Cole Petition for Certiorari

8/20/2019 Cole Petition for Certiorari

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PATRICK COLE,

v.

IN THE SUPREME COURT

OF

TH

UNITED STATES

Petitioner,

MARION FEATHER, Warden,

Respondent.

MOTION

FOR

LEA

V

TO PROCEED

N

FORM P UPERIS

The petitioner, Patrick Cole, requests leave to file the attached petition for writ of

certiorari to the United States Court

of

Appeals for the Ninth Circuit without prepayment

of

costs and to proceed informa

pauperis

pursuant to Rule 39. l of this Court and 8 U.S.C.

§ 3006A d) 7). The petitioner was represented by counsel appointed under the Criminal

Justice Act in the District ofOregon and on appeal in the Ninth Circuit Court ofAppeals, and

therefore no affidavit is required.

j

Respectfully submitted this '] _ day

of

September, 2013.

Stephe R. Sady

Attorney for Petitioner


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PATRICK COLE,

v.

No.

- -


OF THE UNITED STATES

Petitioner,


Stephen

R

Sady

Respondent.

On Petition For Writ

Of

Certiorari To

The United States Court

Of

Appeals

For The Ninth Circuit

PETITION OR WRIT OF CERTIORARI

Chief Deputy Federal Public Defender

101 SW Main Street, Suite 1700

Portland, Oregon 97204

503) 326-2123



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QUESTION PRESENTE

Comity requires that state and federal jurisdictions respect each others decisions

where dual prosecutions overlap. Ponzi v Fessenden 258 U.S. 254, 259 (1922). In Setser

v United States 132 S Ct. 1463 (2012), this Court rejected the position o the government

and the defendant that, even though the federal judge spoke on the issue, the Bureau o

Prisons (BOP), through its designation power, was authorized to decide the question o

whether a federal sentence ran concurrently with or consecutively to a yet-to-be imposed

state sentence. Relying on Setser Mr. Cole asserted that, because his federal judgment is

silent on concurrency, and the subsequently imposed state sentences were explicitly ordered

to run concurrently with the federal sentence, the BOP violated the sentencing statutes and

the Constitution by executing the federal sentence as de facto consecutive to the state

sentence. This Court previously considered that question in Reynolds v Thomas 603 F.3d

1144 (9th Cir. 2010), cert. dismissed 132 S Ct. 1854 (2012), for over 16 months but

dismissed the case when the petitioner died. The Ninth Circuit relied onReynolds in denying

relief in the present case, which involves the same question o exceptional importance to the

administration o the federal criminal justice system as was raised in Reynolds:

Whether, under 18 U.S.C. §§ 3584(a), 3585, and 362l(b), the Bureau o

Prisons must administer the sentence

o

a federal prisoner, in order to be in

compliance with federal sentencing statutes and the Constitution, in a manner

that effectuates the subsequent judgment o the state judiciary that the state

sentence run concurrently with the previously imposed federal term o

imprisonment where the federal judgment is silent on concurrency?


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T BLE OF CONTENTS

. Page

Table

of

Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

1

Opinions Below .

. .

. 2

2. Jurisdictional Statement .

. . . . 2

3. Constitutional And Statutory Provisions . . . . . 3

4. Statement

Of

The Case .

. .

5

5. Reasons For Granting The Writ 11

A. The Supreme Court's Opinion In

Setser

Invalidated The Reasoning Underlying

The District Court Decisions,

Reynolds,

And Other Circuit Court Rulings . . . . .

15

1 Under Setser s Reasoning and Mode of Analysis, Where The Federal

Judgment Is Silent, The BOP Cannot Use Its 18 U.S.C. § 3621(b)

Designation Authority To Create A De Facto Consecutive Sentence

That Conflicts With A Subsequent State Sentence Ordered To Run

Concurrently With The Federal Sentence . . . . . . . . . . . . . . . . . . . . . . . . . 16

2. The Reasoning OfSetser Regarding The Sequence OfSentencing And

Up Front Decision-Making Is Firmly Based In Constitutional And

Statutorily-Required Respect For State Judgments

. .

.

. .

. . 18

3. The BOP s Reliance On Its

Ex

Parte Contact With The Sentencing

Judge Eight Years After The Sentencing Hearing Violated The Full

Range Of Sentencing Due Process Protections . . . 22

4. Reliance On The Third Sentence

Of

18 U.S .C. § 3584(a) To Authorize

The

BOP

To Make Concurrent-Consecutive Decisions Does Not

Survive

Setser

Because This Court Limited That Sentence To

Not

Apply To Terms of Imprisonment Not Yet Imposed . . . . . 26

5

Because

No

Party In

Setser

Asserted The State Interest In The Integrity

Of

The State Court Judgment, The Court Should Grant Certiorari To


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Expressly Address The Federalism, Comity, And Full-Faith-And-Credit

Reasons For Deference To The State Judgment 27

B. The Court Should Grant Certiorari Because Executive Branch Creation OfDe

Facto Consecutive Sentences Raises Extraordinarily Important Issues That

Frequently Occur In The Federal Criminal Justice System 29

1 Confusion Regarding Federal And State Concurrent Sentencing

Frequently Gives Rise To Errors And Injustice 29

2. The Present Case Provides An Appropriate Vehicle ForRe-Examining

Sentencing Statutes In Light Of etser And Constitutional

Considerations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

31

3. The Court Should Grant Certiorari to Address The Manifest Injustice

OfA Sentence Doubled By Federal Executive Action That Trumped A

Valid State Court Judgment .

33

6. Conclusion . . . 34

Certificate

of

Service and Mailing

INDEX TO PPENDIX

Ninth Circuit memorandum opinion April 24, 2013) .

A-1

Denial of rehearing and rehearing en bane June 7, 2013) . . A-4

Oregon district court opinion August 15, 2012) . . A-5

Oregon findings and recommendation April 16, 2012) A-11

Texas district court opinion March 31, 2003) A-22

BOP

Program Statements PS 5160.05 and excerpts from PS 5880.05) A-41

Federal judgment in a criminal case July 30, 1992) . . . A-58

State plea bargain, disposition, and orders July 31, 1992) A-62


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BOP letter to Mr Cole April 26, 1999) . .

. . . .

A-67

BOP letter to state prosecutor November 24, 2000) . . . . . . . . . . . A-68

BOP letter to Mr. Cole July 26, 2001) .

. .

. . . . .

. . . .

.

.

. . . A-69

BOP computation data .

.

.

. A-70

BOP Informal Resolution request and disposition July 23, 2011) . . . . A-74

BOP Request for Administrative Remedy request and disposition August 19, 2011) A-78

BOP Regional Administrative Remedy Appeal request and disposition

November 2, 2011) . .

. . . .

. .

. . . . A-80

BOP Central Office Administrative Remedy Appeal request and disposition

January 31, 2012) . . . . .

. .

. . . . . A-83


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T BLE OF UTHORITIES

Page

FEDER L C SES

Abdul-Malik

v.

Hawk-Sawyer

403 F .3d 72 2d Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Clark

v.

Martinez

543

U.S. 371 2005) .

31

County

o

Allegheny

v.

American Civil Liberties

Union

Greater Pittsburgh Chapter

492 U.S. 573 1989) 15

Covell

v.

Heyman

U.S. 176 1884) .

.

28

Davis v. Davis

305 U.S. 32 1938) 21

Del Guzzi

v.

United States

980 F.2d 1269 9th Cir. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 30

Dillon

v.

United States

130

S.

Ct. 2683 2010) . . . 25, 26, 27

Elwell

v.

Fisher

716 F.3d 477 8th Cir. 2013) . . 26

Fegans v. United States

506 F.3d 1101 8th Cir. 2007) . .

11

Green v. Christiansen

732 F.2d 1397 9th Cir. 1984) . . . 6

Gregory

v.

Ashcroft

501

U.S. 452 1991) .

31

Kelly v. Robinson

479 U.S. 36 1986) 21

IV


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Kinder

v

Purdy

222 F.3d 209 5th Cir. 2000) . .

. 9

Kremer

v

Chemical Construction Corp.

456 U.S. 461 1982) .

2

Lankford v Idaho

500 U.S. 110 1991) 24, 25

Mempa v Rhay

389 U.S. 128 1967) 22, 23, 24

Oregon v. Ice

555 U.S. 160 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

9

Ponzi v Fessenden

258 U.S. 254 1922) . 3, 14, 19, 28

Reynolds v Thomas

603 F.3d 1144 9th Cir. 2010), cert. dismissed

132 S. Ct. 1854 2012) . . passim

Sanders

v

United States

373 U.S. 1 1963) .

. . .

. . . . 10, 3

Seminole Tribe o Florida v Florida

517 U.S. 44 1996) . . . .

5

Setser v United States

132 S. Ct. 1463 2012) .

.

. . .

passim

Strand v Schmittroth

251F 2d590 9th Cir. 1957) . . .

9

Taylor

v

Sawyer

284 F.3d 1143 9th Cir. 2002) . . .

15, 18, 20

United States v Alverson

666 F.2d 341 9th Cir. 1982) . . . .

. . . . . 24


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United States

v

Bergmann,

836 F.2d 1220 9th Cir. 1988) . . 27

United States v Lopez,

514 U.S. 549 1995) 19,

31

Younger

v

Harris,

401 U.S. 37 1971) . . .

21

DOCKETED

CASES

Reynolds v Thomas, Clerk s Docket Sheet,

Sup. Ct. No. 10-7502 . 29

STATE CASES

x

Parte Applewhite,

729 S.W.2d 706 Tex. Crim. App. 1987) . 7

x

parte Crossnoe,

232 S.W. 2d 855 Tex. Crim. App. 1950) . . . . 7

FEDERAL STATUTES AND CONSTITUTION

U.S. Const. art IV, § 1 .

. 5, 20, 21, 22

U.S. Const. amend. V . . .

. . 4

U.S. Const. amend. X . . . 5 19, 30

18 U.S.C. § 3553 a) . .

. 17

18 U.S.C. § 3582 c) .

. 25, 32

18 U.S.C. § 3584 a) . . . passim

18 U.S.C. § 3585 a) . . 3, 6, 14 , 27, 32

18 U.S.C. § 3621 b) . . . . passim

VI


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28 u.s.c. § 1254(1) 3

28 U.S.C. 1738 . 5, 21

28

u.s.c. §

2241 .

2, 8

28 U.S.C. 2244(a) 10

MISCELL NEOUS

THE FEDERALIST,

No. 45 (James Madison) (J. A. McLean ed., 1788) . . . . . . . . . . . . . . . . . . . . 20

GAO,

Eligibility and Capacity Impact

se

ofFlexibilities to Reduce Inmates Time in

Prison (February 2012) .

30

Henry J. Sadowski, BOP Regional Counsel, Interaction

Of

Federal

nd

State Sentences

When The Federal Defendant Is Under State Primary Jurisdiction

(July 7, 2011) .

. .

.

30

Joseph Story, 3 COMMENTARIES ON THE CONSTITUTION OF THE

UNITED STATES,

1304 (Boston, Hilliard, Gray Co. 1833) . 21

St. George Tucker, 1 BLACKSTONE COMMENTARIES,

Appendix (Birch Small 1803) 20

WEBSTER S

THIRD

NEW INTERNATIONAL

DICTIONARY (1993) . .

32

Vll


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PATRICK COLE,

v.

N THE SUPREME COURT

OF THE UNITED STATES

Petitioner,


Respondent.

On Petition For Writ OfCertiorari To


Of

Appeals


The petitioner, Patrick Cole, respectfully requests that a writ of certiorari issue to

review the judgment of the United States Court ofAppeals for the Ninth Circuit entered on

April 24, 2013, affirming the denial of habeas corpus relief for a federal prisoner who

challenged the Bureau

of

Prisons denial ofhis administrative requests for concurrent service

of

his state sentence. Appendix 1 By granting the writ, the Court would address whether

this Court s decision in

Setserv. United States

132 S Ct. 1463 (2012), supersedes the Ninth

Circuit s majority and concurring opinions in

Reynolds

v

Thomas

603 F.3d 1144 (9th Cir.


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2010), cert. dismissed 132 S. Ct. 1854 (2012),

and

would resolve the pervasive federal

sentencing problems regarding Executive Branch creation of

de

facto consecutive sentences

that neither the state

nor

the

federal

judge

has ordered.

1

Opinions Below

On March

31, 2003, the petitioner s initial

pros

effort

to

obtain review

oftheBOP s

refusal to implement the state concurrent sentences,

which

he filed while in state custody

in

the Southern District of

Texas under

28 U.S.C. § 2241, resulted

in

denial

of

his petition,

with

the court finding that the petitioner had no administrative remedies to exhaust. Appendix 22.

After the

petitioner was returned to federal custody

man

y years later, Mr. Cole filed again

for habeas corpus

relief

under§ 2241 after exhausting administrative remedies, this

time

while

in

federal custody

in

the District ofOregon, receiving an initial recommendation from

the magistrate judge

for

denial

of

relief. Appendix 11.

On

review, the Oregon district court

denied habeas corpus

relief on August

15, 2012, finding

the

Texas court used the

wrong

standard of eview but deferring

to

the Texas court s supposed finding that the petitionerhad

been denied

relief

for failure

to

exhaust available

rem

edies. Appendix 5.

On

April 24, 2013,

the Ninth Circuit affirmed the denial ofhabeas corpus relief

in

an unpublished opinion based

on Reynolds and

on

its conclusion

that

Setser did

not

affect previous case law. Appendix 2-

3. T

he

Ninth Circuit denied

panel and

en

bane

rehearing

on

June 7, 2013. Appendix 4.

2 Jurisdictional Statement

This Court s

jurisdiction is

invok

ed

under 28

U.S.C. § 1254(1) (2008).

2


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3. Constitutional And Statutory Provisions

The

statute authorizing sentencing

judges

to impose consecutive and concurrent

sentences states in relevant part:

a) Imposition o concurrent or consecutive terms. - f multiple

terms of imprisonment are imposed

on

a defendant at the same time, or if a

term

of

imprisonment is imposed

on

a defendant who is already subject to an

undischarged term of imprisonment, the terms

may

run concurrently or

consecutively, except that

the

terms may not run consecutively for an attempt

and

for another offense that was the sole objective of the attempt. Multiple

terms of imprisonment imposed

at

the same time run concurrently unless the

court orders

or

the statute mandates that

the

terms are to run consecutively.

Multiple terms

of

imprisonment imposed at different times run consecutively

unless the court orders that the terms are to run concurrently.

8 U.S.C. § 3584 a) 2006).

The

statute authorizing the Bureau of Prisons BOP) to

calculate credit against the term

of

imprisonment provides:

a) Commencement o sentence. - A sentence to a term

of

imprisonment commences on the date the defendant is received in custody

awaiting transportation to, or arrives voluntarily to commence service of

sentence at, the official detention facility at which the sentence is to be served.

b) Credit for prior custody.

- A defendant shall be given credit

toward the service of a term of imprisonment for any time he has spent in

official detention prior

to

the date the sentence commences -

1) as a result of the offense for which the sentence was

imposed; or

2) as a result

of

any other charge for which the defendant was

arrested after the commission of the offense for which the

sentence was imposed;

that has not

been

credited against another sentence.

8 U.S.C. § 3585 2006). The OP

has

authority to designate the place

of

imprisonment

pursuant to the statute that states

in

part:

3


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b) Place

o

imprisonment. - The Bureau of Prisons shall designate

the place of the prisoner's imprisonment. The Bureau may designate any

available penal or correctional facility that meets minimum standards ofhealth

and habitability established

by the

Bureau, whether maintained by the Federal

Government

or

otherwise and whether within or without the judicial district

in which the person was convicted, that the Bureau determines to be

appropriate and suitable, considering -

1) the resources of the facility contemplated;

(2) the nature and circumstances of the offense;

(3) the history and characteristics of the prisoner;

(4) any statement by the court that imposed the sentence -

(A) concerning the purposes for which the sentence to

imprisonment

was

determined to be warranted; or

B) recommending a type of penal or correctional facility as

appropriate; and

(5) any pertinent policy statement issued by the Sentencing

Commission pursuant

to

section 994(a)(2) of title 28.

18 U.S.C. § 362l(b) (2006). The BOP's rules pursuant to which the agency exercised

pow

er

to create a

de

facto consecutive federal sentence are set out in the Appendix at 41 and 54.

The

interaction of hese statutes and rules with subsequently imposed state sentences

implicate several constitutional provisions.

The Due

Process Clause states,

No

person

sh

all

be deprived of life, liberty, and property, without due process of law. U.S.

CONST

amend. V.

Th

e Full Faith and Credit Clause states, Full Faith a

nd

Credit shall

be

gi

ve

n in

each State to the public Acts, Records, and judicial Proceedings

of

every other State. U.S.

CONS

T. art IV,

§ 1

This provision of the Constitution applies to the federal govern

ment

through a statu

te

passed

by

the First C

on

gress, which states:

1

The BOP

's

Sentence Computation Manual,

Pro

gram Statement 5880.28,

can

be fo

und

in its entirety at http:

//

www.bop.gov/policy/

pro

gstat/5880_028.pdf.

4


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The records and judicial proceedings o any court o any such State, Territory

or Possession, or copies thereof, shall be proved or admitted in other courts

within the United States and its Territories and Possessions by the attestation

o

the clerk and seal

o

the court annexed, i a seal exists, together with a

certificate o a judge o the court that the said attestation is in proper form.

Such Acts, records and judicial proceedings or copies thereof, so

authenticated, shall have the same full faith and credit in every court within the

United States and its Territories and Possessions

as

they have by law or usage

in the courts o such State, Territory or Possession from which they are taken.

28 U.S.C. § 1738 (2006) (amended from the Act o May 26, 1790, 1 Stat. 122). The

Constitution reserves to the States authority over areas not delegated to or prohibited by the

federal government: The powers not delegated to the United States by the Constitution, nor

prohibited by it to the States, are reserved to the States respectively, or to the people. U.S.

CONST

amend. x

4 Statement f The Case

Patrick Cole was the driver in a number o Texas armed robberies, some o which

were prosecuted in state court, others in federal court. State authorities arrested him first, so

he was initially in primary state custody. Represented by the same attorney in state and

federal court, Mr. Cole pleaded guilty in state court with a plea agreement that his state

sentences would run concurrently with his federal sentence. Appendix 62. Pursuant to a writ

o

habeas corpus ad prosequendum, Mr. Cole appeared

n

federal court and pleaded guilty

to two federal robbery counts, with an agreed upward departure to 20 years. Prior to the

federal sentencing, Mr. Cole returned to state court and received sentences

o 25

years in

5


16/132

prison. The state judgments explicitly stated that the state sentences were to run concurrently

with his federal sentence.

Realizing that the federal sentence was not yet in place, the parties agreed to vacate

the state sentences, after which Mr. Cole was returned to federal court with a second writ of

habeas corpus ad prosequendum and received a sentence of twenty years, with no mention

that the sentence should be consecutive. Appendix 58. The presentence report included the

fact

of

the first 25-year concurrent state sentences, but not that the first state sentences were

vacated. The federal writ having been satisfied, Mr. Cole returned to primary state custody

the following day and received his 25-year sentences to run concurrently with the previously

imposed federal sentence, along with orders unconditionally releasing him from state custody

to begin serving his federal sentence. Appendix 62-66.

Shortly thereafter, the United States Marshal, then the BOP, took custody ofMr. Cole

and he began serving his sentence in a federal correctional institution. Under

8

U.S.C.

§ 3585(a), his federal sentence commenced at that time: A sentence to a term

of

imprisonment commences on the date the defendant

is

received in custody awaiting

transportation to the official detention facility at which the sentence

is

to be served.

Once the federal sentence commences, there is no statutory provision for interruption of he

sentence except escape or some other fault of the prisoner. Green v Christiansen 732 F .2d

1397, 1400 (9th Cir. 1984).


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For over a year

of

federal custody, the sentences operated exactly as anticipated: the

state sentences ran concurrently with the federal sentence, including a pre-existing state

parole violation for car burglary sentence that, by operation of Texas state law, ran

concurrently with the state robbery sentences.

2

Then, due to an error by the BOP regarding

the sequence of sentences, the BOP claimed that he was still in federal custody on the writ

and had to be returned to state custody to complete his sentences there.

The chronology up to this point follows:

1

January 25, 1992: Mr. Cole arrested and charged in state court with

robberies;

2. May 21, 1992: Mr. Cole appears in federal court pursuant to a writ and

pleads guilty, agreeing to an upward departure;

3. May 22, 1992: Mr Cole appears in state court and receives 25-year

sentences concurrent with the federal sentence and an order for release

to federal custody;

4. July 27, 1992: The state court vacates the state sentences and release

orders so the state concurrent sentences would be entered after the

federal sentence;

5 July 30, 1992: Mr Cole appears in federal court pursuant to a writ and

receives the agreed upward departure sentence to 20 years;

2

See

x

parte Applewhite 729 S.W.2d 706, 708 (Tex. Crim. App. 1987) (en bane)

( unless the trial court, by order, expressly makes cumulative the several punishments, they

run concurrently ) (quoting

x parte Crossnoe

232 S.W. d 855 (Tex. Crim. App. 1950)).

Mr. Cole received credit on all state sentences for the time in federal custody before he was

transferred back to the state's custody.


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6. July 31, 1992: The state court imposes sentences of 25 years to run

concurrently with the federal sentences and unconditionally orders

release to federal custody;

7

August 10, 1992: The federal government accepts custody,

commencing the service

of

the federal sentence in federal correctional

institutions;

8

August 31 , 1993: The BOP returns Mr. Cole to state custody.

The BOP returned Mr. Cole to state custody based on a simple error

of

fact: the presentence

report halted the chronology at May 22, 1992, creating the impression that the state sentence

preceded the federal sentence, when in fact the state sentence followed the federal sentence.

On April 26, 1999, the BOP responded to a letter from Mr. Cole, explaining that the transfer

occurred because he was borrowed from the state on the basis

of

a writ, even though the

state orders unconditionally released him to federal custody.

ompare

Appendix 67

with

Appendix 63-66. The BOP explicitly premised its denial of concurrency on §

362l b)

designation authority. Appendix 69. On November 24, 2000, the BOP refused the state

prosecutor's request for the federal sentence to run concurrently with his state sentence

pursuant to a plea agreement regarding his state conviction. Appendix 68.

In seeking redress from the erroneous transfer, Mr. Cole filed a pros petition for

habeas corpus under 28 U.S.C. § 2241 in Texas in 2002. After refusing to appoint counsel

or hold a hearing, the court denied relief. Appendix 22. As the Oregon district court later

found, the Texas court applied the wrong standard of review, using the extraordinarily

restrictive standard for successive challenges to convictions instead

of

he plenary review that

8


19/132

should apply to the BOP s administration of a sentence. Appendix 28 citing

Kinder v

Purdy

222 F.3d 209, 213 5th Cir. 2000)). Then, the Texas court relied on the

BOP s

ex

parte contact with the sentencing judge, eight years after the sentencing, in seeking a

recommendation whether the BOP should run the sentence concurrently by means of nunc

pr tune

designation under §

362l(b).

Appendix 36. In its ex parte letter, the BOP

perpetuated the error regarding the chronology.

The

judge stated he intended the sentences

to run consecutively, without input from Mr. Cole. In short, the Texas decision was premised

on the BOP s supposed authority under § 362l(b) to decide concurrency, with no

consideration of he statutory and constitutional problems raised by the post-sentence ex parte

contact with the sentencing judge.

In state court, Mr. Cole eventually received a sentence reduction to nine years,

essentially time served, on the robberies but remained in state custody completing his parole

violation sentence for

car

burglary, which had previously run concurrently with the federal

sentence while Mr. Cole was in federal custody. When he was finally released to his federal

detainer on March 9, 2009, Mr. Cole was deemed to be

just

starting his federal sentence.

After his transfer to federal custody, Mr. Cole exhausted his BOP administrative remedies,

receiving different responses at each level of review; at the national level, he received

concurrent

cr

edit for the time between release from state custody on October 6, 1992, and his

return to state custody on April 27, 1993. Appendix 74, 76, 80, 83. Upon filing for habeas

corpus relief in Oregon, the federal court deferred to the Texas denial of relief in 2002,


20/132

distinguishing Setser as involving a federal sentencing order rather than silence. Appendix

7. While recognizing that the Texas court applied the wrong standard of review, the district

court relied on the Texas court's supposed finding that

Mr.

Cole had not exhausted

administrative remedies, Appendix

8 even though, in fact, the Texas court found, Because

the administrative remedies required by the Bureau of Prisons appear unavailable to Cole,

the Court declines to dismiss for want of exhaustion. Appendix 29. The court found no

authority that prevents the BOP from basing the concurrency decision on ex parte contact

with the sentencingjudge. Appendix 9.

On appeal, Mr. Cole argued that this Court's decision in Setser foreclosed Executive

Branch creation ofa de facto consecutive sentence and that Ninth Circuit precedent allowing

the BOP to thwart state sentences, in the absence

of

a contrary federal judgment, did not

survive Setser s reasoning. Under this Court's reasoning in Sanders v United States, he

asserted that the earlier rulings should be re-examined in light of Setser because the ends

of

justice would be served by permitting the redetermination, especially given an

intervening change in the law. 373 U.S. 1 16-17 (1963). The Ninth Circuit affirmed the

district court's deference to the Texas decision under 28 U.S.C. § 2244(a) based on its

conclusion that Setser did not undermine the ruling and that Reynolds approved

of

the

BOP s

use

of

the post-sentencing contact with the sentencing judge to guide the agency's

exercise

of

discretion whether to run the sentences consecutively or concurrently. Appendix

2-3. The equitable grounds outlined in Sanders should have resulted in a grant

of

habeas

10


21/132

relief because the Texas decision was inconsistent with Setser, preceded the exhaustion

o

administrative remedies, and failed to address the constitutional impediments to

post-conviction modification o the federal sentence.

5

Reasons or Granting The Writ

The Court should grant certiorari to fix one o the most intractable and pernicious

problems o federal sentencing: a consecutive sentence where neither the federal nor the

state judgment ordered the sentence to be served consecutively and where the state judgment

ordered the state sentence to be served concurrently. In Reynolds, Judge Fletcher concurred,

joining two other Circuits in expressing concern regarding serious separation

o

powers

questions when the BOP creates a de facto consecutive sentence. 603 F.3d at 1160-61

citingAbdul-Malikv. Hawk-Sawyer, 403 F.3d 72, 76 (2d Cir. 2005), andFegans v United

States,

506 F.3d 1101, 1104 (8th Cir. 2007)).

The present case involves the same common scenario with due process, separation

o

powers, and comity ramifications: the defendant is arrested by state authorities and is,

therefore, in primary state custody; through a writ o habeas corpus ad prosequendum, the

defendant is placed in temporary federal custody and receives a federal sentence with no

order regarding whether the sentence is to run concurrently with or consecutively to other

sentences; and the defendant is returned to state custody, receives a sentence that the state

judge orders to run concurrentlywith the federal sentence, then is released to federal custody.

But the BOP then administers the sentence to run the federal time consecutively to the state


22/132

sentence. Mr. Cole was arrested by state authorities for robbery, then was transferred to

federal custody where he pleaded guilty to robbery and received a 20-year sentence with no

mention that the sentence would run consecutively with the pending state case. The state

judge then imposed 25-year sentences, explicitly ordering them to run concurrently with the

extant federal sentence and ordering Mr. Cole s release to federal custody to commence the

sentence. After over a year in federal custody, the BOP returned him to state custody and,

since that time, has administered the federal sentence to run consecutively to the state

sentences, in effect doubling the time of actual custody.

The

BOP s

procedures for dealing with a silent federal judgment involve obtaining

a non-binding judicial recommendation regarding

nunc pro tune

designation to the state

facility under

8

U.S.C. § 3621(b). Appendix 45-46. In other words, the federal Executive

Branch, after the federal judgment is final, can nullify the state judgment that the state

sentences would be satisfied by the previously imposed federal custody. The contact with

the federal judge - in this case eight years after the sentence was imposed - does not involve

defense counsel, does not involve the prisoner s participation, and does not include any

process for assuring no factual errors are included in the BOP s presentation.

In

Reynolds

the Ninth Circuit construed the relevant sentencing statutes to permit the

BOP to make the decision to run the sentences consecutively under § 362l(b)

notwithstanding the federal court s silence at the time

of

sentencing and the state court s

order that the state sentence run concurrently with the federal sentence. 603 F.3d at 1159.

2


23/132

In

Setser

however, this Court rejected the underpinnings of he

Reynolds

decision.

t

should,

therefore, be considered an intervening change in the law under

Sanders:

• Setser rejected the BOP's reliance on the designation statute, 18 U.S.C.

§ 362l(b), as authority for the BOP to exercise what this Court held

was the quintessentially judicial function

of

deciding whether a

sentence was to run consecutively to or concurrently with another

sentence;

•

Setser

required that the federal sentencing decision regarding

concurrency be made up front at the time

of

imposition

of

sentence

because it is always more respectful of the State's sovereignty for the

district court to make its decision up front rather than for the Bureau of

Prisons to make the decision after the state court has acted (132

S

Ct.

at 1471) (emphasis in original);

•

Setser

rejected the construction of he third sentence

of

he concurrency

statute (18 U.S.C. § 3584(a)) as creating authority for BOP sentencing,

explicitly tying the last two sentences of§ 3584(a) to situations where

the sentence previously had been or was contemporaneously imposed.

This case involves the central purposes for certiorari. The Ninth Circuit decisions conflict

with intervening Supreme Court authority in Setser so far departing from the rules of

precedent to require the exercise of this Court's supervisory power.

The issue

is

of

exceptional importance because federal sentencing issues related to

concurrency are pervasive, frequently misunderstood, and result in unfairness and waste.

The solution is simple: based on mainstream principles ofstatutory construction, applied with

due respect for the federal constitutional principles

of

finality, comity, separation

of

powers,

and due process, the Court should foreclose post-sentence federal action that thwarts a later

state judgment that its sentence should run concurrently:

13


24/132

• Under

8

U.S.C.

§

3584 a), after the date the federal judgment is

entered, a federal sentencing

judge

does not have authority to order a

sentence to run concurrently with or consecutively to a sentence not

yet-imposed;

• Federal action after imposition of the federal judgment - judicial or

executive - that thwarts a subsequent state concurrent sentence would

violate federal sentencing statutes and important federal constitutional

rights;

• Therefore, the federal statutes must either be construed to bar the BOP

from designating the place of incarceration under 8 U.S.C. § 362l(b)

in a manner inconsistent with the subsequent state judgment, or, to

achieve the same result, to recognize that a subsequent sentence ordered

to run concurrently with a federal sentence must be respected under 8

U.S.C. § 3585 b), or the federal statutes violate the Constitution to the

extent they thwart the subsequent state concurrent sentence.

The statutes and constitutional provisions underlying this simple solution effectuate this

Court s recognition that proper respect for the dual sovereignties of States and the federal

government requires that subsequent judgments - whether state or federal - must be fully

honored:

We live in the jurisdiction

of

wo sovereignties, each having its own system

of

courts to declare and enforce its laws in common territory. t would be

impossible for such courts to fulfill their respective functions without

embarrassing conflict unless rules were adapted by them to avoid it . . . . The

situation requires, therefore, not only definite rules fixing the powers of the

courts in cases of jurisdiction over the same person and things in actual

litigation, but also a spirit of

reciprocal comity and mutual assistance to

promote due and orderly procedure.

Ponzi v Fessenden 258 U.S. 254, 259 1922). By allowing each sovereign to impose as

much, or as little, punishment as that sovereign sees fit, the Court also protects the separation

ofpowers by foreclosing an agency

of

the Executive Branch - the BOP - from adopting the

14


25/132

judicial function

of

determining the length

of

the sentence a defendant serves. The Court

should grant certiorari to establish that, based on this Court's opinion in

Setser

the relevant

sentencing statutes must be construed to require the BOP to administer the sentence of a

federal prisoner to effectuate the subsequent judgment ofa state court that the state sentence

run concurrently with a previously imposed federal judgment that did not order the sentence

to run consecutively.

A. The

Supreme

Court s Opinion

In

Setser Invalidated The Reasoning Underlying

The

District Court

Decisions, Reynolds

And Other Circuit Court

Rulings.

This Court requires that lower courts adhere to the rationale as well as the narrow

holding of its prior decisions. Seminole Tribe

of

Florida v. Florida 517 U.S. 44, 66-67

( 1996) (noting the precedential effect of he rationale upon which prior decisions of he Court

are based);

County

of

Allegheny v.

Am

erican Civil Liberties Union Greater Pittsburgh

Chapte

r

492 U.S. 573, 668 (1989) ( As a general rule, the principle of stare decisis directs

us to adhere not only to the holdings of our prior cases, but also to their explications of the

governing rules of law ) (Kennedy,

J.,

concurring and dissenting). Under

stare decis

is

Sets

er s

reasoning and mode ofanalysis control. This Court's intervening decision in Se

ts

er

invalidated the reasoning of

Reynolds

as well as cases such as

Del Guzzi v. United States

980 F.2d 1269 (9th Cir. 1992), and

Ta

y lor v. Saw

ye

r 284 F.3d 1143 (9th Cir. 2002), to the

extent the Ninth Circuit approved

BOP

action that thwarted a state sentence in the absence

of a contrary federal judgment. Although the Ninth Circuit found that

Setser

did not

undermine the Texas court's ruling (Appendix 2), the Texas court, as did Reynolds

5


26/132

expressly relied on the BOP's designation authority under§ 3621(b) to make concurrency

decisions and approved of post-sentencing ex parte judicial action to trump the state

judgment that the sentences should run concurrently. Appendix 33-36. By inappropriately

limiting the scope of Setser, which expressly rejected § 362l(b)

as

creating executive

authority to make the concurrent-consecutive decision and

read§

3584(a) as requiring the

concurrent-consecutive issue to be decided up front, the Ninth Circuit has failed to comply

with this Court's prior rulings, both on the precedential effect of its rulings and on the

reasoning and rationale articulated in its governing decision.

1

Under Setser s Reasoning and Mode

of

Analysis, Where The Federal

Judgment Is Silent, The BOP Cannot Use Its 18 U.S.C. § 3621(b)

Designation

Authority

To Create A De Facto Consecutive Sentence

That

Conflicts With A Subsequent State Sentence Ordered To Run

Concurrently With The Federal Sentence.

In its narrowest holding, Setser reversed a generation

of

Ninth Circuit authority that

assumed that district courts lack authority to declare that a federal sentence should run

consecutively to or concurrently with a yet-to-be-imposed sentence. 132 S Ct. at 1468

(abrogating United States v Eastman, 758F.2d1315, 1317 (9th Cir. 1985)). This Court

in

Setser

relied on the distinction between judicial authority to declare whether a sentence

is

concurrent or consecutive and executive authority regarding the administration

of

the

sentence. The Court explicitly rejected the

BOP s

designation authority under§ 3621(b)

as

a source ofpower to decide whether a criminal sentence should be run consecutively.

Setser

should apply with special force where the BOP s consecutive sentence clashes with a

16


27/132

subsequent state judgment that its sentence runs concurrently with a federal sentence, thereby

undermining statutory and constitutional respect due to state courts. This Court recognized

that, by forbearing to order a sentence to be concurrent or consecutive, a federal court leaves

to the state court the decision whether its own state sentences should run concurrently with

an already-imposed federal sentence. Setser 132

S

Ct. at 1471-72 n.6.

Inrejectingthe government's claim

that§ 362l b)

gave the BOP the power to resolve

the concurrent-consecutive question, this Court found in Setser that the plain language of

§ 3584(a) meant the decision was judicial, not executive: When § 3584(a) specifically

addresses decisions about concurrent and consecutive sentences, and makes no mention

of

the Bureau's role in the process, the implication is that no such role exists. 132

S

Ct. at

1470. Repeatedly,

Setser

made clear that sentencing courts, and not the BOP, are the arbiters

of

the concurrent-consecutive sentencing decision:

• Judges have long been understood to have discretion to select whether

the sentences they impose will run concurrently or consecutively with

respect to other sentences that they impose, or that have been imposed

in other proceedings, including state proceedings. 132

S

Ct. at 1468.

• Congress contemplated that only district courts [as opposed to the

BOP] would have the authority to make the concurrent-vs.-consecutive

decision Id. at 1469.

• § 362l b) is a conferral

of

authority on the Bureau of Prisons, but

does not confer authority to choose between concurrent and consecutive

sentences. Id. at 1470 (emphasis in original).

• [T]he Bureau is not charged with applying [the sentencing factors of]

§ 3553(a). . . . t is much more natural for a judge to apply the

§ 3553(a) factors in making all concurrent-vs.-consecutive decisions,

17


28/132

than it is for some such decisions to

be

made

by

a judge and others

by the Bureau

of

Prisons Id. at 1470-71.

• [S]entencing [should] not be left to employees of he same Department

of Justice that conducts the prosecution. Id. at 1472.

• Yet-to-be-imposed sentences are

not

within the system

. .

. and we are

simply left with the question whether judges or the Bureau of Prisons

is responsible for them. For the reasons we have given, we think it is

judges. Id. at 1471 n.5.

The Ninth Circuit's conclusion that Setser did not undermine Reynolds fails to implement

this Court's ruling and rationale as required by

stare decisis .

The

Reynolds

majority

explicitly approved and relied on the

BOP's

authority to make the decision regarding

concurrent or consecutive service

of

a sentence using the §

362l(b) nunc pro tune

designation authority, noting Taylor found no conflict with the full faith and credit doctrine.

Reynolds, 603 F.3d at 1150.

2. The Reasoning

f

Setser Regarding The Sequence

f

Sentencing And

Up Front Decision-Making Is Firmly Based In Constitutional And

Statutorily-Required Respect For State Judgments.

The Ninth Circuit' s disregard for the full faith and credit statute in both

Reynolds

and

Taylor cannot survive Se

er s repeated rejection

of

BOP sentencing authority under

§ 3621 (b ). In

Setser,

the Court recognized the importance

of

he State's subsequent decision,

based on the federal court

's

previous action, to decide for itse

lf

the appropriate state

sentence:

In

our American system

of

dual sovereignty, each sovereign

-whether

the Federal

Government or a State - is responsible for 'the administration of [its own] criminal justice

syste[m]. ' 32 S. Ct. at 1471 (alterations in original) (quoting Oregon v. Ice, 555 U.S. 160,

8


29/132

170 (2009)

.

Dual sovereignty is a long-established principle that protects each jurisdiction's

rightto exact as much, or as little, punishment as it deems proper. Ponzi 258 U.S. at259-61;

see also Strand v Schmittroth 251 F .2d 590, 605 (9th Cir. 1957) (there is no federal

supremacy in criminal justice because the state and the central government are dual

sovereigns in the identical territory).

The interrelated doctrines o dual sovereignty, federalism, comity, and full faith and

credit establish that a federal agency cannot constitutionally supersede the subsequent state

sentencing decision o a state judge. Rather, the state and federal sovereigns must co-exist

and interact with complete mutual respect. Ponzi 258 U.S. at 259-60. In effect, the system

o primary jurisdiction operates in criminal law analogously to commercial liens - once the

first jurisdiction acts, the second is free to act independently and fully based on the previous

final disposition. Ponzi 258 U.S. at 260 ( The chief rule which preserves our two systems

o courts from actual conflict o urisdiction is that the court which first takes the subject

matter

o

the litigation into its control, whether this be person or property, must be permitted

to exhaust its remedy, to attain which it assumed control, before the other court shall attempt

to take it for its purpose. ).

In the area o general law enforcement outside areas o exclusive federal jurisdiction,

this Court in United States v Lopez noted that under our federal system, the States possess

primary authority for defining and enforcing the criminal law. 514 U.S. 549, 561 n.3

(1995). This observation is consistent with the Tenth Amendment's reservation o powers

19


30/132

to the States.

See

St. George Tucker, 1

BLACKSTONE COMMENTARIES

Appendix, at 186-87

(Birch

Small 1803) (the punishment for State [c]rimes and misdemeanors, in all cases

not exclusively within federal jurisdiction, belongs to the state jurisprudence ); THE

FEDERALIST No. 45 at 82 (James Madison) (J. & A. McLean ed., 1788) ( The powers

reserved to the several States will extend to all the objects, which, in the ordinary course of

affairs, concern the lives, liberties, and properties of he people; and the internal order of

the State. ). Each sovereign has the power to impose as much or as little punishment for the

crime as the sovereign desires.

The federal government's ability to set punishment was not compromised or

constrained where, as in the present case, the federal sentencing judge determined that 240

months incarceration was appropriate. The Ninth Circuit 's disregard for the state court is

based on the incorrect premise that respect for a state sentence is a limit on federal

authority.

See Taylor

284 F.3d at 1153 ( We hold that the [Full Faith and Credit] Act does

not apply to an attempt to enforce a state criminal sentence to limit a federal sentence for a

federal crime. ) (cited in

Reynolds

603 F.3d at 1150-52). But respect forthe state court does

not limit the federal sentence. The state sentence subsequently ordered to run concurrently

does not impact the federal sentencing authority because the federal 240 months must be

served. The State interest is simply that its conviction and sentence do not require more than

the time previously imposed by the federal court. The federal government must give effect

to the State's concurrent sentence because the subsequent sentencing only asserted the State's

20


31/132

own power, with no concomitant diminution offederal authority.

See Kelly v. Robinson

4 79

U.S. 36, 4 7 (1986) ( The right to formulate and enforce penal sanctions is an important

aspect of he sovereignty retained by the States. );

Youngerv. Harris 401U.S.37

44 (1971)

( [T]he National Government will fare best ifthe States and their institutions are left free to

perform their separate functions in their separate ways. ).

Federal post-judgment action that trumps a subsequent state concurrent sentence

would violate the principle of full faith and credit for sovereign judgments. From the first

days of the Republic, Congress extended the Full Faith and Credit Clause to the federal

government by statute. See 28 U.S.C. § 1738; Davis v Davis 305 U.S. 32, 39-40 (1938).

The full faith and credit obligation requires federal courts to give the same preclusive effect

to state court judgments that those judgments would be given in the courts

of

he State from

which the judgments emerged. Kremer v Chem. Constr. Corp. 456 U.S. 461 , 466 (1982).

The evils of introducing a general system of re-examination of the judicial

proceedings of other states, whose connexions are so intimate, and whose

rights are so interwoven with our own, would far outweigh any supposable

benefits from an imagined superior justice in a few cases. Motives

of

his sort,

founded upon an enlarged confidence, and reciprocal duties, might well be

presumed to have entered into the minds of the framers of the confederation,

and the constitution. They intended to give, not only faith and credit to the

public acts, records, and judicial proceedings of each of the states, such as

belonged to those of all foreign nations and tribunals; but to give to them

full

faith and credit; that is , to attribute to them positive and absolute verity, so that

they cannot be contradicted, or the truth of them be denied, any more than in

the state, where they originated.

Joseph Story, 3

COMM

ENT

ARI

ES

ON TH

ECONSTITUTION

OF

THEUNITED STATES § 1304, at

187 (Boston, Hilliard, Gray Co. 1833) (emphasis in original; footnotes omitted). By

2


32/132

disregarding the properly imposed state judgment that the state offense required no more

incarceration than had previously been imposed, the BOP violated the integrity of he state

proceedings and deprived the resulting judgment of the positive and absolute verity

required by the Full Faith and Credit Act.

3. The BOP s Reliance On Its x Parte Contact With The Sentencing Judge

Eight Years After The Sentencing Hearing Violated The Full Range

f

Sentencing Due Process Protections.

Based on Reynolds the Ninth Circuit found that the executive agency's ex parte

contact with the sentencing judge eight years after the sentencing hearing raised no problems

under Setser even though the purpose was to provide non-binding guidance for executive

creation

of

a concurrent or consecutive sentence. Appendix at 2-3. In Setser this Court held

that [w]hen 3584(a) specifically addresses decisions about concurrent and consecutive

sentences, and makes no mention of he Bureau's role in the process, the implication is that

no such role exists. 132 S Ct. at 1470. To the same extent, the designation statute is silent

on concurrent-consecutive questions, leaving the implication that no role exists for the BOP

making such decisions through designation authority. 18 U.S.C. § 3621(b)(4)(A) & (B).

After Setser Reynolds cannot authorize the BOP to increase the length of he period ofactual

custody based on post-hearing ex parte contact with the sentencing judge.

Most basically, any post-sentencing proceeding that can result m additional

incarceration constitutes a critical stage requiring the participation of counsel. Mempa v

Rhay

389 U.S. 128, 133-34 (1967). In fact,

Mempa

involved a post-sentencing proceeding

22


33/132

where the need for counsel arose because the sentencing judge would make a

recommendation that would affect the period of confinement, id. at 135,

just

as the judge

made a recommendation in the present case that effectively doubled the period of

incarceration. In

Mempa

this Court described the defense attorney s essential role in a

proceeding that involved a non-binding judicial recommendation to advocate for the

defendant:

[T]he sentencing judge is required by statute, together with the prosecutor, to

furnish the Board with a recommendation as to the length of time that the

person should serve, in addition to supplying it with various information about

the circumstances of he crime and the character of he individual. Wash. Rev.

Code § 9.95.030. We were informed during oral argument that the Board

places considerable weight on these recommendations, although it is in no way

bound by them. Obviously to the extent such recommendations are influential

in determining the resulting sentence, the necessity for the aid of counsel in

marshaling the facts, introducing evidence ofmitigating circumstances and in

general aiding and assisting the defendant to present his case as to sentence is

apparent.

Mempa 389 U.S. at 135. In the present case, defense counsel s function would have

included presenting the correct sequence of sentencing, reminding the court

of

the

presentence report s notation of the state concurrent sentences, and advocating for the

coordinated resolution of both state and federal cases based on the stipulated upward

departure in the federal case to accommodate the state plea bargain.

Just as the Washington statute in

Mempa

provided for a judicial recommendation, the

BOP based its procedure on the federal sentencing statute s provision for judicial

recommendations

on

designation. 8 U.S.C. § 362l(b)(4). s anticipated in Mempa the

23


34/132

absence

of

counsel resulted in unfairness, especially given the

Court's

concern that rights

may be lost ifnot exercised at this stage. 389 U.S.

at

135. Once the BOP had the judicial

recommendation and acted on it, Mr. Cole lacked counsel, resulting in a lackofevidence and

advocacy in the Texas district court, which ultimately received deference from the Oregon

courts. The factual errors that the BOP incorporated into its contact with the sentencing

judge in the present case vividly illustrate the need for full due process at proceedings

affecting the length of time in custody.

The Ninth Circuit 's approval of he ex parte contact regarding the length of sentence

runs counter to this Court's precedent regarding adversary sentencing proceedings. Lankford

v

Idaho

500 U.S. 110, 127 (1991) (describing the critical role that the adversary process

plays in our system of justice ) (citing

Gardner

v

Florida

430 U.S. 349, 360 (1977)).

Contacts by government agents with a sentencing judge regarding the time that should be

served violate a criminal defendant's fundamental due process rights.

Lankford

500 U.S.

at 126 ( Notice of issues to be resolved by the adversary process is a fundamental

characteristic ofa fair procedure. );

see United States v. Alverson

666 2d 341, 348-50 (9th

Cir. 1982) (finding due process violation from ex parte contact by government agent with

sentencing judge) (citing

United States

v

Wolfson

634 F.2d 1217, 1221 (9th Cir. 1980)).

In this case, the agents of the same Departme

nt

of Justice that prosecuted Mr. Cole contacted

the sentencing judge, with no notice to opposing counsel or to the defendant, and obtained

a statement that is

now

being used to nearly double Mr. Cole's time in custody.

24


35/132

Setser s reasoning rests on the assumption that, for consecutive and concurrency

questions, the federal judgment imposed based on the sentencing hearing is the final word.

See Dillon

v

United States,

130 S Ct. 2683, 2690 (2010) ( [A]judgment o conviction that

includes [a sentence

o

imprisonment] constitutes a final judgment and may not be modified

by a district court except in limited circumstances ) (citing 18 U.S.C. § 3582(c)). Otherwise,

this Court would not have pointed to the comity interest

in

deciding the concurrency

question, or forbearing to rule on the subject, up front, before the state imposes sentence.

Setser, 132 S Ct. at 1471. The requirement

o

an up front decision prevents the high risk

o

error, which provides the strongest reason for the notice and adversary proceedings

required during sentencing.

Laniford,

500 U.S. at 127. Here, the federal sentencingjudge

knew o he concurrent state sentences at the time o sentencing from the presentence report,

but may well have forgotten eight years later with no advocate for the defense to point out

the presentence report paragraph on the state concurrent sentences and that the agreed

upward departure was premised on the state plea bargain for concurrent sentences. The

Court should reverse the Ninth Circuit's approval

o post-sentencing ex parte procedures that

increase the actual time

o

custody and thwart the State's decision that its sentencing interests

are fully served with a concurrent sentence.

25


36/132

4. Reliance

On

The

Third

Sentence Of18 U.S.C.

§

3584(a) To Authorize The

BOP

To

Make

Concurrent-Consecutive Decisions Does Not SurviveSetser

Because This

Court

Limited That Sentence To Not Apply To Terms of

Imprisonment Not Yet Imposed.

In

Reynolds

both the majority and the concurrence assumed that the third sentence

in§ 3584(a) applied to yet-to-be-imposed sentences. 603 F.3d at 1148, 1154-55, 1158, 1161.

Setser

rejected that assumption. In

Setser

the Court held

that§

3584(a) did not encompass

all sentencing authority, but only addressed multiple terms

of

imprisonment imposed, as

stated in the subsection's first sentence, at the same time or on a defendant who is already

subject to an undischarged term ofimprisonment. In explaining the scope of he subsection,

the Court stated in

Setser

And the last two sentences of § 3584 (a) say what will be

assumed in those two common situations if the court does not specify that the sentence is

concurrent or consecutive. 132 S. Ct. at 1470. Thus, this Court has explicitly rejected the

reading, which the concurrence saw as not an implausible construction of the statute.

Reynolds

603 F.3d at 1159 (Fletcher, J

.

concurring);

see Elwell

v

Fisher

716 F.3d 477,

484-87 (8th Cir. 2013) (the BOP correctly interpreted the district court 's silence as requiring

consecutive sentences pursuant to § 3584(a), subject to § 362l(b) discretion based on a

judicial recommendation). What was once not implausible in

Reynolds

- that the third

sentence applied to yet-to-be-imposed sentences - is now irreconcilable with language in

Setser

that was not addressed in

Elwell.

The application of§ 3584(a)'s third sentence to sentencing court silence conflicts with

the statutory finality

of

federal judgments. In

Dillon

this Court held that a federal judgment

26


37/132

that is final cannot be modified unless limited statutory circumstances are established. 130

S Ct. at 2690. The statutory limitations on reopening proceedings to make the sentence de

facto consecutive based on a recommendation implicate constitutional protections related to

the finality of judgment, especially where the federal sentence had commenced under

§

3585(a).

See United States

v

Bergmann

836 F.2d 1220, 1221-22 (9th Cir. 1988) (oral

pronouncement ofsentence governs because the constitutional double jeopardy protections

and the defendant's right to be present at the time

of

sentencing . . . require strict

adherence. ).

Because the Ninth Circuit 's decision relies on Reynolds and Reynolds depends on the

rejected reading of§ 3584(a)'s third sentence, the Court should grant certiorari to bring this

case into conformity with this Court 's controlling precedent.

5. Because No Party In Setser Asserted

The

State Interest

In The

Integrity

Of The

State

Court

Judgment, The Court Should

Grant

Certiorari To

Expressly Address

The

Federalism, Comity,

And

Full-Faith-And-Credit

Reasons For Deference To

The State

Judgment.

In

Setser

both parties agreed that the BOP, not the sentencingjudge,had the authority

to decide the issue ofconcurrency in the context of he federal and state sentences where the

federal judgment ordered a consecutive sentence.

Setser

133 S. Ct. at 1467. As a

consequence, the Court appointed an amicus curiae, who argued that the federal judge, not

the BOP, had the authority to decide the concurrency question regarding a yet-to-be-imposed

state sentence. The Court adopted the amicus curiae position, ruling that the federal judge,

by deciding concurrency up front , provided the subsequent state sentencingjudge with the

27


38/132

baseline of the federal sentence upon which the following state sentence would be imposed.

Because the federal judgment spoke to the concurrency issue in

Setser

and no party argued

for respect for the state court judgment, the Court did not fully address the constitutional and

statutory reasons that the BOP could not lawfully trump a state judgment of concurrency

where the federal judgment was silent on the concurrent-consecutive issue.

In its ruling, the Court implicitly recognized respect for the state sentence by finding

that the federal decision had to be made up front.

Setser

132

S

Ct. at 1471. The federal

court could either make the concurrency decision or decide to forbear making such a

decision, using the same language

as in

Ponzi on forbearance in the context

of

state and

federal dual prosecutions.

Compare Setser

132

S

Ct. at 1472 n.6 (the district court may

forbear from exercising the power to make the concurrent-consecutive decision regarding

an anticipated sentence)

with Ponzi

258 U.S. at 260-61 (noting the forbearance of courts

with co-ordinate jurisdictions that avoids interference with the principle ofcomity) (quoting

Covell

v

Heyman 111U.S.176 182 (1884)). The constitutional and statutory interests in

the integrity of the state judgment should govern where, as here, the federal judgement did

not declare on the concurrent-consecutive issue.

While

Setser

was pending, this Court considered a petition raising the same question

regarding Executive Branch creation

of

de facto consecutive sentences where, in the face

of

federal silence in the federal judgment, post-sentence federal action thwarts the later state

judgment that the sentences should run concurrently. In

Reynolds

upon which both the

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district court and the Ninth Circuit relied in the present case, this Court held the petition for

certiorari filed on November

12

2010, through nine relistings until Mr. Reynolds died,

resulting in

an

order dismissing the petition for certiorari on April 2, 2012. Reynolds v.

Thomas

Clerk s Docket Sheet, Sup. Ct. No. 10-7502. The present case should be reviewed

to fill the missing piece of concurrent-consecutive analysis based on the interests of

federalism, separation

of

powers, comity, and full faith and credit for the judgments

of

co-

equal state sovereigns.

B.

The Court

Should

Grant Certiorari

Because Executive

Branch

Creation Of De

Facto Consecutive Sentences Raises

Extraordinarily Important

Issues

That

Frequently Occur In

The

Federal

Criminal

Justice System.

The question presented involves issues of exceptional importance in the criminal

justice system. The federal statutes on concurrent and consecutive sentencing have been

recognized

as

an area of confusion, misunderstanding, and unfairness. This case provides

the Court with an excellent vehicle to bring rationality and justice to an exceptionally

important area of the law.

1.

Confusion

Regarding Federal

And State

Concurrent

Sentencing

Frequently

Gives Rise To

Errors nd

Injustice.

The reality of prisoners serving consecutive sentences that have not been ordered by

either the state or federal judge, but only resulted from the administrative decisions of the

same Department of Justice that prosecuted the case, cries out for this Court s response. In

Reynolds

Judge Fletcher concurring joined two other Circuits in calling for Congress to

address legislatively the troubling BOP practices that convert concurrent sentences into de

29


40/132

facto consecutive sentences. Reynolds, 603 F.3d at 1160-61. This concern is not new: over

twenty years ago, a judge concurred to decry the injustice

of a BOP de facto consecutive

sentence that resulted in a defendant spending years in prison that neither the federal nor the

state sentencing court anticipated. Del Guzzi, 980 F.2d at 1271 (Norris, J., concurring).

This Court should definitively construe the relevant sentencing statutes to remedy this

anomalous injustice without new legislation.

The need for clarity in this area has long been recognized by the players in the federal

criminal justice system. The BOP itself has described the current state of the concurrent

consecutive law

as

probably the single most confusing and least understood federal

sentencing issue. Henry J Sadowski, BOP Regional Counsel, Interaction OfFederal nd

State Sentences When The Federal Defendant Is Under State Primary Jurisdiction, at 1 (July

7, 2011). The Government Accountability Office has identified the

BOP s

decisions to run

sentences concurrently or consecutively as creating potential over-incarceration given that,

during the 2011 fiscal year, 386 requests to serve sentences concurrently were denied. GAO,

Eligibility

and

Capacity Impact Use

of

Flexibilities to Reduce Inmates Time in Prison,

at

29 (February 2012). Criminal defense attorneys frequently admit to confusion and mistakes

based on the lack of clarity in this area of the law.

See

Brief of the Ninth Circuit Federal

Public And Community Defenders And The Arizona Attorneys For Criminal Justice In

Support

of

Petition for a Writ

of

Certiorari, Reynolds

v

Thomas, 132

S

Ct. 1854(2010) (No.

10-7502), 2010 WL 5178045, at *6-8.

30


41/132

2. The Present Case Provides An Appropriate Vehicle For Re Examining

Sentencing Statutes In Light

fSetser

And Constitutional Considerations.

The present case starkly presents the relevant issues that should have resulted in a

fresh look at the Ninth Circuit s construction

o

the sentencing statutes in light

o Setser.

Two o this Court s rules o statutory construction should have guided the Ninth Circuit to

a different result based on the facts o this case.

First, in the context o federalism, this Court has recognized a rule o statutory

construction requiring a clear statement from Congress where federal regulation impinges

on an area traditionally within the States police power. Gregory v Ashcroft 501 U.S. 452,

460-61 (1991). The federal statute on concurrent and consecutive sentences includes not a

whisper suggesting that post-sentencing federal action can trump a subsequent state

concurrent sentence where the federal judgment is silent on the subject. 18 U.S.C. § 3584.

Since the States are at least co-equal in the area o criminal justice,

Lopez

514 U.S. at 561

n.3, the absence o

any

statutory authority for federal actors to trump a state court decision

regarding concurrency should foreclose the Ninth Circuit s interpretation.

Second, under the doctrine o constitutional avoidance, the Court should construe the

relevant sentencing statutes to avoid the serious constitutional problems raised by executive

sentencing that thwarts a subsequent state judgment.

See Clark v Martinez

543 U.S 371 ,

3 80-81 (2005). The post-sentencing administrative procedures that decide the actual period

o incarceration - not the place or conditions o incarceration - impinge upon basic statutory

as well as constitutional protections: the full faith and credit statute and comity requirements

31


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o respect for state actions; the Tenth Amendment's reservation

o

State's rights; the

separation

o

powers violated by executive action that decides the length o incarceration;

the broad array o procedural due process protections missing from the post-sentencing

actions regarding quintessential sentencing issues.

Applying these rules o construction, in light

o

Setser

the Court has alternative routes

to relief:

1) 18

U.S.

C.

§ 3621 (b) should be construed to bar exercise

o

designation authority

that thwarts subsequently imposed state concurrent sentences; 2)

18

U.S.C. §§ 3584(a),

3582(c), and 3585(a) should be construed to bar post-judgment federal action that extends

the period o actual incarceration by rendering a subsequent state concurrent sentence in fact

consecutive; or 3) 18 U.S.C. § 3585(b) should be construed to permit sentence calculations

that respect subsequent concurrent state sentences by treating cross-referenced judgments as

not another sentence.

3

Without such construction, the statutes are unconstitutional as

applied to

Mr.

Cole.

3

Where, as in the present, the state judgment expressly references the federal judgment,

the plain meaning

o §

3585(b) should allow credit because the sentence is not another in

the common meaning

o

different or distinct from the one first named or considered.

WEBSTER S

THIRD NEW

INTERNATIONAL DICTIONARY at 89 (1993). The term is at least

amenable to that construction in the context

o

the rules

o

construction on federalism and

constitutional avoidance.

32


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3

The

Court Should Grant Certiorari to Address

The

Manifest Injustice

Of

A Sentence Doubled y Federal Executive Action

That

Trumped A Valid

State Court Judgment

Mr. Cole is living a nightmare. Over twenty years ago, his attorney negotiated a deal

to resolve both state and federal cases that imposed a

stiff

sentence for his crimes but

contemplated release, with good time credits, after serving about seventeen years in prison.

He is now working on twenty-two years of actual custody, with a projected release date in

2025.

o

judge ever ordered his sentences to be served consecutively; the only reason Mr.

Cole agreed to a substantial upward departure on his federal sentence was to provide the base

upon which the state concurrent sentences would

be

served.

Mr. Cole has calmly and consistently resorted to the BOP and to the courts for help.

The BOP changed its theory for denying concurrency with the state sentences at every level

of administrative review. The Texas district court used the wrong standard of review, then

the Oregon district court deferred to the Texas court on an exhaustion ground that the Texas

court explicitly did

not

rely upon. On appeal, the panel did not re-examine this Court s prior

cases that are inconsistent with the express language ofSetser

Mr. Cole should have been released to supervision four years ago. This Court should

grant certiorari not only to bring order to a chaotic area

of

law but to bring justice to an

individual who is suffering incarceration grossly disproportionate to his plea bargain and to

his crimes.


44/132

6

onclusion

For the foregoing reasons, the Court should issue a writ

o

certiorari for plenary

review o the Ninth Circuit s ruling or, in the alternative, grant certiorari, vacate the

judgment, and remand the case for consideration in light

o

the underlying reasoning

o

Setser

Dated this 3rd day

o

September, 2013.

Stephen . Sady


34


45/132

No.


OF THE

UNITED STATES

P TRICK

COLE,

Petitioner,

v .

MARION FEATHER, WARDEN,

Respondent.

On

Petition

For

Writ

Of

Certiorari To


Of

Appeals


CERTIFICATE

OF

SERVICE AND MAILING

I, Stephen R. Sady, counsel of record and a member of the

Bar

of this Court, certify

that pursuant to Rule 29.3 , service has been

made of

he within PETITION

FOR

WRIT OF

CERT ORARI

on

the counsel for the respondent by hand-delivery

on

September 3, 2013, an

exact and full copy thereof addressed to:

Natalie K. Wight

Kelly A. Zusman

Assistant U.S. Attorneys

1000

SW

Third, Suite 600

Portland, Oregon 97204


46/132

and by depositing in the United States Post Office in Portland Oregon on September 3

2013 first class postage prepaid an exact and full copy thereof addressed to:

Donald B. Verrilli Jr.

Solicitor General o the United States

Room 5614

Department o Justice

950 Pennsylvania Avenue N.

W

Washington DC 20530-0001

Further the original and ten copies were mailed to the Honorable William K Suter

Clerk o the United States Supreme Court by depositing them in a United States Post Office

Box addressed to 1 First Street N.E. Washington D.C. 20543 for filing on this 3rd day

o

September 2013 with first-class postage prepaid.

Dated this 3rd day o September 20

Stephen . Sady


Subscribed and sworn to before me this 3rd day o Septembe1

OFFICIAL

SEAL

JILL DOZ RK

NOTARY PUBLIC OREGON

COMMISSION

NO.

4427 7

MY COMMISSION EXPIRES

OCTOBER

28 2013

2


47/132

* This disposition is not appropriate for publication and is not precedent

except as provided by 9th Cir. R. 36-3.

** The Honorable Lee H. Rosenthal, District Judge for the U.S. District

Court for the Southern District of Texas, sitting by designation.

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PATRICK D. COLE,

Petitioner - Appellant,

v.

J.E. THOMAS, Warden,

Respondent - Appellee.

No. 12-35678

D.C. No. 3:12-cv-00412-ST

MEMORANDUM*

Appeal from the United States District Court

for the District of Oregon

Marco A. Hernandez, District Judge, Presiding

Argued and Submitted April 10, 2013

Pasadena, California

Before: TALLMAN and M. SMITH, Circuit Judges, and ROSENTHAL, District

Judge.**

Petitioner-Appellant Patrick D. Cole (Cole), a federal prisoner, appeals the

Oregon district court’s dismissal of his petition for a writ of habeas corpus

FILED

APR 24 2013

MOLLY C. DWYER, CLERU.S. COURT OF APPEALS

Case: 12-35678 04/24/2013 ID: 8603337 DktEntry: 26-1 Page: 1 of 3

A-1


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pursuant to 28 U.S.C. § 2241. We have jurisdiction under 28 U.S.C. § 2253, and

we affirm.

The District Court for the Southern District of Texas previously considered

the legality of the Bureau of Prisons’s (BOP) administration of Cole’s sentence

when it reviewed and dismissed Cole’s habeas petition to that court in 2002. The

Oregon district court therefore properly dismissed Cole’s 2012 petition as

successive under 28 U.S.C. § 2244(a). The recent case of Setser v. United States,

132 S. Ct. 1463 (2012), does not undermine this determination.

Additionally, the BOP’s letter to the judge who imposed Cole’s federal

sentence did not violate Cole’s rights. The BOP “ultimately has to determine how

long the District Court’s sentence authorizes it to continue [a prisoner’s]

confinement.” Setser , 132 S. Ct. at 1473. The BOP by statute considers “any

statement by the court that imposed the sentence concerning the purposes for

which the sentence to imprisonment was determined to be warranted or

recommending a type of penal or correctional facility as appropriate.” 18 U.S.C. §

3621(b)(4). The BOP interprets § 3621 to authorize recognition of state prison

time, inter alia, “when it is consistent with the intent of the federal sentencing

court . . . .” Reynolds v. Thomas, 603 F.3d 1144, 1150 (9th Cir. 2010) (citing BOP

Program Statement 5160.05 (January 16, 2003)). Because the letter to the district

judge attempted to determine the intent of the federal sentencing judge, it was not a


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due process violation. See, e.g., Reynolds, 603 F.3d at 1153 (W. Fletcher, J.,

concurring) (“The federal Bureau of Prisons (‘BOP’) acted properly in construing

the sentencing judge’s answer to the BOP’s letter.”).

AFFIRMED.


A-3


50/132

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PATRICK D. COLE,

Petitioner - Appellant,

v.

J.E. THOMAS, Warden,

Respondent - Appellee.

No. 12-35678

D.C. No. 3:12-cv-00412-ST

District of Oregon,

Portland

ORDER

Before: TALLMAN and M. SMITH, Circuit Judges, and ROSENTHAL, District

Judge.*

The panel has unanimously voted to deny the petition for panel rehearing.

Judges M. Smith and Tallman have voted to deny the petition for rehearing en

banc, and Judge Rosenthal so recommends. The full court has been advised of the

petition for rehearing en banc and no judge of the court has requested a vote on it.

Fed. R. App. P. 35(f).

The petition for panel rehearing and rehearing en banc (Docket No. 27) is

therefore DENIED. No further petitions for panel or en banc rehearing will be

entertained in this case.

FILED

JUN 07 2013

MOLLY C. DWYER, CLERKU.S. COURT OF APPEALS

* The Honorable Lee H. Rosenthal, District Judge for the U.S. District

Court for the Southern District of Texas, sitting by designation.

Case: 12-35678 06/07/2013 ID: 8659044 DktEntry: 28 Page: 1 of 1

A-4


51/132

1 - ORDER

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

PORTLAND DIVISION

PATRICK COLE, No. 03:12-CV-412-ST

Petitioner, ORDER

v.

J.E. THOMAS, Warden, FCI Sheridan,

Respondent.

Stephen R. Sady

Office of the Federal Public Defender

101 SW Main Street, Suite 1700

Portland, OR 97204


Natalie K. Wight

United States Attorney’s Office

1000 SW Third Avenue, Suite 600

Portland, OR 97204

Attorney for Respondent

Case 3:12-cv-00412-ST Document 23 Filed 08/15/12 Page 1 of 6 Page ID#: 345

A-5


52/132

2 - ORDER

HERNANDEZ, District Judge:

Magistrate Judge Stewart issued a Findings and Recommendation (#1

Cole Petition for Certiorari

Documents

Transcript of Cole Petition for Certiorari