Sterling v. Hood

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JAN 24 2005
TENTH CIRCUIT
PATRICK FISHER
Clerk
DAVID J. STERLING,
Petitioner - Appellee,
v.
No. 04-1186
ROBERT A. HOOD, ADX, Warden; and (D.C. No. 03-WM-668)
UNITED STATES PAROLE (D. Colo.)
COMMISSION,
Respondents - Appellants.
ORDER AND JUDGMENT*
Before SEYMOUR, PORFILIO, and HARTZ, Circuit Judges.
The sole issue for review in this habeas corpus action is whether the United States
Parole Commission is required to set a final release date for Petitioner within his parole
guideline range under the original version of § 235(b)(3) of the Sentencing Reform Act of
1984 (SRA). This section provides:
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This 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.
The United States Parole Commission shall set a release date, for an
individual who will be in its jurisdiction the day before the expiration of
five years after the effective date of this Act, that is within the range that
applies to the prisoner under the applicable parole guideline. A release date
set pursuant to this paragraph shall be set early enough to permit
consideration of an appeal of the release date, in accordance with Parole
Commission procedures, before the expiration of five years following the
effective date of this Act.
(emphasis added).
The district court assumed this section applied to Petitioner’s case and held its
plain language requires the Parole Commission to set a parole date that is “within the
range that applies to the prisoner under the applicable parole guideline.” The court also
held that applying the 1987 amendment of § 235(b)(3), which would postpone
Petitioner’s release date, would violate the Ex Post Facto Clause. Upon that reasoning,
the court concluded Petitioner was entitled to a release date “within the applicable parole
guideline range, and, if now exceeded . . . to immediate release.” (emphasis added).
The government has appealed. Assuming Petitioner and the district court are
correct in applying the 1984 version of the statute to this case, we conclude the habeas
petition was premature and relief was improvidently granted.
Petitioner was sentenced on January 26, 1987, to four consecutive 25 year terms,
plus another consecutive five year term for a series of armed bank robberies committed in
November 1985 through January 1986. He applied for parole in January 2000. After
consideration and review, his application ultimately was postponed for reconsideration
until March 2015. Mr. Sterling did not seek judicial review of the administrative
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decision, but instead, on April 15, 2003, filed the instant petition for a writ of habeas
corpus pursuant to 18 U.S.C. § 2241, contending the Commission had violated federal
law and the Constitution.
The Magistrate Judge to whom the case had been referred recommended denial of
each of Petitioner’s claims. The district judge disagreed, however, relying on Lyons v.
Mendez, 303 F.3d 285, 291 (3d Cir. 2002) (1987 amendment constituted a violation of
the Ex Post Facto Clause as applied to increase a prisoner’s sentence when the particular
upward departures used by the Commission after passage of the amendment would not
have been permitted when the prisoner committed the crime); Dallis v. Martin, 929 F.2d
587, 589 n.4 (10th Cir. 1991) (pertinent sections of § 235(b)(3) became effective on
Oct. 12, 1984); and Lewis v. Martin, 880 F.2d 288, 290 (10th Cir. 1989) (petitioner not
entitled to a release date within the parole guideline range because he would not be in
prison as of the five-year deadline set by § 235(b)(3)).
Unfortunately, the district court ruled before we decided Bledsoe v. United States,
384 F.3d 1232 (10th Cir. 2004), which dealt with issues similar to those of the instant
case. Contrary to the conclusion reached here by the district court, Bledsoe reminded that
in Lewis we already held § 235(b) of the SRA is merely “a winding -up provision” which
facilitates the demise of the Parole Commission and provides for disposition of cases of
prisoners under its supervision when its authority over them expires. Bledsoe, 384 F.3d at
1234, quoting Lewis, 880 F.2d at 290. More importantly, the Bledsoe court noted Lewis
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unmistakably pointed out, “[t]he subsection [235(b)(3)] does not require the Commission
to take immediate action on the release date of any prisoner. Rather by its own terms, the
subsection [only] requires the Commission to set a release date . . . sufficiently before . . .
[the Commission’s expiration date] to allow him time to appeal the decision.” 384 F.3d at
1234, quoting Lewis, 880 F.2d at 290 (emphasis added).
Assuming Petitioner’s offense date makes him subject to § 235(b)(3) of the SRA,
and not its amended version which took effect in 1987 - an issue we are not required to
decide here - it must follow when the petition was filed in this case, Mr. Sterling was not
entitled to the setting of a release date, and no habeas rights had vested. As a
consequence, the action, at best, was premature. Indeed, with praiseworthy candor
counsel for the Petitioner conceded as much in oral argument. Petitioner also admits time
remains presently within which the Commission can carry out its duty under § 235(b)(3)
in his case.
Having reached this point, then, it becomes unnecessary to consider whether the
1987 version of § 235(b)(3) gives rise to Ex Post Facto Clause concerns for persons, like
Petitioner, who were sentenced before its effective date. Nor do we have to consider the
Government’s contention that the 1984 version did not become effective until
November 1, 1987, because no matter whether Petitioner is right that it was effective in
1984, or the Government is correct that it did not become effective until November 1,
1987, Mr. Sterling cannot prevail in this case.
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Although the Government informed us at oral argument Congress soon will be
asked to once again extend the life of the Commission, our decision is not motivated by
that prospect. We are governed only by the unmistakable mandate of Lewis that under
the clear language of the statute, the Commission is not presently required to set a release
date for Mr. Sterling. Therefore, we conclude his petition was premature and relief was
improvidently granted. The judgment of the district court is VACATED and the case
REMANDED for dismissal of the petition.
ENTERED FOR THE COURT
John C. Porfilio
Senior Circuit Judge
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