Eighth Circuit: Federal Sentence Consecutive to Later-Imposed State Sentence

Charles Lee Elwell / Image courtesy jail.com

Charles Lee Elwell / Image courtesy jail.com

By Mark Wilson

On June 6, 2013, the Eighth Circuit Court of Appeals held that a prisoner was not entitled to credit toward his federal sentence for time already served on state charges.

In March 2007, Charles Lee Elwell was arrested in Iowa. A federal indictment was issued against him several days later; Elwell was transferred to federal custody and the state court stayed its prosecution until the federal charges were resolved.

Elwell pleaded guilty to the federal charges and was sentenced to 66 months in prison in November 2007. The district court did not address whether the federal sentence would run concurrent or consecutive to any yet-to-be-imposed state sentence, as permitted by Setser v. United States, 132 S.Ct. 1463 (2012). [See related article in this issue of PLN].

Elwell was then returned to Iowa’s custody and sentenced to two concurrent five-year prison terms. The state court expressed its intent to impose the state sentence concurrent with the already-imposed federal sentence.

Later discovering that Elwell’s state and federal sentences were not concurrent, however, the state court resentenced Elwell to time served on February 6, 2009. As a result, Elwell’s state sentence ended that day and he was transferred to the federal prison system.

The Bureau of Prisons (BOP) subsequently denied Elwell’s request for credit for time served toward his federal sentence and for a nunc pro tunc designation pursuant to 18 U.S.C. § 3621. Elwell then filed a habeas corpus petition, which was denied by the district court.

On appeal, the Eighth Circuit first applied the primary jurisdiction doctrine, finding that Iowa, not the federal government, had primary jurisdiction of Elwell from March 2007 to February 6, 2009. “Pursuant to the doctrine of primary jurisdiction, service of a federal sentence generally commences when the United States takes primary jurisdiction and a prisoner is presented to serve his federal sentence, not when the United States merely takes physical custody of a prisoner who is subject to another sovereign’s primary jurisdiction,” the Court of Appeals wrote.

Under 18 U.S.C. § 3584(a), “multiple terms of imprisonment imposed at different times run consecutively unless the court orders that the terms are to run concurrently.” As such, the appellate court found that “Elwell’s federal sentence must run consecutive to his state sentence.”

Given the express bar on double credit imposed by 18 U.S.C. § 3585(b), the Court of Appeals also rejected Elwell’s challenge to the BOP’s denial of federal credit for time served while he was in state custody between March 2007 and February 6, 2009.

Finally, the Eighth Circuit held the BOP did not abuse its discretion in denying Elwell’s request for a nunc pro tunc designation of the various facilities where he was incarcerated prior to February 6, 2009 as the locations for serving his federal sentence under 18 U.S.C. § 3621. See: Elwell v. Fisher, 716 F.3d 477 (8th Cir. 2013).

(Published by Prison Legal News; used by permission)



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The following information is from the PARfessionals.org website.

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Interview With Kyle

Chaffee County Probation Department / Image courtesy www.courts.state.co.us

Chaffee County Probation Department / Image courtesy www.courts.state.co.us

By Dianne Frazee-Walker

25-year-old Kyle has lived in Salida, Colorado most of life. He has also been involved with the court system for almost half of his life. His first brush with the law occurred at age 14 for just being a kid. Riding a dirt bike was the gateway to his path of being a criminal.

Even though Kyle completes all of his community service and pays his fines, he can remember being on probation until he was 21 for one thing or another --- dirty UAs, possession of ethanol alcohol or any other minor infraction would keep Kyle tied into the system for over a decade.

Kyle has been a probationer under just about every probation officer employed at Chaffee County Probation Department and knows all of the P.O.s on a first name basis. Over the years Kyle has lost respect for some of his former P.O.s because he suspects inappropriate conduct, which adds to his distrust for the justice system.

Kyle believes probation is a waste of time. Being on continuous probation has not discouraged Kyle from staying out of jail. He thinks parole is actually easier than probation because probation conducts routine UAs twice a week, random UAs every two-weeks, and requires P.O. visits every two-weeks. Parole only does two random UAs a month and bi-monthly visits with the P.O.

Kyle’s string of offenses has cost him many visits to the local county jail. He claims Chaffee County jail is easy. It is a two-year minimum sentence detention facility. He did a couple of stints at the facility.

Kyle has been incarcerated for possession of a controlled substance and has earned extended stays for contraband. He was sentenced to one year in jail for driving more than three times with a revoked driver’s license. Kyle’s most recent stint in the slammer was for aggravated-driving while under-the-influence. His weakness is alcohol and driving while intoxicated.  

Kyle’s visits at Chaffee County Detention facility did not bother him, in fact Kyle has been there several times and he didn’t mind going back. He describes his time incarcerated as, “like a vacation.” Kyle spent most of his time in jail visiting with friends and watching T.V. Kyle admits to worrying about how his bills will be paid while he is in jail, but he is grateful to have a girlfriend that maintains their home and a supportive family that sends him money to buy items at the jail commissary.

Kyle admits being behind bars is not always a “bed of roses.” There are only 2-3 case managers for 1000 people. To see a nurse takes three pages of paperwork. It took Kyle three weeks to see a dentist when he had a toothache.  

Even though most of Kyle’s incarceration experience is somewhat of a club-med holiday, court is not as much of a picnic. Kyle feels like he is caged and looked down on in court. He senses a hierarchy atmosphere with the Judge peering over and officials seated higher than offenders, but a little discomfort in the courtroom was not enough to make Kyle stay away from jail. Until …. his last visit.

Kyle’s recent and hopefully last incarceration was spent in Colorado Springs, Colorado at Cheyenne Mountain Reentry Center. The Therapeutic Community (TC) reentry program run by the Colorado Department of Corrections is an intensive melting pot that rooms 20-25 people.

Finally, Kyle was housed in a facility that concentrates on lowering the recidivism rate instead of a jail where he can take a break, put his feet up and watch T.V. to pass the time. 

Drug classes, routine and random UAs, and P.O. visits did not prevent Kyle from reoffending. The alcohol classes just made him want to drink more after talking to his peers about drinking.  

All it took to inspire Kyle to stay out of jail was a few 50ish inmates with long beards doing life sentences coming into CMRC and talking to him about what it is like to spend your entire life in prison. The old-timers talked about how they haven’t seen their kids in 20 years. Kyle was also impacted by seeing children in Salida growing-up motherless because of alcohol related car accidents.      

Kyle says all it takes to stay out of jail is a semi-intelligent young person willing to learn. It’s a person’s choice, if they are going to break the law. 

Currently, Kyle has a bright future ahead of him. He recently signed up for college. His interests are business management, psychology, and advertising. Kyle has four jobs as varied as his academic interests. He is a cook at a popular local restaurant, Currents, cashiers at The Junk Drawer antique store, works construction, and sells fire wood.

Kyle says working four jobs helps with parole and keeps him from going stir crazy sitting at home.

Second Circuit: RLUIPA Disallows Individual Capacity Suits

Image courtesy villageblog.com

Image courtesy villageblog.com

By David M. Reutter

The Second Circuit Court of Appeals held in September 2013 that the Religious Land Use and Institutionalized Persons Act (RLUIPA) does not create a private right of action against state officials in their individual capacities.

Anthony Washington, incarcerated at New York’s Woodbourne Correctional Facility, filed suit under 42 U.S.C. § 1983 in 2009, alleging that guards Paul Gonyea, Tammi Chaboty and Keith Granger had retaliated against him for exercising his First Amendment rights to free speech and free exercise of religion. He also raised RLUIPA and due process claims.

Washington’s RLUIPA claim alleged the defendants substantially burdened his free exercise rights. The defendants successfully moved to dismiss that claim because, they argued, Washington failed to plead they had placed “a substantial burden – or indeed, any burden – on his religious practice.”

On appeal, the Second Circuit cited precedent holding that sovereign immunity forecloses the availability of monetary damages as a remedy against states and state actors in their official capacities under RLUIPA. See: Sossamon v. Texas, 131 S.Ct. 1651 (2011) [PLN, Aug. 2011, p.22]. Thus, he could not sustain an official capacity claim.

Washington also sued the defendants in their individual capacities. The appellate court adopted the reasoning of its “sister circuits in concluding that RLUIPA does not provide a cause of action against state officials in their individual capacities because the legislation was enacted pursuant to Congress’ spending power ... which allows the imposition of conditions, such as individual liability, only on those parties actually receiving the state funds.”

Individual prison employees are not “recipients” of federal funding; as such, the RLUIPA claim was properly dismissed – although the Court of Appeals declined to decide whether RLUIPA permits individual-capacity suits under the commerce clause. See: Washington v. Gonyea, 731 F.3d 143 (2d Cir. 2013).

Washington’s due process claim was addressed in a separate, unpublished ruling in which the appellate court affirmed in part and reversed in part the district court’s dismissal of the First Amendment retaliation claims, finding that “a liberal reading of the complaint gives rise to a plausible inference that Chaboty and Granger were involved either directly or indirectly, and Washington has therefore adequately pled a violation of his First Amendment rights on that basis.” See: Washington v. Gonyea, 538 Fed. Appx. 23 (2d Cir. 2013).

(Published by Prison Legal News; used by permission)

California's Lethal Injection Protocol Deemed Invalid by State Court

By Michael Brodheim

In May 2013, a California appeals court invalidated regulations promulgated by the California Department of Corrections and Rehabilitation (CDCR) regarding the manner in which the state executes condemned prisoners. The appellate court held that the CDCR had “substantially failed to comply” with the procedural requirements of the state’s administrative rules; the decision prohibits the state from executing any prisoner by lethal injection until it properly adopts regulations pursuant to the Administrative Procedure Act (APA).

With 745 condemned prisoners as of June 2014, California has the nation’s largest death row population. In December 2006, a federal court held that the state’s three-drug lethal injection protocol constituted cruel and usual punishment. Despite their best efforts, CDCR officials have been unable to execute anyone since then.

Responding to the federal court ruling, in May 2007 the state revised its execution protocol. When challenged, however, that revision was found by a state court to constitute an “underground regulation” because it had not been promulgated pursuant to the APA.

The CDCR began the process of attempting to promulgate appropriate regulations in compliance with the APA in mid-2009. [See: PLN, Nov. 2009, p.28]. That process was completed in August 2010 when the CDCR adopted regulations now codified at §§ 3349, et seq. of title 15 of the California Code of Regulations.

The same month, condemned prisoner Mitchell Carlton Sims filed a complaint seeking declaratory and injunctive relief. He argued that one of the three drugs the state planned to use for executions was unnecessary and would likely cause excruciating pain.

The trial court rejected that argument but accepted Sims’ second argument – that the CDCR had substantially failed to comply with the procedural requirements of the APA when it adopted its execution protocol. In fact, the CDCR “admitted ... that it did not actually comply with many of the requirements of the APA....”

The Court of Appeal affirmed that decision, finding that the CDCR had 1) failed to articulate alternatives to the proposed three-drug execution protocol and 2) failed to explain why it rejected those alternatives, and in particular why the use of a single drug would not be as effective. See: Sims v. Department of Corrections and Rehabilitation,216 Cal. App. 4th 1059 (Cal. App. 1st Dist. 2013).

In a book titled Chief: The Quest for Justice in California, published in November 2013, former California Supreme Court Chief Justice Ronald M. George questioned whether the death penalty was fairly implemented due to geographical disparities.

“You could have the exact same crime, let’s say a straightforward street robbery homicide, result in the seeking of the death penalty in one part of the state and not in the other, among various defendants with similar past histories and records,” George wrote. “This, to me, raises some troubling issues. I’m not saying I find this necessarily rises to the level of a constitutional infirmity, but it may raise policy concerns about the manner in which the death penalty is administered in California.”

In February 2014, former California governors Pete Wilson, Gray Davis and George Deukmejian expressed their support for a proposed ballot initiative that would hasten executions by curtailing lengthy state court appeals in death penalty cases.

A ballot initiative to end capital punishment in California narrowly lost in 2012. [See: PLN, May 2012, p.18].

Additional sources: Reuters, Los Angeles Times, www.deathpenaltyinfo.org

(Published by Prison Legal News; used by permission)