*1
1249
(1999).
n. 79
Althоugh Congress did not
Inc. v.
Dep’t
Va.W.
Health & Human
state that
legislation
the
was resolving
Res.,
598,
532
604-05,
U.S.
1835,
S.Ct.
it did find
split,
the denial of interest to a
(2001)).
interest on the seized the Unit-
ed States.
B. The district properly dismissed claim attorney
Plaintiff’s fees. To obtain attorney fees under UNITED America, STATES EAJA, (1) Plaintiff must show that: she Respondent-Appellee, (2) the prevailing party; government has failed to meet its burden of showing v. position
that its substantially justified Sebastian ECCLESTON, Petitioner- that special circumstances make the Appellant. (3) unjust; award requested attor- No. 07-2123. ney fees are reasonable. 28 U.S.C. 2412(d)(l)(A)-(B). Because she was not United States Appeals, Cоurt of a prevailing motion, party the 2004 Tenth Circuit. claim attorney Plaintiffs fees fails. March
To satisfy the “prevailing party” requirement, Plaintiff must be able to
show that she received “relief from the Keisler,
federal court.” v.Li 505 F.3d (9th Cir.2007)
913, 917 (citing Carbonell
INS, (9th Cir.2005)). 429 F.3d “ Such relief must be in ‘judi the form of a ” “ cially sanctioned’ ‘material alteration of ” legal relationship parties.’ Id.
(quoting Home, Buckhannon Bd. & Care $30,006.25 United States v. Currency, in U.S. permit 2. Sixth unpub- Circuit rules citation to (10th Cir.2000) (same). opinions. 28(g). lished 6th Cir. R. *2 Inocente, P.C., Albuquer- Pori, A.
Brian Defendant/Movanb-Appel- NM, for que, lant. States Naybak, Assistant United
Kyle T. Gómez, Acting United (Larry Attorney, Kimball, D. Attorney, and Robert States Attorney, on the States Assistant United Attor- brief), States United Office NM, for ney, Albuquerque, Plaintifl/Re- spondenfi-Appellee. HARTZ, LUCERO,
Before GORSUCH, Judges. Circuit HARTZ, Judge. Circuit appeals deci- L. Eccleston Sebastian District Court by sion the United denying New Mexico for the District un- habeas pro se Eccleston is § 2241. Mr. der 28 U.S.C. Mexico Correc- of the New custody sentence serving a state Department, tions conspiracy murder and first-degree murder committed on first-degrеe commit also been 1994. He December offenses in federal court sentenced carjacking, see days later: two committed 2119(1); a firearm carrying 18 U.S.C. 924(c); violence, id. see a crime of during Act, see id. violating the Hobbs by 1951(a) (interference with commerce violence). threat or He seeks to serve his any promises or assurances other than state and federal concurrently in what was plea contained agreement, facility a federal and to have prior time Mr. “No, Eccleston responded, Your Hon- *3 in state custody credited to his federal or.” Id. at 31. During the sentencing sentence. The district court dismissed the hearing 29, on 1996, October Mr. Eccle- § 2241 application prejudice without on lawyer ston’s did not mention concurrent ground that Mr. Eccleston had failed sentencing any concern about where to exhaust his administrative remedies Mr. Eccleston would serve his federal or (BOP). with the federal Bureau of Prisons state sentence. The district imposed court We set aside that dismissal and remand a sentence of 417 months in prison, to be with instructions dismiss Mr. Eccle- followed years three supervised re- ston’s 2241 application prejudice, with lease. The sentence made no reference to the application because fails any to raise any state sentence. viable claim. Mr. pleaded Eccleston guilty in state court a few hours after in pleading I. BACKGROUND court. plea agreement provided Sentencing A. in State and Federal that Mr. Eccleston’s state term of impris- Courts onment would run concurrently any with Mr. Eccleston pleaded in federal guilty federal term. 7, On 1996, November and state court 3, on the same day, May state court sentenced Mr. Eccleston to life 1996. The government did not imprisonment, plus years. nine The sen- promise, either in the draft of negotiat- provided tence that it would “run ... con- plea agreement ed or in the final plea currently] with [the] Federal Prison Sen- agreement, that Mr. Eccleston’s federal tence defendant is now serving.” Aplt. sentence would run concurrently with the App. at 28. sentence, promise nor did it where he would serve his sentences. During plea B. Postconviction Proceedings negotiations the United Attorney’s Mr. appealed his federal sen- Office wrotе Mr. Eccleston’s counsel: ground tence on the that the district court No one can guarantee what sentence had erred imposing 10-year and 20- [the federal district give court] would 924(c). year sentences under af-We under the GUIDELINES and no one firmed in Eccleston, United States can guarantee your client would be (10th Cir.1997) F.3d 43 (unpublished table transferred to the [BOP] he received a decision). 4, 2001, May On but this offer pro filed a se motion relief under 28 give him the litigate chance to U.S.C. claiming that his counsel question of whether his federal and state had been ineffective because he had in- sentences would be consecutive or con- Mr. duced Eccleston to plead guilty based current. “false and promise” inaccurate Aplee. Supp.App. at 108. agree- The plea Mr. Eccleston would serve the sentence signed by ment Mr. Eccleston disclaimed federal custody. Aplee. Supp-Aрp. at 71. any agreement specific sentence, ato stat- The district court denied the motion as ing, “There representations have been no time-barred, he did not attempt or promises anyone from as to what sen- appeal. tence the court impose.” Id. at 24. When asked at the federal plea 5, 2004, On March hearing Mr. Eccleston filed a guilty plea had been induced second 2255 motion. The district attorney, in re- Also, district the stаte as a this court the motion
transferred proceeding habeas to a state-court sponse file a second- authorization motion Eccleston, re- sought to by Mr. brought See § 2255 motion. or-suceessive concurrent-sentence Mr. Eccleston’s solve transfer), (authority to §§ 1631 U.S.C. Program State- of BOP by means order au- appeals court of (requiring Statement), (the ment 5160.05 motion). thorizing second-or-successive to re- for a state procеdures establishes trans- vacated the October On a state institu- designate BOP to quest the to the and remanded order fer a federal to serve place as the tion the motion to treat instructions *4 sentence.1 a state concurrently with tence under 28 for habeas anas the United attorney asked district The month coun- following The § U.S.C. by request a to Attorney to consent Eccle- for Mr. appearance an entered sel Eccleston’s attorney and Mr. the district and contended in ston the designate the BOP counsel for state rather to a federal be committed he should of Corrections Department Mexico New prior and his institution a than state Eccle- of Mr. service the concurrent should be institution a state in service and to sentences and federal state ston’s federal sentence. to his credited on his federal credit him retroactive give custody in served statе for time sentence Meanwhile, had initiated his federal imposition the since regarding the BOP with communications drafted Attorney’s The U.S. Office tence. 21, 2003, he On September his sentences. consent- and the BOP to the court letters federal BOP, whether asking wrote the draft let- although the request, ing to the concurrently being served sentence that Mr. court stated ter to the He then contact- his state sentence. ha- and federal his state terminate Of- Regional the BOP’s South Central ed the granted if the BOP proceedings beas 13, 2004, May fice, him on informed Eccleston’s response, Mr. In request. BOP, custody the that he was preferred that Mr. Eccleston said counsel copy of the a provided had not that he judicial relief first. to seek order and commitment judgment federal on an order of his issued the status district court to determine The necessary untimely Mr. 3, 2007, dismissing as lacked sentence, April that the BOP and federal in BOP plаced to be request transfer a state to authority to order Evans, 442 F.3d custody. See Dulworth custody. inmate into federal courtesy copy of this 5160.05(9)(b)(5) concurrently. A ning Program Statement 1. BOP correspondence will be forwarded states: Attorney.... appropriate U.S. Regional Occasionally, a Request. State (b) objections, juris- has no from state If the court request Office receives indicating may designated and federal as the the state be diction state institution concurrently, served are concur- sentences federal place to serve the sentence department by order state court according rently with referral. of corrections Program in this procedures detailed (a) Systems Ad- [Regional Inmate The Statement. all in- gather review will ministrator] not, under ordi- will Note: The Bureau pertaining to the federal formation circumstances, as overcrowd- nary such reviewing infor- this sentences. After institution, accept transfer ing in a state necessary, carefully, the RISA if mation custody for into inmate sentencing correspond with concurrent service. any objec- it has to ascertain whether at 94. Aplee._Supp.App. run- state sentences to the federal and tions (10th Cir.2006) (28 1267-68 U.S.C. to consider it as an application under 2244(d)(l)’s one-year period limitation § 2241. applies §to 2241 applications challenging Our prior deсision implicitly re decisions). The court then solved two matters central to this case. conducted a hearing April 23 on the First, jurisdiction. we have Although the concurrent-sentence issue. At hearing presence jurisdiction is not clear from Mr. Eccleston’s counsel that he indicated the record us, now before that question is was prepared to execute proposed answered the law of Second, this case. agreement agreement without because we decided that Mr. Eccleston prejudice to his claim that he should serve was proceeding 2241 rather than a federal facility. He the sole substantive issue before explained: us is whether his federal sentence has only reason haven’t [executed an been properly executed, which is the prov agreement under the procedure] ince of 2241 proceedings. See Davis v. before this was the understanding be- Roberts, Cir.2005). *5 tween [the Assistant Attorney] U.S. and A challenge to the propriety of the federal that, myself if Mr. pursued conviction or sentence itself —such as remedy this simply of concurrent sen- whether Mr. Eccleston was misled when tences, he would not be entitled to pur- pleaded he guilty or whether the sentence sue the other remedy which he believed plea violated the bargain proceed —must promised to him both in the state 2255, § § under 2241, not sеe v. McIntosh and federal proceedings, namely, that Comm’n, U.S. Parole 809, 115 F.3d 811-12 judge federal would designate the (10th Cir.1997), and could have been [BOP] for service of and would brought promptly after sentencing. designate particular a facility BOP the service of both the state and federal then, Turning, to Mr. Eccleston’s sentence. claim, § 2241 legal review de issues Aplee. Supp.App. at 125-26. novo, After the see v. Weekes Fleming, 301 F.3d hearing the court denied without prejudice (10th 1175, Cir.2002), 1176-77 and factual claim, concurrent-sentence concluding findings error, for clear see Martinez that Mr. Eccleston not had exhausted his Flowers, (10th 164 F.3d 1258 Cir. available administrative remedies with the 1998). The district court dismissed BOP. application for failure to exhaust adminis trative remedies. But a court may deny II. DISCUSSION on the merits without re To us, determine what is before we must viewing the question. exhaustion See start with our prior decision in this case. McKinna, Montez v. 866 Mr. Ecclеston initially filed a pleading cap- (10th Cir.2000). That is proceed how we tioned “Motion as Pursuant to 28 U.S.C. here. Vacate, Aside, Set or Correct Sentence a Person in Federal Custody.” We hold that Mr. Eccleston’s Id. at 64. The district court it as a treated 2241 application fails any to raise viable second-or-successive 2255 motion and claim. Mr. Eccleston asserts that he is transferred it to court this to determine entitled to serve his sentence in the сusto whether to authorize the district court dy of the BOP and that his federal and consider the motion. We vacated the state sentences must be served concur transfer and instructed the district rently. Yet nothing in federal his sentence respect case with not the time,” or before to be served it is
suggests and federal state Eccleston’s to Mr. any sentence state concurrently with federal Mr. Eccleston’s Because tences. federal his serve he is to “affirmatively order” state sentence Mr. Eccleston’s Although custody. of federal service service concurrent for concurrent provides sentence unlaw- executed sentences, not been sentences, it has the state and state federal fully. the federal- alter cannot court’s Bloom- stated As we court sentence. should that we suggests dissent The Belaski, F.2d
gren v. ad- pursue allowed have of whether Cir.1991), the determination ruling, because relief before ministrative sentence “federal defendant’s of Mr. of the merits determination our ais sentence his state consecutively pursuit prejudice be overridden cannot matter which We Statement. BOP of relief for concurrent provision by a state for concern. ground legitimate see no subsequently-obtained sentencing of the Objective! ]” “Program relevant state conviction.” “[sjtate institutions is that Statement servicе designated concurrent bewill con reject Mr. Eccleston’s alsoWe it is consistent sentence a federal 3584(a) requires 18 U.S.C. tention sentencing of the the intent of his federal service criminal goals court or with 3584(a) states: Section sentences. ¶ 3(a). at BOP Statement justice system.” are imprisonment terms multiple If *6 relief today preclude not does Our at the same defendant on a imposed that today is decide All we that basis. on imprisonment timе, if a term sentences of consecutive imposition already who is on a defendant imposed Mr. not violate does im- term of undischarged to an subject not that consecutive do hold We sentence. may run terms concur- prisonment, no have required, we were sentences consecutively, except that rently or sen- decide occasion an consecutively for run may not terms the federal are consistent with tences that offense for another attempt would Moreover, if the BOP even tence. attempt. objective of the sole we relief grant because inclined less im- imprisonment Multiple terms of been no violation there has ruled that have time run concurrent- same at the posed dowe Mr. Eccleston’s orders or statute ly unless legiti- think that not run are to the terms that mandates from that refraining in our mate interest impris- Multiple terms consecutively. the BOP chance on the ruling times at imposed different onment view, and, in our differently, the law the court orders view consecutively unless in Montez concurrently, incorrectly. As we stated are to run terms to re- proceeding why we were explaining added). construe Even we (emphasis abating the than the merits rather solve one of applying as when provision this reme- of state permit exhaustion appeal court, a state imposed by sentences 2241 § dies, Mr. Eccleston’s 403 Hawk-Sawyer, hut Abdul-Malik see 208 ... claim.” “no credible federal (§ 3584(a) raises Cir.2005) (2d 72, 75 F.3d because note that Finally, at 866. we F.3d imposed state sentence apply not claim Mr. Eccleston’s address sentence), the we of federal imposition after wheth- merits, no to address have need af sentences of concurrent presumption must making such prisoner aer at the same “imposed only fects 1255 exhaust remedies under the BOP State- As we held in Evans, Dulworth v. 442 ment § before obtaining relief under (10th F.3d 1268 Cir.2006), the one- year period limitation 2244(d)(1) III. CONCLUSION applies to challenges to the execution of a We VACATE the district court’s dis- sentence under 2241. However, when missal without prejudice and REMAND petitioner “a timely and diligently exhausts with instructions to dismiss Mr. Eccle- his remedies, administrative one-year [the] ston’s 2241 application with prejudice. period limitation does not until commence decision, however, Our is without prejudice the decision rejecting his administrative to Mr. Eccleston’s seeking discretionary appeal becomes final.” Id. It follows that relief under BOP Program Statement by dismissing Eccleston’s petition current 5160.05. without prejudice exhaust, failure to the district court left the door open for the LUCERO, Circuit Judge, dissenting: future filing petition of a challenging the Because I do agree that this case BOP’s ultimate determination. I would requirements satisfies the adju- merits not disturb that ruling. dicаtion under McKinna, Montez v. F.3d Cir.2000), I must re- II dissent. spectfully I would review only the issue decided by the district court— A whether Eccleston successfully exhausted Montez, In we held prior remedies “a bring- federal court ing this 28 U.S.C. petition may deny on the merits unexhausted —and would affirm. § 2241 petition” where that petition raises “no credible federal ... claim.” F.3d
I at 866. petitioner in Montez sought I agree with the district holding court’s repeated from transfers between that Eccleston yet has not exhausted his prison facilities different states. Even *7 administrative remedies. See Hamm v. if Montez had claims, exhausted his state Saffle, (10th Cir.2002). 300 F.3d there was no state remedy available to As record, demonstrated the Eccleston him, because no provision of state law inquired of the South Central Regional prohibited his transfer between facilities. (“SCRO”) Office of the BOP whether he is Id. at 865-66. Thus there possibili- was no receiving credit for his federal sentence ty that the actions of the state upon courts concurrently with state his In sentence. exhaustion might have affected the federal response, SCRO advised that legal questions at issue. Accordingly, as I “[i]n order for this office to your consider Montez, read our in decision it con- allows request your for federal and state sentence an sideration of unexhausted only claim concurrent, to run you ... should forward where exhaustion could have no impact on a copy your of federal and state judgment the merits that of claim. to this office for review.” Eccleston con- case, In this Eccleston seeks relief in the tends that he has complied since with this form of an order that state his request, federal explains but that he not re- sentences be served concurrently. ceived a decision Ex- to date. a final Until haustion of has issued Eccleston’s pursuit or of adminis- administrative trative futile, remedies remedies has become would allow the Bureau of Pris- (“BOP”) claim remains unexhausted. v. ons to Wilson contact Eccleston’s federal Jones, Cir.2005). 430 F.3d sentencing court and request clarification Mexico, and of of state New the re- from court’s That sentencing order. its
of own make his to course, the entitled view he is also our of affect might indeed sponse designation. claim. federal tunc pro current nunc a request Eccleston’s of mеrits Eccleston’s that concludes majority The a address not does Williams concurrent legal claim federal intent, of later statement court’s 3584(a) clearly under 18 U.S.C. tences request a BOP response to in given fed- “[Bjecause Mr. Eccleston’s meritless. Statement, constitute Program the ‘affirmatively order’ not eral sentence order,” give otherwise “affirmative an state federal service that sen- the rule to exception an to rise unlaw- executed sentences, not been it has consecutively. run “normally” tences This 1254-55. conclu- at Maj. Op. fully.” fed- Eccleston’s possibility the Given rests United apparently sion clearly merit- (10th Cir.1995), might in legal eral Williams, meaning of BOP’s plain completion the “[t]he held that after less im- 3584(a)] multiple terms decide is that I would not process, [§ times will at different imposed prisonment pro- of that exhaustion issue absent the the dis- consecutively, unless normally cess. the affirmatively orders trict court concurrently.” Id. 59. at served terms be B later not decided whether have But we sentencing the from statement to available state relief Because no exception to rise to might give Montez, without review in petitioner rule articulated Williams. general did not threaten that case exhaustion pro- 5160.05 Program Statement as-yet-uncompleted or influence alter may Directors Regional that BOP vides 865-66. 208 F.3d at See proceedings. for concur- institution “designate however, case, an administrative In this sentence” of a federal rent service Program Statement remedy under the intent “consistent Al- available Eccleston. may well be goals of crimi- sentencing court or dismiss majority though purports Program system.” BOP State- justice nal to his prejudice without claims sentencing court’s ment 5160.05 discretionary from ability seek ways, several ascertained in can be intent decisiоn which BOP, an appellate aof concur- imposition including explicit legally would be granting relief states 9(b)(1), *8 an inmate’s id. rent any dis- surely prejudicial is incorrect designation, pro tunc for a nunc request contrary. See to the cretionary decision 9(b)(4), request that or a state’s id. at 1254. Maj. Op. concurrently, id. be served sentences re- 9(b)(5). request a state When only ex- reviewing policy of general Our Re- directs ceived, Program Statement strong prin- grounded claims is hausted Administrators, “if Systems Inmate gional respect for economy and judicial ciples correspond with necessary, [to] See, agency deliberation. administrative it to ascertain sentencing court Meadows, F.3d v. Johnson e.g., and state any objections Cir.2005) policy (listing seven Id. concurrently.” running sentences exhaus- supporting reasons case, indi- 9(b)(5)(a). the record In this a decision requirements). Because tion ob- may succeed in cates that Eccleston to these contrary merits would for concurrent request taining I principles, consider it inappropriate to
review Eccleston’s unexhausted petition. America,
UNITED STATES of
Plaintiff-Appellee, LAMY,
Dion Defendant-Appellant.
No. 07-2048.
United States Court of Appeals,
Tenth Circuit.
April