David Saunders v. United States Parole Commissio

ALD-024 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 16-3375
___________
DAVID SAUNDERS,
Appellant
v.
UNITED STATES PAROLE COMMISSION
____________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.N.J. Civ. No. 1-16-cv-00698)
District Judge: Honorable Joseph H. Rodriguez
____________________________________
Submitted for Possible Summary Action
Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
October 27, 2016
Present: MCKEE, JORDAN and RESTREPO, Circuit Judges
(Opinion filed: November 14, 2016)
_________
OPINION *
_________
PER CURIAM
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
David Lee Saunders appeals from an order of the District Court dismissing his
petition for a writ of habeas corpus under 28 U.S.C. § 2241. We will summarily vacate
that order and remand for further proceedings consistent with this opinion.
I.
In October 1999, Saunders pleaded guilty in federal court to one count of bank
robbery. He was sentenced to 48 months in prison followed by three years of supervised
release. Saunders served his federal term of incarceration after completing a separate
state sentence and, in June 2012, began his term of supervised release.
On November 13, 2013, a federal probation officer petitioned the District Court to
issue a warrant for Saunders’s arrest. According to the probation officer’s petition,
Saunders was being held in county jail in New Jersey on new criminal charges and, as a
result, had violated the terms of his supervised release. The District Court granted the
petition, thus subjecting Saunders to a federal detainer. 1
Saunders was eventually convicted in state court of third-degree receiving stolen
property. He was sentenced to five years in jail, concurrent with any sentence imposed
by the District Court for Saunders’s apparent violation of supervised release.
Saunders then filed two applications with the District Court, requesting in each
that his term of supervised release be “dismissed.” Saunders generally argued that he
1
The Supreme Court has described a “detainer” as a “request filed by a criminal justice
agency with the institution in which a prisoner is incarcerated, asking the institution
either to hold the prisoner for the agency or to notify the agency when the release of the
prisoner is imminent.” Carchman v. Nash, 473 U.S. 716, 719 (1985).
2
was not afforded due process (e.g., notice and a hearing) with respect to the alleged
violation of supervised release, that the United States Parole Commission (the “USPC”)
prematurely sought a federal detainer, and that the USPC improperly “predetermined” the
appropriate sentence for Saunders’s supervised-release violation.
The District Court construed Saunders’s filings as a habeas petition under 28
U.S.C. § 2241, and ordered the USPC to answer it. The USPC in turn requested that it be
relieved from filing an answer because “Saunders is not a parolee within the jurisdiction
of the [USPC].” To support its assertion, the USPC submitted declarations from its
general counsel and from a legal assistant employed by the Federal Bureau of Prisons.
By order entered July 14, 2016, the District Court vacated its earlier order
requiring the USPC to file an answer and directed its clerk of court to “close this matter.”
The District Court agreed with the USPC that Saunders is not a federal parolee, observing
that Saunders is instead “subject to a federal detainer based upon a warrant issued by his
Probation Officer” and “is not presently in federal custody.” Saunders appealed. 2
II.
On appeal, the USPC has moved for summary affirmance of the District Court’s
July 14, 2016 order. The USPC’s motion is merely a recitation of procedural history
followed by conclusory statements that the appeal “is appropriate for disposition by
2
The July 14, 2016 order was immediately appealable because it effectively ended the
litigation and left nothing for the District Court to do but execute its judgment. See
Welch v. Folsom, 925 F.2d 666, 668 (3d Cir. 1991). Therefore, we have appellate
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summary affirmance” because it fails to present a “substantial question,” and because full
briefing would waste this Court’s time and resources.
Pursuant to Third Circuit L.A.R. 27.4 and I.O.P. 10.6, we may summarily affirm
the judgment of a district court on motion of a party, or sua sponte. We may take that or
another form of summary action if an appeal presents no substantial question. See id.
III.
In federal habeas proceedings, the proper party-respondent is “the person who has
custody over [the petitioner].” Rumsfeld v. Padilla, 542 U.S. 426, 434 (2004) (citation
omitted). Thus, “[w]henever a § 2241 habeas petitioner seeks to challenge his present
physical custody within the United States, he should name his warden as respondent and
file the petition in the district of confinement.” Id. at 447. By contrast, in a case like
Saunders’s that “challenges a form of ‘custody’ other than present physical confinement[,
the habeas petitioner] may name as respondent the entity or person who exercises legal
control with respect to the challenged ‘custody.’” Id. at 438.
Here, the limited record on appeal supports the conclusion that the USPC was an
improper respondent for the habeas action below because there is no indication that
Saunders was ever a federal parolee subject to the USPC’s legal control. Cf. 28 C.F.R.
§§ 2.1(g), 2.39. The proper respondent would instead appear to be the United States
Probation and Pretrial Services (the “USPPS”), because—as highlighted by its successful
petition for an arrest warrant—the USPPS “is ‘the person’ with the ability to produce the
jurisdiction under 28 U.S.C. § 1291.
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prisoner’s body before the habeas court.” Padilla, 542 U.S. at 435; see also 18 U.S.C.
§ 3606 (where there is probable cause to believe that a person on supervised release has
violated the terms of that release, the probation officer is empowered to execute a warrant
to arrest the person). We thus agree with the District Court’s decision to vacate its order
directing the USPC to file an answer.
But that should not have been the end of the matter. When a habeas petitioner
incorrectly identifies the party-respondent, the proper course typically is not a with-
prejudice dismissal of the petition. Rather, the habeas petitioner should be permitted
leave to amend. See, e.g., West v. Louisiana, 478 F.2d 1026 (5th Cir. 1973), vacated in
part on other grounds, 510 F.2d 363 (1975) (the “failure to name a proper respondent is a
procedural rather than jurisdictional defect, and it may be corrected by amendment of the
petition.”); Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994)
(remanding case to district court to afford habeas petitioner an opportunity to “amend his
petition to name the correct party as respondent”); Byrd v. Martin, 754 F.2d 963, 965
(11th Cir. 1985) (remedy for failure to properly name respondent is not dismissal but
return of petition for amendment). Accordingly, the District Court should have given
Saunders an opportunity to cure the defect in his habeas petition to the extent he failed to
identify the proper party-respondent.
In conclusion, we agree with the USPC that summary action is appropriate. We
deny the USPC’s motion, however, because summary vacatur, not affirmance, is the
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proper disposition. We leave it to the District Court on remand to determine how best to
proceed consistent with this opinion. 3
3
Insofar as the District Court determined that Saunders “is not presently in federal
custody” for purposes of habeas jurisdiction under 28 U.S.C. § 2241(c), it erred.
Pursuant to Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484 (1973), a
habeas petitioner may challenge the future imposition of sentence for which a detainer
has been lodged while the petitioner is in custody with respect to an earlier sentence
imposed by a different sovereign. See id. at 488-89.
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