Royce v. Hahn

• Decision Date: 05 August 1998
• Docket Number: No. 97-3266,97-3266
• Citation: 151 F.3d 116
• Parties: Zuliken S. ROYCE, Appellant v. John E. HAHN, Warden, Appellee.
• Court: U.S. Court of Appeals — Third Circuit

Page 116

151 F.3d 116

Zuliken S. ROYCE, Appellant v. John E. HAHN, Warden, Appellee.

No. 97-3266.

United States Court of Appeals, Third Circuit.

Aug. 5, 1998.

Zuliken S. Royce, Pro Se, Raybrook, New York City.

Bonnie R. Schlueter, Tina M. Oberdorf, Office of the United States Attorney, Pittsburgh, PA, for Appellee.

Before: STAPLETON, ROTH, and WEIS, Circuit Judges.

OPINION OF THE COURT

WEIS, Circuit Judge.

After our original opinion in this case was filed, the government presented a petition for panel rehearing. We granted the petition, vacated the opinion, and now consider the appeal anew.

The issue in this case is whether mere possession of a firearm by a previously convicted felon is a "crime of violence" that triggers an obligation of federal prison authorities to notify local authorities upon an inmate's release. We answer that question in the negative and correspondingly hold that a Bureau of Prisons Program Statement to the contrary represents an incorrect interpretation of the relevant notification statute.

Petitioner Zuliken S. Royce was incarcerated in the federal correctional institution at McKean, Pennsylvania when he filed this habeas corpus petition. He had been convicted in the United States District Court for the Middle District of Florida on two counts--possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1), and unlawful possession of a machine gun in violation of 18 U.S.C. § 922(o)(1). Although there were two counts, only one gun was involved. Petitioner had previously been convicted in state court on three felony drug charges and one count of second degree attempted burglary.

According to the presentence investigation report for the current conviction, on February 10, 1993 Secret Service agents investigating a trail of counterfeit money contacted petitioner at his business location. Petitioner denied knowledge of counterfeiting activity and consented to a search of the premises. At that point, he announced that he had a "Mac 10" under his desk for protection. The agents retrieved an unloaded RPB Industries M10, 9 millimeter machine gun from under the desk. They found no ammunition on the premises.

Following his conviction and incarceration, prison authorities classified petitioner as having committed "crimes of violence" pursuant to a definition of that term contained in the Federal Bureau of Prisons' internal Program Statement No. 5162.02(7). As a result, he became subject to 18 U.S.C. § 4042(b), which requires the Bureau to notify local law enforcement authorities of the imminent release of inmates who had committed violent crimes and provide their names, criminal history, parole restrictions, and proposed residence.

Arguing that his offenses of conviction were not "crimes of violence," petitioner objected to this classification. After his appeals through the administrative process proved unsuccessful, petitioner filed this habeas corpus action in the United States District Court for the Western District of Pennsylvania. He alleged that the Bureau exceeded its authority in classifying his offenses as "crimes of violence" and in creating Program Statement 5162.02. Petitioner specifically asked the court to enter a declaratory judgment that he was "eligible for the non-application of 18 U.S.C. § 4042[b]."

A magistrate judge recommended that the petition be denied for lack of subject matter jurisdiction. She reasoned that, under the traditional test for habeas corpus jurisdiction, petitioner failed to "make any colorable allegation that his underlying conviction is invalid or that he is otherwise being denied his freedom from unlawful incarceration." Despite the petition's specific request, the magistrate judge did not rule on the declaratory relief aspect. The district judge adopted the recommendation and dismissed the petition.

I.

This court has jurisdiction to review the denial of a habeas petition under 28 U.S.C. § 1291 and our review is plenary. United States ex rel. Schiano v. Luther, 954 F.2d 910, 912 (3d Cir.1992). The pro se petition here challenges application of § 4042(b)'s notification requirement, but not the fact or duration of confinement. See Preiser v. Rodriguez, 411 U.S. 475, 484-85, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973). Insofar as the district court found that it did not have subject matter jurisdiction under traditional 28 U.S.C. § 2241 analysis, the ruling was correct.

The label placed on a petition, however, is not determinative. As stated in Graham v. Broglin, 922 F.2d 379, 381-82 (7th Cir.1991), if a petition asks for habeas corpus relief when petitioner "should have brought a civil rights suit, all he has done is mislabel his suit, and either he should be given leave to plead over or the mislabeling should simply be ignored." See also Fierro v. Gomez, 77 F.3d 301, 305 (9th Cir.1996) (a court may construe a section 1983 complaint as a habeas petition and vice versa), vacated on other grounds, --- U.S. ----, 117 S.Ct. 285, 136 L.Ed.2d 204 (1996). This admonition is especially weighty in pro se litigation. See United States ex rel. Montgomery v. Brierley, 414 F.2d 552, 555 (3d Cir.1969) (petition prepared by a prisoner may be inartfully drawn and should be read "with a measure of tolerance").

An inmate cannot avoid the exhaustion requirements that may be a prerequisite to a habeas corpus action by characterizing his suit as a civil rights complaint. Where exhaustion is not implicated, however, the case should not be dismissed until other legitimate avenues of relief are considered. Here, petitioner had already exhausted available administrative appeals and we conclude that his petition should have been construed as an action seeking a declaratory judgment under 28 U.S.C. §§ 1331 and 2201.

Rather than remanding for consideration as such by the district court, we will address the merits of the petition. We do so in the interest of judicial efficiency because there are no factual disputes, the issue presented is purely a question of law, and both parties have briefed the merits. See, e.g., Gibson v. Scheidemantel, 805 F.2d 135, 139 (3d Cir.1986). Moreover, the issue is one frequently recurring that should be addressed at this time.

II.

The notification provision, 18 U.S.C. § 4042(b), requires the Bureau of Prisons to notify local law enforcement officials of the release of a prisoner who was "convicted of a crime of violence (as defined in section 924(c)(3))." ¹ § 4042(b)(3)(B). In turn, 18 U.S.C. § 924(c)(3) defines a crime of violence as "an offense that is a felony and--

(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or

(B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense."

The firearm possession violations do not require proof of "use, attempted use, or threatened use" as an element of the crime. Thus, subsection (A) has no application to the circumstances of this case; only subsection (B) is relevant. See United States v. Canon, 993 F.2d 1439, 1441 (9th Cir.1993). We review the Bureau's interpretation of subsection (B) for consistency with the plain language of the statute and pertinent case law. Roussos v. Menifee, 122 F.3d 159, 163-64 (3d Cir.1997).

The term "crime of violence" is an important component of a number of statutes. In addition to the cross-reference contained in the notification statute, the "crime of violence" concept is relevant to:

(1) the United States Sentencing Guidelines, especially when determining career criminal status and its related sentence enhancement, U.S.S.G. § 4B1.1;

(2) 18 U.S.C. § 924(e)(1), which assigns, inter alia, a fifteen year mandatory minimum sentence to a felon with three prior convictions for violent felonies; and

(3) 18 U.S.C. § 3621(e)(2)(B), which by negative inference excludes inmates who committed violent offenses from eligibility for a sentence reduction following completion of a substance abuse treatment program.

Unfortunately, the courts and the Bureau have complicated matters by using varying definitions of "crime of violence" and related terms without exploring the possibility and desirability of a more uniform approach.

The convictions at issue here are limited to firearm possession. This Court has yet to discuss whether this violation is a crime of violence under the notification statute, although we have encountered the offense in other settings. The Bureau, in its Program Statement No. 5162.02(7), takes the position that violations of the firearm possession prohibitions are crimes of violence in all instances. We assess the validity of that approach by first examining related contexts where the terminology is relevant.

(1.) Sentencing Guidelines

The term "crime of violence" is defined in the Sentencing Guidelines. Because that formulation has been the subject of substantial litigation in the federal courts and is used most frequently, we first examine the term in the guidelines context.

Sentencing Guideline § 4B1.1 provides for enhanced terms of incarceration for those convicted of a "crime of violence." Such an offense is described in § 4B1.2(a) as a felony that (1) has as an element "the use, attempted use, or threatened use" of physical force or (2) is a "burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents 'a serious potential risk of physical injury to another.' "

The original commentary to § 4B1.2 created a conflict among various Courts of Appeals over the question of whether mere possession of a firearm by a felon was a crime of violence. See Stinson v. United States, 508 U.S. 36, 39 n. 1, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993) (citing United States v. Williams, 892 F.2d 296 (3d Cir.1989); United States v. Goodman, 914 F.2d 696 (5th Cir.1990); United States v. Alvarez, 914 F.2d 915 (7th Cir.19...