Von Kahl v. United States , 321 F. App'x 724 ( 2009 )

FILED
United States Court of Appeals
Tenth Circuit
March 27, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
YORIE VON KAHL;
LEONARD PELTIER,
Petitioners-Appellants,
v. No. 06-3348
(D.C. No. 04-CV-3418-RDR)
UNITED STATES OF AMERICA; (D. Kan.)
ATTORNEY GENERAL OF UNITED
STATES,
Respondents-Appellees.
YORIE VON KAHL;
LEONARD PELTIER,
Petitioners-Appellants,
No. 06-3370
v. (D.C. No. 05-CV-3484-RDR)
(D. Kan.)
UNITED STATES PAROLE
COMMISSION; CAMERON M.
BATJER, Former Commissioner of
USPC; CAROL PAVILACK GETTY,
Former Commissioner of USPC;
VINCENT J. FECHTEL, JR., Former
Commissioner of USPC; JASPER R.
CLAY, JR., Former Commissioner of
USPC; SAUNDRA BROWN
ARMSTRONG, Former Commissioner
of USPC; GEORGE MACKENZIE
RAST, Former Commissioner of
USPC; JOHN R. SIMPSON, Former
Commissioner of USPC; EDWARD F.
REILLY, JR., Chairman of USPC;
CRANSTON J. MITCHELL,
Commissioner of USPC; DEBORAH
A. SPAGNOLI, Commissioner of
USPC; MICHAEL J. GAINES, Former
Commissioner of USPC; EDWIN
MEESE, III, Former USAG;
RICHARD THORNBURGH, Former
USAG; WILLIAM P. BARR, Former
USAG; JANET RENO, Former USAG;
ATTORNEY GENERAL, Office of the
Attorney General; ERIC H. HOLDER,
JR., * USAG; UNITED STATES
BUREAU OF PRISONS; J. MICHAEL
QUINLAN, Former Director of BOP;
KATHLEEN HAWK SAWYER,
Former Director of BOP; HARLEY G.
LAPPIN, Director of Bureau of
Prisons,
Respondents-Appellees.
ORDER AND JUDGMENT **
Before BALDOCK, BRORBY, and EBEL, Circuit Judges.
* Pursuant to Fed. R. App. P. 43(c)(2), Eric H. Holder, Jr. is substituted for
Michael B. Mukasey as the respondent in this appeal.
** After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
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Petitioners-Appellants Yorie Von Kahl and Leonard Peltier, federal
prisoners who are serving multiple terms of life imprisonment for the murder of
federal law enforcement officers in separate incidents in North Dakota, appeal the
dismissal of their 28 U.S.C. § 2241 petitions for writ of habeas corpus, filed
during their incarceration at the United States Penitentiary, Leavenworth,
Kansas. 1 They contend that § 235(b)(3) of the Sentencing Reform Act of 1984,
1
Both suits originally were filed pro se in the Federal District Court for the
District of Columbia. Case No. 06-3348 was filed as a petition for writ of habeas
corpus, and Case No. 06-3370 as a civil rights suit. Neither suit named the
petitioners’ custodian at Leavenworth as respondent. The District Court for the
District of Columbia transferred both cases to the District of Kansas, over
petitioners’ objections, reasoning that the warden at Leavenworth was the proper
respondent.
A § 2241 petition is properly addressed to the person with custody over the
petitioner. 28 U.S.C. § 2242. While this is generally the warden of the facility
where the petitioner is held, authority in this circuit holds that where a habeas
petitioner challenges a decision of the United States Parole Commission setting a
presumptive parole date, the Commission is the petitioner’s de facto “custodian”
and is therefore the proper respondent. Dunn v. United States Parole Comm’n,
818 F.2d 742, 744 (10th Cir. 1987). Dunn relied on a broad interpretation of
Braden v. 30th Judicial Circuit Court, 410 U.S. 484 (1973). See Dunn, 818 F.2d
at 744. More recently, the Supreme Court seems to have read Braden narrowly.
See Rumsfeld v. Padilla, 542 U.S. 426, 438 (2004). The Supreme Court has
reiterated the proposition that with certain narrowly-defined exceptions, none
applicable here, “the proper respondent [in a habeas case] is the warden of the
facility where the prisoner is being held.” Id. at 435. It is therefore possible that
Dunn is no longer good law, and that the warden at Leavenworth, who has not yet
been formally substituted, is the proper respondent.
In any event, failure to name the proper custodian as respondent does not
affect our subject-matter jurisdiction, or that of the district court. See id. at 434
n.7; and see id. at 451 (Kennedy, J., concurring) (stating that rule requiring
habeas action be brought against custodian is “not jurisdictional in the sense of a
limitation on subject-matter jurisdiction.”). Whoever the proper respondent may
be, the Government has filed a brief on his or its behalf. We therefore proceed to
(continued...)
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Pub. L. 98-473, Ch. II, § 235(b)(3), 98 Stat. 2032 (Oct. 12, 1984), gave them a
right to the issuance of specific parole release dates, and that their continued
incarceration violates the Due Process Clause, the Ex Post Facto Clause, and the
Bill of Attainder Clause. Exercising jurisdiction pursuant to 28 U.S.C. § 1291,
we conclude that the statutory interpretations upon which these claims rely were
rejected in our previous decisions, Bledsoe v. United States, 384 F.3d 1232(10th Cir. 2004), and Lewis v. Martin, 880 F.2d 288 (10th Cir. 1989). Therefore,
we affirm the district court’s dismissal of both cases. 2
BACKGROUND
Mr. Peltier was convicted in 1977 in federal district court for the first
degree murder of two FBI agents and sentenced to two consecutive life terms. He
was subsequently convicted for escape and possession of a firearm and sentenced
to consecutive terms totaling seven more years. His convictions have been upheld
in the face of multiple challenges. See Peltier v. Henman, 997 F.2d 461 (8th Cir.
1993); United States v. Peltier, 800 F.2d 772 (8th Cir. 1986); United States v.
Peltier, 585 F.2d 314 (8th Cir. 1978).
1
(...continued)
the merits.
2
Although these cases were ultimately assigned to the same district court
judge, petitioners did not seek consolidation before the district court. They
sought consolidation on appeal, which we denied. Nevertheless, because they are
related cases which depend on the same flawed statutory construction, we dispose
of them in a single order and judgment.
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Mr. Von Kahl was convicted in 1983 in federal district court for offenses
involving the murder of two U.S. Marshals in a gun battle and was sentenced to
two concurrent life terms, four concurrent ten-year terms consecutive to the life
terms, and two concurrent five-year terms consecutive to the ten-year terms, for a
total of life plus fifteen years. He was sentenced pursuant to 18 U.S.C.
§ 4205(b)(2) which provided for release on parole “at such time as the
Commission may determine.” His conviction was upheld in United States v.
Faul, 748 F.2d 1204 (8th Cir. 1984).
At the time that both men committed their crimes and were convicted,
authority over the terms of federal sentences rested with the U.S. Parole
Commission (“Commission”). See Parole Commission and Reorganization Act of
1976 (“PCRA”), § 2, Pub. L. No. 94-233, 90 Stat. 219-231 (codified at 18 U.S.C.
§§ 4201-4218 (1982)). Both men’s offenses are rated Category Eight. 3 They
have received parole hearings and statutory interim hearings throughout their
incarceration, and neither of them have been granted parole. This Court has
rejected Mr. Peltier’s previous challenges to the Commission’s decisions. See
Peltier v. Booker, 348 F.3d 888 (10th Cir. 2003).
After each of the petitioners was sentenced, Congress passed the
Sentencing Reform Act of 1984 (“SRA”). See Pub. L. No. 98-473, 98 Stat. 19873
Offense categories are used as part of a guideline matrix to set the
customary total time to be served before release. See 28 C.F.R. § 2.20. Category
Eight is the highest category of offense severity.
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(1984). The SRA was enacted as Chapter II of the Comprehensive Crime Control
Act of 1984 (CCCA), which was itself “an amalgamation of various bills
originally drafted in the expectation of being enacted independently of other
bills,” leading to some ambiguity once consolidated. Romano v. Luther, 816 F.2d
832, 834 (2d Cir. 1987). “The SRA became effective on November 1, 1987, when
it repealed and replaced the PCRA. Under the SRA, parole was to be abolished,
the Parole Commission was to be phased out, and prisoners were to serve uniform
sentences under sentencing guidelines.” Bledsoe, 384 F.3d at 1233 (citations
omitted). Section 235(b)(3) of the SRA, the basis for petitioners’ claims, was “a
‘winding-up’ provision to ensure that the Parole Commission will set release
dates for all prisoners sentenced under the old statutes before it goes out of
business on November 1, 1992.” Bledsoe, 384 F.3d at 1234 (quoting Lewis, 880
F.2d at 290). It provided a five year window “after the effective date of this Act”
during which the Commission was required to “set a release date, for an
individual who will be in its jurisdiction the day before the expiration” of the
window. 4 18 U.S.C. § 3551 note (1998).
4
Section 235(b)(3) as originally enacted provided:
The United States Parole Commission shall set a release date, for an
individual who will be in its jurisdiction the day before the
expiration of five years after the effective date of this Act, that is
within the range that applies to the prisoner under the applicable
parole guideline. A release date set pursuant to this paragraph shall
be set early enough to permit consideration of an appeal of the
(continued...)
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Soon after the SRA went into effect, however, Congress amended it through
the Sentencing Act of 1987, “clarify[ing] that the terms of the PCRA would
continue to govern the sentences of those prisoners sentenced prior to the
effective date of the SRA.” Bledsoe, 384 F.3d at 1234; see Pub. L. No. 100-182
§ 2(b)(2), 101 Stat. 1266 (1987). The Commission would still be required to set
release dates before going out of business, but these dates would now be set
pursuant to 18 U.S.C. § 4206, as they were prior to the SRA, rather than
exclusively within the parole guideline range. See Bledsoe, 384 F.3d at 1234.
Beginning in 1990, Congress has repeatedly amended the five-year time-
window language of § 235(b)(3), replacing it with larger time spans and thereby
effecting a greater life span for the Commission. In 2005, Congress replaced the
time-window language with “21 years,” which would last until November 1, 2008.
See United States Parole Commission Extension and Sentencing Commission
Authority Act of 2005, Pub. L. No. 109-76, § 2, 119 Stat. 2035 (2005) (codified
at 18 U.S.C. § 3551 note). And, most recently, Congress amended that language
to extend the life of the Commission an additional three years, replacing the “21
years” with “24 years,” until November 1, 2011. See United States Parole
4
(...continued)
release date, in accordance with Parole Commission procedures,
before the expiration of five years following the effective date of this
Act.
Pub. L. 98-473, Ch. II, § 235(b)(3) (Oct. 12, 1984).
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Commission Extension Act of 2008, Pub. L. No. 110-312, § 2, 122 Stat. 3013(2008) (codified at 18 U.S.C. § 3551 note).
Numerous prisoners have attempted to capitalize on ambiguities in the
drafting of the SRA and Congress’s subsequent clarification, arguing that the
winding-up provision in § 235(b)(3) requires their release on parole. We have
issued opinions rejecting such claims in 1989, see Lewis, 880 F.2d at 291, and
2004, see Bledsoe, 384 F.3d at 1235-40, along with various unpublished
dispositions. Accordingly, the district court rejected each of petitioners’
arguments and dismissed their petitions.
ANALYSIS
Under § 2241, a federal prisoner is entitled to habeas relief if he can show
that “[h]e is in custody in violation of the Constitution or laws or treaties of the
United States.” 28 U.S.C. § 2241(c)(3). We review a district court’s denial of a
writ under § 2241 de novo. Bledsoe, 384 F.3d at 1235. Petitioners attempt to
prove (1) that they were entitled to have a release date set for them, and (2) that
this release date should have been set under the parole guidelines, which would
already have entitled them to release. Their claims depend largely on erroneous
statutory interpretations that we have already rejected.
1. Entitlement to Release Date
Petitioners assert that § 235(b)(3) established their right to be provided
with release dates. We rejected a similar contention in Lewis, where we held that
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§ 235(b)(3) “does not require the Commission to take immediate action on the
release date of any prisoner.” 880 F.2d at 290. We disavowed the notion that the
provision could be “transformed from a mere phase-out provision into a sweeping
decision to grant earlier release dates to large numbers of federal prisoners
currently serving time.” Id. at 290-91. Instead of vesting rights in prisoners,
§ 235(b)(3) dealt with “a very specific problem—the need to be sure a parole date
is established for all those who will still be in prison the day before the Parole
Commission ceases to exist.” Id. at 291. This conclusion was reaffirmed in
Bledsoe. See 384 F.3d at 1235 (“[P]etitioners have no statutory interest—and
therefore no vested liberty interest—in release under the SRA when there is no
certainty that they may be in the custody of the Parole Commission when it
expires.”).
2. Effective Date of § 235(b)(3)
Petitioners assert that the effective date of § 235(b)(3) was October 12,
1984. They argue that two consequences flow from this effective date. First, the
Commission was required to establish release dates for them within five years of
that date. Second, the Commission no longer exists, having expired on
October 12, 1989, and any action it has purported to take after that date is
therefore void. Petitioners reason that the five year extension enacted on
December 1, 1990 and periodically renewed to November 1, 2011, came too late
to revive the Commission.
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Putting aside the question of whether a belated extension of the
Commission’s existence would be void, it is clear that petitioners’ claim must
fail. Our prior cases hold that the five-year period began to run on November 1,
1987, the effective date of the SRA, rather than October 12, 1984, the date the
CCCA was enacted. See Bledsoe, 384 F.3d at 1233 n.1; Lewis, 880 F.2d at 290. 5
Though petitioners urge us to do so, we cannot overrule the prior panel decision
in Bledsoe. Thompson R2-J School Dist. v. Luke P., ex rel. Jeff P., 540 F.3d
1143, 1150 n.6 (10th Cir. 2008), cert. denied, 2009 WL 425136, 77 USLW 3369(U.S. Feb. 23, 2009) (No. 08-800).
3. Applicability of 1987 Amendment to Petitioners
Petitioners next assert that the 1987 amendment to § 235(b)(3), continuing
the PCRA regime for inmates sentenced prior to the effective date of the SRA,
applied only to offenses committed after December 7, 1987, and therefore does
not apply to them. Thus, they contend, they were entitled to a parole date under
the original version of § 235(b)(3), within the parole guidelines rather than the
PCRA. In support, they quote § 26 of the Sentencing Act of 1987, which
5
Any statement to the contrary in Dallis v. Martin, 929 F.2d 587, 589 & n.4
(10th Cir. 1991), was dicta and was not binding on the panel in Bledsoe. In both
Bledsoe and Lewis, we followed the Second Circuit’s lucid reasoning in Romano,
816 F.2d at 837, that § 235(b)(3)’s reference to the effective date of “this Act”
properly refers to the SRA rather than the entire CCCA. Moreover, the Third
Circuit’s disagreement on this point does not unsettle our conclusion. See Lyons
v. Mendez, 303 F.3d 285, 292 (3d Cir. 2002) (“Seeing no clear contrary intention
in the text, we hold that § 235(b)(3) took effect upon enactment on October 12,
1984.”).
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provided a general effective date, declaring “[t]he amendments made by this Act
shall apply with respect to offenses committed after the enactment of this Act.”
Pub. L. No. 100-182, § 26, 101 Stat. 1266 (1987).
Petitioners’ theory was not directly addressed in our prior cases, but simple
logic precludes it. We agree with the district court that “despite Congress’
imprecision in sticking a general non-retroactivity provision in the Sentencing Act
of 198[7], the specific amendment to Sec. 235(b)(3) was not thereby rendered
applicable to the opposite set of inmates than that which it was created to cover.”
Aplt. App., No. 06-3348, at 53. Because § 235(b)(3) as originally enacted had no
application to prisoners sentenced after the SRA went into effect on November 1,
1987, it would be absurd to read the 1987 amendment to § 235(b)(3) as
inapplicable to all the prisoners sentenced prior to the effective date, leaving
essentially no one affected by the amendment. The context of the statute
precludes such an application of § 26.
Petitioners’ further assertion that § 235(b)(3) eliminated the Commission’s
discretion to exceed the parole guidelines and ordered release dates to be set is
partially true, but it has no application here. Lewis states that in § 235(b)(3), as
originally enacted, “Congress chose not to require service of [certain prisoners’]
maximum sentences but instead to afford them release on parole within their
applicable parole guideline ranges.” Lewis, 880 F.2d at 291. However, as
previously explained, that provision has direct application only to prisoners still
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incarcerated “the day before the Parole Commission ceases to exist,” id., and does
not provide a vested right to all prisoners. Thus it did not give a settled right to
issuance of a release date within five years, even though the original window for
action was five years. Further, the 1987 amendment “delete[d] the clause
requiring the Commission to set release dates within the guideline range.” Id. at
290. That change restored the Commission’s authority to set release dates
pursuant to 18 U.S.C. § 4206, “which permits release dates outside the guideline
range.” Id. Petitioners’ arguments lack merit.
4. Upper Limits to Parole Guidelines
The district court concluded that “[a] final, simple answer to all petitioners’
claims is that . . . each has an offense severity rating of Category 8, which puts
him in a guideline range with no specified upper limit.” Aplt. App., No. 06-3348,
at 57. We agree. Thus, even if § 235(b)(3) required the Commission to set a
release date, the Commission did not violate that statute by denying parole to
petitioners, because the denial was within each petitioner’s unlimited guideline
range. Petitioners contend, however, that the parole guideline for their offenses
does contain an upper limit, set at 48 months above the lower limit established by
Commission regulations. Thus, they argue, under § 235(b)(3), the Commission
could and should have established a firm release date under the guidelines for
them.
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The guidelines for Category Eight range from “100+” to “180+” months,
depending on offender characteristics. 28 C.F.R. § 2.20. A guideline note for
Category Eight explains that “no upper limits are specified due to the extreme
variability of the cases within this category.” Id. § 2.20 n.1. The note further
provides that “[f]or decisions exceeding the lower limit of the applicable
guideline category by more than 48 months, the Commission will specify the
pertinent case factors upon which it relied in reaching its decision, which may
include the absence of any factors mitigating the offense.” Id. Petitioners assert
that this requirement of a statement of reasons required the Commission to
establish a firm release date for them.
The guideline note goes on to explain, however, that this practice of
providing a statement of reasons should not be read “to suggest that a grant of
parole is to be presumed for any class of Category Eight offenders.” Id. Thus,
the guidelines themselves foreclose petitioners’ argument. See Madonna v. U.S.
Parole Comm’n, 900 F.2d 24, 26 (3d Cir. 1990) (stating, with regard to argument
identical to that advanced by petitioners, that the “guidelines themselves . . .
explain this practice and foreclose [the petitioner’s] interpretation of it.”). 6
6
Petitioners also argue that the language of § 2.20, establishing that there is
“no upper limit” to the parole guideline for Category Eight offenses, itself
represents an Ex Post Facto violation as applied to them. See Aplt. Br., No. 06-
3348, at 22-23. They fail to show that they raised this argument before the
district court; accordingly, we do not consider it.
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5. Additional Constitutional and Statutory Arguments
In light of the statutory and regulatory framework discussed above, we can
easily reject petitioners’ claim that “retroactive” application of the 1987
amendment violates the Due Process, Ex Post Facto, and Bill of Attainder
Clauses, and the related claim that application of the 1987 amendment to them
violates the Congressional mandate. Because petitioners had no upper guideline
range under their Category Eight classification, the original version of § 235(b)(3)
did not narrow the discretion of the Commission in selecting a release date for
them; consequently, the 1987 amendment reinstating the Commission’s authority
to issue release dates outside the guideline range, pursuant to 18 U.S.C. § 4206,
had no effect on them. This is one reason they have suffered no constitutionally
cognizable harm.
Furthermore, as we held in Bledsoe, there was no Ex Post Facto Clause
violation because the applicable sentencing law is no harsher now than when
petitioners committed their crimes. See Bledsoe, 384 F.3d at 1239. They remain
subject to the same provisions that were then applicable, and any short-lived
changes are irrelevant.
Application of the 1987 amendment to these petitioners creates no due
process violation because “petitioners have no statutory interest—and therefore
no vested liberty interest—in release under the SRA” because “there is no
certainty that they may be in the custody of the Parole Commission when it
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expires.” Id. at 1235. The Bill of Attainder Clause is not implicated because
petitioners have not been targeted as “identifiable individuals.” Id. at 1238.
Further, for the reasons we explained above, contrary to petitioners’
reading of the 1987 amendment, Congress did not mandate that the amendment
apply only to post-1987 convictions. Therefore, application of the 1987
amendment to petitioners could not violate a Congressional mandate. In sum,
Mr. Von Kahl and Mr. Peltier have not established that their incarceration is in
violation of the Constitution or a statute; as long as Congress continues to extend
the Commission’s existence, Mr. Von Kahl and Mr. Peltier properly remain under
the Commission’s authority. Therefore, the district court’s dismissal of both
cases is AFFIRMED. Mr. Von Kahl’s motion to supplement the record is
denied.
Entered for the Court
Wade Brorby
Circuit Judge
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