RAYMOND WAGSTAFF, PETITIONER V. UNITED STATES OF AMERICA No. 90-5598 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Third Circuit Brief For The United States In Opposition OPINIONS BELOW The judgment order of the court of appeals (Pet. App. A1) is not reported. The order of the district court (Pet. App. C1-C2) is not reported. The report and recommendation of the magistrate (Pet. App. B1-B4) are not reported. JURISDICTION The judgment of the court of appeals was entered on May 30, 1990. The petition for a writ of certiorari was filed on August 22, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the district court correctly dismissed petitioner's motion for a writ of habeas corpus under 28 U.S.C. 2241, challenging sentences imposed by another district court, where petitioner had not previously exhausted the remedies available under 28 U.S.C. 2255. STATEMENT 1. In 1981, after a jury trial in the United States District Court for the District of Maryland, petitioner was convicted on one count of bank robbery, in violation of 18 U.S.C. 2113(a), and one count of bank larceny, in violation of 18 U.S.C. 2113(b). After "several motions to reduce or correct his sentence, including a motion under 28 U.S.C. Sec. 2255," petitioner was sentenced to a term of 15 years' imprisonment on the bank robbery offense. Pet. App. B1. In 1987, after another jury trial in the United States District Court for the District of Maryland, petitioner was convicted on one count of bank robbery (Count 1), one count of bank larceny (Count 2), and one count of entry into a bank with intent to steal, in violation of 18 U.S.C. 2113(a) (Count 3). /1/ The district court sentenced him to concurrent terms of 20 years' imprisonment on Count 1, one year's imprisonment on Count 2, and 20 years' imprisonment on Count 3. In 1989, the court of appeals reversed petitioner's conviction on the bank robbery charge (Count 1), but otherwise affirmed his convictions on the bank larceny and unlawful entry charges (Counts 2 and 3). United States v. Wagstaff, 865 F.2d 626, 627 (4th Cir.), cert. denied, 109 S. Ct. 3193 (1989). 2. In May 1989, petitioner, an inmate at the United States Penitentiary, Lewisburg, Pennsylvania, filed a motion for a writ of habeas corpus under 28 U.S.C. 2241 in the United States District Court for the Middle District of Pennsylvania. Petitioner challenged the "execution" of sentences imposed in the District of Maryland in 1981 and 1987. Pet. App. B2. With respect to the 1981 sentence, petitioner claimed that the district court -- as a result of his post-conviction challenges -- had increased the sentence from 10 to 15 years' imprisonment, in violation of the Double Jeopardy Clause. With respect to the 1987 sentence, petitioner contended that the district court had sentenced him twice for the same criminal conduct, again in violation of the Double Jeopardy Clause. Since he had already served his "valid" sentences, namely, 10 years' imprisonment on the 1981 conviction and one year's imprisonment on the 1987 conviction, petitioner argued that he was entitled to immediate release. Ibid. The United States magistrate recommended that the district court dismiss petitioner's motion for lack of jurisdiction. Pet. App. B1-B4. The magistrate noted that, "in order to reach the issue of execution of (petitioner's) sentence, one has to accept his argument that the sentences imposed by the District of Maryland, as they now stand of record, are illegal." Id. at B2-B3. He then pointed out that a petitioner cannot seek Sec. 2241 habeas relief in the district court of the district of his incarceration unless it appears that the sentencing court denied him relief and that the remedy by motion under Sec. 2255 in that court "is inadequate or ineffective to test the validity of his detention." Pet. App. B3. Here, the magistrate found that petitioner had pursued a Section 2255 remedy in connection with his 1981 sentence, that the court's denial of that motion had not rendered the remedy ineffective, see, e.g., Litterio v. Parker, 369 F.2d 395 (3d Cir. 1966), that petitioner had not sought further review of that order, and that he had not filed a Section 2255 petition in connection with his 1987 sentence. Pet. App. B4. In these circumstances, the magistrate recommended that the district court dismiss petitioner's motion for lack of jurisdiction. Ibid. In July 1989, the district court adopted the magistrate's report and recommendation and dismissed petitioner's motion. Pet. App. C1-C2. The court determined that "(a)ll of petitioner's (claims) go to the underlying validity of the sentences and not the execution of the sentence." Id. at C2. The court therefore agreed with the magistrate that petitioner's motion under 28 U.S.C. 2241 should be dismissed for his "failure to proceed under 28 U.S.C. Section 2255." Pet. App. C2 (citing Application of Galante, 437 F.2d 1164 (3d Cir. 1971). 3. In May 1990, the court of appeals affirmed the district court's decision in a one-sentence judgment order. Pet. App. A1. ARGUMENT Petitioner contends (Pet. 7-10) that the courts below improperly dismissed his motion for relief under Section 2241. Despite petitioner's characterization of his motion as a challenge to the execution of his sentences, see, e.g., Pet. ii, 4, 11-12, it is apparent that since his claims are premised on the sentencing courts' alleged violations of the Double Jeopardy Clause, his motion falls within the terms of Section 2255, namely, that "the sentence was imposed in violation of the Constitution * * * of the United States." 28 U.S.C. 2255. /2/ But the terms of Section 2255 barred the district court, in the circumstances presented, from entertaining petitioner's motion under Section 2241. Section 2255 provides, in relevant part, that (a)n application for a writ of habeas corpus * * * shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention. With respect to his 1981 sentence, although petitioner applied for post-conviction relief, he neither appealed from the order denying relief, nor did he make any showing that the remedy available to him was "inadequate or ineffective" within the meaning of Section 2255. See, e.g., Boyden v. United States, 463 F.2d 229, 230 (9th Cir. 1972), cert. denied, 410 U.S. 912 (1973); Waugaman v. United States, 331 F.2d 189, 191-192 (5th Cir. 1964). With respect to the 1987 sentence, petitioner has not even sought post-conviction relief in the sentencing court. Accordingly, the terms of Section 2255 mandated the dismissal of petitioner's motion for a writ of habeas corpus. In any event, petitioner's challenges to his sentences under the Double Jeopardy Clause (Pet. 10-12) are not ripe for review. Unitl the district courts that sentenced petitioner have had an opportunity to review the records of the 1981 and 1987 convictions and assess his constitutional claims, it would be premature for this Court -- in the first instance -- to address them. See United States v. Prichett, 898 F.2d 130, 131 (11th Cir. 1990); United States v. Houston, 745 F.2d 333, 334 (5th Cir. 1984), cert. denied, 470 U.S. 1008 (1985). CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General THOMAS M. GANNON Attorney NOVEMBER 1990 /1/ The 1987 trial was a retrial of those charges. See United States v. Wagstaff, 822 F.2d 56 (4th Cir. 1987) (Table). /2/ For that reason, petitioner errs in asserting (Pet. 8-9) that the decision below conflicts with other federal court decisions, since those cases did not involve constitutional challenges to the sentence imposed. Rather, the cases petitioner cites involved challenges to sentence computations, see, e.g., Hanahan v. Luther, 760 F.2d 148, 150 (7th Cir. 1985); United States v. Giddings, 740 F.2d 770, 771 (9th Cir. 1984); Davis v. Willingham, 415 F.2d 344, 345 (10th Cir. 1969), challenges to the sequence of sentences, see, e.g., Miller v. Willingham, 400 F.2d 873, 874 (10th Cir. 1968); Payne v. Madigan, 274 F.2d 702, 704-705 (9th Cir. 1960), aff'd by an equally divided Court, 366 U.S. 761 (1961), challenges to federal court power under the habeas corpus statute, see, e.g., Fay v. Noia, 372 U.S. 391, 398-399 (1963), or challenges to applications of Section 2255, see, e.g., Sanders v. United States, 373 U.S. 1, 19-20 (1963); Sciberras v. United States, 404 F.2d 247, 249-250 (10th Cir. 1968).