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 2021-07

Phillip Charleston v. William Lothrop ( 2021 )


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  •                            NOT FOR PUBLICATION                           FILED
UNITED STATES COURT OF APPEALS                           JUL 26 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PHILLIP T. CHARLESTON, named Phillip            No.    20-16367
T Charleston - El,
D.C. No. 2:20-cv-00878-JAT-ESW
Petitioner-Appellant,
v.                                             MEMORANDUM*
WILLIAM W. LOTHROP, Warden,
Respondent-Appellee.
Appeal from the United States District Court
for the District of Arizona
James A. Teilborg, District Judge, Presiding
Submitted July 19, 2021**
Before:      SCHROEDER, SILVERMAN, and MURGUIA, Circuit Judges.
Phillip T. Charleston appeals pro se from the district court’s order
dismissing his
    28 U.S.C. § 2241
     habeas corpus petition. We have jurisdiction
under
    28 U.S.C. § 1291
    . We review de novo, Stephens v. Herrera,
    464 F.3d 895
    ,
897 (9th Cir. 2006), and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Charleston contends that the Bureau of Prisons (“BOP”) is improperly
executing his sentence by including 84 months for Count 2, which had been
dismissed. The record shows that, at the government’s request, Count 2 was
reinstated six days later and Count 3 was instead dismissed. The record further
shows that the jury convicted Charleston of Count 2 and the district court imposed
an 84-month sentence thereon. The judgment has not been vacated or amended to
change the 84-month sentence. Therefore, the BOP is correctly executing a valid
judgment and the district court properly denied § 2241 relief. See United States v.
Wilson,
    503 U.S. 329
    , 335 (1992) (“After a district court sentences a federal
offender, the Attorney General, through the BOP, has the responsibility for
administering the sentence.”).
This court lacks jurisdiction to consider Charleston’s constitutional
challenge to the reinstatement and conviction on Count 2 because it was not
certified for appeal. See Beaty v. Stewart,
    303 F.3d 975
    , 984 (9th Cir. 2002)
(“Courts of Appeals lack jurisdiction to resolve the merits of any claim for which a
COA is not granted.”); see also Porter v. Adams,
    244 F.3d 1006
    , 1007 (9th Cir.
2001) (order) (holding that a successive § 2255 motion disguised as a § 2241
petition requires a COA). Insofar as Charleston seeks reconsideration of this
court’s denial of a COA as to that claim, it is denied.
AFFIRMED.
2                                     20-16367