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    This document is an order from the United States Court of Appeals for the Tenth Circuit regarding a petition for a writ of habeas corpus filed by Gerald D. Castor under 28 U.S.C. § 2241. The court affirms the district court's denial of the petition. It finds that Castor's sentences were correctly calculated to run consecutively, not concurrently, under federal law. It also determines that Castor's claim regarding his indictment cannot be brought under § 2241 and must instead be filed as a motion under 28 U.S.C. § 2255 in the district that imposed his sentence.

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    Filed: Patrick Fisher

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    This document is an order from the United States Court of Appeals for the Tenth Circuit regarding a petition for a writ of habeas corpus filed by Gerald D. Castor under 28 U.S.C. § 2241. The court affirms the district court's denial of the petition. It finds that Castor's sentences were correctly calculated to run consecutively, not concurrently, under federal law. It also determines that Castor's claim regarding his indictment cannot be brought under § 2241 and must instead be filed as a motion under 28 U.S.C. § 2255 in the district that imposed his sentence.

    Original Description:

    Filed: 2002-01-30 Precedential Status: Non-Precedential Docket: 01-1308

    Original Title

    Castor v. United States Parole, 10th Cir. (2002)

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    This document is an order from the United States Court of Appeals for the Tenth Circuit regarding a petition for a writ of habeas corpus filed by Gerald D. Castor under 28 U.S.C. § 2241. The court affirms the district court's denial of the petition. It finds that Castor's sentences were correctly calculated to run consecutively, not concurrently, under federal law. It also determines that Castor's claim regarding his indictment cannot be brought under § 2241 and must instead be filed as a motion under 28 U.S.C. § 2255 in the district that imposed his sentence.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Download as pdf
    19 views5 pages

    Filed: Patrick Fisher

    Uploaded by

    Scribd Government Docs
    This document is an order from the United States Court of Appeals for the Tenth Circuit regarding a petition for a writ of habeas corpus filed by Gerald D. Castor under 28 U.S.C. § 2241. The court affirms the district court's denial of the petition. It finds that Castor's sentences were correctly calculated to run consecutively, not concurrently, under federal law. It also determines that Castor's claim regarding his indictment cannot be brought under § 2241 and must instead be filed as a motion under 28 U.S.C. § 2255 in the district that imposed his sentence.

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    of 5

    F I L E D

    UNITED STATES COURT OF APPEALS


    FOR THE TENTH CIRCUIT

    United States Court of Appeals


    Tenth Circuit

    JAN 30 2002

    PATRICK FISHER
    Clerk

    GERALD D. CASTOR,
    Petitioner-Appellant,
    v.
    UNITED STATES PAROLE
    COMMISSION; AL HERRERA,
    Warden,

    No. 01-1308
    (D.C. No. 00-B-229)
    (D. Colo.)

    Respondents-Appellees.
    ORDER AND JUDGMENT

    Before EBEL , KELLY , and BRISCOE , Circuit Judges.

    After examining the briefs and appellate record, this panel has determined
    unanimously that oral argument would not materially assist the determination of
    this appeal.

    See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

    therefore ordered submitted without oral argument.

    This order and judgment is not binding precedent, except under the
    doctrines of law of the case, res judicata, and collateral estoppel. The court
    generally disfavors the citation of orders and judgments; nevertheless, an order
    and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

    Petitioner Gerald D. Castor, a federal prisoner proceeding pro se, appeals


    from the district courts order adopting a magistrate judges recommendation to
    deny his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. 2241.
    He also seeks to proceed on appeal in forma pauperis. We grant the petition to
    proceed on appeal in forma pauperis, and we affirm.

    Background
    Petitioner was charged in the federal district court for the Southern District
    of Indiana with nine counts in a federal indictment based on a plot to obtain the
    marketing rights for a non-tobacco herbal chew. He was ultimately found guilty
    on six of the counts charged. Count Nine (possession of a firearm by a felon) was
    severed and tried first. On October 30, 1989, petitioner was sentenced to eighteen
    months imprisonment and given credit for pretrial time served. The next trial
    resulted in guilty verdicts on Counts One, Two and Three (conspiracy to commit
    extortion, attempted extortion in violation of the Hobbs Act, and traveling in
    interstate commerce to attempt extortion in violation of the Travel Act), and
    petitioner was sentenced on January 11, 1990, to seventeen years imprisonment.
    He then entered guilty pleas to Counts Four and Six (attempted extortion and

    A certificate of appealability is not required for a federal prisoner to


    appeal a final order in a proceeding under 28 U.S.C. 2241.
    Hunnicutt v. Hawk ,
    229 F.3d 997, 998 (10th Cir. 2000).

    -2-

    interstate travel to commit an unlawful act: attempted extortion) and the


    remaining two counts were dismissed. On March 1, 1990, petitioner was
    sentenced on Counts Four and Six to twenty-five years imprisonment, to run
    concurrently with the sentence imposed on Counts One, Two and Three.
    On appeal, petitioner challenges the execution of his sentence, claiming his
    sentence was incorrectly calculated because the sentence on Count Nine was
    deemed to run consecutively to the other sentences, rather than concurrently.
    He also claims he is entitled to relief under

    Apprendi v. New Jersey , 530 U.S. 466

    (2000), because the grand jury that issued the indictment against him was not
    presented with all of the sentencing factors, which divested the trial court of
    jurisdiction. To the extent he raises on appeal claims that he did not receive
    notice that his sentence would be enhanced and that his good- and earned-time
    credits were not calculated properly, these claims were not included in his habeas
    petition. Therefore, they will not be considered for the first time on appeal.
    Walker v. Mather (In re Walker)

    , 959 F.2d 894, 896 (10th Cir. 1992).


    Analysis

    The district courts denial of the 2241 petition is reviewed de novo.


    Hunnicutt v. Hawk , 229 F.3d 997, 1000 (10th Cir. 2000).

    Because plaintiff

    is representing himself on appeal, his pleadings will be liberally construed.


    Haines v. Kerner, 404 U.S. 519, 520 (1972).
    -3-

    Petitioners claim that his first sentence should run concurrently to the
    other two is governed by 18 U.S.C. 3584(a), which provides, under certain
    conditions, that multiple terms of imprisonment

    may run concurrently or

    consecutively. Where, as here, the terms of imprisonment are imposed at


    different times, however, they run consecutively unless the court orders that the
    terms are to run concurrently.

    Id. Petitioner does not claim that his prison term

    for Count Nine was imposed at the same time as the prison term for Counts One,
    Two and Three, or that the judge who sentenced him on the later convictions
    ordered that either sentence was to run concurrently to the sentence on Count
    Nine. Rather, he argues that he had not completed

    service of his sentence on

    Count Nine when the next sentence was imposed and, therefore, 3584(a)
    requires concurrent terms.

    See id. (Multiple terms of imprisonment

    imposed

    at the same time run concurrently unless . . . .) (emphasis added).


    The plain language of the statute requires that petitioners sentence on
    Count Nine run consecutively to his other sentences because the sentencing court
    did not order concurrent sentences. His reliance on the statutes language
    pertaining to attempt crimes is not applicable.

    See 3584(a) (the terms may

    not run consecutively for an attempt and for another offense that was the sole
    objective of the attempt). Accordingly, petitioner is not entitled to relief on
    this claim.
    -4-

    Petitioners claim that the rule announced in

    Apprendi divested the trial

    court of jurisdiction due to a defective indictment, however novel, attacks the


    legality of his detention, rather than the execution of his sentence. Therefore,
    it must be filed pursuant to 28 U.S.C. 2255 and cannot be maintained in this
    action brought under 2241.

    Haugh v. Booker , 210 F.3d 1147, 1149 (10th Cir.

    2000). We cannot construe this petition as a 2255 motion because it was not
    filed in the district that imposed petitioners sentence.

    See United States v.

    Burch , 169 F.3d 666, 668 (10th Cir. 1999) ( 2241 petition construed as motion
    filed under 2255). Consequently, petitioner cannot receive relief from this court
    under Apprendi . We express no opinion on whether the sentencing court would
    consider this claim.
    Petitioners motion for appointment of counsel is denied. His three
    motions filed pursuant to Fed. R. App. P. 8(d) and Fed. R. Crim. P. 201(d) & (e)
    [sic] are denied. His request to proceed on appeal without prepayment of costs
    and fees is granted. The judgment of the United States District Court for the
    District of Colorado is AFFIRMED. The mandate shall issue forthwith.
    Entered for the Court

    David M. Ebel
    Circuit Judge
    -5-

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