White v. Kelley ( 2000 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 11 2000
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
CHARLES BRUCE WHITE,
Petitioner-Appellant,
v. No. 00-1033
(D.C. No. 97-N-1369)
FRANK KELLEY, Attorney General (D. Colo.)
for the State of Michigan,
Respondent-Appellee.
ORDER AND JUDGMENT *
Before BALDOCK , ANDERSON , and HENRY , Circuit Judges.
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This order and judgment is not binding precedent, except under the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. 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.
Charles Bruce White, pro se , appeals from the district court’s dismissal
with prejudice of his habeas petition brought pursuant to 28 U.S.C. § 2241. At
the time Mr. White filed his habeas petition, he was in federal custody. He
challenged the execution of a state sentence he was concurrently serving with his
federal sentence. Because his appeal challenges a “final order in a habeas corpus
proceeding in which the detention complained of arises out of process issued by a
State court,” 28 U.S.C. § 2253(c)(1)(A), Mr. White must obtain a certificate of
appealability (COA) before we may review the denial of his § 2241 petition,
Montez v. McKinna , 208 F.3d 862, 867 (10th Cir. 2000). To obtain a COA under
§ 2253(c), a habeas petitioner must make “a substantial showing of the denial of
a constitutional right.” This showing requires a demonstration “that reasonable
jurists could debate whether . . . the petition should have been resolved in a
different manner or that the issues presented were adequate to deserve
encouragement to proceed further.” Slack v. McDaniel , 529 U.S. 473, ___, 120
S. Ct. 1595, 1603-04 (2000) (quotation omitted). We conclude that Mr. White
has failed to make the required showing; therefore we deny his application for a
COA and dismiss the appeal.
Mr. White was serving state sentences for 1984 convictions for armed
robbery and criminal sexual conduct in Michigan when, in 1989, he escaped from
state prison. He kidnapped an individual before being recaptured. He was
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convicted in April 1990 in Michigan on state escape charges and sentenced to an
additional term to be served at the conclusion of his 1984 state sentences. In
August 1990 the state released him to federal authorities in the Eastern District of
Michigan for prosecution on a federal kidnapping charge. After conviction on the
federal charge, he was sentenced to serve 121 months followed by three years of
supervised release and was incarcerated at federal penitentiaries in Leavenworth,
Kansas, and then in Florence, Colorado. The federal and state sentences were to
be served concurrently, and Michigan filed a detainer requesting his return to
Michigan to finish serving his lengthier state sentences upon completion of his
federal sentence.
In June 1997 Mr. White filed this habeas petition challenging execution of
his state sentences, alleging that (1) the state of Michigan “relinquished” its right
to detain him further after his federal sentence was completed by transferring him
to the federal bureau of prisons to serve his federal sentence before he had
completed his state sentences; (2) he was denied an opportunity for yearly state
parole hearings in violation of his due process rights because of his federal
incarceration; and (3) the Michigan detainer was illegal because it prevented his
participation in the federal supervised release program upon completion of his
federal sentence.
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In December 1998 the state took Mr. White back to Michigan to complete
his 1984 and 1990 state sentences, and he claims that he is entitled to release
from state incarceration. In December 1999 a magistrate judge recommended
denying his habeas petition. R. Doc. 72. Even though it had received no
objections from Mr. White within the prescribed time limit, the district court
conducted a de novo review of the issues, the record, and the recommendations,
adopted the report and recommendations, and denied the petition. Mr. White
complains that he had not received the report and recommendations in time to file
timely objections and requests that we consider his objections on appeal.
Although we have adopted a firm waiver rule in this circuit, it “need not be
applied when the interests of justice so dictate.” Moore v. United States , 950
F.2d 656, 659 (10th Cir. 1991). We find persuasive Mr. White’s claims that he
did not timely receive the report and consider Mr. White’s objections in our
determination of whether a COA should issue.
We have also thoroughly reviewed Mr. White’s application for a COA, the
magistrate judge’s December 20, 1999, report and recommendations, the district
court’s order adopting that report and recommendations, and the entire record
before us. For substantially the same reasons set forth in the December 20, 1999,
report and recommendations, we conclude that Mr. White has failed to
demonstrate that reasonable jurists could debate whether his petition should have
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been resolved in a different manner or that the issues he presented were adequate
to deserve encouragement to proceed further. See Slack , 120 S. Ct. at 1603-04.
The statutory and case law Mr. White cites does not raise any serious question
whether the district court properly decided the issues before it, as those
authorities are either inapplicable or without precedential value. His subjective
legal conclusions are simply wrong. Further, the facts that the magistrate judge
did not issue her report and recommendations until four months after the date
requested by the district court and that the district court delayed in ruling on
certain of his many motions does not raise constitutional violations, nor are those
claims relative to the execution of his state sentences.
Finally, Mr. White claims that a COA should issue, the district court should
be reversed, and he should be released from state incarceration because the
district court allegedly erred in refusing to enforce a clause in a show cause order
dated July 20, 1997. This order required Michigan to respond to his habeas
petition and stated that “Petitioner shall remain in custody and within the
jurisdiction of this Court until further order.” R. Doc. 4. He claims that this
language prohibited Michigan from retaking custody of him after completion of
his federal imprisonment. Again, Mr. White is not only wrong, but he raises no
substantial question of the denial of a constitutional right. The clause simply
prevents a habeas petitioner from being released from incarceration pending
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resolution of his habeas petition; it does not prohibit transfers between state and
federal facilities pursuant to valid detainer warrants. The district court properly
maintained jurisdiction to decide the habeas petition after Mr. White’s transfer to
state custody.
Mr. White’s application for COA is DENIED and the appeal is
DISMISSED. All outstanding motions are denied. The mandate shall issue
forthwith.
Entered for the Court
Stephen H. Anderson
Circuit Judge
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