Castor v. United States Parole Commission ( 2002 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JAN 30 2002
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
GERALD D. CASTOR,
Petitioner-Appellant,
v. No. 01-1308
(D.C. No. 00-B-229)
UNITED STATES PAROLE (D. Colo.)
COMMISSION; AL HERRERA,
Warden,
Respondents-Appellees.
ORDER AND JUDGMENT *
Before EBEL , KELLY , and BRISCOE , 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This order and judgment is not binding precedent, except under the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.
Petitioner Gerald D. Castor, a federal prisoner proceeding pro se, appeals
from the district court’s order adopting a magistrate judge’s recommendation to
deny his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2241.
He also seeks to proceed on appeal in forma pauperis. We grant the petition to
proceed on appeal in forma pauperis, and we affirm. 1
Background
Petitioner was charged in the federal district court for the Southern District
of Indiana with nine counts in a federal indictment based on a plot to obtain the
marketing rights for a non-tobacco herbal chew. He was ultimately found guilty
on six of the counts charged. Count Nine (possession of a firearm by a felon) was
severed and tried first. On October 30, 1989, petitioner was sentenced to eighteen
months’ imprisonment and given credit for pretrial time served. The next trial
resulted in guilty verdicts on Counts One, Two and Three (conspiracy to commit
extortion, attempted extortion in violation of the Hobbs Act, and traveling in
interstate commerce to attempt extortion in violation of the Travel Act), and
petitioner was sentenced on January 11, 1990, to seventeen years’ imprisonment.
He then entered guilty pleas to Counts Four and Six (attempted extortion and
1
A certificate of appealability is not required for a federal prisoner to
appeal a final order in a proceeding under 28 U.S.C. § 2241. Hunnicutt v. Hawk ,
229 F.3d 997, 998 (10th Cir. 2000).
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interstate travel to commit an unlawful act: attempted extortion) and the
remaining two counts were dismissed. On March 1, 1990, petitioner was
sentenced on Counts Four and Six to twenty-five years’ imprisonment, to run
concurrently with the sentence imposed on Counts One, Two and Three.
On appeal, petitioner challenges the execution of his sentence, claiming his
sentence was incorrectly calculated because the sentence on Count Nine was
deemed to run consecutively to the other sentences, rather than concurrently.
He also claims he is entitled to relief under Apprendi v. New Jersey , 530 U.S. 466
(2000), because the grand jury that issued the indictment against him was not
presented with all of the sentencing factors, which divested the trial court of
jurisdiction. To the extent he raises on appeal claims that he did not receive
notice that his sentence would be enhanced and that his good- and earned-time
credits were not calculated properly, these claims were not included in his habeas
petition. Therefore, they will not be considered for the first time on appeal.
Walker v. Mather (In re Walker) , 959 F.2d 894, 896 (10th Cir. 1992).
Analysis
The district court’s denial of the § 2241 petition is reviewed de novo.
Hunnicutt v. Hawk , 229 F.3d 997, 1000 (10th Cir. 2000). Because plaintiff
is representing himself on appeal, his pleadings will be liberally construed.
Haines v. Kerner, 404 U.S. 519, 520 (1972).
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Petitioner’s claim that his first sentence should run concurrently to the
other two is governed by 18 U.S.C. § 3584(a), which provides, under certain
conditions, that multiple terms of imprisonment may run concurrently or
consecutively. Where, as here, the terms of imprisonment are imposed at
different times, however, they “run consecutively unless the court orders that the
terms are to run concurrently.” Id. Petitioner does not claim that his prison term
for Count Nine was imposed at the same time as the prison term for Counts One,
Two and Three, or that the judge who sentenced him on the later convictions
ordered that either sentence was to run concurrently to the sentence on Count
Nine. Rather, he argues that he had not completed service of his sentence on
Count Nine when the next sentence was imposed and, therefore, § 3584(a)
requires concurrent terms. See id. (“Multiple terms of imprisonment imposed
at the same time run concurrently unless . . . .”) (emphasis added).
The plain language of the statute requires that petitioner’s sentence on
Count Nine run consecutively to his other sentences because the sentencing court
did not order concurrent sentences. His reliance on the statute’s language
pertaining to “attempt” crimes is not applicable. See § 3584(a) (“the terms may
not run consecutively for an attempt and for another offense that was the sole
objective of the attempt”). Accordingly, petitioner is not entitled to relief on
this claim.
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Petitioner’s claim that the rule announced in Apprendi divested the trial
court of jurisdiction due to a defective indictment, however novel, attacks the
legality of his detention, rather than the execution of his sentence. Therefore,
it must be filed pursuant to 28 U.S.C. § 2255 and cannot be maintained in this
action brought under § 2241. Haugh v. Booker , 210 F.3d 1147, 1149 (10th Cir.
2000). We cannot construe this petition as a § 2255 motion because it was not
filed in the district that imposed petitioner’s sentence. See United States v.
Burch , 169 F.3d 666, 668 (10th Cir. 1999) (§ 2241 petition construed as motion
filed under § 2255). Consequently, petitioner cannot receive relief from this court
under Apprendi . We express no opinion on whether the sentencing court would
consider this claim.
Petitioner’s motion for appointment of counsel is denied. His three
motions filed pursuant to Fed. R. App. P. 8(d) and Fed. R. Crim. P. 201(d) & (e)
[sic] are denied. His request to proceed on appeal without prepayment of costs
and fees is granted. The judgment of the United States District Court for the
District of Colorado is AFFIRMED. The mandate shall issue forthwith.
Entered for the Court
David M. Ebel
Circuit Judge
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