Richards v. Barnhart

• Court: Court of Appeals for the Tenth Circuit
• Decided: December 21, 2021
• Docket: 21-1176
• Status: Unpublished

Opinion

Appellate Case: 21-1176 Document: 010110621964 Date Filed: 12/21/2021 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT December 21, 2021 _________________________________ Christopher M. Wolpert Clerk of Court HOMER RICHARDS,

Petitioner - Appellant,

v. No. 21-1176 (D.C. No. 1:20-CV-02624-PAB) J.A. BARNHART, Warden, (D. Colo.)

Respondent - Appellee. _________________________________

ORDER AND JUDGMENT* _________________________________

Before MORITZ, BALDOCK, and EID, Circuit Judges. _________________________________

Homer Richards, proceeding pro se,1 appeals the district court’s order denying

him habeas relief under 28 U.S.C. § 2241. For the reasons explained below, we

affirm.

* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. But it may be cited for its persuasive value. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A). 1 We construe Richards’s pro se brief liberally, “but we do not act as his advocate.” United States v. Griffith, 928 F.3d 855, 864 n.1 (10th Cir. 2019). Appellate Case: 21-1176 Document: 010110621964 Date Filed: 12/21/2021 Page: 2

Background

In 1989, a jury in the District of Columbia (D.C.) Superior Court convicted

Richards of attempted robbery, second-degree murder, and carrying a pistol without a

license. The D.C. Superior Court sentenced Richards to life in prison.2 Richards

began serving that sentence at the Lorton Reformatory, a now-closed facility that

housed inmates sentenced in D.C.

In 1993, while serving his D.C. sentence, Richards was convicted in federal

district court of (1) murdering another Lorton inmate and (2) possessing a shank

capable of causing death or bodily injury. The district court sentenced Richards to

concurrent sentences of 235 months for the murder and 60 months for possessing the

shank. It ordered those sentences to run “consecutively to any sentence now being

served.” R. 102. At the government’s request, the district court recommended that

Richards be incarcerated in a federal institution and not at Lorton.

As recommended, Richards was transferred to a federal institution. A form

reflecting the transfer states that Richards was “accepted by [the Bureau of Prisons

(BOP)] per request of [the Assistant United States Attorney] for protective[-]custody

purposes.” Id. at 130 (capitalization standardized). In December 2019, Richards was

paroled from his D.C. sentence “to the consecutive” 235-month federal sentence; his

projected release date is in September 2036. Id. at 98.

2 The only D.C. Superior Court judgment in the record is dated 1999, but it is undisputed that Richards was originally convicted in 1989. 2 Appellate Case: 21-1176 Document: 010110621964 Date Filed: 12/21/2021 Page: 3

In August 2020, Richards filed an application for writ of habeas corpus under

§ 2241. He argued that his 235-month federal sentence commenced when he was

transferred, in 1993, from the custody of the D.C. Department of Corrections to

federal custody, so his federal sentence is now complete. The district court denied

Richards’s application, agreeing with the government that Richards’s federal

sentence did not begin until Richards was received into federal custody “for the

purpose of serving his federal sentence,” which occurred in 2019. Id. at 176

(emphasis omitted) (quoting Binford v. United States, 436 F.3d 1252, 1256 (10th Cir.

2006)). The district court rejected Richards’s argument that by transferring him to a

federal prison, D.C. relinquished jurisdiction over him, explaining that any such

argument was “contradicted by the fact that the D.C. Board of Parole granted [him]

parole” in December 2019.3 Id. at 178. The district court also denied Richards’s motion

to proceed in forma pauperis and later declined to reconsider that ruling.

Richards appeals. “[W]e review the district court’s legal conclusions de novo

and accept its factual findings unless clearly erroneous.” Leatherwood v. Allbaugh,

861 F.3d 1034, 1042 (10th Cir. 2017) (quoting al-Marri v. Davis, 714 F.3d 1183,

1186 (10th Cir. 2013)). Under clear-error review, “[w]e will not disturb factual findings

‘unless they have no basis in the record.’” United States v. Jordan, 806 F.3d 1244, 1252

(10th Cir. 2015) (quoting United States v. Martin, 163 F.3d 1212, 1217 (10th Cir. 1998)).

3 The district court also declined to give Richards credit for the time he was imprisoned for his D.C. sentence. On appeal, Richards does not challenge this ruling, so we do not address it. 3 Appellate Case: 21-1176 Document: 010110621964 Date Filed: 12/21/2021 Page: 4

Analysis

Richards contends that he has already finished serving his federal sentence

because he began serving it in 1993, when he was transferred to a federal facility.

Thus, to resolve this appeal, we must “determine the commencement date of

[Richards’s] federal sentence.” Binford, 436 F.3d at 1254. Under 18 U.S.C. § 3585(a),

a federal sentence “commences on the date the defendant is received in custody awaiting

transportation to, or arrives voluntarily to commence service of sentence at, the official

detention facility at which the sentence is to be served.” A prisoner’s federal sentence

does not begin until he or she is “received into federal custody for the purpose of serving

his federal sentence.” Binford, 436 F.3d at 1256 (emphasis added); see also id. at 1255

(stating that “federal sentence does not commence until a prisoner is actually received

into federal custody” for purpose of serving his or her federal sentence).

Richards argues that his 1993 transfer from Lorton to federal custody relinquished

D.C.’s custody over him and started the clock on his federal sentence. We disagree.

Richards’s argument misunderstands the relationship between federal custody and

prisoners convicted under D.C. criminal statutes. Under D.C. Code § 24-201.26, a

statute in effect at the time of Richards’s D.C. conviction and later transfer from

Lorton to the federal facility, individuals convicted of D.C. offenses are “committed,

for their terms of imprisonment . . . to the custody of the Attorney General of the

United States or his [or her] authorized representative, who shall designate the places

of confinements where the sentences of all such persons shall be served.” The BOP is

an authorized representative of the Attorney General. See United States v. Ko, 739

4 Appellate Case: 21-1176 Document: 010110621964 Date Filed: 12/21/2021 Page: 5

F.3d 558, 560–61 (10th Cir. 2014); cf. United States v. Wilson, 503 U.S. 329, 331

(1992) (“The Attorney General, through the [BOP], has responsibility for

imprisoning federal offenders.”). As a result, because imprisoned D.C. offenders are

committed to the custody of the BOP as the representative of the Attorney General,

Richards was essentially in a form of federal custody when serving his D.C. sentence

at Lorton and at the time of his transfer. See United States v. Savage, 737 F.3d 304,

309 (4th Cir. 2013).

With that framework in mind, it becomes apparent why Richards’s transfer from

Lorton to a federal institution did not start the clock on his federal sentence. First, as a

D.C. offender, Richards was already in a form of federal custody while imprisoned at

Lorton. Further, the federal sentencing court ordered Richards’s federal sentence to run

“consecutively to any sentence now being served” and recommended Richards be

imprisoned at a federal facility and not at Lorton. R. 102. And critically, the form

memorializing the 1993 transfer states that Richards, a “[D.C.] inmate convicted of

killing another inmate at Lorton,” was “accepted by BOP per request of [an Assistant

United States Attorney] for protective[-]custody purposes.” R. 130 (capitalization

standardized). We therefore see nothing “speculative,” Aplt. Br. 15, or clearly

erroneous in the district court’s finding that Richards’s 1993 transfer from Lorton to

a federal facility was for protective-custody reasons and not for the purpose of

serving his federal sentence. His federal sentence, therefore, did not begin to run at

that time. See Binford, 436 F.3d at 1254.

5 Appellate Case: 21-1176 Document: 010110621964 Date Filed: 12/21/2021 Page: 6

Challenging this conclusion, Richards argues that D.C. lost its primary custody

over him in 1993 because he was transferred without either (1) a writ of habeas

corpus ad prosequendum or (2) an order from the United States Attorney General.

Federal courts use writs of habeas corpus ad prosequendum to “secure the presence,

for purposes of trial, of defendants in federal criminal cases, including defendants

then in state custody.” United States v. Mauro, 436 U.S. 340, 358 (1978). And as the

government explains, such a writ was not required here because under § 24-201.26,

Richards was already in federal custody, even while serving his D.C. sentence. Cf.

Savage, 737 F.3d at 309. Thus, there was no need for the writ, which provides a

temporary basis for federal custody of state prisoners.

Similarly, no order from the Attorney General was required. Instead, § 24-

201.26 “explicitly permits the Attorney General of the United States, in whose

custody violators of the District of Columbia Code are placed, to house [D.C.

offenders] in federal institutions . . . at his discretion.” Blango v. Thornburgh, 942

F.2d 1487, 1491 (10th Cir. 1991) (emphasis added); see also § 24-201.26 (providing

that Attorney General may “order the transfer of” D.C. offender “from one institution

to another if, in his [or her] judgment, it shall be for the well-being of the

prisoner . . . or for other reasons”). Thus, Richards’s transfer from Lorton to the

federal facility amounted to a discretionary transfer by the Attorney General, so this

argument fails as well.4

4 Richards’s reliance on our decision in Weekes v. Fleming, 301 F.3d 1175 (10th Cir. 2002), is unavailing. Weekes involved a prisoner transferred to federal prison, 6 Appellate Case: 21-1176 Document: 010110621964 Date Filed: 12/21/2021 Page: 7

Next, Richards argues that D.C. relinquished primary custody over him

because, on Richards’s telling, one of the counts from his D.C. conviction was later

vacated, which altered his original sentence. But Richards did not make this

argument in the district court, and it is “the general rule that we do not address

arguments presented for the first time on appeal.” United States v. Moya, 676 F.3d

1211, 1213 (10th Cir. 2012) (quoting United States v. Mora, 293 F.3d 1213, 1216

(10th Cir. 2002)). Richards also does not assert on appeal that his argument would

succeed under a plain-error standard. See United States v. Leffler, 942 F.3d 1192,

1196 (10th Cir. 2019). And “[w]hen an appellant fails to preserve an issue and also

fails to make a plain-error argument on appeal, we ordinarily deem the issue waived

(rather than merely forfeited) and decline to review the issue at all—for plain error or

otherwise.” Id. We therefore decline to consider this argument.5

but from state custody. Id. at 1180–81. That is not the case here. Rather, for the reasons we have explained, Richards had been in a form of federal custody all along (even before he was transferred from Lorton to federal prison). See § 24-201.26; Savage, 737 F.3d at 309. And crucially, the prisoner in Weekes was transferred to federal prison to begin serving his federal sentence. See 301 F.3d at 1177 (recounting that petitioner “was returned to federal custody” where he pleaded guilty and was then “transferred to the federal penitentiary . . . to begin serving his federal sentence”). Here, by contrast, Richards was transferred to a federal institution for protective-custody purposes. Accordingly, this case is distinguishable from Weekes. 5 Even if we were to overlook this waiver and consider the argument under plain error, Richards would be hard-pressed to meet that standard because nothing in the record suggests Richards’s D.C. conviction was partially vacated or that he was resentenced. See United States v. Green, 886 F.3d 1300, 1307 (10th Cir. 2018) (declining to consider prisoner’s “clean disciplinary record” on appeal because that “fact was never presented to the district court” and “appellate courts are confined to the record before the district court”). There is a D.C. judgment in the record dated June 22, 1999, but it does not state that Richards’s original judgment was vacated or that his D.C. sentence was recalculated. Moreover, Richards cites no authority for his contention 7 Appellate Case: 21-1176 Document: 010110621964 Date Filed: 12/21/2021 Page: 8

Accordingly, D.C. did not relinquish primary custody of Richards in 1993.

Instead, it did so in 2019, when it paroled Richards from his D.C. sentence. See

United States v. Cole, 416 F.3d 894, 897 (8th Cir. 2005) (noting that parole is one way

that a sovereign generally relinquishes primary jurisdiction over someone). We

therefore conclude that Richards began serving his federal sentence in 2019, when

D.C. paroled him and he was in federal custody “for the purpose of serving his federal

sentence.” Binford, 436 F.3d at 1256.

A few final matters require our attention. Richards argues that the district abused

its discretion when it made factual findings without holding an evidentiary hearing. But

Richards did not request an evidentiary hearing in the district court, which he was

required to do to preserve the issue for appeal. See Fairchild v. Workman, 579 F.3d 1134,

1144 (10th Cir. 2009) (explaining that petitioner “is required to properly request an

evidentiary hearing in the district court, because we ordinarily do not decide issues raised

for the first time on appeal”). We therefore decline to consider this argument. We further

deny Richards’s request for appointed appellate counsel because counsel, at this

stage, “would not compel a different result.” Cone v. Dowling, 809 F. App’x 523, 527

(10th Cir.) (unpublished), cert. denied, 141 S. Ct. 673 (2020).

that a partially vacated and then recalculated nonfederal sentence would terminate that sentence and start the clock on a consecutive federal sentence. 8 Appellate Case: 21-1176 Document: 010110621964 Date Filed: 12/21/2021 Page: 9

Conclusion

Richards began serving his federal sentence in 2019 when he was paroled from

his D.C. sentence, not in 1993 when he was transferred from Lorton to federal prison.

Accordingly, we affirm the district court’s order denying habeas relief.

And having concluded that Richards has demonstrated both “a financial

inability to pay the required fees and the existence of a reasoned, nonfrivolous

argument on the law and facts in support of the issues raised on appeal,” we grant

Richards’s motion to proceed in forma pauperis on appeal. McIntosh v. U.S. Parole

Comm’n, 115 F.3d 809, 812–13 (10th Cir. 1997) (quoting DeBardeleben v. Quinlan,

937 F.2d 502, 505 (10th Cir. 1991)).

Entered for the Court

Nancy L. Moritz Circuit Judge