F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS OCT 12 1999 TENTH CIRCUIT PATRICK FISHER Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 99-2129 v. (District of New Mexico) (D.C. No. CIV-99-122-JP) HAROLD BUCK,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before TACHA, McKAY, and MURPHY, Circuit Judges.
After examining the briefs and 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 case is
therefore ordered submitted without oral argument.
Harold Buck, proceeding pro se and in forma pauperis, appeals the district
court’s denial of his “Letter-Affidavit,” apparently construed by the district court
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata and collateral estoppel.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. as a 28 U.S.C. § 2255 petition. This court concludes that the district court erred
in treating Buck’s Letter-Affidavit as a § 2255 petition, rather than a 28 U.S.C.
§ 2241 petition, because the Letter-Affidavit attacks the execution of a sentence
rather than its underlying validity. Properly construed as a § 2241 petition, the
district court was without jurisdiction to reach the merits of the Letter-Affidavit.
Accordingly, this court vacates the district court order denying the Letter-
Affidavit on the merits and remands the case to the district court to dismiss for
lack of jurisdiction.
On September 15, 1995, Buck was arrested in San Juan County, New
Mexico, for driving under the influence (“DUI”) and placed into state custody.
Buck was furloughed from the San Juan County Jail on November 17, 1995;
because he failed to return from the furlough, he was placed on escape status and
charged with escape.
While on escape status, Buck beat his girlfriend to death at his home on the
Navajo Reservation. Buck was eventually detained by FBI agents and, during an
interview with those agents, confessed to the murder. At the conclusion of the
interview, the agents discovered that Buck was the subject of an outstanding state
warrant. Accordingly, the agents released Buck to state authorities who returned
him to the San Juan County Jail.
-2- Buck thereafter entered guilty pleas to the state DUI and escape charges.
On July 29, 1996, a state court sentenced Buck to separate eighteen-month terms
on each of the state charges. The state court ordered the terms to run
consecutively, but concurrent to any sentence Buck would receive in federal court
for the pending murder case.
On November 6, 1996, Buck entered a guilty plea in federal district court to
second degree murder and was sentenced to a term of incarceration of 120
months. The judgment was entered on February 5, 1997. Neither the judgment
nor the plea agreement specified that a state correctional facility in New Mexico
could serve as Buck’s place of confinement for his federal sentence. Nor did
either document provide that Buck would receive credit on his federal sentence
for time served on his unrelated state offenses.
After the federal sentencing hearing, Buck was remanded to the custody of
the United States Marshall who returned Buck to New Mexico authorities so that
he could finish serving his state sentence. Buck was paroled from his state
sentence and transferred into federal custody on March 16, 1998. At that point,
Buck was informed that the Bureau of Prisons (“BOP”) was computing the
starting date of his federal sentence as March 16, 1998, the date he was delivered
into federal custody upon the completion of his state sentence, rather than July 30,
1996, the date he began serving his state sentences in state prison. In response,
-3- Buck filed the Letter-Affidavit challenging that BOP decision. According to
Buck, “it was certainly the intention and understanding of the ‘STATE OF NEW
MEXICO COURT’ to make clear to this Honorable Court that each of my
consecutive sentences . . . would run concurrent with the ‘120 MONTH
SENTENCE’ of imprisonment imposed upon me by this court.”
The district court considered and denied Buck’s petition on the merits, on
the ground that the issue had previously been rejected by the court in May of
1997. Vega appeals, once again asserting that he is entitled to credit on his
federal sentence for the time served in state prison pursuant to the state trial
court’s order. He also raises, for the first time on appeal, a claim that the
government has breached the plea agreement by not affording him credit for time
served on the state conviction.
As correctly noted by the respondent United States, the only possible
reading of Buck’s Letter-Affidavit is that it constitutes an attack on the execution
of his sentence (i.e., whether he gets credit for time served in state prison) rather
than an attack on the validity of the federal murder conviction itself. Thus, the
district court erred in treating Buck’s Letter-Affidavit as a § 2255 petition instead
of a § 2241 petition. In Bradshaw v. Story, 86 F.3d 164, 166 (10 th Cir. 1996), this
court succinctly stated the differences between these two types of petitions:
A petition under 28 U.S.C. § 2241 attacks the execution of a sentence rather than its validity and must be filed in the district
-4- where the prisoner is confined. United States v. Scott, 803 F.2d 1095, 1096 (10 th Cir. 1986). It is not an additional, alternative, or supplemental remedy to 28 U.S.C. § 2255. Williams v. United States, 323 F.2d 672, 673 (10 th Cir. 1963), cert. denied, 377 U.S. 980 (1964). A 28 U.S.C. § 2255 petition attacks the legality of detention, Barkan v. United States, 341 F.2d 95, 96 (10 th Cir.), cert. denied, 381 U.S. 940 (1965), and must be filed in the district that imposed the sentence, United States v. Condit, 621 F.2d 1096, 1097 (10 th Cir. 1980). “The purpose of section 2255 is to provide a method of determining the validity of a judgment by the court which imposed the sentence, rather than by the court in the district where the prisoner is confined.” Johnson v. Taylor, 347 F.2d 365, 366 (10 th Cir. 1965).
In this case it is uncontroverted that Buck was incarcerated at the federal
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F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS OCT 12 1999 TENTH CIRCUIT PATRICK FISHER Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 99-2129 v. (District of New Mexico) (D.C. No. CIV-99-122-JP) HAROLD BUCK,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before TACHA, McKAY, and MURPHY, Circuit Judges.
After examining the briefs and 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 case is
therefore ordered submitted without oral argument.
Harold Buck, proceeding pro se and in forma pauperis, appeals the district
court’s denial of his “Letter-Affidavit,” apparently construed by the district court
* 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. as a 28 U.S.C. § 2255 petition. This court concludes that the district court erred
in treating Buck’s Letter-Affidavit as a § 2255 petition, rather than a 28 U.S.C.
§ 2241 petition, because the Letter-Affidavit attacks the execution of a sentence
rather than its underlying validity. Properly construed as a § 2241 petition, the
district court was without jurisdiction to reach the merits of the Letter-Affidavit.
Accordingly, this court vacates the district court order denying the Letter-
Affidavit on the merits and remands the case to the district court to dismiss for
lack of jurisdiction.
On September 15, 1995, Buck was arrested in San Juan County, New
Mexico, for driving under the influence (“DUI”) and placed into state custody.
Buck was furloughed from the San Juan County Jail on November 17, 1995;
because he failed to return from the furlough, he was placed on escape status and
charged with escape.
While on escape status, Buck beat his girlfriend to death at his home on the
Navajo Reservation. Buck was eventually detained by FBI agents and, during an
interview with those agents, confessed to the murder. At the conclusion of the
interview, the agents discovered that Buck was the subject of an outstanding state
warrant. Accordingly, the agents released Buck to state authorities who returned
him to the San Juan County Jail.
-2- Buck thereafter entered guilty pleas to the state DUI and escape charges.
On July 29, 1996, a state court sentenced Buck to separate eighteen-month terms
on each of the state charges. The state court ordered the terms to run
consecutively, but concurrent to any sentence Buck would receive in federal court
for the pending murder case.
On November 6, 1996, Buck entered a guilty plea in federal district court to
second degree murder and was sentenced to a term of incarceration of 120
months. The judgment was entered on February 5, 1997. Neither the judgment
nor the plea agreement specified that a state correctional facility in New Mexico
could serve as Buck’s place of confinement for his federal sentence. Nor did
either document provide that Buck would receive credit on his federal sentence
for time served on his unrelated state offenses.
After the federal sentencing hearing, Buck was remanded to the custody of
the United States Marshall who returned Buck to New Mexico authorities so that
he could finish serving his state sentence. Buck was paroled from his state
sentence and transferred into federal custody on March 16, 1998. At that point,
Buck was informed that the Bureau of Prisons (“BOP”) was computing the
starting date of his federal sentence as March 16, 1998, the date he was delivered
into federal custody upon the completion of his state sentence, rather than July 30,
1996, the date he began serving his state sentences in state prison. In response,
-3- Buck filed the Letter-Affidavit challenging that BOP decision. According to
Buck, “it was certainly the intention and understanding of the ‘STATE OF NEW
MEXICO COURT’ to make clear to this Honorable Court that each of my
consecutive sentences . . . would run concurrent with the ‘120 MONTH
SENTENCE’ of imprisonment imposed upon me by this court.”
The district court considered and denied Buck’s petition on the merits, on
the ground that the issue had previously been rejected by the court in May of
1997. Vega appeals, once again asserting that he is entitled to credit on his
federal sentence for the time served in state prison pursuant to the state trial
court’s order. He also raises, for the first time on appeal, a claim that the
government has breached the plea agreement by not affording him credit for time
served on the state conviction.
As correctly noted by the respondent United States, the only possible
reading of Buck’s Letter-Affidavit is that it constitutes an attack on the execution
of his sentence (i.e., whether he gets credit for time served in state prison) rather
than an attack on the validity of the federal murder conviction itself. Thus, the
district court erred in treating Buck’s Letter-Affidavit as a § 2255 petition instead
of a § 2241 petition. In Bradshaw v. Story, 86 F.3d 164, 166 (10 th Cir. 1996), this
court succinctly stated the differences between these two types of petitions:
A petition under 28 U.S.C. § 2241 attacks the execution of a sentence rather than its validity and must be filed in the district
-4- where the prisoner is confined. United States v. Scott, 803 F.2d 1095, 1096 (10 th Cir. 1986). It is not an additional, alternative, or supplemental remedy to 28 U.S.C. § 2255. Williams v. United States, 323 F.2d 672, 673 (10 th Cir. 1963), cert. denied, 377 U.S. 980 (1964). A 28 U.S.C. § 2255 petition attacks the legality of detention, Barkan v. United States, 341 F.2d 95, 96 (10 th Cir.), cert. denied, 381 U.S. 940 (1965), and must be filed in the district that imposed the sentence, United States v. Condit, 621 F.2d 1096, 1097 (10 th Cir. 1980). “The purpose of section 2255 is to provide a method of determining the validity of a judgment by the court which imposed the sentence, rather than by the court in the district where the prisoner is confined.” Johnson v. Taylor, 347 F.2d 365, 366 (10 th Cir. 1965).
In this case it is uncontroverted that Buck was incarcerated at the federal
prison in Florence, Colorado, at the time he filed the Letter-Affidavit.
Accordingly, properly construed as a § 2241 petition, the Letter-Affidavit had to
be filed in the United States District Court for the District of Colorado. Id. (A
§ 2241 petition “must be filed in the district where the petitioner is confined.”).
Because Buck filed the Letter-Affidavit in district court in New Mexico, the
district court was without jurisdiction to reach the merits of the petition. See id.;
United States v. Scott, 803 F.2d 1095, 1096 (10 th Cir. 1986).
As to Buck’s belatedly asserted claim that the United States has breached
the plea agreement by not providing him credit for time served in state prison,
which claim does properly invoke § 2255, we simply note that this court will not
address arguments raised for the first time on appeal. United States v. Bell, 154
F.3d 1205, 1212 (10 th Cir. 1998).
-5- The judgment of the United States District Court for the District of New
Mexico is VACATED and the action is REMANDED to the district court to
dismiss Buck’s Letter-Affidavit without prejudice to asserting the claim in a
proper forum.
ENTERED FOR THE COURT:
Michael R. Murphy Circuit Judge
-6-