F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

D A N I E L A N G E L R O D R

I G U E Z , Petitioner-Appellant

,

v.

P A U L C O P E

N H A V E R , Respondent-Appellee

. No. 14-16399

D.C. No. 1:13-cv-01750-SMS

OPI N I ON

A ppeal from the United States District Court for the Eastern District of California Sandra M. Sny der, Mag istrate J udg e, Presiding

Arg ued and Submitted April 7, 2016 Pasadena, California

F iled May

25, 2016

B efore: A. W allace Tashima, B arry G. Silverman, and Susan P. Graber, Circuit J udg es.

Opinion by

J udg e Silverman Partial Concurrence and Partial Dissent by J udg e TashimaR O D R I G U E Z V

. C O P E

N H A V E R 2

SUMMARY *

Habeas Corpus

The panel reverse d t h e d istrict court’s dismissal o f a f e d e r al prisoner’s 28 U.S.C. § 2241 habeas corpus petition challeng ing the B ureau o f Prisons’ denial of a di s c retionary nunc pro tunc desig n a tion of a state prison for service of his sentence pursuant to 18 U.S.C. § 3621(b), and remanded.

The p anel held that because the distric t c o urt h ad jurisdiction to consider Rod r i gu ez ’s claims that the B OP violated the Constitution, ex c eeded its statutory authority

, o r acted contrary to establishe d federal law, the district court erred by dismissing the petition for lack of jurisdiction.

The panel held that the B OP acted contrary to 18 U .S.C. § 3621(b)(4) and due process, when it relied on a letter from

a judg e who was not the sentencing judg e, and who had been formally recused f

rom the case due to an act u a l c o n flict

– namely

, h is connection to the victim of the crime. The panel reversed and remanded for the d istrict court to gr a n t the habeas petition with d irections to t h e BO P to promptly reconside r t h e prisoner’s request for a nunc pro tunc desig nation, withou t considering the letter from the recused judg e.

J udg e Tashima co n c u rred in p art and dissented in part. He ag reed that the B OP committed leg al error under § 3621(b)(4) in treating and rely ing o n t h e l etter of a judg e

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.R O D R I G U E Z V

. C O P E

N H A V E R 3

who was not the sentencing judg e, but he dissented from the majority ’s discussion of a n d “holding ” that the B OP v iolated the prisoner’s due process rig hts and statutory rig hts under the recusal statutes.

COUNSEL

Stephen R. Sady (arg

ued)

, C hief Deputy F ederal Public Defender, and Eliz abeth G

. Daily

, Research & W riting Attorney , Portland, Oreg on, for Petitioner-Appellant.

Audr e y B

. Hemesath (arg ued), Assistant United States Attorney , Camil A. Skipper, Appellate Chief, and B e njamin B . W ag n er, U nited States Attorney
, Sacramento, California, for Respondent-Appellee.

OP INION

SI L VERMAN, Circuit J udg e :

F ederal p risoner Daniel Rodrig uez ap p e a ls the district

c o urt’s dismissal of his 28 U.S.C. § 2241 habeas petition challeng ing the B ureau o f Prison s ’ denial of a discretionary nunc pro tunc desig n a tion of a state prison for service of his federal sentence pursuant to 18 U.S.C. § 3621(b).

W e hold that the district court erred by dismissing t h e petition for lack of jurisdiction. The dis t r i c t court h ad jurisdiction to consider Rodrig u ez ’s claims that the B ureau o f Prisons v i o lated the Constitution, ex ceeded its statutory authority

, or acted contrary to e stablished federal law. See Close v. Thomas , 653 F .3d 970, 973–74 (9th Cir. 2011).R O D R I G U E Z V

. C O P E

N H A V E R 4

We also hold that the B ureau of Prisons acted contrary to 18 U.S.C. § 3621(b)(4), which directs the B ureau of Prisons, when desig n ating a prisoner to a facility in which to serve his

s e ntence, to consider “ any statement by the court t h a t imposed the sentence .” (emphasis added). I t is undis p u ted that the B ureau of Prisons relied on a letter from a judg e w ho
not only w as not the sentencing judg e , b u t w h o h ad been f ormally recused from the c ase due to an actual co n f l i c t

– namely

, his connection to the victim of the c rime. I n rely ing

on that letter, the B ureau of Prisons acted c ont r a r y to 18 U.S.C. § 3621(b)(4) and d ue process. We reverse and remand fo r t h e district court to g rant the petition for habeas corpus with directions to the B ureau of Prisons to promp tly reconsider R o d r i g uez ’s request for a nunc pro tunc desig na tion, without considering the letter from the recused judg e.

I

B ackg round

On J u l y 2 4, 1994, Rodrig uez w as arrested on state charg es in Miami, F lorida. He w a s on p arole for a previous
state conviction at the time of his arrest. A month later, while Rodrig uez was in state custody

, he appeared i n the United States District Court for the Southern District of F lorida, where he was charg ed with various firearm charg es , a n d assault o n a fe deral judg e stemming from a home invasion robbery

. Acting Chief District J udg e Edward B

. D avis previously had r e c u sed all of the district judg es in the Southern District of F lorid a f rom Rodrig uez ’s case because the alleg ed victim of the home robbery was a fellow judg e o f the district court in the Southern District of F lorida.R O D R I G U E Z V

. C O P E

N H A V E R 5

B e cause all of the Southern District of F lorida judg e s h ad been re c u s ed, the Chief J udg e of the Eleventh Circuit

a p pointed United States District J udg e Robert Propst, f r o m the Northern District of Ala b a m a , to sit by desig nation a nd preside over Rodrig uez ’s c a se in the Southern District o f F lorida. T he jury a cquitted Rodrig uez of assault, b u t fo u n d h i m g uilty of the firearm charg es. J udg e Propst the n dismissed the f

irearm conviction related to the assault charg e , leaving two convictions for f elon in possession of a firearm.

On April 10, 1995, J u dg e Propst sentenced Rodrig uez to

a prison term o f 272 months. A t t h at time, Rodrig uez was still in state custody while a waiting d isposition of h i s s tate

cases. The federal sent e n c e was silent about whether it should r u n concurrently w ith o r consecutively to the y et-tobe-imposed sentences for the new pending state charg es a nd parole revocation. About three y e a rs after Rodrig uez finished serving his state sentences, the B ur e a u of Prisons took custody of Rodrig uez

. That occurred on J uly 16, 1998.

Rodrig uez requested t h a t the B ureau of Prisons retroactively desig nate the F lori da prison sy stem for service of his federal sentence nunc p ro tunc to September 1, 1994. I n other words, he s oug h t, in e ffect, to g et credit toward his federal sentence for the time he spent in state custody before being transf

e r r e d t o the B ureau of Prisons on J uly 16, 1998. A nunc pro tunc d esi gnation would shorten Rodrig uez ’s federal sentence by

approx imately

three y ears. 1

1 Ro d rig u ez’ s f

ed eral s en ten ce h as b een cred i ted w ith so m e state tim e. T h e n u n c p r o t u n c d esig n atio n w o u ld

, in ef f ect, p ro v id e cred it f

ro m Sep tem b er 1 , 1 9 9 4 , to Octo b er 2 , 1 9 9 7

.R O D R I G U E Z V

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N H A V E R 6

Pursuant to the B ureau of Prisons’ Prog ra m S t a tement a nd 18 U.S.C. § 3621(b)(4), Eric W o hltjen, Acting Chief of the B u r e a u ’ s D esig nation and Sentence Computation Center, s e n t

a l e tter to J udg e Propst, but he mailed it to the Sout h e r n District of F lorida, instead o f to Alabama. The letter solicited J udg e Propst’s position on whether the ret roactive des i gn ation should be g ranted. On March 18, 2010, Chief J udg e F e derico A. Moreno o f the Southern District of F lorida, not J udg e Propst the sentencing judg e, replied to the B ureau of Prisons as follows:

Dear Mr. W ohltjen,

I a m i n receipt of a copy of y our letter to J udg e Rober t Propst, f rom the Northern District of A labama, who presided over the above-sty led c ase here in Miami. As a r eview of the file will revea l

, a judg e in our Court, Shelby Hig hsmith, was the victim in the case for which visiting J udg e Propst sentenced Mr. Rodrig uez to 272 months. Mr. Rodrig uez was also sentenced in state court to a 20 y ear term for multiple counts of armed robbery a nd kidnapping

.

To now g rant retroactive c r e dit to Mr. Rodrig uez for the time served in state custody

wo u ld drastically reduce the sentence that visitin g J udg e Propst properly imposed. A s the Chief J udg e of the Southern Dist rict o f F lorida where J udg e Hig hsmith honorably served until his recen t retirement, I strong ly
oppose the defendant’s request for the B ureau of Prisons to g ive him credit for the time heR O D R I G U E Z V

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s e r ved in state prison on an unrelated violen t crime.

Un f ortunately

, F e deral J udg es have been the recip i en t s of many threats in today ’s society

. W hen a threat r esults in an actual attack, t h e offenders should be severely sanctioned. T o n ow allow Mr. Rodrig uez to b e r e l eased on J anuary 8, 2 015 rather than October 19, 2 0 18 is not only dang erous to the public b ut an insult to the victim in the federal
case, J udg e Shelby H ig hsmith, let alone the victims of the armed robbery in the state c ase. I hope that y ou deny his r e q u e st for retroactive credit.

The B ureau of Prisons denied the nunc pro tunc desig nation request, writing to Rodrig uez that

we considered the nature of y our instant offense conduct, the reasons for whic h y ou

were in the c ustody of the State of F lorida, the
nature and repe t itiveness of y our criminal history

, and y our institutional adjustment. W e also contacted the court reg arding y our request. I n r esponse, the court emphatically objected to y our fe d e r a l sentence commencing the day it was impose d as doing so would be

a g reat insult to the victim o f y our federal crime which, a federal judg e, and the victims of the armed r o b b ery for which y ou were

s e n tenced in state court. According ly

, we determined a retroactive desig nation would beR O D R I G U E Z V

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N H A V E R 8

inconsistent w i th the g oals of the criminal justice sy stem.

Rodrig uez then filed his 28 U.S.C. § 2241 h abeas petition in the Eastern District of California, t he district in which he

was then incarcerated, alleg ing

, first, that the B ur e a u o f Prisons violated the law and Constitution by considering the recused judg e’s letter; a

n d second, that Chief J udg e Moreno, the recused j u d g e, violated the recusal statute and recusal order by r esponding to the B urea u o f Prisons in his official capacity

. The district cou rt dismissed the habeas petition, hold i n g that it lacked jurisdiction to review an individual discretionary denial of a nunc pro tunc design a tion by the B ureau of Prisons b e ca u se 18 U.S.C. § 3625 specifically

ex e mpts § 3 6 21 decisions from the judicial review provisions of the Administrative Procedure Act. Rodrig u ez appealed.

I I

J urisdiction and standards of review

W e have jurisd iction pursuant to 28 U.S.C. § 1291. W e 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).

I I I

D istrict court’s jurisdiction

The district court erred when it dismissed the p etition for lack of jurisdiction. Althoug h a district court h as no jurisdiction o ver discretionary desig nation decisions, it does h a ve jurisdiction to decide whether the B ureau o f Pri s o n sR O D R I G U E Z V

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N H A V E R 9

acted c o ntrary to established federal law, v iolated the Constitution, or e x ceeded its statutory authority when it acted pursuant to 18 U.S.C. § 3621. Close

, 653 F

. 3d a t 973–74. Rodrig uez alleg ed in the district court that the B urea u o f Prisons’s consideration of the recused judg e’s letter v iolated the law a nd Constitution. Therefore, the district court erred when it dismisse d the petition f or lack of jurisdiction. Id. B ecaus e t h e facts are undisputed, w e address Rodrig uez ’s wholly leg al claim.

I V

B ureau of Prisons’ consideration of the recused

judg e’s letter

Ro drig uez arg ues that the B ureau of Prisons acted contrary to 18 U.S.C. § 3621(b)(4 ) when it considered an official letter from a judg e who was bot h r ecused from Rodrig uez ’s case and was n ot the sentencing jud ge

. W e ag ree.

The B ureau of Prisons’ authority to nunc pro tunc desig nate a state prison for servic e o f a federal sentence derives from its autho r i t y t o desig nate the facility w here a federal defendant serves his sentence. 1 8 U.S.C. § 3621(b); Reyn o l d s v

. Thomas

, 603 F .3d 1144, 1150 (9th Cir. 2010), abrogated on other grounds by S e t s e r v. United States
, 132 S. Ct. 1463 (2012). Section 3621(b) g ives the B ureau o f Prisons discretion to desig nate the facility

, but lists the f actors that the B ureau of Prisons m u s t consider when it ex e rcises discretion. The statute d irects the B ureau of Pri s ons to consider “ any statement by the c ourt that imposed the
sentence – (A) concerning the purposes for which the sentence to imprisonm e n t was determined to be warranted; o rR O D R I G U E Z V

. C O P E

N H A V E R 10

(B ) recommending a ty

pe of penal or correctional facility a s appropriate.” 18 U.S.C. § 3621(b)(4) (emphasis added). This is a direction to the B ureau of Prisons to consider statements made by the sentencing judg e to determine the judg e’s intent and reasoning for the particular sentence imposed on the particular d efendant. See Rodriguez v. Smith

, 5 41 F

. 3 d 1180, 1189 (9th Cir. 2008) ( characteriz ing factors considered under § 3621(b) to include the “ s e n tencing judg e’s statement”); W oodall v

. Fed. Bureau of P risons
, 4 32 F .3d 235, 248 (3d Cir. 2005) (“Cong ress ex pressed an intent that the [ B ureau o f Prisons] take i n t o a ccount the sentencing judg e’s recommendation.”); see also F ederal B ureau of Prisons Prog r am Statement No. 5160.06, at 6 (J an. 16, 2003) (setting forth procedures to follow “[ w ] h en the orig i n a l s e ntencing judg e is no long er available and the assig ned judg e offers no opinion”).

Thus, there is no d oubt that the B ureau of Prisons doubly erred in considering Chief J udg e Moreno’s l e tter: F irst, he

was n ot the judg e who imposed the sentence as 1 8 U

. S.C. § 3621(b)(4) c ontemplates; and second, he h a d been recused from the case and should n ot have p a r t i c i p ated in it in any way

.

The Due Process Clause of t h e F ourteenth A mendment requires recusal of a judg e w ho “has a direct, personal, substantial pecuniary interest in r eaching a conclusion ag ainst [ a defendant] in his case.” Tumey v. Ohio

, 273 U.S. 5 10, 523 (1927). “ [ T] o perform its hig h f unction in the best way , justice must satisfy the a

p p e a rance of

justice .” Liljeberg v

. Health Servs. Acquisition Corp.
, 486 U .S. 847, 8 6 5 n.12R O D R I G U E Z V

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N H A V E R 11

(1988) (emphasis a dded) (internal quotation marks omitted);

see also Concrete Pipe & Prods. o f Cal., Inc

. v

. C onstr. L a borers Pension Tr. for S. Cal.

, 508 U.S. 602, 617 (19 9 3 ) (“That officers acting in a judicial or q uasi-judi c i a l c apacity

are disqualified by their i n t e r est in the controversy to be decided is, o f course, the g e n eral rule.” (quoting Tumey
, 273 U.S. at 522)).

I n this case, Chief J udg e Moreno, a colleag u e o f a n alleg ed victim of Rodrig uez ’s c rimes, strong ly recommended “severe[ ] sanction[ s] ” and the d enial of the nu n c pro tunc desig nation to avo i d “insult” to his colleag ue. To make
matters worse, the chief judg e presented his recommendation under the g uise of a neutral adjudicator by sending his letter in place o f the senten cing judg e’s r ecommendation. The B u r e a u o f P r i s o n s a d o p t e d t h e r e c u s e d j u d g e ’ s recommendation and denied Rodrig uez ’ s application. Such actions do not satisfy the appearance of justice. Nor do they afford Rodr ig uez his due process rig ht to neutral adjudication. Thus, as a matter of b oth statute and due process, the B ureau of Prisons should not have c o nsidered Chief J udg e Moreno’s letter. Caperton v. A.T. Massey Coal Co.
, 556 U.S. 8 68, 876, 883–84 (2009); Mayberry v. Pennsylvania

, 400 U.S. 455, 466 (1971). F urthermore, t h e r e is no way that this error can be deemed harmless in as much as the B u reau specifically cited and relied on the Moreno letter in deny ing Rodrig uez ’s application.

W e reverse and remand for the district court to g rant the writ and to direct the B ureau of Prisons to reconsider, withinR O D R I G U E Z V

. C O P E

N H A V E R 12

30 day s, Rodrig ue z ’s a pplication for nunc pro tunc desig nation, a n d t o do so w ithout reg ard to Chief J udg e Moreno’s letter. 2

REVERSED AND REMANDED.

TASHI MA, Circuit J udg e, concurring in part and dissenting in part:

I n desig nating the place of a federal prisoner’s confinement, the B ureau o f Prisons (“B OP”) is required to consider “ any statement b y the court that imposed the sentence[ .] ” 18 U.S.C. § 3621(b)(4 )

. This r equirement applies to r e troactive, or nunc p ro tunc , d e sig nations. Althoug h one possible construction o f the term “the court that imposed the sentence” is that it refers to the court as a whole, here the S o u t h e r n District of F lorida, I fully ag ree with the

m a jority ’ s interpretation that “[ t] his is a direction to t h e Bu reau of Prisons to consider statements made by t h e sentenc i n g j u dg e to determine the judg e’s intent a nd reasoning for the p ar t i cular sentence imposed on the particular defendant.” Maj. O p. at 10. B ecause Chief J udg e Mo r e n o was not the sentencing judg e, I ag ree that the B OP

2 B ecau se w e g ran t relief o n th i s i ssu e, w e d eclin e to co n s i d e r t h e altern ativ e arg u m e n ts raised b y Ro d rig u ez. W e also d eclin e t o co n s id er th e arg u m en ts w aiv ed in th e d istrict co u rt.R O D R I G U E Z V

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N H A V E R 13

committed leg al error under § 3621(b)(4) i n t r e ating a nd relying on his letter as the views of the sentencing judg e. 1

This should end the matter and I would not further opine

on whether the Chief J udg e’s letter was a violation o f t h e recusal statutes or of due p rocess, as does the majority

. The recusal statutes ap p ly only to in-court “proceeding s.” See 28 U.S.C. § 144 (limiting application to “any proceeding in

a district court”); id. § 455(a) (requiring judg e to “disqualify himself in any proceeding in w h i c h his impartiality mig ht reasonably be questio n e d ” ). I ndubitably

, the B OP’s desig nation of a prisoner’s place of confinement is not a court “proceeding .” 2 More importantly , the letter-writing judg e is not the decision-making authority

. T hus, at best, it is hig hly questionable w hether the recusal s t a tutes apply to § 3621 determinations by

the B OP.

As for the asserted “due p rocess” violation caused by the B OP’s reliance on the Chief J udg e’s le t t e r , t he cases the majority cites are inapposite. All o f the case s c i ted by the majority

, see Maj. Op. a t 10–11, Tumey v. Ohi o , 273 U.S. 510, 5 2 3 (1927); Liljeberg v. Health Serv. Acquisition Corp.
, 486 U.S

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

1 It is im p o rtan t to n o te t

h at § 3 62 1 is n o t an all en co m p assin g statu te. It d o es n o t p ro h ib it th e BOP f ro m co n sid erin g m aterials f ro m o th er

so u rces, n o r do es it ex h au stiv ely list w h at th e B OP m ay n ot co n sid er. Fo r

ex am p le, th ere is n o th in g in t h e s t a tu te th at ex pressly p ro h ib its th e B O P f ro m co n sid erin g a letter f ro m th e v ictim

, o r f

ro m th e in m ate’ s p aren t or sp o u se. B ecau se th e issu e is n o t b ef o re u s, w e n eed n o t d ecid e w h eth er th e B OP w as f

ree to co n sid er th e Ch ief

J u d g e’ s letter, as lo n g as it m ad e clear th at it w as n o t b ein g co n sid ered as th e v iew s o f th e sen ten cin g j u d g e.

2 I n fa c t , i n t h e u su a l c a se , t h e B O P ’s d e s i g n ati o n d e c i s i o n i s n o t

su b j ect to j u d icial rev iew

u n d er th e A P A

. See 1 8 U.S.C. § 3 1 2 5

.R O D R I G U E Z V

. C O P E

N H A V E R 14

Cal., Inc. v

. Constr. Laborers Pensio n T r

. For S. Cal.

, 508 U.S. 602, 617 (1993); Caperton v. A.T. Mass e y C o a l Co.
, 556 U.S. 868, 876 ( 2 009); a nd Mayberry v. Pennsylvania

, 400 U.S. 455, 466 (1971), c oncerned in-court proce e d i n g s and d ecisions made by judg es in those proceeding s, no t a judg e acting as a witness by sending a letter responding to the inquiry of an independent ag ency

.
Moreover, it is entirely u nn e c e ssary to decide either the due process issue or the r each of the recusal statutes because the c ase can be completely disposed of on the statutory viol a t i o n g r ound. F inally

, because, a s the majority holds, only the sentencing judg e can re s p o n d to the B OP’s § 3621

r e quest, it is h ig hly unlikely that a potential due proce s s violati o n will arise ag ain. Once the B OP’s solicitation a nd consideration of § 3621 letters is limited to sentencing judg es, b y definition a judg e who has been recused from t h e sentencing proceeding cannot b e the sent e n c i n g judg e. The problem should not recur. T h us, the majority ’s “decision” o f 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, ex cept for its discussion of and “holding ” that the B OP v iolated Rodrig uez ’s due process rig hts and statutory rig hts under the recusal statutes, from which I respectfully

dissent.

3 I e m p h asize th at th e d icta i s “ u n n ecessary ” b ecau se o f

o u r Circu i t ’s

u n iq u e

– an d u n f

o rtu n ate

– v iew o f d icta. S ee Ba ra p in d v. En o m o to , 4 0 0 F.3 d 7 4 4 , 7 5 0

– 5 1 (9 th

Cir. 2 0 0 5 ) (en b an c).