Kass v. Reno

• Decision Date: 29 April 1996
• Docket Number: No. 95-3190,95-3190
• Citation: 83 F.3d 1186
• Parties: Arthur C. KASS, Petitioner-Appellant, v. Janet RENO, Attorney General of the United States of America, and Gary L. Henman, Warden, Respondents-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1186

83 F.3d 1186

Arthur C. KASS, Petitioner-Appellant, v. Janet RENO, Attorney General of the United States of America, and Gary L. Henman, Warden, Respondents-Appellees.

No. 95-3190.

United States Court of Appeals Tenth Circuit.

April 29, 1996.

David J. Phillips, Federal Public Defender, and Charles D. Dedmon, Assistant Federal Public Defender, Topeka, Kansas, on the briefs, for Petitioner-Appellant.

Randall K. Rathbun, United States Attorney, and Melanie D. Caro, Assistant United States Attorney, on the briefs, for Respondents-Appellees.

Before BRORBY, EBEL and HENRY, Circuit Judges.

BRORBY, Circuit Judge.

Arthur Cyrus Kass, an inmate at the United States Penitentiary in Leavenworth, Kansas, appeals the denial of his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. We have jurisdiction under 28 U.S.C. §§ 1291 & 2253 and we affirm.

I

In 1984, a state court in Jalisco, Mexico, convicted Mr. Kass of homicide and robbery and sentenced him to twenty-three years imprisonment and a fine of approximately 700,000 pesos. On April 12, 1989, Mr. Kass was officially transferred to the custody of the United States Bureau of Prisons to serve the remainder of his sentence, pursuant to the Treaty Between the United States of America and the United Mexican States on the Execution of Penal Sentences, Nov. 25, 1976, 28 U.S.T. 7399 (hereafter "the Treaty"), and its implementing legislation, the Transfer of Offenders to or from Foreign Countries Act, Pub.L.No. 95-144, 91 Stat. 1212 (codified at 10 U.S.C. § 955; 18 U.S.C. §§ 3244, 4100-4115). On the same day, Mr. Kass appeared at a verification hearing before a United States Magistrate in Ciudad Juarez, Chihuahua, Mexico. See 18 U.S.C. §§ 4108 and 4109. During the hearing, Mr. Kass waived his right to counsel, consented both to the transfer and to the conditions imposed by the Treaty and its implementing statutes, and acknowledged that his consent was both voluntary and irrevocable. Mr. Kass also signed a document that repeated his statements at the hearing. The document specifically provided Mr. Kass agreed his "conviction or sentence can only be modified or set aside through appropriate proceedings brought by me or on my behalf in the United Mexican States," and that his "sentence will be carried out according to the laws of the United States of America." Mr. Kass does not challenge the validity of the verification proceedings.

Because his offense occurred before November 1, 1987, Mr. Kass was eligible for parole at the discretion of the Parole Commission as soon as he arrived in the United States. 18 U.S.C. § 4106(c, d); 28 C.F.R. § 2.62(a)(1). The Parole Commission held a hearing in October 1989, denied parole, and continued his sentence to expiration. In its decision, the Parole Commission noted Mr. Kass had been convicted of murder and had attempted to escape from a Mexican prison. The Parole Commission set a statutory interim parole hearing for February 1992, but Mr. Kass waived that hearing. Mr. Kass's full term of imprisonment expires in October 2007, but with the inclusion of certain credits, his projected release date as of April 18, 1995, was December 31, 1996.

In March 1990, an employee at the Federal Correctional Institution in La Tuna, Texas, where Mr. Kass was then incarcerated, filed an incident report charging Mr. Kass with attempted escape from a secured institution and forging an official letter. The incident report alleged the following:

At the conclusion of an investigation by the SIS, the fact has been established that you conspired with Michael Carrerra (who is incarcerated at a prison in Guadalajara, Mexico) to forge an official letter from a Mexican Prison Director, and this forgery was completed for the purposes of receiving a release/parole date from the U.S. Parole Commission. This conspiracy, therefore, was also an act to attempt an escape from custody, for the release date (if granted and the letter not detected by staff) would have been a date contrived of by unofficial means.

Mr. Kass later appeared at a hearing before a Disciplinary Hearing Officer (DHO). After the hearing, the DHO notified Mr. Kass in writing that he had found true the allegation of attempted escape. The notice identified the evidence the DHO relied upon in making his determination. Mr. Kass received fourteen days disciplinary segregation, forfeited two hundred days of good time, and the DHO recommended disciplinary transfer. Mr. Kass appealed, and the Bureau of Prisons directed the DHO to reopen his case and reconsider the evidence. The Bureau of Prisons reopened the case because

the evidence relied on, as documented in Section V of the DHO Report, does not support the finding. After careful review of the entire packet of information presented to the DHO, it is our determination that there is some evidence to show Mr. Kass planned to effect an early release by counterfeiting a document intended to prove he served 9 years in a Mexican prison. The evidence, however, needs to be explicitly written in Section V of the DHO Report.

The DHO issued an amended report in September 1990, describing the evidence in more detail, reaffirming the finding of attempted escape, and ordering identical sanctions. The Bureau of Prisons restored Mr. Kass's two hundred days of good time credit in 1994 due to his subsequent good conduct.

Mr. Kass petitioned the United States District Court for the District of Kansas for a writ of habeas corpus in March 1992. He alleged he was entitled to be released because the appropriate Mexican authorities had granted him a "partial pardon" or, in the alternative, because they had modified his sentence in accordance with the early release provisions of Jalisco state law. Second, Mr. Kass asserted the Bureau of Prisons had failed to award him the proper amount of work credit for the time he spent incarcerated in Mexico. He also challenged his disciplinary proceeding. On cross-motions for summary judgment, the district court rejected Mr. Kass's contention he was entitled to be released on the grounds he had received a partial pardon or sentence modification. The district court held an evidentiary hearing on Mr. Kass's remaining claims. The district court later rejected the remaining claims in a written order and denied Mr. Kass's petition for a writ of habeas corpus. This appeal followed.

II

Mr. Kass first contends the district court erred in rejecting his claim he should be released because he received a partial pardon from the appropriate Mexican authorities. As a threshold matter, we must determine whether the Treaty allows United States courts to exercise jurisdiction over Mr. Kass's claims. "[I]n interpreting a treaty, ... we start with the text of the treaty and the context in which the written words are used.... Where the text is clear, we interpret it as written." Marquez-Ramos v. Reno, 69 F.3d 477, 480 (10th Cir.1995) (citations and internal quotation marks omitted). "Should the language of a treaty prove to be unclear or ambiguous, we may look beyond the written words to the history of the treaty, the negotiations, and the practical construction adopted by the parties." Id. (citations and internal quotation marks omitted). Under no circumstances, however, may we "alter, amend, or add to any treaty, by inserting any clause, whether small or great, important or trivial," for to do so "would be, on our part, an usurpation of power, and not an exercise of judicial functions. It would be to make, and not to construe a treaty." In re The Amiable Isabella, 19 U.S. (6 Wheat.) 1, 71, 5 L.Ed. 191 (1821).

By its plain language, the Treaty bars United States courts from exercising jurisdiction over collateral attacks on Mexican convictions by offenders transferred from Mexico to the United States. It states in no uncertain terms that Mexico "shall have exclusive jurisdiction over any proceedings, regardless of their form, intended to challenge, modify or set aside sentences handed down by its courts." Treaty, art. VI, 28 U.S.T. at 7406; see also 18 U.S.C. § 3244(1) ("the country in which the offender was convicted shall have exclusive jurisdiction and competence over proceedings seeking to challenge, modify, or set aside convictions or sentences handed down by a court of such country"). This jurisdictional limitation is a proper exercise of both the treaty power, U.S. Const., Art. II, § 2, cl. 2; Rosado v. Civiletti, 621 F.2d 1179, 1193 (2d Cir.), cert. denied, 449 U.S. 856, 101 S.Ct. 153, 66 L.Ed.2d 70 (1980); Mitchell v. United States, 483 F.Supp. 291, 294 (E.D.Wis.1980), and of Congress's authority to regulate the jurisdiction of the federal courts, U.S. Const., Art. III; Mitchell, 483 F.Supp. at 294. The jurisdictional limitation also does not offend the United States Constitution by denying prisoners convicted in Mexico the opportunity to challenge their convictions and sentences in United States courts on the grounds their Mexican trial did not comply with the Bill of Rights. Pfeifer v. United States Bureau of Prisons, 615 F.2d 873, 875-76 (9th Cir.), cert. denied, 447 U.S. 908, 100 S.Ct. 2993, 64 L.Ed.2d 858 (1980); Mitchell, 483 F.Supp. at 295. This is so because during the statutorily required pre-transfer hearing before the United States Magistrate, see 18 U.S.C. §§ 4108 & 4109, the offender consents to be bound by the terms of the Treaty, which consent, if voluntary and knowing, "is a constitutionally valid waiver of any constitutional rights he or she might have regarding his or her conviction." Pfeifer, 615 F.2d at 876; see also Mitchell, 483 F.Supp. at 294. Furthermore, "the requirement that an offender agree not to challenge his or her conviction in a United States court is not an unconstitutional condition" on a benefit, because the offender does not relinquish any vested rights by consenting to the terms of the Treaty. Pfeifer, 615 F.2d at 876. "Americans who are incarcerated in Mexican prisons ... have...