Marshall v. Hudson

• Decision Date: 09 March 2020
• Docket Number: No. 19-3236,19-3236
• Parties: JONATHAN MARSHALL, SR., Petitioner - Appellant, v. DON HUDSON, Warden, USP-Leavenworth, Respondent - Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

JONATHAN MARSHALL, SR., Petitioner - Appellant, v. DON HUDSON,^* Warden, USP-Leavenworth, Respondent - Appellee.

No. 19-3236

UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

March 9, 2020

(D.C. No. 5:19-CV-03113-JWL)

(D. Kan.)

ORDER AND JUDGMENT^**

Before HARTZ, PHILLIPS, and EID, Circuit Judges.

Jonathan Marshall, a federal prisoner proceeding pro se, appeals the district court's denial of his 28 U.S.C. § 2241 petition. In his petition, Marshall seeks home release under the First Step Act's pilot program for eligible-elderly offenders. The district court denied Marshall's petition after concluding that the Attorney General has the sole discretion to include eligible offenders in the pilot program. We affirm.

BACKGROUND

I. Factual Background

On April 4, 2006, a grand jury indicted Marshall and his sister, Cheryl Abercrombie, for tax fraud. Marshall v. United States, No. A06-CR-067(1)-LY, 2010 WL 2232808, at *1 (W.D. Tex. June 1, 2010). The indictment included forty counts, all of which named Marshall as a defendant. Id. Specifically, the first count charged him "with corrupt interference with internal revenue laws and aiding and abetting, in violation of 26 U.S.C. § 7212(a) and 18 U.S.C. § 2," while "counts two through forty charged Marshall with assisting in filing false income tax returns and aiding and abetting, in violation of 26 U.S.C. § 7206(2) and 18 U.S.C. § 2." Id.

After an eleven-day trial, the jury found Marshall guilty on every count. Id. As a result, on February 16, 2007, the district court sentenced Marshall to 216 months in prison. Id. The Fifth Circuit dismissed Marshall's direct appeal of his sentence "for want of prosecution." Id. (citing United States v. Marshall, No. 07-50294 (5th Cir. Jan. 8, 2008)). Marshall's later collateral attacks on his sentence were, likewise, unsuccessful. United States v. Marshall, 431 F. App'x 314, 315 (5th Cir. 2011) (unpublished); Marshall v. United States, No. A-06-CR-067(1)-LY, 2010 WL 743791, at *1-19 (W.D. Tex. Mar. 3, 2010) (concluding that Marshall's twenty-eight pronged § 2255 petition, which asserted "a sea of novel claims," did not warrant habeas relief).

With his direct and collateral challenges rejected, Marshall was forced to complete his 216-month sentence, which he is serving in Leavenworth, Kansas. On June 24, 2019, after completing 148 months of that sentence, Marshall filed a 167-page petition for a writ of habeas corpus under 28 U.S.C. § 2241 in the United States District Court for the District of Kansas. Marshall was sixty-nine years old when he filed his petition.

Unlike his earlier collateral attacks, this petition did not challenge his sentence. Instead, he sought placement in the "'ELDERLY OFFENDER PROGRAM' with unescorted furlough transfer to Halfway House and Home Detention from [Bureau of Prisons (BOP)] FACILITY—BEFORE 06/10/19." R. at 6 (emphasis removed). He claimed that the BOP had "arbitrarily" failed to approve his application to be placed in the program and, thereby, denied his chance at home detention. Id. at 6-7.

The details about Marshall's application and the BOP's resulting review of it are hard to glean from Marshall's habeas petition, which the district court later called "largely incomprehensible[.]" Id. at 247. Yet a review shows that, on January 15, 2019, Marshall submitted an "appeal to the warden," seeking placement in the elderly-offender program. Id. at 34 (capitalization removed).¹ On January 28, 2019,the warden denied Marshall's request. As grounds, the warden noted that inmates must first attempt to informally resolve their complaints before "submit[ting] a Request for Administrative Remedy." Id. at 65. The warden concluded that Marshall had not, in fact, attempted to "informally resolve [his] request." Id. Further, the warden said that "there was no valid reason for bypassing an informal resolution." Id. If Marshall wished to appeal the decision, the warden noted that he needed to do so within twenty days of her letter.

Sixteen days later, on February 13, Marshall "executed" a "regional administrative remedy appeal." Id. at 64 (capitalization removed). Marshall noted that he had "tried to talk to Unit Team over the Past 8-MONTHS and [he] believe[d] that [he] could be transferred - ANY DAY, NOW." Id. Marshall alleged that "THERE HAS ALREADY BEEN ACUTE VIOLATIONS OF CRIMINAL OFFENSES AND CRIMES BY BOP NAMED STAFFS." Id.

On March 1, 2019, the BOP's regional coordinator noted that Marshall's appeal had not been received until February 26, 2019. Thus, the regional coordinator denied Marshall's appeal, concluding that it was "untimely" by nine days. Id. at 79. The regional coordinator noted that Marshall could resubmit his appeal within ten days if he also provided "staff verification on BOP letterhead that untimeliness was not [his] fault." Id. (capitalization removed).

Although Marshall was unable to persuade any BOP staff to verify that his appeal was timely submitted, he did convince a fellow inmate, Zack Dyab, to help. Under "PENALTY OF PERJURY," Dyab testified that he witnessed "Marshallmailing his envelope on Thursday, February 14, 2019 (It was Valentine['s] Day) at 6:00 P.M. properly address[ed] with postage pre-paid." Id. at 87. Marshall claims that he was unable to receive staff verification that his appeal was timely because a BOP staff member told him that he would not "be sending any 'Love-Notes' with [his] grievances." Id. at 7.

Dyab's affidavit was not enough. On his appeal of the regional coordinator's decision to the BOP's central office, the central office rejected Marshall's appeal, "concur[ring] with [the] rationale of regional office for rejection." Id. at 111 (capitalization removed). On April 22, 2019, the central office, like the regional office, directed Marshall to have "staff provide a memo stating the late filing was not your fault[.]" Id. (capitalization removed). At that point, it appears that Marshall gave up on the BOP and turned to the courts by filing his current June 24, 2019 habeas petition.

II. Procedural Background

Screening Marshall's § 2241 petition under "Rule 4 of the Rules Governing Habeas Corpus Cases," the district court first construed Marshall's petition as seeking "participation in the 'Elderly Offender Program' under the Second Chance Act and the First Step Act[.]" Id. at 176.² The district court reasoned that toparticipate in the program as an "eligible elderly offender," Marshall needed to be a prisoner

(i) who is not less than 60 years of age;

(ii) who is serving a term of imprisonment that is not life imprisonment based on conviction for an offense or offenses that do not include any crime of violence (as defined in section 16 of Title 18), sex offense (as defined in section 20911(5) of this title), offense described in section 2332b(g)(5)(B) of Title 18, or offense under chapter 37 of Title 18, and has served 2/3 of the term of imprisonment to which the offender was sentenced;

(iii) who has not been convicted in the past of any Federal or State crime of violence, sex offense, or other offense described in clause (ii);

(iv) who has not been determined by the Bureau of Prisons, on the basis of information the Bureau uses to make custody classifications, and in the sole discretion of the Bureau, to have a history of violence, or of engaging in conduct constituting a sex offense or other offense described in clause (ii);

(v) who has not escaped, or attempted to escape, from a Bureau of Prisons institution;

(vi) with respect to whom the Bureau of Prisons has determined that release to home detention under this section will result in a substantial net reduction of costs to the Federal Government; and

(vii) who has been determined by the Bureau of Prisons to be at no substantial risk of engaging in criminal conduct or of endangering any person or the public if released to home detention.

Id. at 178 (quoting 34 U.S.C. § 60541(g)(5)(A)). If Marshall met this seven-part definition, then the court recognized that the "Attorney General may release" him to home detention. Id. at 177 (quoting 34 U.S.C. § 60541(g)(1)(B)).

Applying this definition, the district court found that Marshall had "fail[ed] to present any evidence that he ever applied to the BOP to participate in a pilot [program]." Id. at 178. Still, the court "recognize[d] that it is possible that thisinformation is contained somewhere in the disjointed, 167-page Petition[.]" Id. at 179.

But even if Marshall were eligible for home detention under § 60541(g)(5)(A), the court reasoned that Marshall's § 2241 petition sought unobtainable relief. The court noted that "the Supreme Court has held that a prisoner has no constitutional right to confinement in any particular place, including in home confinement." Id. (citations omitted). Also, it concluded that because the First Step Act of 2018 provides the Attorney General with the sole discretion to decide if an inmate qualifies for home detention, "the Court ha[d] no authority under § 60541(g) to order home detention[.]" Id. at 181-82. Thus, the court ordered that Marshall show good cause why it should not dismiss his habeas petition.

Marshall's attempt to do so was unresponsive. He said that he was "serving a 'TRIPLE-SECRET INCARCERATION,'" that he was "[t]he Longest-Serving-Dallas-County-Jail-(DCJ)-Inmate in DCJ[']s HISTORY," and that he was "the Longest-Serving-Person in the U.[S]. History held on CONTEMPT." Id. at 189. Marshall claimed that he had exhausted his administrative remedies, arguing that his application had been denied because of some "SMOKING-GUNS" of "COMPELLING CIRCUMSTANCES." Id. at 191 (internal quotation marks omitted). He asserted that "the A.G. or BOP . . . [has] an absolute right choice on pretending to play an endgame according to EX PARTE situation[,]" and that his § 2241 petition should not be dismissed because the United States never filed a response. Id. at 193. As for his application to the elderly-offender program, Marshall questioned "[w]hydid the Hig...