Dunne v. Henman

• Decision Date: 01 May 1989
• Docket Number: No. 88-3848,88-3848
• Citation: 875 F.2d 244
• Parties: William D. DUNNE, Petitioner-Appellant, v. Gary L. HENMAN, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 244

875 F.2d 244

William D. DUNNE, Petitioner-Appellant, v. Gary L. HENMAN, Respondent-Appellee.

No. 88-3848.

United States Court of Appeals, Ninth Circuit.

Submitted May 1, 1989 ^*.

Decided May 18, 1989.

William D. Dunne, Marion, Ill., in pro per.

Sally R. Gustafson, Asst. U.S. Atty., Seattle, Wash., for respondent-appellee.

Appeal from the United States District Court for Western Washington (Seattle).

Before ALARCON, FERGUSON and THOMPSON, Circuit Judges.

ALARCON, Circuit Judge:

William D. Dunne (Dunne) appeals from the judgment of the district court entered after dismissal of his habeas corpus petition without prejudice. We affirm because we conclude that the district court lacked personal jurisdiction over the Warden of the United States Penitentiary in Marion, Illinois.

This appeal presents a narrow question. Does the district court that imposed sentence have jurisdiction under 28 U.S.C. Sec. 2241 to enforce its order where the petitioner is incarcerated in a federal prison outside the forum state, the petition for a writ of habeas corpus names the warden of that institution as respondent, and the only relief sought is a determination that a federal detainer has been issued by the Attorney General of the United States, acting through the Bureau of Prisons, in violation of petitioner's right to be freed upon completion of his state sentence because his federal sentences have been interrupted in violation of due process and the doctrine of separation of powers? Dunne does not attack the validity of the sentences imposed by the District Court for the Western District of Washington and the District Court for the Middle District of Pennsylvania. In his petition, Dunne alleges that "28 U.S.C. Sec. 2255 is not applicable" because he is "contesting the resurrection of a terminated federal sentence."

I. PERTINENT FACTS

Dunne is an inmate at the United States Penitentiary, Marion, Illinois, located in the Southern District of Illinois. Dunne is currently serving a fifteen year sentence imposed by the State of Washington. Dunne is housed at the federal penitentiary pursuant to a contract between the State of Washington and the Attorney General of the United States as authorized by 18 U.S.C. Sec. 5003.

On May 13, 1980, Dunne was convicted in the Superior Court of King County, Washington, of escape in the first degree (escape), possession of a machine gun (weapon possession), and taking a motor vehicle without permission (car theft). Sentencing was postponed until the completion of federal criminal proceedings in the District Court for the Western District of Washington.

On September 9, 1980, Dunne was convicted in the District Court for the Western District of Washington of conspiracy and three armed bank robberies. The federal court sentenced Dunne to five years for conspiracy. This sentence was ordered to run concurrently with any sentence imposed by the Superior Court of King County, Washington. Dunne was sentenced to serve three consecutive twenty-five year sentences for the armed bank robbery convictions. The bank robbery sentences were ordered to be served consecutive to the sentence imposed by the state court.

On September 17, 1980, Dunne appeared for sentencing in the Superior Court of King County, Washington. Dunne was sentenced to serve ten years on the escape charge. He was ordered to serve five years on the weapon possession charge and five years for car theft. These five-year sentences were ordered to run consecutively to the escape charge and concurrently with each other for a total of fifteen years.

On March 9, 1984, Dunne was found guilty of attempted escape from the United States Penitentiary at Lewisburg, Pennsylvania, and related charges. Dunne was sentenced by the District Court for the Middle District of Pennsylvania for a total of fifteen years to run consecutively to and not concurrently with any sentence which Dunne was serving or for which he was being detained. In sum, Dunne received a five year sentence for conspiracy from the District Court for the Western District of Washington which was to run concurrently with the first five years of the fifteen year state sentence imposed by the state court in Washington. After termination of the sentence imposed by the State of Washington, Dunne was required to serve three consecutive twenty-five year sentences imposed by the District Court for the Western District of Washington for armed bank robbery, and a fifteen year consecutive sentence for escape and related charges ordered by the District Court for the Middle District of Pennsylvania, for a total federal sentence of ninety years after Dunne completes his fifteen year state sentence.

The following facts are set forth in Dunne's section 2241 petition for a writ of habeas corpus. Dunne alleges that he was transported to the Washington State Prison for service of his fifteen year state sentence several days after his September 17, 1980, sentencing hearing. On December 8, 1980, the Attorney General for the United States, designated the Washington State Department of Corrections for concurrent service of his federal sentences. On March 1, 1982, the United States Department of Justice Federal Prison System notified the Washington State Penitentiary that Dunne would serve five years of his federal sentences concurrently with the fifteen year Washington state sentence. The remaining federal sentences would be served consecutive to the state sentence.

On June 3, 1982, Dunne was transferred to the United States Penitentiary at Lewisburg, Pennsylvania, as a Washington state prisoner contracted to federal custody for service of his state sentence. On July 14, 1982, the Warden of the United States Penitentiary at Lewisburg, Pennsylvania, was notified that Dunne was to be changed in status from a state boarder to a federal inmate serving a concurrent five year federal sentence. The Warden was also advised On May 16, 1984, Dunne's status was changed to that of state boarder. A federal detainer was lodged against him on the same date.

that upon completion of the five year federal sentence, Dunne would revert to the status of a Washington state boarder.

On July 27, 1987, Dunne filed a petition for habeas corpus pursuant to 28 U.S.C. Sec. 2241 in the District Court for the Western District of Washington. On that date, Dunne was incarcerated at the United States Penitentiary at Marion, Illinois. Dunne named Gary L. Henman, Warden of the United States Penitentiary, Marion, Illinois, as respondent. Dunne alleged that he was "being required to serve a federal sentence in installments" in violation of due process and the "separation of powers doctrine."

United States Magistrate John L. Weinberg submitted a report and recommendation to the district court on March 9, 1988. Magistrate Weinberg recommended that Dunne's petition be denied for lack of jurisdiction. On April 19, 1988, the district court adopted the magistrate's report and recommendation and entered a judgment dismissing Dunne's petition without prejudice. Dunne filed a timely notice of appeal on May 5, 1988.

II. STANDARD OF REVIEW

We review independently and non-deferentially a district court's decision on a petition for habeas corpus. Chatman v. Marquez, 754 F.2d 1531, 1533-34 (9th Cir.), cert. denied, 474 U.S. 841, 106 S.Ct. 124, 88 L.Ed.2d 101 (1985).

III. DISCUSSION

Dunne contends that his petition for habeas corpus was properly filed in the District Court for the Western District of Washington because he is a Washington state prisoner and the Warden of the United States Penitentiary in Marion, Illinois, is merely acting as agent for Dunne's true custodian, the Director of the Washington State Department of Corrections. Dunne argues that the Supreme Court's decision in Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973), supports this contention. In its response to Dunne's section 2241 petition for a writ of habeas corpus, the government also relied on Braden. The government argued that the district court lacked "subject matter jurisdiction since neither the plaintiff nor a proper respondent is within the jurisdiction of the Western District of Washington." (emphasis added).

The magistrate concluded that the petition should be dismissed because "[n]either the petitioner nor the proper respondent is within the jurisdiction of the court." The magistrate did not indicate whether he had accepted the government's argument that subject matter jurisdiction was lacking. The district court adopted the recommendation of the magistrate without discussion. Thus, it is unclear whether the magistrate and the district concluded that the District Court for the Western District of Washington lacked subject matter jurisdiction based on the government's argument in favor of dismissal of the petition. As will be explained below, the district court erred in adopting the magistrate's conclusion that it lacked jurisdiction because Dunne was not within its territorial limits. This error does not compel reversal, however, because we can affirm on any basis shown by the record. Smith v. Block, 784 F.2d 993, 996 n. 4 (9th Cir.1986).

In Braden a prisoner incarcerated in an Alabama state prison, after a conviction for a violation of that state's laws, filed a writ of habeas corpus in the District Court for the Western District of Kentucky requesting that the district court issue an order directing that a Kentucky state court afford him a speedy trial on a Kentucky indictment. 410 U.S. at 485, 93 S.Ct at 1125.. In determining whether Kentucky was the proper forum for the filing of Braden's habeas corpus petition, the Court rejected the notion that 28 U.S.C. Sec. 2241(a) created an inflexible jurisdictional rule preventing resolution of the habeas corpus The fact that a prisoner is outside the territorial limits of a federal district court does not deprive it of subject matter jurisdiction. Chatman-Bey v....