Hernandez v. U.S. Atty. Gen.

• Citation: 689 F.2d 915
• Decision Date: 22 September 1982
• Docket Number: No. 81-2368,81-2368
• Parties: Paul J. HERNANDEZ, Petitioner-Appellant, v. UNITED STATES ATTORNEY GENERAL, and United States Bureau of Prisons, Respondents-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 915

689 F.2d 915

Paul J. HERNANDEZ, Petitioner-Appellant, v. UNITED STATES ATTORNEY GENERAL, and United States Bureau of

Prisons, Respondents-Appellees.

No. 81-2368.

United States Court of Appeals, Tenth Circuit.

Sept. 22, 1982.

Vicki Mandell-King, Asst. Federal Public Defender, Denver, Colo. (Michael G. Katz, Federal Public Defender, Denver, Colo., with her on the brief), for petitioner-appellant.

H. Manuel Hernandez, Sp. Asst. U.S. Atty., Denver, Colo. (Robert N. Miller, U.S. Atty., Denver, Colo., with him on the brief), for respondents-appellees.

Before SETH, Chief Judge, and BARRETT and LOGAN, Circuit Judges.

BARRETT, Circuit Judge.

Paul J. Hernandez (Hernandez) appeals from the district court order dismissing his petition for writ of habeas corpus and for writ of mandamus filed, respectively, pursuant to 28 U.S.C.A. §§ 2241 and 1361. The thrust of Hernandez's challenge is that his due process rights have been violated by virtue of alleged failure of appellees, the United States Attorney General and the United States Bureau of Prisons, to provide him with treatment and rehabilitation required by the Federal Youth Corrections Act (YCA), 18 U.S.C.A. § 5005, et seq.

Hernandez entered a plea of guilty to one count of bank robbery in violation of 18 U.S.C.A. § 2113(d) in the United States District Court for the District of Colorado. Before his sentencing pursuant to that plea, Hernandez was arrested, charged and pled guilty to a Colorado state charge of assault with intent to murder. He was sentenced by the state district court and committed to the Colorado State Penitentiary. While there incarcerated, Hernandez was delivered to the federal district court pursuant to a writ of habeas corpus ad prosequendum on May 14, 1971, where sentence was handed down. Hernandez, then twenty-one years of age, was sentenced to a twenty-two year term under the YCA. The court found Hernandez to be suitable for sentencing under YCA and recommended that Hernandez receive psychiatric care and medical examinations as may be indicated and that he be allowed to complete educational courses for high school and beyond and to receive practical and vocational training.

During the sentencing proceeding Hernandez's attorney explained that: Hernandez was incarcerated in the Colorado State Penitentiary serving a 13-14 year sentence on conviction of the offense of assault with intent to murder; Hernandez was participating in the reading program at the penitentiary which was changing his whole demeanor and attitude; it would be to Hernandez's benefit if the court sentenced Hernandez to the Colorado State Penitentiary "where he is now incarcerated"; the Assistant United States Attorney had stated that he would recommend to the United States Attorney General that Hernandez serve his federal sentence at the Colorado State Penitentiary because Hernandez was obtaining educational benefits and opportunities through some reform organizations there. He concluded by stating to the court that Hernandez was "doing very well" at the Colorado State Penitentiary.

The trial court, after observing that the bank robbery in which Hernandez and three associates participated, involved violent and vicious acts, i.e., the shooting and maiming of an innocent man and shooting of an F.B.I. agent, stated that he would not grant probation and that Hernandez and his fellow defendants "may not be able to derive the maximum benefit from ... the Youth Correction Division, prior to the expiration of six years from the date of conviction thereof". The court then sentenced Hernandez in these words:

Mr. Paul Hernandez, it is the judgment and sentence of this court that you be committed to the custody of the Attorney General of the United States or his duly authorized representative and by him imprisoned for the maximum period of 22 years. Now, this sentence is imposed under the provisions of Title 18, United States Code, Section 5010(c), and in addition to the ordinary, regular terms of the judgment and commitment and order, I recommend that you be given an in-depth psychiatric and medical examination and that you receive such treatment as is indicated. I further request of the Bureau of Prisons that you be allowed to complete educational courses necessary for a high school diploma and beyond that if you are so inclined, and I further recommend to the Bureau of Prisons that you receive during the period of incarceration some practical vocational training during this period.

In the course of post-sentence colloquy between Hernandez's counsel and the court, the judge made it clear that: the sentence being imposed was not concurrent with Hernandez's state sentence for which he was incarcerated; the court could not order a concurrent sentence, but under the YCA Hernandez's federal sentence commenced immediately; the court was aware that Hernandez was presently incarcerated in the Colorado State Penitentiary and it was a matter between the state officials and the Bureau of Prisons as to whether or not custody would be transferred to a federal institution or whether Hernandez would remain in the state institution; the custody matter was one "These officials will have to work ... out. I can't direct that ..."; Hernandez was to receive credit on his sentence immediately.

Hernandez was returned to the Colorado State Penitentiary following his federal sentencing. He escaped from the Colorado penitentiary on January 10, 1972, and was arrested ten days later in Los Angeles, California, charged with first degree robbery. He was convicted of that charge on March 17, 1972, and sentenced by the California state court to a term of five years to life. He was returned to Colorado to complete his sentence there. On January 15, 1974, Hernandez again escaped from the Colorado State Penitentiary. He was recaptured that same day, charged with second degree kidnapping. On July 16, 1976, Hernandez was sentenced by a Colorado state district court to a term of forty to forty-five years, said sentence to run concurrently with his prior Colorado state sentence. Hernandez escaped a third time on August 8, 1974, but apparently was not charged.

Hernandez has a current parole eligibility date from the Colorado State Penitentiary of January 19, 1997. Although he has not been in federal custody, Hernandez has a presumptive parole release date of September 20, 1986, on his federal sentence because, under YCA, that sentence commenced to run from the day sentence was entered.

The district court, in denying Hernandez relief, found and/or concluded: That the matter of Hernandez's place of incarceration following his federal sentence pursuant to YCA was one between Colorado state officials and the Bureau of Prisons; Hernandez did receive some psychiatric counseling and his high school equivalency degree while incarcerated in the Colorado State Penitentiary; Hernandez has at all times been detained and in the custody of officials of the State of Colorado; when a prisoner violates the criminal statutes of two different sovereigns, the determination of custody and service of sentence between them is a matter of comity to be resolved by the executive branches of each sovereign; the place of a federal prisoner's confinement is a matter vested in the discretion of the Attorney General or his authorized delegate pursuant to 18 U.S.C.A. § 4082; the court has no jurisdiction to issue a writ of mandamus to the Bureau of Prisons directing officials of the Bureau to contract with outside authorities to provide additional services to Hernandez while he is in state custody, and further, the court lacks jurisdiction to issue a writ of mandamus to a state court or state prison; the court is without authority to designate where a term of imprisonment may be served, and without jurisdiction to compel a state prison system to handle a prisoner in state custody in accordance with federal statutes.

On appeal, Hernandez contends that the district court erred in refusing to grant him habeas corpus/mandamus relief, inasmuch as his due process rights have been violated by failure of appellees, in the execution of his federal sentence, to provide him with treatment and rehabilitation programs required by the YCA and the sentence executed pursuant thereto. Specifically, Hernandez asserts that (a) he has a clear right to treatment and rehabilitation programs pursuant to his YCA sentence, (b) appellees have a defined and preemptory duty to provide him with treatment and rehabilitation programs, and (c) in order to be consistent with due process, his YCA sentence must have an effect upon his prior state sentence. We hold that the district court did not err in dismissing Hernandez's petition. We will affirm.

I.

Appellees advise us that the United States and the State of Colorado agreed that Hernandez was to complete service of his state sentence prior to the federal government taking custody of him pursuant to his YCA sentence. (Brief of Appellees, p. 4).

The writ of habeas corpus ad prosequendum was issued pursuant to 28 U.S.C.A. § 2241. The State of Colorado then had Hernandez under its custody and control at the Colorado State Penitentiary. As a matter of comity, the State of Colorado transferred Hernandez from state incarceration to the federal district court exclusively for the purpose of sentencing, thus according Hernandez expeditious administration of justice. Lunsford v. Hudspeth, 126 F.2d 653 (10th Cir. 1942). Colorado state officials did not relinquish jurisdiction over Hernandez, their prisoner, by his production in federal court for sentencing; he continued to be a "state prisoner." United States v. Mauro, 436 U.S. 340, 98 S.Ct. 1834, 56 L.Ed.2d 329 (1978); United States v. Harris, 566 F.2d 610 (8th Cir. 1977); United States v. Kenaan, 557 F.2d 912 (1st Cir. 1977), cert. denied, 436 U.S. 943, 98 S.Ct. 2844, 56 L.Ed.2d 784 (1978).

18 U.S.C.A. § 3568 provides that the sentence of imprisonment of any person...