Kuehner v. Guzik ( 1999 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 23 1999
TENTH CIRCUIT
PATRICK FISHER
Clerk
DANIEL RAY KUEHNER,
Petitioner-Appellant,
v. No. 99-6181
(W. Dist. of Oklahoma)
BOB GUZIK; FEDERAL BUREAU (D.C. No. 98-CV-1188-T)
OF PRISONS,
Respondents-Appellees.
ORDER AND JUDGMENT *
Before TACHA, McKAY, and MURPHY, Circuit Judges.
After examining Petitioner’s brief and appellate the 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 court therefore orders the case 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This order and judgment is not binding precedent, except under the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. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Daniel Ray Kuehner, proceeding pro se , appeals the district court’s
dismissal of his 28 U.S.C. § 2241 habeas petition. 2
Additionally, although the
district court denied Kuehner’s motion to proceed in forma pauperis on appeal,
Kuehner has renewed that request by filing a motion to proceed in forma pauperis
with this court. Kuehner’s motion to proceed informa pauperis is granted.
On October 6, 1995, shortly before he was scheduled to be released on
probation from a Texas state prison, Kuehner was taken into custody by the
United States Marshal’s Service on a federal charge of conspiracy to commit wire
fraud. Kuehner pleaded guilty to the federal charge and was sentenced by the
United States District Court for the Eastern District of North Carolina to a term
of twenty-seven months’ imprisonment and, upon release from imprisonment,
ordered placed on supervised release for a term of three years. Kuehner was in
federal custody from October 6, 1995, through April 27, 1996, at which time he
was released back to the state of Texas to finish his state-imposed sentence. On
November 7, 1997, Kuehner was released from state custody back into the
custody of the U.S. Marshals Service to begin serving his federal sentence.
2
Although Kuehner has also filed a petition seeking a certificate of
appealability (“COA”) so he can appeal the district court’s denial of his § 2241
habeas petition, a petitioner does not need to obtain a COA to appeal the denial
of a petition for writ of habeas corpus brought pursuant to 28 U.S.C. § 2241. See
McIntosh v. United States Parole Comm. , 115 F.3d 809, 810 n.1 (10th Cir. 1997).
Accordingly, Kuehner’s motion for certificate of appealability is dismissed as
moot.
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Kuehner was released from incarceration on October 23, 1999 and is currently
serving his term of supervised release.
Kuehner filed the instant § 2241 petition (the “habeas petition”) with the
United States District Court for the Western District of Oklahoma. In the habeas
petition, Kuehner challenged the computation of his federal sentence, arguing
that the time he spent in federal custody has not been credited toward his federal
sentence. Additionally, he claimed that his guilty plea to the federal charge was
not made knowingly and voluntarily because he was unaware at the time of his
plea that his state and federal sentences would run consecutively and not
concurrently.
The habeas petition was referred to a Unites States magistrate judge. The
magistrate issued Findings and Recommendation recommending that Kuehner’s
habeas petition be dismissed. The Findings and Recommendation concluded that
the time Kuehner had spent in federal custody had been credited toward his Texas
state sentence and, therefore, could not also be credited toward his federal
sentence. See Bruss v. Harris , 479 F.2d 392 (10th Cir. 1973). The Findings and
Recommendation also concluded that any claims Kuehner has regarding the
voluntariness of his plea agreement must be raised with the sentencing court in
the Eastern District of North Carolina. See Bradshaw v. Story , 86 F.3d 164, 166
(10th Cir. 1996). Kuehner filed a timely objection to the Findings and
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Recommendation, which the district court considered. The district court,
however, adopted the Findings and Recommendation and dismissed Kuehner’s
habeas petition. Kuehner’s claim challenging the voluntariness of his guilty plea,
however, was dismissed without prejudice to its refiling in the Eastern District of
North Carolina. Kuehner appealed.
In light of an indication in the record that Kuehner had served his term of
imprisonment and was no longer incarcerated, this court issued an order to show
cause why the appeal should not be dismissed on the ground of mootness. In his
response to the order to show cause, Kuehner concedes that he was released from
incarceration on October 23, 1999 but claims that his three-year term of
supervised release is part of his “federal sentence.” After reviewing the record
and the relevant statute, this court concludes that Kuehner’s appeal from the
district court’s ruling that the term of his federal imprisonment was correctly
calculated must be dismissed as moot.
Kuehner was released from federal custody on October 23, 1999.
Although Kuehner is currently serving a term of supervised release, he has failed
to demonstrate to this court how a reduction in the length of his federal term of
imprisonment could shorten the term of his supervised release. A term of
supervised release may be imposed by a sentencing court in addition to a term of
imprisonment. See 18 U.S.C. § 3583. The length of a term of supervised
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released is linked to the crime of which the defendant has been convicted, not to
the length of the term of imprisonment received by the defendant. Id. at §
3583(b). Kuehner’s term of incarceration has ended. His appeal is moot unless
he is able to establish that a favorable decision from this court would shorten the
length of his supervised release. See Aragon v. Shanks , 114 F.3d 690, 692 (10th
Cir. 1998). Kuehner has failed to present any support for his position.
Kuehner also claims that he was sentenced under the wrong version of the
United States Sentencing Guidelines and that his guilty plea to the federal charge
was not made knowingly and voluntarily. The district court correctly dismissed
these claims. Claims as those raised by Kuehner which challenge the validity of a
sentence must be raised in the court that imposed the sentence, in this case the
District Court for the Eastern District of North Carolina. See Bradshaw, 86 F.3d
at 166. Upon de novo review of Kuehner’s appellate brief, the magistrate judge’s
Report and Recommendation, the district court’s Order and the entire record on
appeal, this court affirms the dismissal of Kuehner’s claims relating to the
validity of his sentence for substantially the reasons set forth in the district
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court’s Order dated April 21, 1999. The claims raised by Kuehner challenging
the calculation of his federal term of imprisonment are dismissed as moot.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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