Dunne v. Langford
| Decision Date | 13 January 2017 |
| Docket Number | No. 2:15-cv-0549-JAM-EFB P,2:15-cv-0549-JAM-EFB P |
| Parties | WILLIAM DENNIS DUNNE, Petitioner, v. STEPHEN LANGFORD, Respondent. |
| Court | U.S. District Court — Eastern District of California |
Petitioner is a federal prisoner proceeding without counsel with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. He claims that the Bureau of Prisons (BOP) erroneously calculated his mandatory release date in violation of 18 U.S.C. § 4206(d). Upon careful consideration of the record and the applicable law, it appears that the BOP has properly applied section 4206(d) and it is recommended that petitioner's application for habeas corpus relief be denied.
Petitioner was convicted in 1980 of three counts of armed bank robbery and conspiracy to effect the escape of a federal prisoner. He was sentenced to three consecutive 25 year terms for the robbery convictions and a 5 year term for the conspiracy conviction, to be served concurrently with any sentence to be imposed by the State of Washington. ECF No. 13 at 2. On September 15, 1980, the State of Washington sentenced petitioner to a total prison term of 15 years for the offenses of escape in the first degree, possession of a machine gun, and taking and riding a motor vehicle without the owner's permission.1 Id.; ECF No. 1 at 17.
Four years after his 1980 convictions, petitioner again sustained convictions for serious federal felonies. In 1984, he was sentenced in the Middle District of Pennsylvania to a total prison term of 15 years for attempted escape from a U.S. penitentiary, aiding and assisting the attempted escape of another inmate, and conveyance of a weapon within a U.S. penitentiary. ECF No. 13 at 2-3. That sentence consisted of a 5 year consecutive term of confinement, a 5 year concurrent term of confinement, and a 10 year consecutive term of confinement. Id. at 3. Thus, the totality of petitioner's sentences consist of three terms of 25 years, two 5 year terms (one running concurrently with petitioner's state incarceration), and one 10 year term, all running consecutively to each other, plus an additional 5 year concurrent term. Id.
Relief by way of a writ of habeas corpus extends to a prisoner in custody under the authority of the United States who shows that his custody violates the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2241(c)(3). A federal prisoner who challenges the validity or constitutionality of his underlying conviction must file a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2255. Stephens v. Herrera, 464 F.3d 895, 897 (9th Cir. 2006). A federal prisoner challenging the manner, location, or conditions of the execution of a sentence, as petitioner does here, must bring a petition for writ of habeas corpus under 28 U.S.C. § 2241. Hernandez v. Campbell, 204 F.3d 861, 864-65 (9th Cir. 2000); see also Harrison v. Ollison, 519 F.3d 952, 956 (9th Cir. 2008).
G.J. Bissett was previously named as the respondent. In a habeas challenge, "the proper respondent is the warden of the facility where the prisoner is being held." Rumsfeld v. Padilla, 542 U.S. 426, 435 (2004). See also Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S.484, 494-95 (1973) (). Petitioner is currently an inmate at Lompoc Federal Correctional Complex (Lompoc) in Santa Barbara, California. The warden of that facility is Stephen Langford. Accordingly, the court now substitutes Warden Stephen Langford as the respondent in this action.
Pursuant to 28 U.S.C. § 2241(d), a petition for a writ of habeas corpus must be brought in the district court where the petitioner is confined or in the district where he was convicted and sentenced. Venue was proper in the Eastern District of California when this action was filed because petitioner was then incarcerated at FCI Herlong, which is in the Eastern District. Although petitioner has since been transferred to Lompoc, which is in the Central District of California, this court may continue to exercise jurisdiction over this action, notwithstanding petitioner's transfer. See Francis v. Rison, 894 F.2d 353, 354 (9th Cir. 1990) () (quoting Santillanes v. United States Parole Comm'n, 754 F.2d 887, 888 (10th Cir. 1985)); accord Smith v. Campbell, 450 F.2d 829, 834 (9th Cir. 1971) (). Accordingly, venue remains proper in this district.
Petitioner's sole ground for federal habeas relief is his claim that the BOP's calculation of his mandatory release date violates 18 U.S.C. § 4206(d). Although it was repealed subsequent to petitioner's offenses, that section provided at the relevant times that:
Using this provision, the BOP computed petitioner's mandatory release date by "calculating two-thirds of each consecutive term, rounding those totals into the nearest month, and adding the results." ECF No. 13 at 3. Thus, the BOP computed petitioner's mandatory release date based on a calculation of two/thirds of each of petitioner's separate sentences, and not on his aggregate term of years. Id. at 8, 26. This resulted in a release date of July 17, 2049. Id.; ECF No. 1 at 26. The BOP states, however, that "petitioner is projected to obtain good conduct time and other credits during his confinement that would reduce his effective sentence and therefore advance this effective mandatory parole date to April 1, 2043."2 ECF No. 13 at 3.
Petitioner argues that a plain reading of § 4206(d) shows that the BOP must aggregate his various sentences into one sentence of 95 years and then apply the latter phrase (involving the 30 year cap) to that aggregate sentence. He reasons that because his aggregate sentence is longer than 45 years, he must be released after serving 30 years of his 95 year aggregate term. He argues that, under the language of the statute, the 30 year cap applies to "30 years of terms aggregating to more than 45 years," as well as to "30 years of each term of more than 45 years." ECF No. 16 at 4. Put another way, petitioner contends that § 4206(d) "directs the release of prisoners such as petitioner who have served 30 years on sentences such as petitioner's 95 year aggregate." ECF No. 1 at 10. He explains that "the dispute here boils down to whether this statutory language applies to consecutive terms of years individually or consecutive terms of years as an aggregate." ECF No. 16 at 4. Petitioner says that his interpretation of the statute "gives effect to all the statute's words without being tortuous or grammatically incorrect." Id. He states, "my contention is that the calculation is simple: 18 March 1986 plus 30 years equals 18 March 2016."ECF No. 1 at 3.
Petitioner disputes the BOP's interpretation of the statute, which assumes that because none of petitioner's sentences were longer than 45 years, the 30 year sentence cap contained in the final phrase of § 4206(d) is not applicable. Id. at 9. Petitioner notes that the BOP calculated his parole eligibility date and good time credits on his "aggregate sentence" but calculated his release date on his "stacked" or "dis-aggregated" sentence. Id. at 8-9. He argues that this is "inconsistent" and unfair. Id. at 12. In essence, petitioner is arguing that the BOP should aggregate his sentences into one 95-year term, which would qualify him under 18 U.S.C. § 4206(d) to a 30 year maximum sentence.
Petitioner filed several unsuccessful administrative grievances with respect to his claim that he is entitled to release after serving only 30 years in prison. In a response to one of those grievances, petitioner was advised as follows:
Pursuant to 18 U.S.C. § 4206(d) and 28 C.F.R. § 2.53(a), an "old law" inmate must be considered for parole after serving two-thirds of each consecutive term or terms. That is, the two-thirds date for an aggregate term consisting of multiple consecutive terms is established by totaling two-thirds of each individual, underlying term. Thus, even though 18 U.S.C. § 4206(d) provides that the two-thirds date for an individual term exceeding 45 years is 30 years, when the aggregate of multiple consecutive individual terms exceeds 45 years, the two-thirds date may nonetheless be more than 30 years.
ECF No. 1 at 20 (emphasis added).
Petitioner cites numerous cases to illustrate his argument that consecutive sentences should be aggregated in order to determine a release date under § 4206(d). In order of citation, those cases include: Grant v. Hunter, 166 F.2d 673, 674 (10th Cir. 1948) (...
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