FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DANIEL ANGEL RODRIGUEZ,

Petitioner-Appellant,

v.

PAUL COPENHAVER,

Respondent-Appellee.

No. 14-16399

D.C. No. 

1:13-cv-01750-SMS

OPINION

Appeal from the United States District Court

for the Eastern District of California

Sandra M. Snyder, Magistrate Judge, Presiding

Argued and Submitted April 7, 2016

Pasadena, California

Filed May 25, 2016

Before: A. Wallace Tashima, Barry G. Silverman, and

Susan P. Graber, Circuit Judges.

Opinion by Judge Silverman

Partial Concurrence and Partial Dissent by Judge Tashima
2 RODRIGUEZ V. COPENHAVER

SUMMARY*

Habeas Corpus

The panel reversed the district court’s dismissal of a

federal prisoner’s 28 U.S.C. § 2241 habeas corpus petition

challenging the Bureau of Prisons’ denial of a discretionary

nunc pro tunc designation of a state prison for service of his

sentence pursuant to 18 U.S.C. § 3621(b), and remanded.

The panel held that because the district court had

jurisdiction to consider Rodriguez’s claims that the BOP

violated the Constitution, exceeded its statutory authority, or

acted contrary to established federal law, the district court

erred by dismissing the petition for lack of jurisdiction. 

The panel held that the BOP acted contrary to 18 U.S.C.

§ 3621(b)(4) and due process, when it relied on a letter from

a judge who was not the sentencing judge, and who had been

formally recused from the case due to an actual conflict –

namely, his connection to the victim of the crime. The panel

reversed and remanded for the district court to grant the

habeas petition with directions to the BOP to promptly

reconsider the prisoner’s request for a nunc pro tunc

designation, without considering the letter from the recused

judge. 

Judge Tashima concurred in part and dissented in part. 

He agreed that the BOP committed legal error under

§ 3621(b)(4) in treating and relying on the letter of a judge

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
RODRIGUEZ V. COPENHAVER 3

who was not the sentencing judge, but he dissented from the

majority’s discussion of and “holding” that the BOP violated

the prisoner’s due process rights and statutory rights under

the recusal statutes.

COUNSEL

Stephen R. Sady (argued), Chief Deputy Federal Public

Defender, and Elizabeth G. Daily, Research & Writing

Attorney, Portland, Oregon, for Petitioner-Appellant.

Audrey B. Hemesath (argued), Assistant United States

Attorney, Camil A. Skipper, Appellate Chief, and Benjamin

B. Wagner, United States Attorney, Sacramento, California,

for Respondent-Appellee.

OPINION

SILVERMAN, Circuit Judge:

Federal prisoner Daniel Rodriguez appeals the district

court’s dismissal of his 28 U.S.C. § 2241 habeas petition

challenging the Bureau of Prisons’ denial of a discretionary

nunc pro tunc designation of a state prison for service of his

federal sentence pursuant to 18 U.S.C. § 3621(b).

We hold that the district court erred by dismissing the

petition for lack of jurisdiction. The district court had

jurisdiction to consider Rodriguez’s claims that the Bureau of

Prisons violated the Constitution, exceeded its statutory

authority, or acted contrary to established federal law. See

Close v. Thomas, 653 F.3d 970, 973–74 (9th Cir. 2011).
4 RODRIGUEZ V. COPENHAVER

We also hold that the Bureau of Prisons acted contrary to

18 U.S.C. § 3621(b)(4), which directs the Bureau of Prisons,

when designating a prisoner to a facility in which to serve his

sentence, to consider “any statement by the court that

imposed the sentence.” (emphasis added). It is undisputed

that the Bureau of Prisons relied on a letter from a judge who

not only was not the sentencing judge, but who had been

formally recused from the case due to an actual conflict –

namely, his connection to the victim of the crime. In relying

on that letter, the Bureau of Prisons acted contrary to 18

U.S.C. § 3621(b)(4) and due process. We reverse and remand

for the district court to grant the petition for habeas corpus

with directions to the Bureau of Prisons to promptly

reconsider Rodriguez’s request for a nunc pro tunc

designation, without considering the letter from the recused

judge.

I

Background

On July 24, 1994, Rodriguez was arrested on state

charges in Miami, Florida. He was on parole for a previous

state conviction at the time of his arrest. A month later, while

Rodriguez was in state custody, he appeared in the United

States District Court for the Southern District of Florida,

where he was charged with various firearm charges, and

assault on a federal judge stemming from a home invasion

robbery. Acting Chief District Judge Edward B. Davis

previously had recused all of the district judges in the

Southern District of Florida from Rodriguez’s case because

the alleged victim of the home robbery was a fellow judge of

the district court in the Southern District of Florida.
RODRIGUEZ V. COPENHAVER 5

Because all of the Southern District of Florida judges had

been recused, the Chief Judge of the Eleventh Circuit

appointed United States District Judge Robert Propst, from

the Northern District of Alabama, to sit by designation and

preside over Rodriguez’s case in the Southern District of

Florida. The jury acquitted Rodriguez of assault, but found

him guilty of the firearm charges. Judge Propst then

dismissed the firearm conviction related to the assault charge,

leaving two convictions for felon in possession of a firearm.

On April 10, 1995, Judge Propst sentenced Rodriguez to

a prison term of 272 months. At that time, Rodriguez was

still in state custody while awaiting disposition of his state

cases. The federal sentence was silent about whether it

should run concurrently with or consecutively to the yet-tobe-imposed sentences for the new pending state charges and

parole revocation. About three years after Rodriguez

finished serving his state sentences, the Bureau of Prisons

took custody of Rodriguez. That occurred on July 16, 1998.

Rodriguez requested that the Bureau of Prisons

retroactively designate the Florida prison system for service

of his federal sentence nunc pro tunc to September 1, 1994. 

In other words, he sought, in effect, to get credit toward his

federal sentence for the time he spent in state custody before

being transferred to the Bureau of Prisons on July 16, 1998. 

A nunc pro tunc designation would shorten Rodriguez’s

federal sentence by approximately three years.1

 

1 Rodriguez’s federal sentence has been credited with some state time. 

The nunc pro tunc designation would, in effect, provide credit from

September 1, 1994, to October 2, 1997.
6 RODRIGUEZ V. COPENHAVER

Pursuant to the Bureau of Prisons’ ProgramStatement and

18 U.S.C. § 3621(b)(4), Eric Wohltjen, Acting Chief of the

Bureau’s Designation and Sentence Computation Center, sent

a letter to Judge Propst, but he mailed it to the Southern

District of Florida, instead of to Alabama. The letter solicited

Judge Propst’s position on whether the retroactive

designation should be granted. On March 18, 2010, Chief

Judge Federico A. Moreno of the Southern District of Florida,

not Judge Propst the sentencing judge, replied to the Bureau

of Prisons as follows:

Dear Mr. Wohltjen,

I am in receipt of a copy of your letter to

Judge Robert Propst, from the Northern

District of Alabama, who presided over the

above-styled case here in Miami. As a review

of the file will reveal, a judge in our Court,

Shelby Highsmith, was the victim in the case

for which visiting Judge Propst sentenced Mr.

Rodriguez to 272 months. Mr. Rodriguez was

also sentenced in state court to a 20 year term

for multiple counts of armed robbery and

kidnapping.

To now grant retroactive credit to Mr.

Rodriguez for the time served in state custody

would drastically reduce the sentence that

visiting Judge Propst properly imposed. As

the Chief Judge of the Southern District of

Florida where Judge Highsmith honorably

served until his recent retirement, I strongly

oppose the defendant’s request for the Bureau

of Prisons to give him credit for the time he
RODRIGUEZ V. COPENHAVER 7

served in state prison on an unrelated violent

crime.

Unfortunately, Federal Judges have been

the recipients of many threats in today’s

society. When a threat results in an actual

attack, the offenders should be severely

sanctioned. To now allow Mr. Rodriguez to

be released on January 8, 2015 rather than

October 19, 2018 is not only dangerous to the

public but an insult to the victim in the federal

case, Judge Shelby Highsmith, let alone the

victims of the armed robbery in the state case. 

I hope that you deny his request for

retroactive credit.

The Bureau of Prisons denied the nunc pro tunc designation

request, writing to Rodriguez that

we considered the nature of your instant

offense conduct, the reasons for which you

were in the custody of the State of Florida, the

nature and repetitiveness of your criminal

history, and your institutional adjustment. We

also contacted the court regarding your

request. In response, the court emphatically

objected to your federal sentence commencing

the day it was imposed as doing so would be

a great insult to the victim of your federal

crime which, a federal judge, and the victims

of the armed robbery for which you were

sentenced in state court. Accordingly, we

determined a retroactive designation would be
8 RODRIGUEZ V. COPENHAVER

inconsistent with the goals of the criminal

justice system.

Rodriguez then filed his 28 U.S.C. § 2241 habeas petition

in the Eastern District of California, the district in which he

was then incarcerated, alleging, first, that the Bureau of

Prisons violated the law and Constitution by considering the

recused judge’s letter; and second, that Chief Judge Moreno,

the recused judge, violated the recusal statute and recusal

order by responding to the Bureau of Prisons in his official

capacity. The district court dismissed the habeas petition,

holding that it lacked jurisdiction to review an individual

discretionary denial of a nunc pro tunc designation by the

Bureau of Prisons because 18 U.S.C. § 3625 specifically

exempts § 3621 decisions from the judicial review provisions

of the Administrative Procedure Act. Rodriguez appealed.

II

Jurisdiction and standards of review

We have jurisdiction pursuant to 28 U.S.C. § 1291. We

review de novo both subject matter jurisdiction and the merits

of the habeas claim. Close, 653 F.3d at 973; Reeb v. Thomas,

636 F.3d 1224, 1225 (9th Cir. 2011).

III

District court’s jurisdiction

The district court erred when it dismissed the petition for

lack of jurisdiction. Although a district court has no

jurisdiction over discretionary designation decisions, it does

have jurisdiction to decide whether the Bureau of Prisons
RODRIGUEZ V. COPENHAVER 9

acted contrary to established federal law, violated the

Constitution, or exceeded its statutory authority when it acted

pursuant to 18 U.S.C. § 3621. Close, 653 F.3d at 973–74. 

Rodriguez alleged in the district court that the Bureau of

Prisons’s consideration of the recused judge’s letter violated

the law and Constitution. Therefore, the district court erred

when it dismissed the petition for lack of jurisdiction. Id.

Because the facts are undisputed, we address Rodriguez’s

wholly legal claim.

IV

Bureau of Prisons’ consideration of the recused

judge’s letter

Rodriguez argues that the Bureau of Prisons acted

contrary to 18 U.S.C. § 3621(b)(4) when it considered an

official letter from a judge who was both recused from

Rodriguez’s case and was not the sentencing judge. We

agree.

The Bureau of Prisons’ authority to nunc pro tunc

designate a state prison for service of a federal sentence

derives from its authority to designate the facility where a

federal defendant serves his sentence. 18 U.S.C. § 3621(b);

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

abrogated on other grounds by Setser v. United States, 132

S. Ct. 1463 (2012). Section 3621(b) gives the Bureau of

Prisons discretion to designate the facility, but lists the factors

that the Bureau of Prisons must consider when it exercises

discretion. The statute directs the Bureau of Prisons to

consider “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
10 RODRIGUEZ V. COPENHAVER

(B) recommending a type of penal or correctional facility as

appropriate.” 18 U.S.C. § 3621(b)(4) (emphasis added). This

is a direction to the Bureau of Prisons to consider statements

made by the sentencing judge to determine the judge’s intent

and reasoning for the particular sentence imposed on the

particular defendant. See Rodriguez v. Smith, 541 F.3d 1180,

1189 (9th Cir. 2008) (characterizing factors considered under

§ 3621(b) to include the “sentencing judge’s statement”);

Woodall v. Fed. Bureau of Prisons, 432 F.3d 235, 248 (3d

Cir. 2005) (“Congress expressed an intent that the [Bureau of

Prisons] take into account the sentencing judge’s

recommendation.”); see also Federal Bureau of Prisons

Program Statement No. 5160.06, at 6 (Jan. 16, 2003) (setting

forth procedures to follow “[w]hen the original sentencing

judge is no longer available and the assigned judge offers no

opinion”).

Thus, there is no doubt that the Bureau of Prisons doubly

erred in considering Chief Judge Moreno’s letter: First, he

was not the judge who imposed the sentence as 18 U.S.C.

§ 3621(b)(4) contemplates; and second, he had been recused

from the case and should not have participated in it in any

way.

The Due Process Clause of the Fourteenth Amendment

requires recusal of a judge who “has a direct, personal,

substantial pecuniaryinterest in reaching a conclusion against

[a defendant] in his case.” Tumey v. Ohio, 273 U.S. 510, 523

(1927). “[T]o perform its high function in the best way,

justice must satisfy the appearance of justice.” Liljeberg v.

Health Servs. Acquisition Corp., 486 U.S. 847, 865 n.12
RODRIGUEZ V. COPENHAVER 11

(1988) (emphasis added) (internal quotation marks omitted);

see also Concrete Pipe & Prods. of Cal., Inc. v. Constr.

Laborers Pension Tr. for S. Cal., 508 U.S. 602, 617 (1993)

(“That officers acting in a judicial or quasi-judicial capacity

are disqualified by their interest in the controversy to be

decided is, of course, the general rule.” (quoting Tumey, 273

U.S. at 522)).

In this case, Chief Judge Moreno, a colleague of an

alleged victim of Rodriguez’s crimes, strongly recommended

“severe[] sanction[s]” and the denial of the nunc pro tunc

designation to avoid “insult” to his colleague. To make

matters worse, the chief judge presented his recommendation

under the guise of a neutral adjudicator by sending his letter

in place of the sentencing judge’s recommendation. The

Bureau of Prisons adopted the recused judge’s

recommendation and denied Rodriguez’s application. Such

actions do not satisfy the appearance of justice. Nor do they

afford Rodriguez his due process right to neutral adjudication. 

Thus, as a matter of both statute and due process, the Bureau

of Prisons should not have considered Chief Judge Moreno’s

letter. Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 876,

883–84 (2009); Mayberry v. Pennsylvania, 400 U.S. 455, 466

(1971). Furthermore, there is no way that this error can be

deemed harmless in as much as the Bureau specifically cited

and relied on the Moreno letter in denying Rodriguez’s

application.

We reverse and remand for the district court to grant the

writ and to direct the Bureau of Prisons to reconsider, within
12 RODRIGUEZ V. COPENHAVER

30 days, Rodriguez’s application for nunc pro tunc

designation, and to do so without regard to Chief Judge

Moreno’s letter.2

REVERSED AND REMANDED.

TASHIMA, Circuit Judge, concurring in part and dissenting

in part:

In designating the place of a federal prisoner’s

confinement, the Bureau of Prisons (“BOP”) is required to

consider “any statement by the court that imposed the

sentence[.]” 18 U.S.C. § 3621(b)(4). This requirement

applies to retroactive, or nunc pro tunc, designations. 

Although one possible construction of the term “the court that

imposed the sentence” is that it refers to the court as a whole,

here the Southern District of Florida, I fully agree with the

majority’s interpretation that “[t]his is a direction to the

Bureau of Prisons to consider statements made by the

sentencing judge to determine the judge’s intent and

reasoning for the particular sentence imposed on the

particular defendant.” Maj. Op. at 10. Because Chief Judge

Moreno was not the sentencing judge, I agree that the BOP

2 Because we grant relief on this issue, we decline to consider the

alternative arguments raised by Rodriguez. We also decline to consider

the arguments waived in the district court. 
RODRIGUEZ V. COPENHAVER 13

committed legal error under § 3621(b)(4) in treating and

relying on his letter as the views of the sentencing judge.1

This should end the matter and I would not further opine

on whether the Chief Judge’s letter was a violation of the

recusal statutes or of due process, as does the majority. The

recusal statutes apply only to in-court “proceedings.” See

28 U.S.C. § 144 (limiting application to “any proceeding in

a district court”); id. § 455(a) (requiring judge to “disqualify

himself in any proceeding in which his impartiality might

reasonably be questioned”). Indubitably, the BOP’s

designation of a prisoner’s place of confinement is not a court

“proceeding.”2

 More importantly, the letter-writing judge is

not the decision-making authority. Thus, at best, it is highly

questionable whether the recusal statutes apply to § 3621

determinations by the BOP.

As for the asserted “due process” violation caused by the

BOP’s reliance on the Chief Judge’s letter, the cases the

majority cites are inapposite. All of the cases cited by the

majority, see Maj. Op. at 10–11, Tumey v. Ohio, 273 U.S.

510, 523 (1927); Liljeberg v. Health Serv. Acquisition Corp.,

486 U.S. 847, 865 n.12 (1988), Concrete Pipe & Prod. Of

1

It is important to note that § 3621 is not an all encompassing statute. 

It does not prohibit the BOP from considering materials from other

sources, nor does it exhaustively list what the BOP may not consider. For

example, there is nothing in the statute that expressly prohibits the BOP

from considering a letter from the victim, or from the inmate’s parent or

spouse. Because the issue is not before us, we need not decide whether

the BOP was free to consider the Chief Judge’s letter, as long as it made

clear that it was not being considered as the views of the sentencing judge.

 

2

In fact, in the usual case, the BOP’s designation decision is not

subject to judicial review under the APA. See 18 U.S.C. § 3125.
14 RODRIGUEZ V. COPENHAVER

Cal., Inc. v. Constr. Laborers Pension Tr. For S. Cal., 508

U.S. 602, 617 (1993); Caperton v. A.T. Massey Coal Co.,

556 U.S. 868, 876 (2009); and Mayberry v. Pennsylvania,

400 U.S. 455, 466 (1971), concerned in-court proceedings

and decisions made by judges in those proceedings, not a

judge acting as a witness by sending a letter responding to the

inquiry of an independent agency.

Moreover, it is entirely unnecessary to decide either the

due process issue or the reach of the recusal statutes because

the case can be completely disposed of on the statutory

violation ground. Finally, because, as the majority holds,

only the sentencing judge can respond to the BOP’s § 3621

request, it is highly unlikely that a potential due process

violation will arise again. Once the BOP’s solicitation and

consideration of § 3621 letters is limited to sentencing judges,

by definition a judge who has been recused from the

sentencing proceeding cannot be the sentencing judge. The

problem should not recur. Thus, the majority’s “decision” of

these issues is not only dicta in the old fashioned sense, it is

also unnecessary in the practical sense.3

I thus concur in all of the majority opinion, except for its

discussion of and “holding” that the BOP violated

Rodriguez’s due process rights and statutory rights under the

recusal statutes, from which I respectfully dissent.

 

3

I emphasize that the dicta is “unnecessary” because of our Circuit’s

unique – and unfortunate – view of dicta. See Barapind v. Enomoto, 400

F.3d 744, 750–51 (9th Cir. 2005) (en banc).