White v. Kelly, Civ.A.97-N-1369.

• Decision Date: 07 January 2000
• Docket Number: No. Civ.A.97-N-1369.,Civ.A.97-N-1369.
• Citation: 82 F.Supp.2d 1184
• Parties: Charles Bruce WHITE, Plaintiff, v. Frank J. KELLY, Attorney General, State of Michigan, Defendant.
• Court: U.S. District Court — District of Colorado

82 F.Supp.2d 1184

Charles Bruce WHITE, Plaintiff, v. Frank J. KELLY, Attorney General, State of Michigan, Defendant.

No. Civ.A.97-N-1369.

United States District Court, D. Colorado.

January 7, 2000.

Charles Bruce White, Pontiac, MI, pro se.

ORDER ACCEPTING MAGISTRATE JUDGE'S RECOMMENDATION

NOTTINGHAM, District Judge.

This matter is before the Court on the "Recommendation of United States Magistrate Judge" filed December 20, 1999. No party has objected to the recommendation. I have conducted the requisite de novo review of the issues, the record, and the recommendation. Based on this review, I have concluded that the recommendation is a correct application of the facts and the law. Accordingly, it is

ORDERED as follows:

1. The recommendation is ACCEPTED.

2. Petitioner Charles Bruce White's Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 by a Person in Federal Custody is dismissed with prejudice.

3. Petitioner's "Request for Evidentiary Hearing" filed June 14, 1999 is DENIED.

4 All other pending motions are DENIED as moot.

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

COAN, United States Magistrate Judge.

The matters before the court are pro se petitioner Charles Bruce White's Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 by a Person Attacking a State Detainer [filed June 27, 1997] and petitioner's Request for Evidentiary Hearing [filed June 14, 1999]. Respondent filed his "Respondent's Answer to Petition for Writ of Habeas Corpus" on March 30, 1998. Petitioner thereafter filed his Petitioners [sic] Traverse pursuant to Rule 7(A) F.R.C.P. as directed by Order of Mag. Judge Borchers March 31, 1998 on April 7, 1998. A General Order of Reference under 28 U.S.C. § 636(b)(1)(A) and (B) referred the Petition to the undersigned magistrate judge on March 15, 1999 to issue recommendations on the above motions. The motions are ripe for disposition.

I.

The issues in this case concern whether Michigan's transfer of petitioner to the federal Bureau of Prisons ("BOP") to serve a federal sentence concurrently with his state sentences, operates as an implied waiver of the remainder of petitioner's state sentences; and, alternatively, whether petitioner's denial of probation hearings on his state sentences, while serving those sentences in federal prison, justifies releasing petitioner from service of the remainder of the state sentences.

This case was originally drawn to Magistrate Judge Borchers, who recommended that the petition be denied. See May 4, 1998 Recommendation, at 5. The magistrate judge stated that, according to his view of the evidence, nothing in the record indicated that Michigan voluntarily relinquished jurisdiction over petitioner. Id. at 4. The magistrate judge stated that petitioner was outside the physical custody of the State of Michigan ("Michigan") when apprehended after his escape from Michigan state prison. Id. at 3. Further, the magistrate judge found that petitioner had only been in federal custody since his capture. Id. Consequently, the magistrate judge concluded that the federal government did not "borrow" petitioner when it convicted and sentenced petitioner under a federal charge of kidnapping. Id. at 3-4. The magistrate judge therefore found that petitioner was not entitled to relief. Id. at 4. The magistrate judge also recommended granting respondent's motion to dismiss with respect to petitioner's claim of unlawful denial of state parole hearings, stating that petitioner had not properly framed the issue as a constitutional violation. Id.

On March 11, 1999, the court rejected the magistrate judge's recommendation in its entirety. See Order Concerning Magistrate Judge's Recommendation, at 3. The court stated that the magistrate judge's recommendation was based on the erroneous finding of fact that petitioner had not been in Michigan's custody when petitioner was captured and incarcerated pending his federal trial on the kidnapping charges. See id. at 1-2. The court found that there was evidence in the record showing that petitioner had been apprehended and reincarcerated in Michigan before he was transferred to the BOP. See id. Accordingly, the court referred the case to this magistrate judge to make a recommendation for disposition.

The pertinent facts are as follows. On September 10, 1984, petitioner was convicted in Michigan state court of first degree sexual conduct and armed robbery. See Memorandum of Law in Support of Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 ("Petition"), Ex. A. He was sentenced to serve a term of four to forty years on the sexual conduct charge, with a lesser term on the armed robbery. Id. Both sentences were to be served concurrently. Id.

On December 24, 1989, petitioner escaped from the Western Wayne Correctional Facility ("WWCF") in Plymouth, Michigan. See Supplemental Evidence to Support Objection(s) to Magistrates [sic] proposed finding and recommendations ("Supp.Evid. for Obj."), Ex. M; Affidavit of Clarice Stovall, Warden of the Western Wayne Correctional Facility ("Stovall Aff."), attached to August 16, 1999, letter to Judge Nottingham from Joyce C. White. He was subsequently apprehended in Bristol City, Virginia, on December 29, 1989 and returned to the WWCF. Id. On April 20, 1990, petitioner was convicted of escape from prison in Michigan and sentenced to a term of one year and one day, to be served consecutively to his other state convictions. See Judgment of Sentence, People v. White, No. 90-02252 (May 20, 1990), attached to August 16, 1999 letter to Judge Nottingham from Joyce C. White.

Petitioner remained in the Michigan state prison until August 15, 1990, when he was released to federal authorities on a writ of habeas corpus ad prosequendum. See Petition, at 1; Supp.Evid. for Obj., Ex. M. Petitioner was convicted on a federal charge of kidnapping, arising out of petitioner's unlawful conduct during his escape. See Respondent's Answer to Petition for Writ of Habeas Corpus ("Resp.Ans. to Pet."), at 1. Petitioner received a federal sentence of one hundred and twenty-one months, to be followed by three years of supervised release. Id. He was initially incarcerated at the United States Penitentiary at Leavenworth, Kansas ("USP Leavenworth"), and was subsequently transferred to the United States Penitentiary at Florence, Colorado ("USP Florence"); thereafter, he filed the petition currently before the court. See Stovall Aff.

In October 1990, after petitioner began serving his federal and state sentences at USP Leavenworth, the Michigan Department of Corrections ("MDOC") filed a detainer with the Bureau of Prisons seeking petitioner's return to Michigan upon completion of his federal sentence. See October 25, 1990 Letter to Flora Magee, Inmate Systems Manager, U.S.P. Leavenworth, from Donald H. Hoyne, Michigan Department of Corrections ("October 25, 1990 Letter"), attached to August 16, 1999 letter to Judge Nottingham from Joyce C. White.

After completing his federal sentence, petitioner was extradited to Michigan on December 22, 1998. See Status Report per Order, 3/31/99, at 1. Petitioner is currently serving the remainder of his state sentences in Michigan. Petitioner appears to have exhausted his state remedies with respect to the claims in his petition.

II.

A. Petition for Habeas Corpus

Petitioner contends that the detainer Michigan filed with the BOP is unlawful because Michigan yielded its primary jurisdiction over petitioner to the BOP, implicitly waiving its rights to have petitioner serve the remainder of his state sentences. See Petitioners [sic] Traverse pursuant to Rule 7(A) F.R.C.P. as directed by Order of Mag. Judge Borchers March 31, 1998 ("Traverse"), at 3. Petitioner sought to remove the detainer so that he could participate in the federal release program upon completion of his federal sentence. Id. at 6. In his Answer, respondent appears to move to dismiss the petition for failure to state a claim upon which relief can be granted under Fed.R.Civ.P. 12(b)(6), arguing that petitioner has not shown that Michigan voluntarily waived all future jurisdiction over petitioner in transferring petitioner to the BOP, or, alternatively, that petitioner's claims are not cognizable under a petition for habeas corpus. See Resp.Ans. to Pet., at 10.

Before addressing the merits of petitioner's claim, the court considers whether the claim is now moot. Petitioner has been returned to Michigan to serve the sentence he originally challenged in this court. Respondent claims that the detainer issue was resolved because petitioner has been released from federal prison and unsuccessfully challenged his extradition to Michigan. See Status Report, at 3. Those events, however, have not addressed the underlying constitutional claims concerning Michigan's custody of petitioner. Accordingly, the court concludes that petitioner's claim is not moot and will address the merits.

A prisoner may challenge the constitutional validity of a sentence he is serving concurrently with other sentences. See 28 U.S.C. 2241(c)(3) ("The writ of habeas corpus shall not extend to a prisoner unless ... [h]e is in custody in violation of the Constitution or laws or treaties of the United States."). Respondent concedes that petitioner is serving his state sentence concurrently with petitioner's federal sentence in federal prison. See Resp.Ans. to Pet., at 5. Further, even if petitioner's state sentence was stayed until petitioner completed his federal sentence, petitioner's claims would still be reviewable under a petition for habeas corpus. See Maleng v. Cook, 490 U.S. 488, 491-92, 109 S.Ct. 1923, 104 L.Ed.2d 540 (1989) (petitioner in federal custody may challenge state sentences supporting a detainer even though he has not begun serving them); Peyton v. Rowe, 391 U.S. 54, 67, 88 S.Ct. 1549, 20 L.Ed.2d 426 (1968) (petitioner serving two consecutive sentences can challenge the second sentence which he has not yet...