CA8 — memorandum disposition

Ivy v. Sanders, No. 07-2663 — The district court could not entertain a § 2241 petition asserting an actual innocence claim, where the petitioner had already litigated it in a § 2255 motion.

CA10 — memorandum disposition

Harris v. Wilmer, No. 08-1162 — This is an appeal from the denial of a § 2241 petition.  The petitioner pleaded guilty to a federal crime and received a 300-month sentence.  The plea agreement required him to waive his right to file a § 2255 motion challenging his sentence.  He filed one anyway, in federal court in Indiana, which was denied as untimely and barred by the plea agreement.  He did not appeal to the Seventh Circuit.  Later on, while imprisoned in Colorado, he filed a § 2241 petition challenging his conviction and sentence.  The district court denied it because the claims he raised were more appropriate for § 2255 motions and he had filed in the wrong district.  The Tenth Circuit affirmed because he had not shown that the § 2255 remedy was ineffective or inadequate merely because he was precluded from filing either a first (because of the plea agreement) or second (because of AEDPA) § 2255 motion.

CA11 — memorandum disposition

Antonelli v. Warden, USP Atlanta, No. 08-10608 — No authorization is required to file a second or successive § 2241 petition, but the court affirmed the denial of the § 2241 petition.

The petitioner had been convicted in 1978 of bank fraud and sentenced to 22 years in prison.  While on federal parole in 1994, he pleaded guilty to criminal trespass and DUI in Chicago.  He later sought to withdraw the guilty pleas because they were uncounseled by filing a § 2241 petition in Arkansas, claiming that the Federal Parole Commission erroneously deprived him of credit against his sentence.  The district court there denied relief, and the Eighth Circuit affirmed.  The district court in Georgia (where the petitioner is now incarcerated) denied the same § 2241 petition as second or successive.

The Eleventh Circuit ruled that under 28 U.S.C. § 2244(b), the second-or-successive petition bar imposed by AEDPA does not apply to § 2241 petitions.  The court agreed with the similar conclusions of the Seventh, Third, Ninth, and Sixth Circuits.  As long as the § 2241 petition is not the functional equivalent of either a prior § 2254 petition or § 2255 motion, AEDPA’s second-or-successive bar does not apply.  Because the petitioner in this case was ultimately challenging the denial of federal parole, and that claim was properly included in a § 2241 petition, the second-or-successive bar did not apply.

However, § 2241 does contain a procedural bar for claims already resolved in a prior § 2241 petition.  For this reason, the district court properly dismissed the § 2241 petition in this case.

CA9 — memorandum disposition

Gullers v. Bejarano, No. 07-55137 (argument) — The petitioner sought § 2241 habeas relief from an extradition order sending her to Mexico to face criminal fraud charges.  The court remanded for further proceedings.

Under the extradition treaty between Mexico and the United States, a defendant may not be extradited if the limitations period applicable to the criminal activity under the laws of both nations has not expired.  There was no dispute that the limitations period had not yet expired under U.S. law.  But under Mexican law, under which the limitations period was 125% of the average of the shortest and longest authorized sentences (!), it was not clear whether the Mexican prosecution was time barred.  The answer to this question depended on the particular charging document used to initiate the charges in the Mexican state of Jalisco.  The district court did not apply the correct law, and so the court remanded the case for further proceedings.

Rodriguez v. Smith (CA9)

Rodriguez v. Smith, No. 07-16014 (CA9) — The court affirmed an order of the district court requiring the Bureau of Prisons to consider transferring the petitioner to a Residential Reentry Center (that is, a halfway house).

The petitioner pleaded guilty in 2001 to conspiracy to distribute methamphetamine and money laundering, and was sentenced to 195 months in prison.  He is projected to be released in 2013.  Under 18 USC 3621(b), five factors must guide the Bureau’s decision to place a prisoner in a particular facility.  The petitioner argued that the relevant Bureau regulations governing placement in halfway houses ignored the 3621(b) factors.  The district court agreed and granted the petition, and the Bureau appealed.

Before December 2002, the Bureau exercised its discretion to allow inmates to serve all or part of their sentences in halfway houses.  Then the Office of Legal Counsel (led then by Alberto Gonzales) issued an opinion concluding that section 3621(b) did not allow this practice, concluding that the relevant statutory framework allowed a prisoner to serve only 10 percent of his sentence in a halfway house.  This interpretation was successfully challenged in the First and Eighth Circuits, and the Bureau changed its practice again.  It promulgated regulations under which it first acknowledged that it had discretion to allow inmates to serve their sentences in halfway houses, but also under which it would continue to limit such service to the final 10 percent or 6 months of a sentence, whichever was less.

These new regulations were also challenged in the federal courts.  Ultimately, the Second, Third, Eighth, and Tenth Circuits struck them down as conflicting with section 3621.  Only the First Circuit sustained the regulations.  After analysis, the Ninth Circuit sided with the majority and struck the regulations down.

Under the first step of Chevron USA, Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1986), the first step was to ask whether Congress had clearly spoken through section 3621.  The court concluded that it had.  Next, the court asked whether the Bureau’s regulations conflicted with that clearly expressed Congressional intent.

In defending its regulations, the Bureau pointed to 18 USC 3624, which ordered the Bureau to ensure to the extent practicable that an inmate spends up to 6 months of the last 10 percent of his sentence in a halfway house.  According to the Bureau, reading sections 3621 and 3624 together diluted the clarity of Congress’s expression.  The court rejected this argument, reasoning that the two sections could be reconciled.  Section 3624 was merely an attempt to channel the exercise of the broad discretion afforded by section 3621 during the last 10 percent of an inmate’s sentence.  Section 3624 plainly did not limit the Bureau’s obligation to consider all of the five 3621(b) factors in all inmate placements during the entire term of their incarcerations. “Because the Bureau’s regulations categorically exclude halfway-house placement of inmates with more than ten percent of their sentences remaining, they necessarily fail to apply the mandatory factors listed in section 3621(b) to those inmates.  This failure to consider the five statutory factors when considering eligibility for placement in or transfer to a halfway house violates Congress’s clear intent that each of these factors be applied in making inmate transfer or placement determinations to any available penal or correctional facility.”

Judge Rymer sided with the minority view, which posited that 3624 was a more specific direction with respect to a “subset” of an inmate’s total sentence, and thus Congress had not clearly spoken with respect to the remainder.  Under this view, Chevron would require deference to the Bureau’s regulations.

CA4 — memorandum decision

Graves v. Chapman, No. 08-6423 (CA4) — The court affirmed the denial of a 2241 habeas petition.