United States v. Eccleston

FILED
United States Court of Appeals
Tenth Circuit

March 31, 2008
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Respondent - Appellee,
v. No. 07-2123
SEBASTIAN ECCLESTON,

Petitioner - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
(D.C. NO. CIV-04-250 LH/CG)

Brian A. Pori, Inocente, P.C., Albuquerque, New Mexico, for Defendant/Movant -
Appellant.

Kyle T. Naybak, Assistant United States Attorney, (Larry Gómez, Acting United
States Attorney, and Robert D. Kimball, Assistant United States Attorney, on the
brief), Office of the United States Attorney, Albuquerque, New Mexico, for
Plaintiff/Respondent - Appellee.

Before LUCERO, HARTZ, and GORSUCH, Circuit Judges.

HARTZ, Circuit Judge.

Sebastian L. Eccleston appeals the decision by the United States District

Court for the District of New Mexico denying relief on his pro se habeas
application under 28 U.S.C. § 2241. Mr. Eccleston is in the custody of the New

Mexico Corrections Department, serving a state sentence for first-degree murder

and conspiracy to commit first-degree murder committed on December 13, 1994.

He has also been sentenced in federal court for offenses committed two days

later: carjacking, see 18 U.S.C. § 2119(1); carrying a firearm during a crime of

violence, see id. § 924(c); and violating the Hobbs Act, see id. § 1951(a)

(interference with commerce by threat or violence). He seeks to serve his state

and federal sentences concurrently in a federal facility and to have his prior time

in state custody credited to his federal sentence. The district court dismissed the

§ 2241 application without prejudice on the ground that Mr. Eccleston had failed

to exhaust his administrative remedies with the federal Bureau of Prisons (BOP).

We set aside that dismissal and remand with instructions to dismiss

Mr. Eccleston’s § 2241 application with prejudice, because the application fails to

raise any viable claim.

I. BACKGROUND

A. Sentencing in State and Federal Courts

Mr. Eccleston pleaded guilty in federal and state court on the same day,

May 3, 1996. The federal government did not promise, either in the draft of the

negotiated plea agreement or in the final plea agreement, that Mr. Eccleston’s

federal sentence would run concurrently with the state sentence, nor did it

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promise where he would serve his sentences. During plea negotiations the United

States Attorney’s Office wrote Mr. Eccleston’s counsel:

No one can guarantee what sentence [the federal district court] would
give under the GUIDELINES and no one can guarantee when your
client would be transferred to the [BOP] if he received a concurrent
sentence, but this offer would give him the chance to litigate the
question of whether his federal and state sentences would be
consecutive or concurrent.

Aplee. Supp. App. at 108. The plea agreement signed by Mr. Eccleston

disclaimed any agreement to a specific sentence, stating, “There have been no

representations or promises from anyone as to what sentence the court will

impose.” Id. at 24. When asked at the federal plea hearing whether his guilty plea

had been induced by any promises or assurances other than what was contained in

the plea agreement, Mr. Eccleston responded, “No, Your Honor.” Id. at 31.

During the sentencing hearing on October 29, 1996, Mr. Eccleston’s lawyer did

not mention concurrent sentencing or any concern about where Mr. Eccleston

would serve his federal or state sentence. The district court imposed a sentence

of 417 months in prison, to be followed by three years of supervised release. The

sentence made no reference to any state sentence.

Mr. Eccleston pleaded guilty in state court a few hours after pleading in

federal court. The state plea agreement provided that Mr. Eccleston’s state term

of imprisonment would run concurrently with any federal term. On November 7,

1996, the state court sentenced Mr. Eccleston to life imprisonment, plus nine

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years. The sentence provided that it would “run . . . concurrent[ly] with [the]

Federal Prison Sentence defendant is now serving.” Aplt. App. at 28.

B. Postconviction Proceedings

Mr. Eccleston appealed his federal sentence on the ground that the district

court had erred in imposing 10-year and 20-year sentences under § 924(c). We

affirmed in United States v. Eccleston, 132 F.3d 43 (10th Cir. 1997) (unpublished

table decision). On May 4, 2001, Mr. Eccleston filed a pro se motion for relief

under 28 U.S.C. § 2255, claiming that his counsel had been ineffective because he

had induced Mr. Eccleston to plead guilty based on the “false and inaccurate

promise” that Mr. Eccleston would serve the sentence in federal custody. Aplee.

Supp. App. at 71. The district court denied the motion as time-barred, and he did

not attempt to appeal.

On March 5, 2004, Mr. Eccleston filed a second § 2255 motion. The

district court transferred the motion to this court as a motion for authorization to

file a second-or-successive § 2255 motion. See 28 U.S.C. §§ 1631 (authority to

transfer), 2255 (requiring court of appeals order authorizing second-or-successive

motion). On October 17, 2005, we vacated the transfer order and remanded to the

district court with instructions to treat the motion as an application for habeas

relief under 28 U.S.C. § 2241. The following month counsel entered an

appearance for Mr. Eccleston in district court and contended that he should be

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committed to a federal rather than a state institution and that his prior service in a

state institution should be credited to his federal sentence.

Meanwhile, Mr. Eccleston had initiated communications with the BOP

regarding his sentences. On September 21, 2003, he wrote the BOP, asking

whether his federal sentence was being served concurrently with his state

sentence. He then contacted the BOP’s South Central Regional Office, which

informed him on May 13, 2004, that he was not in the custody of the BOP, that he

had not provided a copy of the federal judgment and commitment order necessary

to determine the status of his federal sentence, and that the BOP lacked authority

to order a state to transfer an inmate into federal custody.

Also, the state district attorney, in response to a state-court habeas

proceeding brought by Mr. Eccleston, sought to resolve Mr. Eccleston’s

concurrent-sentence claim by means of BOP Program Statement 5160.05 (the

BOP Statement), which establishes procedures for a state to request the BOP to

designate a state institution as the place to serve a federal sentence concurrently

with a state sentence. 1 The district attorney asked the United States Attorney to

1
BOP Program Statement 5160.05(9)(b)(5) states:

State Request. Occasionally, a Regional Office receives a request from a
state jurisdiction indicating that the state and federal sentences are to be served
concurrently, whether by state court order or department of corrections referral.

(a) The [Regional Inmate Systems Administrator] will gather and review
all information pertaining to the federal and state sentences. After reviewing this
(continued...)

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consent to a request by the district attorney and Mr. Eccleston’s state counsel for

the BOP to designate the New Mexico Department of Corrections for the

concurrent service of Mr. Eccleston’s state and federal sentences and to give him

retroactive credit on his federal sentence for time served in state custody since the

imposition of his federal sentence. The U.S. Attorney’s Office drafted letters to

the court and the BOP consenting to the request, although the draft letter to the

court stated that Mr. Eccleston would terminate his state and federal habeas

proceedings if the BOP granted the request. In response, Mr. Eccleston’s counsel

said that Mr. Eccleston preferred to seek judicial relief first.

The district court issued an order on April 3, 2007, dismissing as untimely

Mr. Eccleston’s request to be placed in BOP custody. See Dulworth v. Evans, 442

F.3d 1265, 1267–68 (10th Cir. 2006) (28 U.S.C. § 2244(d)(1)’s one-year

limitation period applies to § 2241 applications challenging administrative

1
(...continued)
information carefully, if necessary, the RISA will correspond with the federal
sentencing court to ascertain whether it has any objections to the federal and state
sentences running concurrently. A courtesy copy of this correspondence will be
forwarded to the appropriate U.S. Attorney. . . .

(b) If the court has no objections, the state institution may be designated
as the place to serve the federal sentence concurrently with the state sentence,
according to the procedures detailed in this Program Statement.

Note: The Bureau will not, under ordinary circumstances, such as
overcrowding in a state institution, accept transfer of the
inmate into federal custody for concurrent service.

Aplee. Supp. App. at 94.

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decisions). The court then conducted a hearing on April 23 on the concurrent-

sentence issue. At the hearing Mr. Eccleston’s counsel indicated that he was

prepared to execute the proposed agreement if the agreement was without

prejudice to his claim that he should serve his sentences in a federal facility. He

explained:

The only reason we haven’t [executed an agreement under the BOP
procedure] before this was the understanding between [the Assistant
U.S. Attorney] and myself that, if Mr. Eccleston pursued this remedy
of simply concurrent sentences, he would not be entitled to pursue
the other remedy which he believed was promised to him both in the
state and federal proceedings, namely, that the federal judge would
designate the [BOP] for service of sentence, and would designate a
particular BOP facility for the service of both the state and federal
sentence.

Aplee. Supp. App. at 125–26. After the hearing the court denied without

prejudice the concurrent-sentence claim, concluding that Mr. Eccleston had not

exhausted his available administrative remedies with the BOP.

II. DISCUSSION

To determine what is before us, we must start with our prior decision in

this case. Mr. Eccleston initially filed a pleading captioned as “Motion Pursuant

to 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in

Federal Custody.” Id. at 64. The district court treated it as a second-or-

successive § 2255 motion and transferred it to this court to determine whether to

authorize the district court to consider the motion. We vacated the transfer and

instructed the district court to consider it as an application under § 2241.

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 Our prior decision implicitly resolved two matters central to this case.

First, we have jurisdiction. Although the presence of jurisdiction is not clear

from the record now before us, that question is answered by the law of this case.

Second, because we decided that Mr. Eccleston was proceeding under § 2241

rather than § 2255, the sole substantive issue before us is whether his federal

sentence has been properly executed, which is the province of § 2241

proceedings. See Davis v. Roberts, 425 F.3d 830, 833 (10th Cir. 2005). A

challenge to the propriety of the federal conviction or sentence itself—such as

whether Mr. Eccleston was misled when he pleaded guilty or whether the

sentence violated the plea bargain—must proceed under § 2255, not § 2241, see

McIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 811–12 (10th Cir. 1997), and

could have been brought promptly after sentencing.

Turning, then, to Mr. Eccleston’s § 2241 claim, we review legal issues de

novo, see Weekes v. Fleming, 301 F.3d 1175, 1176–77 (10th Cir. 2002), and

factual findings for clear error, see Martinez v. Flowers, 164 F.3d 1257, 1258

(10th Cir. 1998). The district court dismissed the application for failure to

exhaust administrative remedies. But a court may deny an application on the

merits without reviewing the exhaustion question. See Montez v. McKinna, 208

F.3d 862, 866 (10th Cir. 2000). That is how we proceed here.

We hold that Mr. Eccleston’s § 2241 application fails to raise any viable

claim. Mr. Eccleston asserts that he is entitled to serve his sentence in the

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custody of the BOP and that his federal and state sentences must be served

concurrently. Yet nothing in his federal sentence suggests that it is to be served

before or concurrently with any state sentence or that he is to serve his sentences

in federal custody. Although Mr. Eccleston’s state sentence provides for

concurrent service of the federal and state sentences, the state court’s decision

cannot alter the federal-court sentence. As we stated in Bloomgren v. Belaski,

948 F.2d 688, 691 (10th Cir. 1991), the determination of whether a defendant’s

“federal sentence would run consecutively to his state sentence is a federal matter

which cannot be overridden by a state court provision for concurrent sentencing

on a subsequently-obtained state conviction.”

We also reject Mr. Eccleston’s contention that 18 U.S.C. § 3584(a) requires

concurrent service of his federal and state sentences. Section 3584(a) states:

If 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.

(emphasis added). Even if we construe this provision as applying when one of the

sentences was imposed by a state court, but see Abdul-Malik v. Hawk-Sawyer, 403

F.3d 72, 75 (2d Cir. 2005) (§ 3584(a) does not apply when state sentence imposed

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after imposition of federal sentence), the presumption of concurrent sentences

affects only sentences “imposed at the same time,” which was not the case with

respect to Mr. Eccleston’s federal and state sentences. Because Mr. Eccleston’s

federal sentence does not “affirmatively order” concurrent service of his federal

and state sentences, it has not been executed unlawfully.

The dissent suggests that we should have allowed Mr. Eccleston to pursue

administrative relief before ruling, because our determination of the merits of

Mr. Eccleston’s claim will prejudice his pursuit of relief under the BOP

Statement. We see no legitimate ground for concern. The relevant “Program

Objective[]” of the BOP Statement is that “[s]tate institutions will be designated

for concurrent service of a federal sentence when it is consistent with the intent of

the federal sentencing court or with the goals of the criminal justice system.”

BOP Statement at ¶ 3(a). Our decision today does not preclude relief on that

basis. All we decide today is that the imposition of consecutive sentences does

not violate Mr. Eccleston’s federal sentence. We do not hold that consecutive

sentences were required, and we have no occasion to decide whether concurrent

sentences are consistent with the federal sentence. Moreover, even if the BOP

would be less inclined to grant relief because we have ruled that there has been no

violation of Mr. Eccleston’s federal sentence, we do not think that Mr. Eccleston

has a legitimate interest in our refraining from that ruling on the chance that the

BOP would view the law differently, and, in our view, incorrectly. As we stated

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in Montez in explaining why we were proceeding to resolve the merits rather than

abating the appeal to permit exhaustion of state remedies, Mr. Eccleston’s § 2241

application raises “no credible federal . . . claim.” 208 F.3d at 866. Finally, we

note that because we address Mr. Eccleston’s claim on the merits, we have no

need to address whether a prisoner making such a claim must exhaust remedies

under the BOP Statement before obtaining relief under § 2241.

III. CONCLUSION

We VACATE the district court’s dismissal without prejudice and

REMAND with instructions to dismiss Mr. Eccleston’s § 2241 application with

prejudice. Our decision, however, is without prejudice to Mr. Eccleston’s seeking

discretionary relief under BOP Program Statement 5160.05.

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United States v. Eccleston, No. 07-2123

LUCERO, J., dissenting:

Because I do not agree that this case satisfies the requirements for merits

adjudication under Montez v. McKinna, 208 F.3d 862, 866 (10th Cir. 2000), I

must respectfully dissent. I would review only the issue decided by the district

court—whether Eccleston successfully exhausted his administrative remedies

prior to bringing this 28 U.S.C. § 2241 petition—and would affirm.

I

I agree with the district court’s holding that Eccleston has not yet exhausted

his administrative remedies. See Hamm v. Saffle, 300 F.3d 1213, 1216 (10th Cir.

2002). As demonstrated by the record, Eccleston inquired of the South Central

Regional Office (“SCRO”) of the BOP whether he is receiving credit for his

federal sentence concurrently with his state sentence. In response, SCRO advised

Eccleston that “[i]n order for this office to consider your request for your federal

and state sentence to run concurrent, . . . you should forward a copy of your

federal and state judgment to this office for review.” Eccleston contends that he

has since complied with this request, but explains that he has not received a

decision to date. Until a final decision has issued or pursuit of administrative

remedies has become futile, his claim remains unexhausted. Wilson v. Jones, 430

F.3d 1113, 1118 (10th Cir. 2005).

As we held in Dulworth v. Evans, 442 F.3d 1265, 1268 (10th Cir. 2006),

the one-year limitation period under § 2244(d)(1) applies to challenges to the
execution of a sentence under § 2241. However, when “a petitioner timely and

diligently exhausts his administrative remedies, [the] one-year limitation period

does not commence until the decision rejecting his administrative appeal becomes

final.” Id. It follows that by dismissing Eccleston’s current petition without

prejudice for failure to exhaust, the district court left the door open for the future

filing of a petition challenging the BOP’s ultimate determination. I would not

disturb that ruling.

II

A

In Montez, we held that “a federal court may deny on the merits an

unexhausted § 2241 petition” where that petition raises “no credible federal . . .

claim.” 208 F.3d at 866. The petitioner in Montez sought relief from repeated

transfers between prison facilities in different states. Even if Montez had

exhausted his state claims, there was no state remedy available to him, because no

provision of state law prohibited his transfer between facilities. Id. at 865-66.

Thus there was no possibility that the actions of the state courts upon exhaustion

might have affected the federal legal questions at issue. Accordingly, as I read

our decision in Montez, it allows consideration of an unexhausted claim only

where exhaustion could have no impact on the merits of that claim.

In this case, Eccleston seeks relief in the form of an order that his state and

federal sentences be served concurrently. Exhaustion of Eccleston’s

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administrative remedies would allow the Bureau of Prisons (“BOP”) to contact

Eccleston’s federal sentencing court and request clarification of its sentencing

order. That court’s response might indeed affect our view of the merits of

Eccleston’s current federal claim.

The majority concludes that Eccleston’s federal legal claim for concurrent

sentences under 18 U.S.C. § 3584(a) is clearly meritless. “[B]ecause Mr.

Eccleston’s federal sentence does not ‘affirmatively order’ concurrent service of

his federal and state sentences, it has not been executed unlawfully.” Maj. Op. at

11. This conclusion apparently rests on United States v. Williams, 46 F.3d 57

(10th Cir. 1995), in which we held that “[t]he plain meaning of [§ 3584(a)] is that

multiple terms of imprisonment imposed at different times will normally run

consecutively, unless the district court affirmatively orders that the terms be

served concurrently.” Id. at 59. But we have not decided whether a later

statement from the federal sentencing court might give rise to an exception to the

general rule articulated in Williams.

BOP Program Statement 5160.05 provides that BOP Regional Directors

may “designate a state institution for concurrent service of a federal sentence”

when “consistent with the intent of the federal sentencing court or the goals of the

criminal justice system.” BOP Program Statement 5160.05 § 8. The sentencing

court’s intent can be ascertained in several ways, including explicit imposition of

a concurrent sentence, id. § 9(b)(1), an inmate’s request for a nunc pro tunc

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designation, id. § 9(b)(4), or a state’s request that the sentences be served

concurrently, id. § 9(b)(5). When a state request is received, the Program

Statement directs Regional Inmate Systems Administrators, “if necessary, [to]

correspond with the federal sentencing court to ascertain whether it has any

objections to the federal and state sentences running concurrently.” Id.

§ 9(b)(5)(a). In this case, the record indicates that Eccleston may succeed in

obtaining a request for concurrent sentences from the state of New Mexico, and of

course, he is also entitled to make his own request for a nunc pro tunc

designation.

Williams does not address whether a district court’s later statement of

intent, given in response to a BOP request under the Program Statement, would

constitute an “affirmative order,” or otherwise give rise to an exception to the rule

that sentences will “normally” run consecutively. Given the possibility that

Eccleston’s federal legal claim might not be clearly meritless after the completion

of the BOP’s administrative process, I would not decide the issue absent

exhaustion of that process.

B

Because no state relief was available to the petitioner in Montez, review

without exhaustion in that case did not threaten to alter or influence the as-yet-

uncompleted state proceedings. See 208 F.3d at 865-66. In this case, however,

an administrative remedy under the Program Statement may well be available to

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Eccleston. Although the majority purports to dismiss Eccleston’s claims without

prejudice to his ability to seek discretionary relief from the BOP, an appellate

court decision which states that granting relief would be legally incorrect is surely

prejudicial to any discretionary decision to the contrary. See Maj. Op. at 12.

Our general policy of reviewing only exhausted claims is grounded in

strong principles of judicial economy and respect for administrative agency

deliberation. See, e.g., Johnson v. Meadows, 418 F.3d 1152, 1156 (11th Cir.

2005) (listing seven policy reasons supporting administrative exhaustion

requirements). Because a decision on the merits would run contrary to these

principles, I consider it inappropriate to review Eccleston’s unexhausted petition.

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