Pope v. Perdue

• Decision Date: 03 May 2018
• Docket Number: No. 16-4217,16-4217
• Citation: 889 F.3d 410
• Parties: Jermel POPE, Petitioner-Appellant, v. Janet PERDUE, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

889 F.3d 410

Jermel POPE, Petitioner-Appellant,

v.Janet PERDUE, Respondent-Appellee.

No. 16-4217

United States Court of Appeals, Seventh Circuit.

Argued November 29, 2017

Decided May 3, 2018

Rehearing Denied July 30, 2018

James Ligtenberg, Attorney, JONES DAY, New York, NY, for Petitioner-Appellant.

Segev Phillips, Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Peoria, IL, for Respondent-Appellee.

Before Wood, Chief Judge, and Ripple and Kanne, Circuit Judges.

Kanne, Circuit Judge.

Various statutes vest the Federal Bureau of Prisons ("BOP") with the authority to make decisions that affect aspects of a federal inmate’s sentence. In Jermel Pope’s case, the BOP used its authority to prolong his federal sentence. Pope argues that the BOP erroneously wielded that authority and asks that we reconsider the BOP decisions that extended his sentence. Pope has completed his term of imprisonment and is now serving a period of federal supervised release, so we must also consider whether Pope’s habeas corpus petition is now moot because he is no longer housed in a federal corrections facility.

I. BACKGROUND

On February 8, 2008, Illinois state authorities arrested Jermel Pope and charged him with pandering in violation of Illinois law. While his state case was pending, a federal grand jury returned an indictment against him for violating the federal equivalent of the state pandering law. Both the state and federal charges stemmed from the same events.

Pope bounced back and forth between state and federal facilities in order to appear in both the state and federal proceedings. These transfers were always conducted under a writ of habeas corpus ad prosequendum. Using this writ, a sovereign may take temporary custody of a prisoner in the custody of another sovereign, for the purpose of prosecution, without acquiring primary custody.

On June 10, 2009, a federal court sentenced Pope to 100 months’ imprisonment on the federal offense. And a few months later, on August 24, 2009, an Illinois court sentenced him to five years’ imprisonment on the state charge.

Then on August 31, 2009—shortly after the imposition of his state sentence and over two months after the imposition of his federal sentence—Pope was moved from an Illinois facility and housed in a federal correctional center. Two hundred and sixty-eight days later, on May 25, 2010, Pope was returned to a state facility. These post-sentencing changes of custody were not accompanied by a writ of habeas corpus ad prosequendum.

Having returned to a state facility on May 25, 2010, Pope then remained at the state facility for the duration of his state sentence. On August 6, 2010—two years and six months after his arrest—Illinois paroled Pope. That same day Pope was turned over to federal authorities.

Notwithstanding the fact that the BOP had previously exercised custody over Pope from August 31, 2009, to May 25, 2010, the BOP calculated the start date of his federal sentence as August 6, 2010. The BOP also refused to give Pope credit for time served that had already been credited to his state sentence. Later, it also denied Pope’s request that the BOP retroactively designate the Illinois prison where he served his state sentence as his place of imprisonment for his federal sentence. This retroactive designation would have, in effect, run Pope’s federal sentence concurrently with his state sentence.

Pope’s challenges to the BOP’s decisions have dragged on for years. After exhausting his administrative remedies, Pope filed this habeas corpus petition on September 29, 2014. Five months later, the district court ordered the Government to show cause why Pope’s writ should not be granted. In April 2015, the Government filed its response.

It was not until July 2016—21 months after Pope filed the petition we now review, and 14 months after the Government filed its response—that the district court returned to Pope’s petition. It granted the petition in part, ordering the BOP to credit Pope 30 days. It denied all but one of Pope’s additional claims. Because the Government had failed to respond to the substance of that final claim, the district court gave the Government additional time to respond. Finally, on December 13, 2016—over two years after Pope filed initially—the district court denied the remainder of his petition.

Pope appealed. This Court set a briefing schedule to be completed on September 13, 2017, and scheduled oral argument for November 29, 2017. On November 24, 2017, the BOP released Pope to begin serving his term of supervised release. Then, two days before oral argument, the Government moved to dismiss this case as moot. We now address that motion, as well as the merits of Pope’s 28 U.S.C. § 2241 petition, which we review de novo , Brown v. Caraway , 719 F.3d 583, 586 (7th Cir. 2013).

II. ANALYSIS

This appeal stems from the BOP’s position that Pope should serve his federal sentence consecutively rather than concurrently with his state sentence. To ensure that end, the BOP commenced Pope’s federal sentence only after he was paroled by Illinois despite the fact that Pope had already spent months in a BOP facility. It also denied his request for a retroactive designation. Finally, it denied him time-served credit against his federal sentence for time Illinois counted towards his state sentence.

On appeal, Pope challenges each of these decisions. The Government contests the merits of Pope’s claims and argues that Pope’s case is now moot because he has been released from prison.

Our analysis proceeds in two parts. We first address mootness, concluding that Pope’s petition is live. We then turn to the merits. There, we conclude the BOP held Pope in prison for too long.

A. Pope’s release from prison does not render his claim moot.

The heavy burden of demonstrating mootness lies with the party asserting it. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc. , 528 U.S. 167, 189, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). When a former inmate still serving a term of supervised release challenges the length or computation of his sentence, his case is not moot so long as he could obtain "any potential benefit" from a favorable decision. United States v. Trotter , 270 F.3d 1150, 1152 (7th Cir. 2001) ("Unless we are confident that [the former inmate] cannot benefit from success on appeal, the case is not moot.").¹

The Government cannot meet this heavy burden because Pope can benefit from success on appeal. It is true that a finding that Pope spent too much time in prison would not automatically entitle him to less supervised release. United States v. Johnson , 529 U.S. 53, 59–60, 120 S.Ct. 1114, 146 L.Ed.2d 39 (2000). Nevertheless, such a finding would carry "great weight" in a § 3583(e) motion to reduce Pope’s term. Id . at 60, 120 S.Ct. 1114. This is enough. See United States v. Epps , 707 F.3d 337, 345 (D.C. Cir. 2013) ; Mujahid v. Daniels , 413 F.3d 991, 994–95 (9th Cir. 2005).

The Government nonetheless contends that Pope has nothing to gain on remand because he initially received a term of supervised release below the mandatory minimum. This argument fails because it collapses the statutory requirements that govern how the court must impose a sentence with those that control how it may modify one. When the court sentenced Pope, it was bound by statute to impose a mandatory minimum term of supervised release. See 18 U.S.C. § 3583(a) ("The court, in imposing a sentence to a term of imprisonment ... shall include as a part of the sentence a requirement that the defendant be placed on a term of supervised release if such a term is required by statute...."). But § 3583(e) also independently authorizes the court to "terminate a term of supervised release ... if it is satisfied that such action is warranted by the conduct of the defendant released and the interest of justice." Id. § 3583(e)(1). No language from either sub-section suggests that Congress intended a minimum term of supervised release "in imposing a sentence" to constrain the court’s ability to later terminate it. United States v. Spinelle , 41 F.3d 1056, 1060 (6th Cir. 1994) ; United States v. Scott , 362 F.Supp.2d 982, 983–84 (N.D. Ill. 2005). The court, therefore, could terminate Pope’s term of supervised release after one year even though Pope initially received a term of supervised release below the statutory minimum. ²

The Government also argues that Pope’s challenge is moot because the authority to modify his term of supervised release rests with the federal sentencing court rather than the federal habeas court. Yet it fails to explain why mootness should turn on the identity of the court on remand, particularly when this court could order the habeas court to transfer further proceedings to the sentencing court. Here, we need only ask whether Pope has something to gain on remand. He does.

Though Pope has been released from prison, he remains in custody. A finding by this court that Pope spent too long in prison would not automatically entitle him to less supervised release. But it would carry great weight in a § 3583(e) motion to reduce that term. That potential benefit keeps Pope’s case alive.

B. Pope spent more time in prison than he should have.

Pope contends that he was held beyond his prison term through three means. First, he argues that the BOP miscalculated the start date of his federal sentence. Second, he argues that the BOP abused its discretion by denying his request for a retroactive designation. And third, he argues that the BOP should have given him credit for time served that Illinois had already credited against his state sentence. We address each argument in turn.

1. The BOP began to run Pope’s federal sentence several months too late.

The BOP determined that Pope’s federal sentence commenced on August 6, 2010. Pope contends that the BOP instead should have begun his sentence on August 31, 2009—the start of a 268-day period in which he was held in federal custody without a writ of habeas corpus ad prosequendum....