was unaware at the time of his

plea that his state and federal sentences would run consecutively and not

concurrently.

The habeas petition was referred to a Unites States magistrate judge. The

magistrate issued Findings and Recommendation recommending that Kuehner’s

habeas petition be dismissed. The Findings and Recommendation concluded that

the time Kuehner had spent in federal custody had been credited toward his Texas

state sentence and, therefore, could not also be credited toward his federal

sentence. See Bruss v. Harris , 479 F.2d 392 (10th Cir. 1973). The Findings and

Recommendation also concluded that any claims Kuehner has regarding the

voluntariness of his plea agreement must be raised with the sentencing court in

the Eastern District of North Carolina. See Bradshaw v. Story , 86 F.3d 164, 166

(10th Cir. 1996). Kuehner filed a timely objection to the Findings and

-3- Recommendation, which the district court considered. The district court,

however, adopted the Findings and Recommendation and dismissed Kuehner’s

habeas petition. Kuehner’s claim challenging the voluntariness of his guilty plea,

however, was dismissed without prejudice to its refiling in the Eastern District of

North Carolina. Kuehner appealed.

In light of an indication in the record that Kuehner had served his term of

imprisonment and was no longer incarcerated, this court issued an order to show

cause why the appeal should not be dismissed on the ground of mootness. In his

response to the order to show cause, Kuehner concedes that he was released from

incarceration on October 23, 1999 but claims that his three-year term of

supervised release is part of his “federal sentence.” After reviewing the record

and the relevant statute, this court concludes that Kuehner’s appeal from the

district court’s ruling that the term of his federal imprisonment was correctly

calculated must be dismissed as moot.

Kuehner was released from federal custody on October 23, 1999.

Although Kuehner is currently serving a term of supervised release, he has failed

to demonstrate to this court how a reduction in the length of his federal term of

imprisonment could shorten the term of his supervised release. A term of

supervised release may be imposed by a sentencing court in addition to a term of

imprisonment. See 18 U.S.C. § 3583. The length of a term of supervised

-4- released is linked to the crime of which the defendant has been convicted, not to

the length of the term of imprisonment received by the defendant. Id. at §

3583(b). Kuehner’s term of incarceration has ended. His appeal is moot unless

he is able to establish that a favorable decision from this court would shorten the

length of his supervised release. See Aragon v. Shanks , 114 F.3d 690, 692 (10th

Cir. 1998). Kuehner has failed to present any support for his position.

Kuehner also claims that he was sentenced under the wrong version of the

United States Sentencing Guidelines and that his guilty plea to the federal charge

was not made knowingly and voluntarily. The district court correctly dismissed

these claims. Claims as those raised by Kuehner which challenge the validity of a

sentence must be raised in the court that imposed the sentence, in this case the

District Court for the Eastern District of North Carolina. See Bradshaw, 86 F.3d

at 166. Upon de novo review of Kuehner’s appellate brief, the magistrate judge’s

Report and Recommendation, the district court’s Order and the entire record on

appeal, this court affirms the dismissal of Kuehner’s claims relating to the

validity of his sentence for substantially the reasons set forth in the district

-5- court’s Order dated April 21, 1999. The claims raised by Kuehner challenging

the calculation of his federal term of imprisonment are dismissed as moot.

ENTERED FOR THE COURT

Michael R. Murphy Circuit Judge

-6-