U.S. v. Eccleston

• Decision Date: 31 March 2008
• Docket Number: No. 07-2123.,07-2123.
• Parties: UNITED STATES of America, Respondent-Appellee, v. Sebastian ECCLESTON, Petitioner-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

521 F.3d 1249

UNITED STATES of America, Respondent-Appellee, v. Sebastian ECCLESTON, Petitioner-Appellant.

No. 07-2123.

United States Court of Appeals, Tenth Circuit.

March 31, 2008.

Brian A. Pori, Inocente, P.C, Albuquerque, NM, for Defendant/Movant-Appellant.

Kyle T. Naybak, Assistant United States Attorney, (Larry Gómez, Acting United States Attorney, and Robert D. Kimball, Assistant United States Attorney, on the brief), Office of the United States Attorney, Albuquerque, NM, for Plaintiff/Respondent-Appellee.

Before LUCERO, HARTZ, and GORSUCH, Circuit Judges.

HARTZ, Circuit Judge.

Sebastian L. Eccleston appeals the decision by the United States District Court for the District of New Mexico denying relief on his pro se habeas application under 28 U.S.C § 2241. Mr. Eccleston is in the custody of the New Mexico Corrections Department, serving a state sentence for first-degree murder and conspiracy to commit first-degree murder committed on December 13, 1994. He has also been sentenced in federal court for offenses committed two days later: carjacking, see 18 U.S.C. § 2119(1); carrying a firearm during a crime of violence, see id. § 924(c); and violating the Hobbs Act, see id. § 1951(a) (interference with commerce by threat or violence). He seeks to serve his state and federal sentences concurrently in a federal facility and to have his prior time in state custody credited to his federal sentence. The district court dismissed the § 2241 application without prejudice on the ground that Mr. Eccleston had failed to exhaust his administrative remedies with the federal Bureau of Prisons (BOP). We set aside that dismissal and remand with instructions to dismiss Mr. Eccleston's § 2241 application with prejudice, because the application fails to raise any viable claim.

I. BACKGROUND

A. Sentencing in State and Federal Courts

Mr. Eccleston pleaded guilty in federal and state court on the same day, May 3, 1996. The federal government did not promise, either in the draft of the negotiated plea agreement or in the final plea agreement, that Mr. Eccleston's federal sentence would run concurrently with the state sentence, nor did it promise where he would serve his sentences. During plea negotiations the United States Attorney's Office wrote Mr. Eccleston's counsel:

No one can guarantee what sentence [the federal district court] would give under the GUIDELINES and no one can guarantee when your client would be transferred to the [BOP] if he received a concurrent sentence, but this offer would give him the chance to litigate the question of whether his federal and state sentences would be consecutive or concurrent.

Aplee. Supp.App. at 108. The plea agreement signed by Mr. Eccleston disclaimed any agreement to a specific sentence, stating, "There have been no representations or promises from anyone as to what sentence the court will impose." Id. at 24. When asked at the federal plea hearing whether his guilty plea had been induced by any promises or assurances other than what was contained in the plea agreement, Mr. Eccleston responded, "No, Your Honor," Id. at. 31. During the sentencing hearing on October 29, 1996, Mr. Eccleston's lawyer did not mention concurrent sentencing or any concern about where Mr. Eccleston would serve his federal or state sentence. The district court imposed a sentence of 417 months in prison, to be followed by three years of supervised release. The sentence made no reference to any state sentence.

Mr. Eccleston pleaded guilty in state court a few hours after pleading in federal court. The state plea agreement provided that Mr. Eccleston's state term of imprisonment would run concurrently with any federal term. On November 7, 1996, the state court sentenced Mr. Eccleston to life imprisonment, plus nine years. The sentence provided that it would "run ... concurrently with [the] Federal Prison Sentence defendant is now serving." Aplt. App. at 28.

B. Postconviction Proceedings

Mr. Eccleston appealed his federal sentence on the ground that the district court had erred in imposing 10-year and 20-year sentences under § 924(c). We affirmed in United States v. Eccleston, 132 F.3d 43 (10th Cir.1997) (unpublished table decision). On May 4, 2001, Mr. Eccleston filed a pro se motion for relief under 28 U.S.C. § 2255, claiming that his counsel had been ineffective because he had induced Mr. Eccleston to plead guilty based on the "false and inaccurate promise" that Mr. Eccleston would serve the sentence in federal custody. Aplee. Supp.App. at 71. The district court denied the motion as time-barred, and he did not attempt to appeal.

On March 5, 2004, Mr. Eccleston filed a second § 2255 motion. The district court transferred the motion to this court as a motion for authorization to file a second-or-successive § 2255 motion. See 28 U.S.C. §§ 1631 (authority to transfer), 2255 (requiring court of appeals order authorizing second-or-successive motion). On October 17, 2005, we vacated the transfer order and remanded to the district court with instructions to treat the motion as an application for habeas relief under 28 U.S.C. § 2241. The following month counsel entered an appearance for Mr. Eccleston in district court and contended that he should be committed to a federal rather than a state institution and that his prior service in a state institution should be credited to his federal sentence.

Meanwhile, Mr. Eccleston had initiated communications with the BOP regarding his sentences. On September 21, 2003, he wrote the BOP, asking whether his federal sentence was being served concurrently with his state sentence. He then contacted the BOP's South Central Regional Office, which informed him on May 13, 2004, that he was not in the custody of the BOP, that he had not provided a copy of the federal judgment and commitment order necessary to determine the status of his federal sentence, and that the BOP lacked authority to order a state to transfer an inmate into federal custody.

Also, the state district attorney, in response to a state-court habeas proceeding brought by Mr. Eccleston, sought to resolve Mr. Eccleston's concurrent-sentence claim by means of BOP Program Statement 5160.05 (the BOP Statement), which establishes procedures for a state to request the BOP to designate a state institution as the place to serve a federal sentence concurrently with a state sentence.¹ The district attorney asked the United States Attorney to consent to a request by the district attorney and Mr. Eccleston's state counsel for the BOP to designate the New Mexico Department of Corrections for the concurrent service of Mr. Eccleston's state and federal sentences and to give him retroactive credit on his federal sentence for time served in state custody since the imposition of his federal sentence. The U.S. Attorney's Office drafted letters to the court and the BOP consenting to the request, although the draft letter to the court stated that Mr. Eccleston would terminate his state and federal habeas proceedings if the BOP granted the request. In response, Mr. Eccleston's counsel said that Mr. Eccleston preferred to seek judicial relief first.

The district court issued an order on April 3, 2007, dismissing as untimely Mr. Eccleston's request to be placed in BOP custody. See Dulworth v. Evans, 442 F.3d 1265, 1267-68 (10th Cir.2006) (28 U.S.C. § 2244(d)(1)'s one-year limitation period applies to § 2241 applications challenging administrative decisions). The court then conducted a hearing on April 23 on the concurrent-sentence issue. At the hearing Mr. Eccleston's counsel indicated that he was prepared to execute the proposed agreement if the agreement was without prejudice to his claim that he should serve his sentences in a federal facility. He explained:

The only reason we haven't [executed an agreement under the BOP procedure] before this was the understanding between [the Assistant U.S. Attorney] and myself that, if Mr. Eccleston pursued this remedy of simply concurrent sentences, he would not be entitled to pursue the other remedy which he believed was promised to him both in the state and federal proceedings, namely, that the federal judge would designate the [BOP] for service of sentence, and would designate a particular BOP facility for the service of both the state and federal sentence.

Aplee. Supp.App. at 125-26. After the hearing the court denied without prejudice the concurrent-sentence claim, concluding that Mr. Eccleston had not exhausted his available administrative remedies with the BOP.

II. DISCUSSION

To determine what is before us, we must start with our prior decision in this case. Mr. Eccleston initially filed a pleading captioned as "Motion Pursuant to 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody." Id. at 64. The district court treated it as a second-or-successive § 2255 motion and transferred it to this court to determine whether to authorize the district court to consider the motion. We vacated the transfer and instructed the district court to consider it as an application under § 2241.

Our prior decision implicitly resolved two matters central to this case. First, we have jurisdiction. Although the presence of jurisdiction is not clear from the record now before us, that question is answered by the law of this case. Second, because we decided that Mr. Eccleston was proceeding under § 2241 rather than § 2255, the sole substantive issue before us is whether his federal sentence has been properly executed, which is the province of § 2241 proceedings. See Davis v. Roberts, 425 F.3d 830, 833 (10th Cir.2005). A challenge to the propriety of the federal conviction or sentence itself — such as whether Mr. Eccleston was misled when he pleaded guilty or whether the sentence violated the plea bargain — must proceed under § 2255, not § 2241, see McIntosh v. U.S. Parole Comm'n, 115 F.3d 809, 811-12 (10th Cir.1997), and could have been brought promptly after...