Paul Apostolopoulos v. President United States of Ame , 575 F. App'x 19 ( 2014 )

ALD-314, ALD-315, ALD-316, ALD-317, NOT PRECEDENTIAL
ALD-318, ALD-319 and ALD-320
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
Nos. 14-2702, 14-2703, 14-2704, 14-2705, 14-2706, 14-2707 & 14-2708
___________
JAMES HENDRICKS,
Appellant in 14-2702
v.
PRESIDENT UNITED STATES OF AMERICA; ATTORNEY GENERAL
UNITED STATES OF AMERICA; WARDEN LORETTO FCI
(D.C. Civ. No. 3-13-cv-00285)
___________
ERIC SLATER,
Appellant in 14-2703
v.
PRESIDENT UNITED STATES OF AMERICA; ATTORNEY GENERAL
UNITED STATES OF AMERICA; WARDEN LORETTO FCI
(D.C. Civ. No. 3-13-cv-00277)
___________
ABAD ELFGEEH,
Appellant in 14-2704
v.
PRESIDENT UNITED STATES OF AMERICA; ATTORNEY GENERAL
UNITED STATES OF AMERICA; WARDEN LORETTO FCI
(D.C. Civ. No. 3-14-cv-00001)
___________
ALBERT RANIERI,
Appellant in 14-2705
v.
PRESIDENT UNITED STATES OF AMERICA; ATTORNEY GENERAL
UNITED STATES OF AMERICA; WARDEN LORETTO FCI
(D.C. Civ. No. 3-14-cv-00002)
___________
JAMES EDWARD WHITTED,
Appellant in 14-2706
v.
PRESIDENT UNITED STATES OF AMERICA; ATTORNEY GENERAL
UNITED STATES OF AMERICA; WARDEN LORETTO FCI
(D.C. Civ. No. 3-13-cv-00278)
___________
PAUL APOSTOLOPOULOS,
Appellant in 14-2707
v.
PRESIDENT UNITED STATES OF AMERICA; ATTORNEY GENERAL
UNITED STATES OF AMERICA; WARDEN LORETTO FCI
(D.C. Civ. No. 3-13-cv-00281)
___________
KEVIN MAHONEY,
Appellant in 14-2708
v.
PRESIDENT UNITED STATES OF AMERICA; ATTORNEY GENERAL
UNITED STATES OF AMERICA; WARDEN LORETTO FCI
(D.C. Civ. No. 3-13-cv-00280)
____________________________________
On Appeal from the United States District Court
for the Western District of Pennsylvania
District Judge: Honorable Kim R. Gibson
____________________________________
Submitted for Possible Summary Action
2
Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
July 31, 2014
Before: RENDELL, FISHER and GREENAWAY, JR., Circuit Judges
(Opinion filed: September 26, 2014)
_________
OPINION
_________
PER CURIAM
Appellants are federal inmates who are or were confined at the Federal
Correctional Institution in Loretto within the Western District of Pennsylvania. Each
appellant is serving a sentence imposed outside that district, 1 and each appellant filed a
materially identical habeas petition under 28 U.S.C. § 2241 in that district seeking
immediate release from prison. The District Court denied the petitions on April 16, 2014.
Appellants appeal, and we will affirm. 2
Federal inmates may challenge the execution of their sentences under § 2241 in
their court of confinement, see Burkey, 556 F.3d at 146, but they generally may challenge
the legality of their sentences only under 28 U.S.C. § 2255 and must do so in the
1
Appellant Hendricks’s sentence was imposed at N.D. Ind. No. 2-01-cr-00105-001.
Slater’s sentence was imposed at S.D. Ohio No. 1-07-cr-00155-001. Elfgeeh’s sentence
was imposed at E.D.N.Y. No. 1-03-cr-00133-001. Ranieri’s sentence was imposed at
W.D.N.Y. No. 6-02-cr-06126-001. Whitted’s sentence was imposed at D.V.I. No. 3-04-
cr-00176-001. Apostolopoulos’s sentence was imposed at D. Md. No. 1-05-cr-00322-
001. Mahoney’s sentence was imposed at D. Mass. No. 1-10-cr-10389-001.
2
A certificate of appealability not required to appeal the denial of a § 2241 petition. See
Burkey v. Marberry, 556 F.3d 142, 146 (3d Cir. 2009). We thus have jurisdiction under
28 U.S.C. § 1291. Appellees have informed us that Hendricks and Mahoney have been
transferred to different facilities, but that transfer has not mooted their requests for
outright and immediate release from prison discussed below.
3
sentencing court, see United States v. Tyler, 732 F.3d 241, 246 (3d Cir. 2013); Furnari v.
U.S. Parole Comm’n, 531 F.3d 241, 254 (3d Cir. 2008). Appellants in these cases
requested immediate release from prison on the ground that their sentences are unlawful.
According to appellants, the Sentencing Reform Act of 1984 does not authorize
incarceration unless the Bureau of Prisons (“BOP”) provides a mechanism for requesting
a reduction in sentence for non-medical reasons under 18 U.S.C. § 3582(c)(1)(A)(i). 3
Appellants further contend that the BOP failed to provide them with a “compassionate
release request packet” upon request and that, when they created and submitted their
own, the BOP took no action on them.
Appellants, however, do not request an order directing the BOP to process any
such request or to execute their sentences differently in any other way. Instead, they
claim that the BOP’s alleged failure to process their requests for reduced sentences
renders the sentences themselves unlawful and that “immediate release [from prison] is
the only sanctioned remedy[.]” (E.g., W.D. Pa. Civ. No. 3-13-cv-00285, ECF No. 1-3 at
6.) To that end, each appellant “seeks the re-ordering of his sentence to provide that he
serve his supervised release term immediately[.]” (E.g., id., ECF No. 1-1 at 4.)
The District Court properly recognized that it lacks jurisdiction to grant that
3
This statute permits a sentencing court, “upon motion of the Director of the [BOP],” to
reduce a sentence if “extraordinary and compelling reasons warrant such a reduction.”
The BOP’s regulations provide a mechanism for inmates to request that the BOP file such
a motion. 28 C.F.R. §§ 571.60-571.64. Although we need not and do not reach the issue,
we note the conclusion of other courts that the BOP’s discretionary decision not to file a
motion for a reduced sentence is not reviewable in court. See, e.g., Crowe v. United
States, 430 F. App’x 484, 485 (6th Cir. 2011) (collecting precedential decisions).
4
request, which must be addressed to the courts that imposed the sentences that appellants
seek to have “re-ordered.” No appellant has stated any reason why a § 2255 motion in
his sentencing court might be “inadequate or ineffective to test the legality of his
detention,” 28 U.S.C. § 2255(e), and we perceive none. Indeed, four appellants already
have raised their claims in this regard before their sentencing courts. 4 We thus express
no opinion on the merits of appellants’ claims, though we note that appellants have not
cited, and we are not aware of, any authority suggesting that their allegations state a basis
for the relief they request, in their sentencing courts or any other.
For these reasons, appellees’ motion for summary action is granted and we will
affirm the judgments of the District Court. Appellants’ pending motions in this Court are
denied.
4
Those appellants are Hendricks, Elfgeeh, Ranieri and Whitted, each of whom recently
filed in their sentencing courts a materially identical document captioned as a “request to
take judicial notice” of the claim discussed above. In Ranieri’s case, for example, the
sentencing court construed his notice as a motion for a reduction in sentence under 18
U.S.C. § 3582(c)(1)(A) and denied it because it was not brought by the BOP. Ranieri’s
appeal to the Second Circuit from that ruling apparently remains pending.
5