United States v. Burkhead

• Decision Date: 21 July 1983
• Docket Number: No. 79-00115-01-CR-W-1.,79-00115-01-CR-W-1.
• Citation: 567 F. Supp. 1425
• Parties: UNITED STATES of America, Plaintiff, v. Darrel Leon BURKHEAD, Defendant.
• Court: U.S. District Court — Western District of Missouri

567 F. Supp. 1425

UNITED STATES of America, Plaintiff, v. Darrel Leon BURKHEAD, Defendant.

No. 79-00115-01-CR-W-1.

United States District Court, W.D. Missouri, W.D.

July 21, 1983.

Robert G. Ulrich, U.S. Atty., Robert E. Mydans, Dept. of Justice, Kansas City, Mo., for plaintiff.

Darrel Leon Burkhead, pro se.

MEMORANDUM OPINION AND ORDERS DENYING DEFENDANT'S MOTION TO CORRECT PRESENTENCE REPORT AND FOR A PROTECTIVE ORDER AND DIRECTING FURTHER PROCEEDINGS

JOHN W. OLIVER, Senior District Judge.

I.

This case pends on defendant's pro se motion to correct presentence report and for a protective order. That motion was allegedly filed pursuant to Rule 32(c) of the Federal Rules of Criminal Procedure. Defendant alleges that both the presentence report considered by this Court before imposition of sentence and the Form 792 presented to the Parole Commission by the government after sentencing contained "material errors and incorrect information that currently adversely affect defendant's prison experience and parole consideration." Defendant's motion requested that "this Court enter an appropriate order expunging the challenged entries from the presentence report and directing that the United States Parole Commission not consider the information contained in the United States Attorney's Report unless the information herein challenged is established to the satisfaction of the Court."

Defendant's pending motion must be denied for the reason that Rule 32(c) does not vest this Court with jurisdiction to grant the relief sought by that motion. Principles most recently stated in United States v. Leath, 711 F.2d 119 (8th Cir.1983), which reiterated principles stated in United States v. Fraser, 688 F.2d 56, 58 (8th Cir. 1982), however, require that we make clear that defendant's motion is denied for want of jurisdiction and that we should add a suggestion to the Parole Commission to take further action in light of the government's concession that particular information in the presentence report was, in fact, inaccurate.

II.

United States v. Leath, supra, makes clear that defendant's pending motion may not properly be treated as a § 2255 motion or a Rule 35 motion. Leath, like this case, involved a motion to correct presentence report. The defendant was convicted on a plea of guilty and sentenced in the Eastern District of Missouri in June, 1978. After serving almost 47 months of an earlier eight year sentence imposed in May, 1978 in the Eastern District of Arkansas, the defendant was classified by the Parole Commission in the "Greatest I" category. Leath alleged in his motion to correct presentence report filed in the Eastern District of Missouri on July 12, 1982 that his classification by the Parole Commission was based upon erroneous information contained in the presentence report considered by the Eastern District of Missouri before sentence was imposed.

The Court of Appeals noted in Leath that "the district court denied the motion as untimely and without merit and noted that the Parole Commission was authorized to resolve disputes about the accuracy of the information used to determine eligibility for parole." The Court of Appeals, however, refused to consider the merits of the defendant's appeal. Rather, that Court dismissed the defendant's appeal and remanded the case to the district court with directions that it dismiss the motion to correct sentence for lack of jurisdiction.

The motion to correct presentence report filed in this case was allegedly filed "pursuant to Rule 32(c) of the Federal Rules of Criminal Procedure." Rule 32(c), of course does not provide for any postconviction collateral attack on the accuracy of a presentence report. Nor does that Rule vest jurisdiction to review the accuracy of a Form 792 report that may be presented by the United States Attorney to the Parole Commission. Rather, that Rule provides for the discretionary disclosure of a presentence report to the "defendant, or his counsel." Rule 32(c)(3)(A) further provides that after disclosure and before the imposition of sentence, "the court shall afford the defendant or his counsel an opportunity to comment thereon and, at the discretion of the court, to introduce testimony or other information relating to any alleged factual inaccuracy contained in the presentence report."

The transcript of the sentencing proceeding in this case establishes that Rule 32(c) was fully and fairly complied with at the time of sentencing. Indeed, defendant's motion does not present any question concerning this Court's compliance with that Rule.¹ We believe that it is clear that any complaint about the accuracy of a presentence report must be made prior to the imposition of sentence and any alleged failure of the sentencing court to make appropriate inquiry in regard to the accuracy of the presentence report as provided in Rule 32(c)(3)(A) is subject to review on direct appeal. Rule 32(c) simply does not authorize a post-sentence collateral attack on the accuracy of a presentence report in the sentencing court.

United States v. Legrano, 659 F.2d 17 (4th Cir.1981), affirmed the district court's refusal to strike allegedly inaccurate items contained in a presentence report. That case concluded that "If Legrano finds that his parole possibilities are jeopardized, he can challenge the contents of his presentence report through administrative avenues as outlined in 28 C.F.R. § 2.19(c)." 659 F.2d at 18

The rationale of Smith v. United States, 618 F.2d 507 (8th Cir.1980), is controlling in regard to defendant's claim in regard to the alleged inaccuracies contained in Form 792. That case involved a defendant's § 2255 claim that the government had "supplied erroneous information to the Parole Board resulting in misapplication of the parole guidelines." The Court of Appeals concluded that the district court did not err in denying the defendant an evidentiary hearing to consider such an allegation, noting that "relief should be sought in a petition for habeas corpus filed in the district court with jurisdiction over the prisoner or his keeper."

Defendant's Rule 32(c) motion may not properly be treated as a § 2255 motion or as a Rule 35 motion. Leath expressly noted that "the district court apparently treated appellant's `Motion to Correct Presentence Report' like a 28 U.S.C. § 2255 motion to vacate, correct or modify sentence or a Fed. R.Crim.P. 35 motion to correct an illegal sentence." The Court of Appeals concluded that:

We do not agree with the district court's characterization of appellant's motion as a § 2255 motion. Appellant did not challenge the validity of his sentence; he only wanted to remove certain allegedly erroneous information from his presentence report and reduce his parole eligibility classification. Because "this is a challenge to the execution of the sentence rather than to the sentence itself, we do not have jurisdiction under § 2255." United States v. Fraser, 688 F.2d 56, 58 (8th Cir.1982) (citations omitted).

It must be noted, however, that the Court of Appeals stated the following in footnote 2 on page 121 in Leath:

As in the Fraser case, we suggest that the Parole Commission examine its records and, if necessary, correct any inaccurate information in appellant's file and reconsider appellant's parole eligibility classification. See 28 C.F.R. § 2.18(c) (1982); Evans v. Dillahunty, 662 F.2d 522, 526 (8th Cir.1981) (prisoners have a due process right to be advised of adverse information that may lead to an unfavorable parole decision and be given an opportunity to address it). If the matter is not considered by the Parole Commission, appellant may bring a habeas corpus action in the district in which he is confined.

Both Fraser and Leath recognize that the Parole Commission's reliance upon allegedly inaccurate information contained in a presentence report is subject to appropriate judicial review in a habeas corpus proceeding filed pursuant to 28 U.S.C. § 2241 in the district in which the defendant is confined. The defendants involved in those two cases were, in fact, confined in districts other than the districts in which they were sentenced. Thus, the sentencing court did not have jurisdiction of a § 2241 habeas corpus proceeding.

Defendant's Rule 32(c) motion, however, should not be presently treated as a § 2241 habeas corpus petition even though the record shows that defendant is presently in custody in this judicial district. For it is clear that the Court of Appeals anticipated in both Fraser and Leath that the Parole Commission would follow the Court of Appeals' suggestion that it "examine its records and, if necessary, to correct any inaccurate information in the defendant's file and reconsider the defendant's parole eligibility classification pursuant to 28 C.F.R. § 2.9(c) (1982)." Leath makes clear that the time for filing a § 2241 habeas corpus petition is not ripe until after the Parole Commission was afforded a reasonable period of time within which to examine and, if necessary, correct its records and to reconsider a particular defendant's parole eligibility classification in light of accurate information. Past experience in Parole Commission cases establishes that the Parole Commission does not ignore suggestions made by the judicial branch of our government.

Accordingly, appropriate orders will be entered which will direct the government to advise the Parole Commission of this Court's disposition of defendant's pending motion and which will afford the Parole Commission a reasonable period of time within which it may follow this Court's suggestion made consistent with admonitions stated by the Court of Appeals in Fraser and Leath.

III.

The factual circumstances in regard to one of the alleged inaccuracies contained in defendant's presentence report may be briefly stated. The defendant alleged on page 3 of his pending motion that:

The presentence report contains an error on page 3 under date of May 26, 1969,

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