Howard Kieffer v. Warden Allenwood LSCI , 616 F. App'x 464 ( 2015 )


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  • BLD-210                                                        NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    ___________
    No. 15-1729
    ___________
    HOWARD O. KIEFFER,
    Appellant
    v.
    WARDEN ALLENWOOD LSCI
    ____________________________________
    On Appeal from the United States District Court
    for the Middle District of Pennsylvania
    (D.C. Civ. No. 1-14-cv-01547)
    District Judge: Honorable John E. Jones III
    ____________________________________
    Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
    or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
    May 21, 2015
    Before: AMBRO, JORDAN and KRAUSE, Circuit Judges
    (Opinion filed: May 28, 2015)
    _________
    OPINION*
    _________
    PER CURIAM
    Howard O. Kieffer appeals from the order of the District Court dismissing a
    *
    This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
    constitute binding precedent.
    habeas petition in which he purported to challenge under 28 U.S.C. § 2241 the execution
    of one of his federal sentences. We will affirm.
    I.
    Kieffer has been convicted in federal courts in both North Dakota and Colorado of
    charges arising from his unlicensed operation of a “nationwide criminal law practice.”
    United States v. Kieffer, 
    681 F.3d 1143
    , 1146 (10th Cir. 2012). The North Dakota
    District Court sentenced Kieffer to 51 months of imprisonment on August 14, 2009, and
    the Eighth Circuit Court of Appeals affirmed. See 
    id. (citing United
    States v. Kieffer,
    
    621 F.3d 825
    (8th Cir. 2010)). At issue in this case is Kieffer’s subsequent Colorado
    sentence. On August 16, 2010, the Colorado District Court sentenced Kieffer to a term of
    57 months in prison consecutive to his North Dakota sentence. The Tenth Circuit Court
    of Appeals affirmed Kieffer’s convictions but remanded for resentencing because, inter
    alia, the Colorado District Court erred in making its sentence consecutive. See 
    id. at 1167-68,
    1172.
    On remand, and on August 22, 2013, the Colorado District Court orally
    resentenced Kieffer to a term of 99 months in prison concurrent to his 51-month North
    Dakota sentence and stated that the purpose of the sentence was to ensure that Kieffer
    serve an additional 48 months in prison. See United States v. Kieffer, 596 F. App’x 653,
    657 (10th Cir. 2014), petition for cert. filed, — U.S.L.W. — (U.S. May 7, 2015) (No. 14-
    9670). The Colorado District Court later attempted to memorialize its oral sentence in a
    First Amended Judgment, in which it stated that it “adjusted the ninety-nine (99) months
    2
    by subtracting the fifty-one (51) months already served in [North Dakota], for a
    remaining sentence of forty-eight (48) months[.]” 
    Id. The Bureau
    of Prisons (“BOP”)
    interpreted the First Amended Judgment as imposing only a 48-month term of
    imprisonment and began processing Kieffer for release. See 
    id. Upon learning
    of that fact, the Colorado District Court entered a series of further
    amended judgments in an effort to clarify its intent that Kieffer serve 48 months in
    addition to his North Dakota sentence, for a total Colorado sentence of 99 months. See
    
    id. at 657-59.
    Kieffer contends that the BOP calculated his release date as February 6,
    2014, on the basis of the First Amended Judgment, but then recalculated it as January 2,
    2017, after the Colorado District Court further amended its judgment.
    Thereafter, and while simultaneously challenging the amended judgments on
    appeal to the Tenth Circuit, Kieffer filed a § 2241 habeas petition in the district of his
    confinement, which at that time was the Middle District of Pennsylvania. Kieffer argued
    that the BOP erred by calculating his sentence pursuant to the Colorado District Court’s
    amended judgments instead of its oral sentence of August 22, 2013, which he contended
    imposed a term of only 48 months that expired on February 6, 2014. He further argued
    that the amended judgments are invalid because they conflict with the oral sentence. See
    United States v. Faulks, 
    201 F.3d 208
    , 211 (3d Cir. 2000).
    While Kieffer’s § 2241 petition remained pending, the Tenth Circuit vacated the
    Colorado District Court’s amended judgments as unauthorized and remanded for that
    court to issue still another amended judgment consistent with its oral sentence—i.e., 99
    3
    months, minus 11 months for time served on the North Dakota sentence, for a total
    sentence of 88 months. See Kieffer, 596 F. App’x at 656, 661-62. In doing so, the Tenth
    Circuit expressly rejected the interpretation of the Colorado District Court’s oral sentence
    that Kieffer advanced in his § 2241 petition. 
    Id. at 661.
    The Colorado District Court
    later issued a new judgment (D. Colo. Crim. No. 1-09-cr-00410-001, ECF No. 225), and
    Kieffer’s appeal from that judgment is pending (10th Cir. No. 15-1078).
    After the Tenth Circuit issued its ruling, the District Court in this case dismissed
    Kieffer’s § 2241 petition for lack of jurisdiction, reasoning that it constituted an attack on
    the validity of the Colorado District Court’s amended judgments instead of a challenge to
    the BOP’s execution of his sentence. The District Court also noted that it would have
    denied Kieffer’s petition on the merits because he remains subject to imprisonment even
    under the oral sentence on which he relies. Kieffer appeals.1
    II.
    As the District Court properly explained, § 2241 permits challenges to the
    execution but not the validity of a federal sentence. See Cardona v. Bledsoe, 
    681 F.3d 533
    , 535 (3d Cir. 2012). Absent circumstances not present or alleged here, challenges to
    1
    The BOP transferred Kieffer back to a federal facility in Colorado before the District
    Court issued its ruling. That transfer did not divest the District Court (or us) of the §
    2241 jurisdiction that attached when Kieffer filed his petition. See Rumsfeld v. Padilla,
    
    542 U.S. 426
    , 441 & n.14 (2004); Barden v. Keohane, 
    921 F.2d 476
    , 477 n.1 (3d Cir.
    1990). Kieffer does not require a certificate of appealability to appeal the denial of his §
    2241 petition, see Vasquez v. Strada, 
    684 F.3d 431
    , 433 (3d Cir. 2012), and we thus have
    jurisdiction under 28 U.S.C. § 1291. According to the BOP’s inmate locator, available at
    4
    the validity of a sentence may be brought only under 28 U.S.C. § 2255 and only in the
    sentencing court. See In re Dorsainvil, 
    119 F.3d 245
    , 249 (3d Cir. 1997). Thus, we agree
    that Kieffer’s petition belonged in the Colorado District Court to the extent that it
    challenged the validity of that court’s amended judgments. To that same extent, Kieffer’s
    challenge also became moot when the Tenth Circuit vacated those amended judgments.
    We acknowledge Kieffer’s argument that his petition does more than merely
    challenge the validity of the amended judgments. Kieffer argues that the terms of his oral
    sentence control and that his oral sentence expired on February 6, 2014. If Kieffer were
    correct, then he arguably would be entitled to release now regardless of the terms of any
    amended judgment. See United States v. Cephus, 
    684 F.3d 703
    , 710 (7th Cir. 2012)
    (noting that, although the BOP generally “looks to the written judgment” in calculating a
    sentence, it ultimately is required to apply the sentence “as intended and pronounced by
    the sentencing court”) (quotation marks omitted). Thus, it may be possible to construe
    Kieffer’s petition as a challenge to the execution of his sentence that has not been mooted
    by the Tenth Circuit’s vacation of the amended judgments.
    To the extent that Kieffer’s petition can be so construed, however, it is foreclosed
    by the substance of the Tenth Circuit’s ruling. The Tenth Circuit squarely rejected
    Kieffer’s argument that the Colorado District Court orally sentenced him to only 48
    months in prison because, as the Tenth Circuit explained, the Colorado District Court
    http://www.bop.gov/inmateloc, Kieffer is currently scheduled for release on December
    29, 2016.
    5
    unambiguously expressed its intent to sentence him to 48 month in prison in addition to
    the time served on his North Dakota sentence, for a total sentence of 99 months. See
    Kieffer, 596 F. App’x at 661. Thus, the Tenth Circuit remanded for entry of a new
    judgment consistent with that oral sentence, the Colorado District Court has entered a
    new judgment, and Kieffer is challenging that judgment on appeal. We express no
    opinion on the merits of that appeal but, even assuming that we had the authority to reach
    a contrary conclusion in the context of Kieffer’s § 2241 petition, we would not do so for
    the reasons explained by the Tenth Circuit.
    III.
    For these reasons, we will affirm the judgment of the District Court. Kieffer’s
    motion to expedite this appeal and to adjudicate it on the District Court record is granted
    to the extent that we have resolved it on the District Court record without briefing.
    6
    

Document Info

Docket Number: 15-1729

Citation Numbers: 616 F. App'x 464

Judges: Ambro, Jordan, Krause, Per Curiam

Filed Date: 5/28/2015

Precedential Status: Non-Precedential

Modified Date: 11/6/2024