United States v. Four-Otero Ribas ( 1993 )

[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
For The FIRST CIRCUIT
No. 93-1232
ROBERT G. DELLELO,
Petitioner,
v.
JOSEPH PONTE, ETC., ET AL.,
Respondents.
No. 93-1117
ROBERT G. DELLELO,
Petitioner,
v.
PAUL MURPHY, ETC.,
Respondent.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Selya, Boudin and Stahl,
Circuit Judges.
Robert G. Dellelo on brief pro se.
A. John Pappalardo, United States Attorney, and Paula J.
DeGiacomo, Assistant United States Attorney, on brief for
appellee.
September 14, 1993
Per Curiam. Robert G. Dellelo challenges the
dismissal of two related petitions for habeas corpus, one
brought under 28 U.S.C. 2241, and the other under 28 U.S.C.
2254.1 The petitions were dismissed for failure to state
a claim upon which relief could be granted. Petitioner also
assigns as error the district court's failure to hold an
evidentiary hearing and denial of a motion for discovery. We
affirm the district court's judgments.
Most of the relevant procedural history was
summarized by the Massachusetts Appeals Court as follows:
The petitioner is serving a life sentence without
parole for first degree murder. His conviction and
sentence have been upheld by the Supreme Judicial
Court. Commonwealth v. Dellelo, 349 Mass. 525,
[209 N.E.2d 303] (1965). In 1974, the petitioner
was also sentenced by the United States District
Court in New Jersey to a term of eighteen years in
Federal prison for bank robbery [committed while
petitioner was an escapee from Massachusetts
prison, which sentence is] to commence after his
State sentence . . . In February, 1980
Massachusetts prison officials transferred the
petitioner from the Massachusetts Correctional
1. Petitioner is in a state prison serving a state sentence,
but he alleges that due to a procedurally defective transfer
to federal prison in 1980, the state lost jurisdiction of his
case, and he should be viewed as currently serving a federal
sentence. See note 3 infra. His claim arguably falls within
either or both 2241 or 2254. On petitioner's motion, the
district court consolidated the petitions, a procedure which
we think makes good sense, since the petitions assert
identical facts and overlapping legal arguments.
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Institution, Cedar Junction, to the Federal bureau
of prisons in Lewisburg, Pennsylvania. The
petitioner was returned to the custody of the
Massachusetts Department of Corrections on December
23, 1983. On March 26, 1990, the petitioner filed
his initial habeas corpus petition [in state court]
which was dismissed on August 30, 1990. On
November 15, 1990, he filed a second application
for a writ of habeas corpus [also in state court].
In both proceedings, the petitioner contended that
at the time of his transfer to the Federal prison
in Lewisburg, in February, 1980, there existed no
valid contract between the Massachusetts
Commissioner of Correction and the United States
Attorney General authorizing a transfer. He
therefore alleged that under 18 U.S.C. 5003(a)
and [M.] G.L. c. 127, 97A, his transfer was
unlawful and the Commonwealth had lost jurisdiction
over his person and sentence. He requested
immediate release to the custody of Federal
authorities.
. . .
The initial petition was dismissed after a hearing
and [the state court judge dismissed the second
petition because] there was no showing that the
ends of justice required another hearing on the
same issue.
Dellelo v. Superintendent, Old Colony Correctional Center,
No. 91-P-524, slip. op. at 1-2 (Mass. App. Ct. Nov. 12, 1991)
(footnote omitted).2 The Massachusetts Appeals Court
2. In addition to the crimes mentioned in the quoted text,
petitioner has also been convicted in state court of unlawful
escape on two occasions, and the following crimes committed
during his escapes: unlawful carrying of a firearm;
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affirmed the superior court's dismissal, and Dellelo's
application for further review was denied by the Supreme
Judicial Court. Dellelo v. Superintendent, Old Colony
Correctional Ctr., 411 Mass. 1105, 1106, 586 N.E.2d 10(1991).
The premise of the instant habeas petitions is the
same as that rejected by the state courts. Petitioner argues
that his 1980-83 transfer to federal prison was invalid
because the contract between the state and federal government
authorizing such transfers was not signed by a person whom
petitioner considers a "proper" state official under 18
U.S.C. 5003(a).3 The federal statute authorizes the
Attorney General to contract with "proper officials" of a
state for the custody and care of persons convicted of
criminal offenses in state courts. The corresponding
kidnapping; larceny from a person; and unlawful carrying of a
firearm. Sentences for these crimes run "from and after" his
life sentence. In federal court, petitioner was also
convicted of use of a firearm during the bank robbery
mentioned in the text.
3. From this premise, petitioner further reasons as follows:
the Commonwealth lost jurisdiction over petitioner when it
transferred him (illegally) to federal prison; he thus began
to serve his federal sentence at the time of the transfer;
since a federal sentence cannot be served piecemeal, he
continued to serve that sentence when he was returned to
state prison and, having now served 12 of the 18 years on his
federal sentence without a parole hearing, he is entitled to
immediate release from the federal sentence. We need not
reach each turn in petitioner's reasoning since we reject his
starting premise.
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Massachusetts statute authorizes the commissioner of
corrections to enter into such contracts with the approval of
the governor. M.G.L. c. 127, 97A. Petitioner sees
illegality in the fact that William Hogan, the person serving
as commissioner of corrections on the date of petitioner's
transfer, never signed such a contract. Respondent prevailed
in state court on a showing that petitioner's transfer was in
accordance with a contract authorizing such transfers signed
by Commissioner Hogan's predecessor in 1973.
The contract's existence, genuineness, scope, term
and coverage, as well as the parties' contracting authority
are largely questions of historical fact. The state court's
determination of these matters is entitled to a "presumption
of correctness" on a petition for habeas corpus under 28
U.S.C. 2254(d). See Marshall v. Lonberger, 459 U.S. 422,
432 (1983); Sumner v. Mata, 455 U.S. 591 (1982) (state
courts' factual findings are entitled to a "high measure of
deference" unless the findings lack "fair support" in the
record).
Section 2254 provides that in the absence of
enumerated circumstances making a hearing mandatory, the
federal court is bound by the state court's findings of
historical fact, unless the petitioner offers convincing
evidence that the findings are erroneous. This rule is
consistent with Townsend v. Sain, 372 U.S. 293, 312 (1963).
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See Leavitt v. Howard, 462 F.2d 992, 995 (1st Cir.), cert.
denied, 409 U.S. 884 (1972). We have reviewed the state
court record and we agree with the district court that none
of the enumerated circumstances are present.4 The state
court had before it all the facts, including copies of all
relevant contracts and their terms, petitioner was
represented there by counsel, and the court's hearing was as
full as necessary, fair, and adequate to resolve these issues
of contractual interpretation. Petitioner offered in this
proceeding no reason to suppose that he could overcome, by
convincing evidence, the presumption imposed by 2254. See
Leavitt, 462 F.2d at 995.
Insofar as this contract issue may be viewed as a
mixed question of fact and law, petitioner offers no legal
authority nor reasoned argument in support of his unlikely
4. The district court's dismissal, styled as one for
"failure to state a claim" was in accordance with Rule 8 of
the Rules Governing 2254 cases, which states that when an
evidentiary hearing is not required, "the judge shall make
such disposition of the petition as justice shall require."
Under Rule 11 the district court has discretion to use the
Federal Rules of Civil Procedure in appropriate cases. Under
the latter rules the dismissal might also have been
characterized as a summary judgment since the court had
before it, in addition to the parties' pleadings, voluminous
exhibits which constituted virtually the entire state court
record. See Fed. R. Civ. P. 12(c), 56. Whatever the
nomenclature, however, we are convinced that petitioner was
afforded a reasonable and meaningful opportunity to present
all pertinent evidence and the result, dismissal without an
evidentiary hearing, was correct.
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premise.5 In any event, we agree with the Massachusetts
Appeals Court's alternative holding that "even assuming the
absence of a valid contract at the time of petitioner's
transfer . . . which we do not conclude, the petitioner['s] .
. . only remedy for an improper transfer was a return to
state prison, which has already been effected." Dellelo, No.
91-P-524, slip op. at 4. This result is supported by state
cases and analogous federal case law. See Blake v.
Commissioner of Correction, 390 Mass. 537, 538, 457 N.E.2d
281 (1983) (prisoners improperly transferred to federal
correctional facility were properly ordered returned to state
facilities); Ladetto v. Commissioner of Correction, 373 Mass.
859, 369 N.E.2d 967 (1977) (a prisoner is not entitled to
pardon of his state sentence nor release from prison
following a procedurally defective transfer to a federal
prison; the proper remedy is a return to state prison); see
also Stevenson v. Thornburgh, 943 F.2d 1214, 1214 n.2 (10th
Cir. 1991) (any alleged impropriety in execution of prisoner
transfer agreement between state and federal authorities was
rendered moot by the complete performance of all obligations
on both sides).
5. Although petitioner appears pro se, he was represented by
counsel in the state court. A perusal of counsel's state
court memoranda and all the papers filed below also reveals
no legal authority or other support for this unusual premise,
and we know of none.
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There is no merit to petitioner's contention that
the state lost jurisdiction when it transferred petitioner to
a federal prison. The statutes under which petitioner was
transferred expressly presuppose the continuing vitality of
the state sentence. M.G.L. c. 127, 97A (transferees are
subject to the terms of their original sentences and to the
provisions of law governing discharge); see also Howe v.
Smith, 452 U.S. 473, 484 (1981) (purpose of 18 U.S.C. 5003
authorizing transfer arrangements is to help states with
insufficient correctional facilities by providing space in
exchange for reimbursement by state for care of state's
prisoners); Schertz v. Nix, 975 F.2d 1382, 1384 (8th Cir.
1992) (terms of state disciplinary confinement are not
negated by prisoner's transfer to a federal prison under 18
U.S.C. 5003(a)(1) and placement in general prison
population while there). Petitioner's reliance on cases
such as Shields v. Beto, 370 F.2d 1003 (5th Cir. 1967), and
Thompson v. Bannan, 298 F.2d 611, 612 (6th Cir. 1962), cert.
denied, 370 U.S. 957 is misplaced. The present case does not
involve extradition, a waiver, nor any circumstance
suggesting a relinquishment by the state of its authority to
exact the sentence imposed by its courts. Cf., e.g., Venable
v. Thornburgh, 766 F. Supp. 1012 (D. Kan. 1991) (because
transfer to federal custody was lawful and authorized under
18 U.S.C. 5003, reliance on extradition cases is
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misplaced); Joyner v. Henman, 755 F. Supp. 982 (D. Kan. 1991)
(same);
We also see no merit to petitioner's remaining
assignments of error. The district court did not abuse its
discretion in denying petitioner's motion for discovery in
light of the full state court record and the lack of any
legal basis for petitioner's claim. And the district court
did not err in dismissing petitioner's claim that he was
denied due process or equal protection because he was not
afforded a state administrative hearing prior to the prison
transfer. Whatever the merit of that argument, petitioner
did not assert it in his state court petitions, although he
had every opportunity to do so. "The exhaustion requirement
is not satisfied if petitioner presents new legal theories or
new factual allegations in federal court that transform his
case or cast it in a wholly different light." Carillo v.
Brown, 807 F.2d 1094 (1st Cir. 1986) (citing Picard v.
Connor, 404 U.S. 270, 275 (1971)).
Accordingly, we deny the petition for a certificate
of probable cause to appeal the dismissal under 28 U.S.C.
2254, and we affirm the judgment of district court dismissing
the petition under 28 U.S.C. 2241.
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