United States v. Eakman ( 2004 )

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
7-12-2004
USA v. Eakman
Precedential or Non-Precedential: Precedential
Docket No. 03-1835
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PRECEDENTIAL Shelley Stark
Federal Public Defender
UNITED STATES COURT OF Lisa B. Freeland, Esq. (Argued)
APPEALS FOR THE THIRD CIRCUIT Assistant Federal Public Defender
1450 Liberty Center
1001 Liberty Avenue
Pittsburgh, PA 15222
No. 03-1835
Attorneys for Appellant
Mary Beth Buchanan
UNITED STATES OF AMERICA, United States Attorney
Appellee Christine A. Sanner, Esq. (Argued)
Bonnie R. Schlueter, Esq.
v. Assistant United States Attorneys
633 U.S. Post Office and Courthouse
SAMUEL L. EAKM AN, JR., Pittsburgh, PA 15219
Appellant
Attorneys for Appellee
Appeal from the United States District OPINION OF THE COURT
Court for the Western District of
Pennsylvania
(D.C. Crim. No. 98-cr-00029-2) SHADUR, District Judge.
District Judge: Honorable Gary L.
Lancaster Federal prisoner Samuel L. Eakman
(“Eakman”) appeals from the district
court’s denial of his 28 U.S.C. § 2255 2
Argued March 11, 2004 motion that seeks the vacation or
amendment of his prison sentence.
Before: SLOVITER and NYGAARD, Eakman claims that his current sentence is
Circuit Judges, and SHADUR,1 District constitutionally invalid because the district
Judge judge relied on a mistaken understanding
of the law in believing that the Bureau of
(Opinion filed July 12, 2004 ) Prisons (“Bureau”) had the discretion to
place him in a community corrections
1
Honorable Milton I. Shadur,
2
United States District Court Judge for the All further references to Title 28
Northern District of Illinois, sitting by provisions will take the form “Section
designation. –.”
center (also known as a “halfway-house”), A C O MM UN ITY
when in fact the Bureau lacked such CORRECTIONS CENTER
authority under the law.3 On the record WITH THE DEFENDANT
before us it appears highly likely (at a BEING GRANTED
minimum) that the district court would IMMEDIATE WORK
have imposed a different sentence had it RELEASE STATUS.
not been for its contrary understanding.
On November 7, 2002 (over two
We hold that under such years after he was sentenced) Eakman
circumstances the sentence imposed began to serve his prison term at a
violated due process, so that a hearing on community corrections center. But on
Eakman’s Section 2255 motion should December 13, 2002 the Department of
have been granted. We therefore remand Justice's Office of Legal Counsel issued a
for further proceedings in accordance with memorandum concluding that the Bureau
this opinion. had no statutory authority to assign
prisoners to community corrections centers
Background for the imprisonment portion of the
sentence. Accordingly the Bureau
Eakman pleaded guilty on October changed its prior practice and planned to
30, 1998 to two counts of conspiracy, one transfer to other facilities all prisoners
pertaining to the possession of anabolic (including Eakman) who as of December
steroids and the other charging money 16, 2002 had more than 150 days
laundering. On September 9, 1999 the remaining on their prison terms.
court sentenced him to 18 months’
imprisonment. For reasons not relevant to Eakman then moved the district
this appeal, on July 10, 2000 we issued a court to vacate or amend his sentence
nonprecedential opinion (reported in table, under Sections 2241 and 2255 and asked
229 F.3d 1139 (3d Cir. 2000)) vacating for the appointment of counsel. 4 On
Eakman’s original sentence and remanding January 22, 2003 the district court
the case to the district court for appointed a Federal Public Defender to
resentencing. On October 20, 2000 the represent Eakman but denied his Section
district court imposed a new imprisonment 2241 and 2255 motions. Eakman sought
term of one year and a day, with this
recommendation to the Bureau:
4
As the government raises no issue
THIS SENTENCE
as to Section 2255's one-year statute of
SHOULD BE SERVED AT
limitations, we need not determine
whether Eakman’s claim fits within that
time restriction (Robinson v. Johnson,
3
More on the latter subject later. 313 F.3d 128, 135–37 (3d Cir. 2002)).
2
and obtained a certificate of appealability district court did not have jurisdiction
as to this claim: under Section 2241 because he failed to
serve (or name) his custodian. In response
Petitioner’s sentence was the government argues that only Section
imposed in violation of his 2241 provides a potential source of relief
federal constitutional right because Eakman essentially contests the
to due process where (1) this place of his imprisonment, not the validity
Court relied upon material of his sentence. And to be sure, Section
misin f o r m a t io n w h en 2255 “is expressly limited to challenges to
sentencing Petitioner, i.e., the validity of the petitioner's sentence”
that the Bureau of Prisons and “Section 2241 is the only statute that
(“BOP”) had the discretion, confers habeas jurisdiction to hear the
under 18 U.S.C. § 3621(b), petition of a federal prisoner who is
to designate a community challenging not the validity but the
corrections center for execution of his sentence” (Coady v.
service of that sentence, and Vaughn, 251 F.3d 480, 485 (3d Cir.
(2) had it been known that 2001)).
the BOP would repudiate
the discretion the parties and But here Eakman does contest the
the Court believed it had, validity of his sentence: He argues that the
counsel for Petitioner could district court committed an error of law in
have advocated for (and the assuming that the Bureau could lawfully
court could have granted) a place Eakman in a community corrections
downward departure that center, a mistake that he says
would have resulted in a fundamentally tainted the sentencing
sentence that [required] proceeding. Eakman seeks resentencing,
Petitioner to serve a year not a determination that the Bureau's
and a day in a community change in practice was unlawful or an
confinement center. order preventing his transfer from the
community corrections center. Hence his
Eakman filed a timely notice of appeal, claim is suitable for consideration under
and the district court released Eakman on Section 2255. And because the district
bond pending appeal. court denied Eakman’s motion as a matter
of law and without a hearing, we review its
Section 2255 or 2241? ruling de novo (United States v. Cleary, 46
F.3d 307, 309–10 (3d Cir. 1995)).
Eakman originally invoked both
Sections 2241 and 2255 in the court Section 2255 provides in pertinent
below, but he limits his challenge on part:
appeal to Section 2255, conceding that the
3
A prisoner in custody under such a denial or
s e n t e n c e o f a c o u rt i n f r in g e m e n t o f t h e
established by Act of constitutional rights of the
Congress claiming the right prisoner as to render the
to be released upon the judgment vulnerable to
ground that the sentence collateral attack, the court
was imposed in violation of shall vacate and set the
the Constitution or laws of judgment aside and shall
the United States, or that the discharge the prisoner or
court w as without resentence him or grant a
jurisdiction to impose such new trial or correct the
sentence, or that th e sentence as may appear
sentence was in excess of appropriate.
the maximum authorized by
law, or is otherwise subject Because Eakman raises no issues as to the
to collateral attack, may constitutionality or lawfulness of the
move the court which sentence itself, and because nothing in the
imposed the sentence to record suggests that the district court
vacate, set aside or correct lacked jurisdiction to impose the sentence,
the sentence. we need decide only whether the record
sufficiently demonstrates that Eakman’s
Unless the motion and the sentence is “otherwise open to collateral
files and records of the case attack.”
conclusively show that the
prisoner is entitled to no Error of Constitutional Magnitude
relief, the court shall cause
notice thereof to be served United States v. Addonizio, 442
upon the United States U.S. 178, 184 (1979), confirms that “[i]t
attorney, grant a prompt has, of course, long been settled law that
hearing thereon, determine an error that may justify reversal on direct
the issues and make findings appeal will not necessarily support a
of fact and conclusions of collateral attack on a final judgment.”
law with respect thereto. If Section 2255 permits relief for an error of
the court finds that the law or fact only where the error constitutes
judgment was rendered a “fundamental defect which inherently
without jurisdiction, or that results in a complete miscarriage of
the sentence imposed was justice” (id. at 185, quoting Hill v. United
not authorized by law or States, 368 U.S. 424, 428 (1962)). We
otherwise open to collateral have applied that teaching by requiring a
attack, or that there has been petitioner who collaterally attacks his
4
sentence based on some error in the According to the prisoner, he would have
sentencing proceeding to allege (1) that the been released when he became eligible for
district court received “misinformation of parole under the old parole system (the one
a constitutional magnitude” and (2) that in effect at the time of his sentencing), but
the district judge relied at least in part on he was instead denied parole twice as a
that misinformation (United States v. direct consequence of the change in parole
Spiropoulos, 976 F.2d 155, 163 (3d Cir. policy (442 U.S. at 182).
1992)).
Both the Addonizio district court
As the government would have it, and Court of Appeals (incidentally this
Eakman’s sentencing proceeding was not Court) found the prisoner was entitled to
fundamentally defective as a matter of law relief under Section 2255 (id. at 183), with
because the district court had no the district judge ruling that the Parole
enforceable expectation of Eakman’s Commission’s change in policy had
placement in a community corrections thwarted his sentencing expectation by
center. At best, argues the government, denying the prisoner “the kind of
Eakman alleges that the district court’s ‘meaningful parole hearing’ that the judge
subjective expectations may have been had anticipated when sentence was
frustrated, but that does not suffice to imposed” (id.). As the district judge
show an error of “constitutional explained, he had expected that the
magnitude.” In that respect the prisoner would be released after serving
government urges that Eakman’s claim is one-third of his sentence, assuming good
no different from that in Addonizio, where be ha v ior , w i t h that “sente ncin g
a federal prisoner mounted a collateral expectation [being] based on the Court’s
attack to his sentence under Section 2255 understanding – which was consistent with
because post-sentencing the United States generally-held notions – of the operation
Parole Commission significantly modified of the parole system in 1970” (id. at 181
the weight it placed on several factors in n.3). We affirmed the judgment.
deciding whether to grant parole.5
But the Supreme Court reversed,
ruling that the prisoner’s claim was not
5 cognizable under Section 2255 because
Addonizio actually involved the
“[t]he claimed error here – that the judge
claims of not one but three prisoners, but
was incorrect in his assumptions about the
it presented the facts only as to one of
future course of parole proceedings – does
them, both to sharpen the focus of the
not meet any of the established standards
legal issues and because the claims of the
of collateral attack” (442 U.S. at 186).
other two prisoners were identical (442
Although the Court recognized that a
U.S. at 179–80). We follow that lead and
lawful sentence may be set aside under
refer only to the prisoner whom the
Section 2255 if it is based on
Supreme Court discussed in its opinion.
5
“ m i si n f o rmation of constitutional would be at odds with Congress’
magnitude,” it held that “there is no basis delegation of authority to the Parole
for enlarging the grounds for collateral Commission to determine whether and
attack to include claims based not on any when prisoners should be released:
objectively ascertainable error but on the
frustration of the subjective intent of the [T]h e judge has no
sentencing judge” (id. at 187). As the enforceable expectations
Court continued (id. at 187-88): with respect to the actual
release of a sentenced
As a practical matter, the defendant short of his
subjective intent of the statutory term. The judge
sentencing judge would may well have expectations
provide a questionable basis as to when release is likely.
for testing the validity of his But the actual decision is
judgment. The record made not his to make, either at the
when Judge B arlow time of sentencing or later if
pronounced sentence against his expectations are not met.
Addonizio, for example, is To require the Parole
entirely consistent with the Commission to act in
view that the judge then accordance with judicial
thought that this was an expectations, and to use
exceptional case in which collateral attack as a
the severity of Addonizio’s mechanism for ensuring that
offense should and would be these expectations are
considered carefully by the carrie d out, would
Parole Commission when substantially undermine the
Addonizio became eligible congressional decision to
for parole. If the record is entrust r e lease
ambiguous, and if a § 2255 de te r m ina tions to th e
motion is not filed until Commission and not the
years later, it will often be courts. Nothing in § 2255
difficult to reconstruct with supp orts – le t alone
any certainty the subjective mandates – such a
intent of the judge at the frustration of congressional
time of sentencing. intent.
Addonizio, id. at 190, found that In sum, Addonizio refused to expand
opening sentences to collateral attack habeas relief beyond “objectively
based on a court’s expectations about ascertainable errors” to errors that would,
when a prisoner is likely to be released to paraphrase Skycom Corp. v. Telstar
6
Corp., 813 F.2d 810, 814 (7th Cir. 1987), cases in which either a
“invite a tour through [the judge’s] federal statute or specific
cranium, with [the judge] as the guide.” Civil Rule requires that
Instead the error must be “objectively result.
ascertainable” in the sense that it can be
determined from the record and also in the And Section 2255 certainly does not
sense that it does not depend on assessing contain such a requirement. All that a
the particular intention of the sentencing Section 2255 petitioner must do is to
judge. allege (and eventually prove) that the
sentencing court committed an error of
Some district courts that have faced constitutional magnitude and that the error
claims like the one at issue here have influenced the sentence.
attempted to distinguish Addonizio on the
basis that petitioners in those cases have Addonizio, 442 U.S. at 186,
expressly asserted a constitutional basis for rejected the petitioner’s motion not
their collateral attacks, while the prisoner because of some pleading mistake, but
in Addonizio failed to articulate such a rather because it concluded that a
basis for his claim. For instance, Pearson sentencing court’s expectations about the
v. United States, 265 F. Supp. 2d 973, 980 future course of discretionary parole
( E. D. Wis. 2003) ob serve d th at proceedings cannot give rise to an error of
“petitioner’s claim is explicitly based on constitutional magnitude. If Eakman’s
the Due Process Clause, unlike that of the motion presented no more than a similar
defendant in Addonizio, who asserted no allegation – that the district judge expected
constitutional basis for his motion” (see the Bureau to exercise its discretion to
also Smith v. United States, 277 F.Supp.2d require Eakman to serve his sentence at a
100, 107-08 (D. D.C. 2003); Culter v. community confinement center, but the
United States, 241 F. Supp. 2d 19, 26-27 n.7 Bureau did not conform to that expectation
(D. D.C. 2003)). We find that distinction – his motion would meet the same fate,
problematic. Surely those cases cannot because (as the government correctly
suggest that Addonizio added a heightened states) the Bureau has the exclusive
pleading standard to Section 2255 motions authority to determine the place of
(see Swierkiewicz v. Sorema N.A., 534 imprisonment under 18 U.S.C. § 3621(b)
U.S. 506, 513-14 (2002)). As Educadores (see United States v. Serafini, 233 F.3d
Puertorriqueños en Acción v. Hernández, 758, 777-78 (3d Cir. 2000)).
367 F.3d 61, 66 (1st Cir. 2004) observes:
But that is not Eakman’s
Swierkiewicz has sounded contention. Instead he asserts that the
the death knell for the district judge believed the Bureau could
imposition of a heightened lawfully place him in a community
pleading standard except in corrections center when, according to the
7
government, 18 U.S.C. § 3621(b) never ascertained from the record.6 In fact, it is
gave the Bureau the legal authority to do hard to imagine how a sentence could ever
so. Unlike Addonizio, Eakman does not be deemed fair when there is some way to
challenge his sentence on the basis that the verify the sentencing court’s error
district judge made a bad predictive externally (whether an error of fact or an
judgment about how his sentence would be error of law) and when that error caused
executed – he rather argues that the court the misguided sentence.
misunderstood the law.
Because such o b j e c t i v e ly
King v. Hoke, 825 F.2d 720 (2d ascertainable errors that a sentencing court
Cir. 1987), provides some guidance on that has materially relied upon will always be
score. There the Second Circuit granted of “constitutional ma gnitud e,” the
habeas relief where the sentencing court appropriate test inquires whether (1) the
relied on a flawed understanding of the district court made an objectively
law as to when the prisoner would be ascertainable error (one that does not
eligible for parole (id. at 724-25). King, require courts to probe the mind of the
id. at 725, distinguished Addonizio: sentencing judge) and (2) the district court
materially relied on that error in
In Addonizio the sentencing determining the appropriate sentence.7 If
judge had made an incorrect the answer to both questions is “yes,” then
prediction of how the Parole – unless the record conclusively shows that
Commission would exercise
its discretion. By contrast, 6
in the pending case, the We note that Atehortua v. Kindt,
sentencing judge made an 951 F.2d 126, 129-30 (7th Cir. 1991),
“objectively ascertainable contains a dictum that appears to look in
error,” [Addonizio, 442 the opposite direction. Atehortua
U.S.] at 187, about King’s suggests that a petitioner may be out of
minimum statutory parole luck even where the government, the
eligibility date, a matter of defendant and the district court judge
law rather than a prediction were all clearly mistaken about the
concerning an agency’s parole consequences of a sentence based
discretion. on an improper application of the statute
governing parole.
We agree with King and hold that 7
Framing the first part of the two-
Addonizio does not control where, as here,
prong test in this way states the material
a prisoner alleges that the district court
requirements for Section 2255 relief
made an error of law that can be
more succinctly, but it does not
materially change the analysis from our
earlier opinions.
8
the prisoner is not entitled to relief – the interpretation of its own legal authority,
prisoner is entitled to a hearing. And if the and because the Bureau is not a party to
court determines after the hearing that the this action, we prescind the question
error did indeed result in a miscarriage of whether the Department of Justice’s view,
justice, it must vacate the sentence and adopted by the Bureau, is correct. We
resentence the prisoner. rather assume arguendo that the Bureau
never had the legal authority to place
Objectively Ascertainable Error Eakman in a community confinement
center, so that the district court erred in
Indisputably the district judge believing differently. But it is certainly
believed the Bureau had the authority to worth observing that if it were otherwise,
p l a c e E a km a n in a co m m unit y the Bureau’s decision to repudiate its own
confinement center, for otherwise the discretion under the statute would raise
judge’s recommendation to that effect serious ex post facto concerns (U.S. Const.
would have been pointless. And if as the art. I, § 9 cl. 3; see Culter, 241 F.Supp.2d
government contends the Bureau did not at 24-25 n.6; Ashkenazi v. Attorney Gen.,
actually have the legal authority to assign 246 F. Supp. 2d 1, 9 (D. D.C. 2003),
prisoners to community confinement vacated as moot, 346 F.3d 191, 192 (D.C.
centers, the judge clearly committed an Cir. 2003)). 8 That clause protects against
error of law. In that respect the retroactive changes in the law that create
government misses the point in calling “a sufficient risk of increasing the measure
upon Serafini, 233 F.3d at 777-78, and of punishment attached to the covered
United States v. Jalili, 925 F.2d 889, 894 crimes” (Garner v. Jones, 529 U.S. 244,
(6th Cir. 1991), to urge that the district 250 (2000), quoting California Dep’t of
court’s recommendation cannot be used to Corrections v. Morales, 514 U.S. 499, 509
invalidate Eakman’s sentence because it
had no binding authority, over the Bureau
as to the place of imprisonment. After all, 8
We are mindful that according to
Eakman does not contend that his sentence
United States v. Ferri, 686 F.2d 147, 158
violates due process because the Bureau
(3d Cir. 1982), we would lack
has ordered him to serve time at an
jurisdiction to decide the ex post facto
institutional prison despite the court’s
issue under Section 2255 – that Eakman
recommendation otherwise. Instead he
would rather have had to present such a
argues that a material misunderstanding of
claim via Section 2241. We raise the ex
the law (as plainly evidenced by the
post facto issue only to note that the
court’s recommendation) rendered his
government would likely have to travel a
sentencing proceeding invalid.
perilous road even if we were to reject
(as we have not for purposes of this
Because neither Eakman nor the
opinion) the Bureau’s pronouncement of
government challenges the Bureau’s
its own legal authority.
9
(1995)). record before us unequivocally shows the
district judge did not contemplate the total
Although the government takes the absence of Bureau discretion, an absence
position that the Bureau’s former practice as to which the parties now concur. We
was unlawful, it argues that the Bureau did conclude that Eakman’s Section 2255
not change the applicable law when it motion has sufficiently alleged that the
announced its new procedure, but merely district judge made an objectively
conformed its practice to a number of ascertainable error during his sentencing
holdings that “community confinement” proceeding.
cannot constitute imprisonment under
United States Sentencing Guideline § Reliance
5C1.1 (see, e.g., Serafini, 233 F.3d at 777-
78; United States v. Adler, 52 F.3d 20, 21 As the government would have it,
(2d Cir. 1995) (per curiam); United States Eakman must demonstrate (1) that the
v. Swigert, 18 F.3d 443, 445 (7th Cir. Bureau made some express assurance to
1994); Jalili, 925 F.2d at 892-93)). But the the district court that it would honor its
government does not suggest how that fact recommendation to place Eakman in a
helps it respond to Eakman’s due process community confinement center and (2) that
claim. No case of which we are aware has the district court would have imposed a
ever relied on such a notion to deny a lighter sentence had it not been misled.
collateral challenge to a sentence based on We reject the notion that Section 2255
due process, for due process clearly requires a petitioner to satisfy such an
guarantees all defendants the right to be onerous burden – certainly not before the
sentenced under an accurate understanding sentencing court conducts a hearing.
of the law (United States v. Barnhart, 980 Section 2255 is clear in its directive that
F.2d 219, 225 (3d Cir. 1992)).9 And the the sentencing court must grant a prompt
hearing “[u]nless the motion and files and
records of the case conclusively show that
9 the prisoner is not entitled to relief. . . .”
Even in the ex post facto context
To be sure, a prisoner is not entitled to a
Weaver v. Graham, 450 U.S. 24, 29
hearing unless there is some basis in the
(1981), explains that “a law need not
record to support the prisoner’s contention
impair a ‘vested right’ to violate the ex
that the district court relied at least in part
post facto prohibition.” Instead the
absence of fair notice is the essential
inquiry under the Ex Post Facto Clause
(id. at 30). And as several district courts some prisoners in community
have observed, the Bureau gave no confinement centers (see, e.g., United
advance warning that it would abruptly States v. Serpa, 251 F. Supp. 2d 988, 992
change its former practice, which had (D. Mass. 2003) and Ashkenazi, 246 F.
been in place for decades, of placing Supp. 2d at 7)).
10
on bad information, and at the hearing the entitled to no relief,” the statute expressly
prisoner retains the burden to demonstrate compels a hearing to determine whether
that he is entitled to relief (see Barnes v. the judge in fact relied upon his mistaken
United States, 579 F.2d 364, 366 (5th Cir. belief that the Bureau had the discretionary
1978); Williams v. United States, 481 F.2d authority to assign Eakman to a
339, 346 (2d Cir. 1973)). To that end it is community confinement center. We
enough for the prisoner to show that the therefore remand the case to the district
district court paid sufficient heed to the court to conduct a hearing as provided
error that the integrity of the sentencing under Section 2255. Should the district
proceeding is called into doubt judge confirm such mistaken reliance, he
(Spiropoulos, 976 F.2d at 163; King, 725 is ordered to vacate Eakman’s current
F.2d at 724). sentence and resentence him.
There is plainly enough in the
record to entitle Eakman to a hearing. As
we have already discussed, the district
judge specifically recommended that the
Bureau place Eakman in a community
confinement center, with an obvious
awareness of the Bureau’s longstanding
p r a c ti c e o f e n t e rt a i n in g s u c h
recommendations. Clearly the district
judge acted under a legal misapprehension
– a belief in the existence of the Bureau’s
discretion in that respect. Indeed, the
district judge had already granted the
government’s motion under Guideline §
5K1.1 for a downward departure, and he
could have departed further had he been
properly informed of the Bureau’s lack of
discretion to assign Eakman to community
confinement.
Conclusion
Eakman’s Section 2255 motion
sufficiently raises a constitutional question
about the fairness of his sentencing
proceeding. And because the record does
not “conclusively show that the prisoner is
11