Blango v. Thornburgh

• Decision Date: 16 August 1991
• Docket Number: No. 91-3047,91-3047
• Citation: 942 F.2d 1487
• Parties: Elbert BLANGO, Petitioner-Appellant, v. Richard R. THORNBURGH; J. Michael Quinlan; Gary L. Henman; Mayor, Washington, D.C., Respondents-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1487

942 F.2d 1487

Elbert BLANGO, Petitioner-Appellant, v. Richard R. THORNBURGH; J. Michael Quinlan; Gary L. Henman Mayor, Washington, D.C., Respondents-Appellees.

No. 91-3047.

United States Court of Appeals Tenth Circuit.

Aug. 16, 1991.

Elbert Blango, pro se.

Before LOGAN, MOORE and BALDOCK, Circuit Judges.

PER CURIAM.

Petitioner Elbert Blango was convicted of criminal violation of the District of Columbia Code and was sentenced by the District of Columbia Superior Court to the custody of the United States Attorney General. Pursuant to a memorandum of understanding between the federal Bureau of Prisons and the District of Columbia Department of Corrections, petitioner was transferred to the United States Penitentiary, Leavenworth, Kansas (USPL), to serve his sentence. He petitioned the United States District Court for the District of Kansas for habeas corpus relief pursuant to 28 U.S.C. § 2241. It was his position that his transfer violated the "compact clause" of the United States Constitution, art. I, § 10, cl. 3 ("No State shall, without the Consent of Congress, ... enter into any Agreement or Compact with another State...."). The district court denied his petition for habeas corpus, Blango v. Thornburgh, No. 90-3516-R, 1991 WL 17724 (D.Kan. Jan. 25, 1991), Dist.Ct.R. doc. 13 (order denying petition for habeas corpus, referred to in this opinion as the Jan. 25, 1991, Order). ¹ Petitioner appeals pursuant to 28 U.S.C. 2253. ² We affirm.

Petitioner's habeas corpus claim to the district court was constructed through several interrelated arguments concerning the constitutionality of various statutes as applied to his transfer into federal custody. Summarizing his arguments, first, he noted he was transferred pursuant to a memorandum of understanding between the director of the federal Bureau of Prisons, under the authority of 18 U.S.C. § 5003 (statutory authority for director of Bureau of Prisons to contract with states to house state prisoners in federal prison facilities), ³ and the director of the District of Columbia Department of Corrections, under the authority of D.C.Code Ann. § 24-425 (ordinance authorizing the Attorney General to place offenders sentenced by the District of Columbia courts in the most suitable District of Columbia or federal prison facility). ⁴ Under petitioner's analysis, the provisions of these two statutes produce a conflict so severe it violates the compact clause of the Constitution "when applied to the states." Building on this theme, petitioner claimed that because his transfer under section 5003 was allegedly unconstitutional, it violated 18 U.S.C. § 4001(a) ("No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress."), and thus his incarceration at USPL constituted false imprisonment. And, as the final claim in his petition for release from prison, he argued that the District of Columbia lost jurisdiction over him when it transferred him and that such "unconditional, voluntary" loss of jurisdiction constituted an implied pardon or commutation of his sentence. Under this combination of claims, summarized as an alleged unconstitutional basis for his transfer to the federal penitentiary coupled with an alleged implied pardon upon transfer, petitioner applied for his immediate release from the federal penitentiary.

The district court held that petitioner was transferred pursuant to 18 U.S.C. § 5003 and that the compact clause did not address agreements between the states and the federal government. Jan. 25, 1991, Order at 4. ⁵ The court further held that Congress was within its power when it authorized such state-federal contracts under section 5003. Id. The court found that the "Memorandum and Understanding" between the director of the federal Bureau of Prisons and the director of the District of Columbia Department of Corrections satisfied the requirements of section 5003. Id. at 3-4. The court concluded that because there was lawful authority for the District of Columbia to contract for federal prison custody of petitioner, there was no basis for a claim of false imprisonment under 18 U.S.C. § 4001. Id. at 4. The court rejected petitioner's claim that the District of Columbia lost jurisdiction upon its transfer of petitioner to the federal penitentiary, noting that the case upon which petitioner relied was one involving extradition, not a transfer under inter-governmental agreement. Id. at 5; see also Miller v. Thornburgh, 755 F.Supp. 980 (D.Kan.1991) (same holding under same facts and same claims).

In his appeal to this court, petitioner makes three claims. First, he claims the district court failed to address issues relevant to his habeas corpus petition "in the context raised by petitioner." Second, he claims the district court failed to address his argument that his transfer was unconstitutional. And third, he claims the district court manifested an attitude of partiality in favor of the government, depriving him of a fair hearing. Petitioner's first two issues are closely related, and we consider them together.

The cornerstone of petitioner's argument is his allegation that 18 U.S.C. § 5003 contravenes the congressional intent expressed in the legislative history of 4 U.S.C. § 112. ⁶ Section 112 authorizes interstate cooperation in the enforcement of the states' respective criminal statutes. Petitioner quotes the following portion of the legislative history of section 112:

"The rapidity with which persons may move from one State to another, those charged with crime and those who are necessary witnesses in criminal proceedings, and the fact that there are no barriers between the States obstructing this movement, makes it necessary that one of two things be done, either that the criminal jurisdiction of the Federal Government shall be greatly extended or that the States by mutual agreement shall aid each other in the detection and punishment of offenders against their respective criminal laws." S Rep No. 1007, 73rd Congress, 2d Sess, 1 (1934); HR Rep No. 1137, 73rd Congress, 2nd Sess, 1-2 (1934).

Dist.Ct.R. doc. 12 at 11 (traverse) (emphasis and punctuation as supplied by petitioner). Petitioner submits that section 5003 contradicts this expressed intent by significantly extending the criminal jurisdiction of the federal government. In addition, petitioner argues that section 112 alone does not provide authority for his transfer because while it approves cooperation between the states, it does not contemplate federal-state transfers.

Just as section 112 authorizes interstate prisoner transfer, 18 U.S.C. § 5003 authorizes federal-state prisoner transfer. The legislative history of section 5003 was considered by the Supreme Court in Howe v. Smith, 452 U.S. 473, 483-86, 101 S.Ct. 2468, 2475-77, 69 L.Ed.2d 171 (1981), in which the Court concluded:

In the absence of any evidence of congressional objection the [federal Bureau of Prisons'] interpretation [that section 5003 authorizes federal-state prisoner transfer] must be given great weight.

The plain language, the legislative history, and the long-standing administrative interpretation of § 5003(a) clearly demonstrate that the provision is a broad charter authorizing the transfer of state prisoners to federal custody.

Id. at 486-87, 101 S.Ct. at 2476-77; see also United States ex rel. Gereau v. Henderson, 526 F.2d 889, 894 (5th Cir.1976) (" § 5003 is not beyond the delegated powers of the federal government"). However, petitioner argues that contrary to Howe, there was "evidence of congressional objection" in the legislative history of 4 U.S.C. § 112. ⁷ Because section 112 is the statutory authority required by the Constitution's compact clause for interstate transfer of prisoners, petitioner asserts that if section 5003 violates the intent of Congress in fashioning section 112, it also violates the compact clause, rendering unconstitutional his transfer by the District of Columbia.

However, petitioner's argument must fail, for while the compact clause prohibits agreements between the states, it does not prohibit agreements between the federal government and the states. See, e.g., Gereau, 526 F.2d at 894 (approving mutually beneficial cooperative action between federal government and state). In addition, housing state offenders is not, as petitioner characterizes it, an expansion of federal criminal jurisdiction. Criminal jurisdiction over a state's inhabitants remains with the respective states and territories under whose jurisdiction the prisoners were originally sentenced. Section 5003 is limited to the grant of permission for the federal government and the states to enter into federal-state agreements for the efficient housing of offenders after their conviction under the jurisdiction of state criminal law.

Petitioner attempts to distinguish between the propriety of the federal government's acceptance of his transfer from the District of Columbia and the propriety of the District of Columbia's transfer of him to a federal prison. It is clear that section 5003 empowers the federal Bureau of Prisons to accept petitioner. It is equally clear that the Howe Court's interpretation of section 5003 as a broad grant of approval for federal-state prisoner transfer does not run afoul of the Congressional intent to avoid expansion of federal criminal jurisdiction, as expressed in the legislative history of 4 U.S.C. § 112(a). As to the propriety of his transfer by the District of Columbia out of the District's correctional system to USPL, D.C.Code § 24-425 explicitly permits the Attorney General of the United States, in whose custody violators of the District of Columbia Code are placed, to house these prisoners in federal institutions or in institutions maintained by the District of Columbia, at his discretion. ⁸ Thus, both considered as a transfer from the District of Columbia and as a transfer to USPL, petitioner's transfer was statutorily and...