United States v. Eakman

• Court: Court of Appeals for the Third Circuit
• Decided: July 12, 2004
• Docket: 03-1835
• Status: Published

Opinion

Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit

7-12-2004

USA v. Eakman Precedential or Non-Precedential: Precedential

Docket No. 03-1835

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Recommended Citation "USA v. Eakman" (2004). 2004 Decisions. Paper 440. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/440

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu. PRECEDENTIAL Shelley Stark Federal Public Defender UNITED STATES COURT OF Lisa B. Freeland, Esq. (Argued) APPEALS FOR THE THIRD CIRCUIT Assistant Federal Public Defender 1450 Liberty Center 1001 Liberty Avenue Pittsburgh, PA 15222 No. 03-1835 Attorneys for Appellant

Mary Beth Buchanan UNITED STATES OF AMERICA, United States Attorney Appellee Christine A. Sanner, Esq. (Argued) Bonnie R. Schlueter, Esq. v. Assistant United States Attorneys 633 U.S. Post Office and Courthouse SAMUEL L. EAKM AN, JR., Pittsburgh, PA 15219 Appellant Attorneys for Appellee

Appeal from the United States District OPINION OF THE COURT Court for the Western District of Pennsylvania (D.C. Crim. No. 98-cr-00029-2) SHADUR, District Judge. District Judge: Honorable Gary L. Lancaster Federal prisoner Samuel L. Eakman (“Eakman”) appeals from the district court’s denial of his 28 U.S.C. § 2255 2 Argued March 11, 2004 motion that seeks the vacation or amendment of his prison sentence. Before: SLOVITER and NYGAARD, Eakman claims that his current sentence is Circuit Judges, and SHADUR,1 District constitutionally invalid because the district Judge judge relied on a mistaken understanding of the law in believing that the Bureau of (Opinion filed July 12, 2004 ) Prisons (“Bureau”) had the discretion to place him in a community corrections

1 Honorable Milton I. Shadur, 2 United States District Court Judge for the All further references to Title 28 Northern District of Illinois, sitting by provisions will take the form “Section designation. –.” center (also known as a “halfway-house”), A C O MM UN ITY when in fact the Bureau lacked such CORRECTIONS CENTER authority under the law.3 On the record WITH THE DEFENDANT before us it appears highly likely (at a BEING GRANTED minimum) that the district court would IMMEDIATE WORK have imposed a different sentence had it RELEASE STATUS. not been for its contrary understanding. On November 7, 2002 (over two We hold that under such years after he was sentenced) Eakman circumstances the sentence imposed began to serve his prison term at a violated due process, so that a hearing on community corrections center. But on Eakman’s Section 2255 motion should December 13, 2002 the Department of have been granted. We therefore remand Justice's Office of Legal Counsel issued a for further proceedings in accordance with memorandum concluding that the Bureau this opinion. had no statutory authority to assign prisoners to community corrections centers Background for the imprisonment portion of the sentence. Accordingly the Bureau Eakman pleaded guilty on October changed its prior practice and planned to 30, 1998 to two counts of conspiracy, one transfer to other facilities all prisoners pertaining to the possession of anabolic (including Eakman) who as of December steroids and the other charging money 16, 2002 had more than 150 days laundering. On September 9, 1999 the remaining on their prison terms. court sentenced him to 18 months’ imprisonment. For reasons not relevant to Eakman then moved the district this appeal, on July 10, 2000 we issued a court to vacate or amend his sentence nonprecedential opinion (reported in table, under Sections 2241 and 2255 and asked 229 F.3d 1139 (3d Cir. 2000)) vacating for the appointment of counsel. 4 On Eakman’s original sentence and remanding January 22, 2003 the district court the case to the district court for appointed a Federal Public Defender to resentencing. On October 20, 2000 the represent Eakman but denied his Section district court imposed a new imprisonment 2241 and 2255 motions. Eakman sought term of one year and a day, with this recommendation to the Bureau: 4 As the government raises no issue THIS SENTENCE as to Section 2255's one-year statute of SHOULD BE SERVED AT limitations, we need not determine whether Eakman’s claim fits within that time restriction (Robinson v. Johnson, 3 More on the latter subject later. 313 F.3d 128, 135–37 (3d Cir. 2002)).

2 and obtained a certificate of appealability district court did not have jurisdiction as to this claim: under Section 2241 because he failed to serve (or name) his custodian. In response Petitioner’s sentence was the government argues that only Section imposed in violation of his 2241 provides a potential source of relief federal constitutional right because Eakman essentially contests the to due process where (1) this place of his imprisonment, not the validity Court relied upon material of his sentence. And to be sure, Section misin f o r m a t io n w h en 2255 “is expressly limited to challenges to sentencing Petitioner, i.e., the validity of the petitioner's sentence” that the Bureau of Prisons and “Section 2241 is the only statute that (“BOP”) had the discretion, confers habeas jurisdiction to hear the under 18 U.S.C. § 3621(b), petition of a federal prisoner who is to designate a community challenging not the validity but the corrections center for execution of his sentence” (Coady v. service of that sentence, and Vaughn, 251 F.3d 480, 485 (3d Cir. (2) had it been known that 2001)). the BOP would repudiate the discretion the parties and But here Eakman does contest the the Court believed it had, validity of his sentence: He argues that the counsel for Petitioner could district court committed an error of law in have advocated for (and the assuming that the Bureau could lawfully court could have granted) a place Eakman in a community corrections downward departure that center, a mistake that he says would have resulted in a fundamentally tainted the sentencing sentence that [required] proceeding. Eakman seeks resentencing, Petitioner to serve a year not a determination that the Bureau's and a day in a community change in practice was unlawful or an confinement center. order preventing his transfer from the community corrections center. Hence his Eakman filed a timely notice of appeal, claim is suitable for consideration under and the district court released Eakman on Section 2255. And because the district bond pending appeal. court denied Eakman’s motion as a matter of law and without a hearing, we review its Section 2255 or 2241? ruling de novo (United States v. Cleary, 46 F.3d 307, 309–10 (3d Cir. 1995)). Eakman originally invoked both Sections 2241 and 2255 in the court Section 2255 provides in pertinent below, but he limits his challenge on part: appeal to Section 2255, conceding that the

3 A prisoner in custody under such a denial or s e n t e n c e o f a c o u rt i n f r in g e m e n t o f t h e established by Act of constitutional rights of the Congress claiming the right prisoner as to render the to be released upon the judgment vulnerable to ground that the sentence collateral attack, the court was imposed in violation of shall vacate and set the the Constitution or laws of judgment aside and shall the United States, or that the discharge the prisoner or court w as without resentence him or grant a jurisdiction to impose such new trial or correct the sentence, or that th e sentence as may appear sentence was in excess of appropriate. the maximum authorized by law, or is otherwise subject Because Eakman raises no issues as to the to collateral attack, may constitutionality or lawfulness of the move the court which sentence itself, and because nothing in the imposed the sentence to record suggests that the district court vacate, set aside or correct lacked jurisdiction to impose the sentence, the sentence. we need decide only whether the record sufficiently demonstrates that Eakman’s Unless the motion and the sentence is “otherwise open to collateral files and records of the case attack.” conclusively show that the prisoner is entitled to no Error of Constitutional Magnitude relief, the court shall cause notice thereof to be served United States v. Addonizio, 442 upon the United States U.S. 178, 184 (1979), confirms that “[i]t attorney, grant a prompt has, of course, long been settled law that hearing thereon, determine an error that may justify reversal on direct the issues and make findings appeal will not necessarily support a of fact and conclusions of collateral attack on a final judgment.” law with respect thereto. If Section 2255 permits relief for an error of the court finds that the law or fact only where the error constitutes judgment was rendered a “fundamental defect which inherently without jurisdiction, or that results in a complete miscarriage of the sentence imposed was justice” (id. at 185, quoting Hill v. United not authorized by law or States, 368 U.S. 424, 428 (1962)). We otherwise open to collateral have applied that teaching by requiring a attack, or that there has been petitioner who collaterally attacks his

4 sentence based on some error in the According to the prisoner, he would have sentencing proceeding to allege (1) that the been released when he became eligible for district court received “misinformation of parole under the old parole system (the one a constitutional magnitude” and (2) that in effect at the time of his sentencing), but the district judge relied at least in part on he was instead denied parole twice as a that misinformation (United States v. direct consequence of the change in parole Spiropoulos, 976 F.2d 155, 163 (3d Cir. policy (442 U.S. at 182). 1992)). Both the Addonizio district court As the government would have it, and Court of Appeals (incidentally this Eakman’s sentencing proceeding was not Court) found the prisoner was entitled to fundamentally defective as a matter of law relief under Section 2255 (id. at 183), with because the district court had no the district judge ruling that the Parole enforceable expectation of Eakman’s Commission’s change in policy had placement in a community corrections thwarted his sentencing expectation by center. At best, argues the government, denying the prisoner “the kind of Eakman alleges that the district court’s ‘meaningful parole hearing’ that the judge subjective expectations may have been had anticipated when sentence was frustrated, but that does not suffice to imposed” (id.). As the district judge show an error of “constitutional explained, he had expected that the magnitude.” In that respect the prisoner would be released after serving government urges that Eakman’s claim is one-third of his sentence, assuming good no different from that in Addonizio, where be ha v ior , w i t h that “sente ncin g a federal prisoner mounted a collateral expectation [being] based on the Court’s attack to his sentence under Section 2255 understanding – which was consistent with because post-sentencing the United States generally-held notions – of the operation Parole Commission significantly modified of the parole system in 1970” (id. at 181 the weight it placed on several factors in n.3). We affirmed the judgment. deciding whether to grant parole.5 But the Supreme Court reversed, ruling that the prisoner’s claim was not 5 cognizable under Section 2255 because Addonizio actually involved the “[t]he claimed error here – that the judge claims of not one but three prisoners, but was incorrect in his assumptions about the it presented the facts only as to one of future course of parole proceedings – does them, both to sharpen the focus of the not meet any of the established standards legal issues and because the claims of the of collateral attack” (442 U.S. at 186). other two prisoners were identical (442 Although the Court recognized that a U.S. at 179–80). We follow that lead and lawful sentence may be set aside under refer only to the prisoner whom the Section 2255 if it is based on Supreme Court discussed in its opinion.

5 “ m i si n f o rmation of constitutional would be at odds with Congress’ magnitude,” it held that “there is no basis delegation of authority to the Parole for enlarging the grounds for collateral Commission to determine whether and attack to include claims based not on any when prisoners should be released: objectively ascertainable error but on the frustration of the subjective intent of the [T]h e judge has no sentencing judge” (id. at 187). As the enforceable expectations Court continued (id. at 187-88): with respect to the actual release of a sentenced As a practical matter, the defendant short of his subjective intent of the statutory term. The judge sentencing judge would may well have expectations provide a questionable basis as to when release is likely. for testing the validity of his But the actual decision is judgment. The record made not his to make, either at the when Judge B arlow time of sentencing or later if pronounced sentence against his expectations are not met. Addonizio, for example, is To require the Parole entirely consistent with the Commission to act in view that the judge then accordance with judicial thought that this was an expectations, and to use exceptional case in which collateral attack as a the severity of Addonizio’s mechanism for ensuring that offense should and would be these expectations are considered carefully by the carrie d out, would Parole Commission when substantially undermine the Addonizio became eligible congressional decision to for parole. If the record is entrust r e lease ambiguous, and if a § 2255 de te r m ina tions to th e motion is not filed until Commission and not the years later, it will often be courts. Nothing in § 2255 difficult to reconstruct with supp orts – le t alone any certainty the subjective mandates – such a intent of the judge at the frustration of congressional time of sentencing. intent.

Addonizio, id. at 190, found that In sum, Addonizio refused to expand opening sentences to collateral attack habeas relief beyond “objectively based on a court’s expectations about ascertainable errors” to errors that would, when a prisoner is likely to be released to paraphrase Skycom Corp. v. Telstar

6 Corp., 813 F.2d 810, 814 (7th Cir. 1987), cases in which either a “invite a tour through [the judge’s] federal statute or specific cranium, with [the judge] as the guide.” Civil Rule requires that Instead the error must be “objectively result. ascertainable” in the sense that it can be determined from the record and also in the And Section 2255 certainly does not sense that it does not depend on assessing contain such a requirement. All that a the particular intention of the sentencing Section 2255 petitioner must do is to judge. allege (and eventually prove) that the sentencing court committed an error of Some district courts that have faced constitutional magnitude and that the error claims like the one at issue here have influenced the sentence. attempted to distinguish Addonizio on the basis that petitioners in those cases have Addonizio, 442 U.S. at 186, expressly asserted a constitutional basis for rejected the petitioner’s motion not their collateral attacks, while the prisoner because of some pleading mistake, but in Addonizio failed to articulate such a rather because it concluded that a basis for his claim. For instance, Pearson sentencing court’s expectations about the v. United States, 265 F.Supp.2d 973, 980 future course of discretionary parole ( E. D. Wis. 2003) ob serve d th at proceedings cannot give rise to an error of “petitioner’s claim is explicitly based on constitutional magnitude. If Eakman’s the Due Process Clause, unlike that of the motion presented no more than a similar defendant in Addonizio, who asserted no allegation – that the district judge expected constitutional basis for his motion” (see the Bureau to exercise its discretion to also Smith v. United States, 277 F.Supp.2d require Eakman to serve his sentence at a 100, 107-08 (D. D.C. 2003); Culter v. community confinement center, but the United States, 241 F.Supp.2d 19, 26-27 n.7 Bureau did not conform to that expectation (D. D.C. 2003)). We find that distinction – his motion would meet the same fate, problematic. Surely those cases cannot because (as the government correctly suggest that Addonizio added a heightened states) the Bureau has the exclusive pleading standard to Section 2255 motions authority to determine the place of (see Swierkiewicz v. Sorema N.A., 534 imprisonment under 18 U.S.C. § 3621(b) U.S. 506, 513-14 (2002)). As Educadores (see United States v. Serafini, 233 F.3d Puertorriqueños en Acción v. Hernández, 758, 777-78 (3d Cir. 2000)). 367 F.3d 61, 66 (1st Cir. 2004) observes: But that is not Eakman’s Swierkiewicz has sounded contention. Instead he asserts that the the death knell for the district judge believed the Bureau could imposition of a heightened lawfully place him in a community pleading standard except in corrections center when, according to the

7 government, 18 U.S.C. § 3621(b) never ascertained from the record.6 In fact, it is gave the Bureau the legal authority to do hard to imagine how a sentence could ever so. Unlike Addonizio, Eakman does not be deemed fair when there is some way to challenge his sentence on the basis that the verify the sentencing court’s error district judge made a bad predictive externally (whether an error of fact or an judgment about how his sentence would be error of law) and when that error caused executed – he rather argues that the court the misguided sentence. misunderstood the law. Because such o b j e c t i v e ly King v. Hoke, 825 F.2d 720 (2d ascertainable errors that a sentencing court Cir. 1987), provides some guidance on that has materially relied upon will always be score. There the Second Circuit granted of “constitutional ma gnitud e,” the habeas relief where the sentencing court appropriate test inquires whether (1) the relied on a flawed understanding of the district court made an objectively law as to when the prisoner would be ascertainable error (one that does not eligible for parole (id. at 724-25). King, require courts to probe the mind of the id. at 725, distinguished Addonizio: sentencing judge) and (2) the district court materially relied on that error in In Addonizio the sentencing determining the appropriate sentence.7 If judge had made an incorrect the answer to both questions is “yes,” then prediction of how the Parole – unless the record conclusively shows that Commission would exercise its discretion. By contrast, 6 in the pending case, the We note that Atehortua v. Kindt, sentencing judge made an 951 F.2d 126, 129-30 (7th Cir. 1991), “objectively ascertainable contains a dictum that appears to look in error,” [Addonizio, 442 the opposite direction. Atehortua U.S.] at 187, about King’s suggests that a petitioner may be out of minimum statutory parole luck even where the government, the eligibility date, a matter of defendant and the district court judge law rather than a prediction were all clearly mistaken about the concerning an agency’s parole consequences of a sentence based discretion. on an improper application of the statute governing parole. We agree with King and hold that 7 Framing the first part of the two- Addonizio does not control where, as here, prong test in this way states the material a prisoner alleges that the district court requirements for Section 2255 relief made an error of law that can be more succinctly, but it does not materially change the analysis from our earlier opinions.

8 the prisoner is not entitled to relief – the interpretation of its own legal authority, prisoner is entitled to a hearing. And if the and because the Bureau is not a party to court determines after the hearing that the this action, we prescind the question error did indeed result in a miscarriage of whether the Department of Justice’s view, justice, it must vacate the sentence and adopted by the Bureau, is correct. We resentence the prisoner. rather assume arguendo that the Bureau never had the legal authority to place Objectively Ascertainable Error Eakman in a community confinement center, so that the district court erred in Indisputably the district judge believing differently. But it is certainly believed the Bureau had the authority to worth observing that if it were otherwise, p l a c e E a km a n in a co m m unit y the Bureau’s decision to repudiate its own confinement center, for otherwise the discretion under the statute would raise judge’s recommendation to that effect serious ex post facto concerns (U.S. Const. would have been pointless. And if as the art. I, § 9 cl. 3; see Culter, 241 F.Supp.2d government contends the Bureau did not at 24-25 n.6; Ashkenazi v. Attorney Gen., actually have the legal authority to assign 246 F.Supp.2d 1, 9 (D. D.C. 2003), prisoners to community confinement vacated as moot, 346 F.3d 191, 192 (D.C. centers, the judge clearly committed an Cir. 2003)). 8 That clause protects against error of law. In that respect the retroactive changes in the law that create government misses the point in calling “a sufficient risk of increasing the measure upon Serafini, 233 F.3d at 777-78, and of punishment attached to the covered United States v. Jalili, 925 F.2d 889, 894 crimes” (Garner v. Jones, 529 U.S. 244, (6th Cir. 1991), to urge that the district 250 (2000), quoting California Dep’t of court’s recommendation cannot be used to Corrections v. Morales, 514 U.S. 499, 509 invalidate Eakman’s sentence because it had no binding authority, over the Bureau as to the place of imprisonment. After all, 8 We are mindful that according to Eakman does not contend that his sentence United States v. Ferri, 686 F.2d 147, 158 violates due process because the Bureau (3d Cir. 1982), we would lack has ordered him to serve time at an jurisdiction to decide the ex post facto institutional prison despite the court’s issue under Section 2255 – that Eakman recommendation otherwise. Instead he would rather have had to present such a argues that a material misunderstanding of claim via Section 2241. We raise the ex the law (as plainly evidenced by the post facto issue only to note that the court’s recommendation) rendered his government would likely have to travel a sentencing proceeding invalid. perilous road even if we were to reject (as we have not for purposes of this Because neither Eakman nor the opinion) the Bureau’s pronouncement of government challenges the Bureau’s its own legal authority.

9 (1995)). record before us unequivocally shows the district judge did not contemplate the total Although the government takes the absence of Bureau discretion, an absence position that the Bureau’s former practice as to which the parties now concur. We was unlawful, it argues that the Bureau did conclude that Eakman’s Section 2255 not change the applicable law when it motion has sufficiently alleged that the announced its new procedure, but merely district judge made an objectively conformed its practice to a number of ascertainable error during his sentencing holdings that “community confinement” proceeding. cannot constitute imprisonment under United States Sentencing Guideline § Reliance 5C1.1 (see, e.g., Serafini, 233 F.3d at 777- 78; United States v. Adler, 52 F.3d 20, 21 As the government would have it, (2d Cir. 1995) (per curiam); United States Eakman must demonstrate (1) that the v. Swigert, 18 F.3d 443, 445 (7th Cir. Bureau made some express assurance to 1994); Jalili, 925 F.2d at 892-93)). But the the district court that it would honor its government does not suggest how that fact recommendation to place Eakman in a helps it respond to Eakman’s due process community confinement center and (2) that claim. No case of which we are aware has the district court would have imposed a ever relied on such a notion to deny a lighter sentence had it not been misled. collateral challenge to a sentence based on We reject the notion that Section 2255 due process, for due process clearly requires a petitioner to satisfy such an guarantees all defendants the right to be onerous burden – certainly not before the sentenced under an accurate understanding sentencing court conducts a hearing. of the law (United States v. Barnhart, 980 Section 2255 is clear in its directive that F.2d 219, 225 (3d Cir. 1992)).9 And the the sentencing court must grant a prompt hearing “[u]nless the motion and files and records of the case conclusively show that 9 the prisoner is not entitled to relief. . . .” Even in the ex post facto context To be sure, a prisoner is not entitled to a Weaver v. Graham, 450 U.S. 24, 29 hearing unless there is some basis in the (1981), explains that “a law need not record to support the prisoner’s contention impair a ‘vested right’ to violate the ex that the district court relied at least in part post facto prohibition.” Instead the absence of fair notice is the essential inquiry under the Ex Post Facto Clause (id. at 30). And as several district courts some prisoners in community have observed, the Bureau gave no confinement centers (see, e.g., United advance warning that it would abruptly States v. Serpa, 251 F.Supp.2d 988, 992 change its former practice, which had (D. Mass. 2003) and Ashkenazi, 246 F. been in place for decades, of placing Supp. 2d at 7)).

10 on bad information, and at the hearing the entitled to no relief,” the statute expressly prisoner retains the burden to demonstrate compels a hearing to determine whether that he is entitled to relief (see Barnes v. the judge in fact relied upon his mistaken United States, 579 F.2d 364, 366 (5th Cir. belief that the Bureau had the discretionary 1978); Williams v. United States, 481 F.2d authority to assign Eakman to a 339, 346 (2d Cir. 1973)). To that end it is community confinement center. We enough for the prisoner to show that the therefore remand the case to the district district court paid sufficient heed to the court to conduct a hearing as provided error that the integrity of the sentencing under Section 2255. Should the district proceeding is called into doubt judge confirm such mistaken reliance, he (Spiropoulos, 976 F.2d at 163; King, 725 is ordered to vacate Eakman’s current F.2d at 724). sentence and resentence him.

There is plainly enough in the record to entitle Eakman to a hearing. As we have already discussed, the district judge specifically recommended that the Bureau place Eakman in a community confinement center, with an obvious awareness of the Bureau’s longstanding p r a c ti c e o f e n t e rt a i n in g s u c h recommendations. Clearly the district judge acted under a legal misapprehension – a belief in the existence of the Bureau’s discretion in that respect. Indeed, the district judge had already granted the government’s motion under Guideline § 5K1.1 for a downward departure, and he could have departed further had he been properly informed of the Bureau’s lack of discretion to assign Eakman to community confinement.

Conclusion

Eakman’s Section 2255 motion sufficiently raises a constitutional question about the fairness of his sentencing proceeding. And because the record does not “conclusively show that the prisoner is