Bradin v. Thomas

JOHN BRADIN, Petitioner - Appellant, v. LINDA THOMAS, Warden; UNITED STATES BOARD OF PROBATION & PAROLE, Respondents - Appellees.

No. 19-3093

No. 19-3190

UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

August 13, 2020

(D.C. No. 5:19-CV-03041-JWL)

(D. Kan.)

ORDER AND JUDGMENT^*

Before TYMKOVICH, Chief Judge, HOLMES and BACHARACH, Circuit Judges.

John Bradin, a federal prisoner proceeding pro se, appeals from the district court's denial of his motion for a temporary restraining order and preliminary injunction (No. 19-3093) and its final judgment on his 28 U.S.C. § 2241 petition for a writ of habeas corpus (No. 19-3190). We have procedurally consolidated the two appeals for disposition. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

I. BACKGROUND

In 1975, Mr. Bradin was convicted in the United States District Court for the Western District of Missouri on federal bank robbery charges and sentenced to fifteen years' imprisonment. He was released on parole in 1980. Between January 1986 and July 1989, Mr. Bradin was arrested for three parole violations, which resulted in two additional terms of confinement. He was released on parole again in May 1991.

In September 1992, the United States Parole Commission (USPC)¹ issued a warrant for Mr. Bradin's arrest for parole violations based on charges in two separate criminal actions pending in Missouri state court. In a memorandum to the warrant, the USPC instructed that if Mr. Bradin was already in state custody (which he was), the warrant should not be executed, but a detainer should be placed instead. The USPC supplemented the warrant in 1993 with information regarding Mr. Bradin's convictions in Missouri state court, where he was sentenced to twenty-five years' imprisonment for his crimes in the two criminal actions.

In November 2018, after Mr. Bradin finished serving his state sentences, the United States Marshals Service executed the 1992 warrant that had been lodged as a detainer and took him into federal custody. He was initially housed at the Leavenworth Detention Center in Leavenworth, Kansas. Upon execution of thewarrant, the USPC was authorized to revoke his parole and impose up to 1,602 days of confinement for his parole violations.

Before the USPC held a parole revocation hearing, Mr. Bradin filed his § 2241 habeas petition in the United States District Court for the District of Kansas. He sought release from custody or to a halfway house based on a number of grounds for relief regarding the use of the detainer, the delay in providing a revocation hearing, his inability to serve his state and federal sentences concurrently, and his eligibility for compassionate release under the First Step Act of 2018. He also filed a motion for a temporary restraining order (TRO) and a preliminary injunction (PI) concerning (1) respondents' alleged refusal to mail his § 2241 petition and (2) a box of his personal property the Missouri Department of Corrections held that allegedly included evidence both crucial to his petition and showing that the Social Security Administration unlawfully seized his social security benefits for over 26 years, which he wanted to use to hire counsel of choice.

The district court denied the TRO/PI motion and appointed the Kansas Federal Public Defender (FPD) to represent Mr. Bradin. Despite the FPD's representation, Mr. Bradin continued filing pro se motions. He also filed a pro se appeal of the order denying the TRO/PI motion. In some of his pro se motions, Mr. Bradin indicated he did not want the FPD as his counsel and asked the court to order the release of his Social Security funds so he could hire his own attorney. After a status conference on the issue of appointed counsel, the court ordered that if Mr. Bradin wished to continue with the FPD, he had to notify the court in writing by a date certain or thecourt would withdraw the appointment. When Mr. Bradin did not respond, the court withdrew the appointment.

Eventually, the district court ruled on the § 2241 petition, denying it in part and dismissing it in part, and entered a separate judgment. Mr. Bradin filed a notice of appeal from the separate judgment. We defer further discussion of the district court's rulings until our analysis of Mr. Bradin's appellate arguments.

II. DISCUSSION

Mr. Bradin's pro se appellate brief lacks clarity.² But we must afford it (and his other pro se filings) a liberal construction, albeit without acting as his attorney. See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008). So doing, we discern the following issues in his brief and address them in order of analytical convenience.

A. Challenges to the district court's jurisdiction over § 2241 petition

1. Standing Order 18-3

Mr. Bradin argues that the district court lacked jurisdiction to rule on his § 2241 petition because at the time he was housed at the Leavenworth Detention Center, the Center recorded attorney-client meetings between federal detainees and their attorneys, and the United States Attorney's Office in Kansas City, Kansas, obtained some of those recordings. Based on an assumption that the Center recorded his communications with counsel, Mr. Bradin contends that the District of Kansas'sStanding Order No. 18-3 required the district court to transfer his § 2241 case to Chief Judge Julie Robinson, and its failure to do so deprived the court of jurisdiction. We disagree.

The District of Kansas issued Standing Order No. 18-3 to address possible postconviction Sixth Amendment violations caused by the U.S. Attorney's Office's access to the recorded meetings, as described in United States v. Carter, 429 F. Supp. 3d 788 (D. Kan. 2019), vacated in part by United States v. Carter, No. 16-20032-02-JAR, 2020 WL 430739 (D. Kan. Jan. 28, 2020). In relevant part, Standing Order No. 18-3 provides:

[T]he Court appoints the Federal Public Defender to represent any defendant from the District of Kansas who may have a post-conviction Sixth Amendment claim based on the recording of in-person attorney-client meetings or attorney-client phone calls by any holding facility housing federal detainees within this District. The FPD is appointed to review potential cases regardless of whether the FPD represented the defendant in earlier District Court proceedings. . . . [T]he FPD is authorized to raise any other claims in the interest of the defendant.

D. Kan. Standing Order No. 18-3 (July 17, 2018). In Carter, Chief Judge Robinson ordered that the 28 U.S.C. § 2255 cases the FPD had by then filed pursuant to Standing Order No. 18-3 be reassigned to her:

The numerous § 2255 petitions filed to date incorporate the record and evidence from the . . . investigation [in this case] and have many issues common to all litigants. Accordingly, in the interest of judicial economy, and to avoid further unnecessary cost and delay, the Court reassigns the pending § 2255 habeas cases filed by the FPD pursuant to Standing Order 18-3 to the undersigned, to the extent they are not already pending before this Court, for determination of the merits of petitioners' Sixth Amendment claims and the Government's defenses consistent with this opinion.

Carter, 429 F. Supp. 3d at 902. Chief Judge Robinson further ordered that all "pending § 2255 cases filed pursuant to Standing [Order No.] 18-3 or otherwise raising Sixth Amendment claims related to [the Carter] case" be reassigned to her. Id. at 904.

Standing Order No. 18-3 and Carter concern only transfer of § 2255 petitions raising Sixth Amendment claims related to the practices described in the Carter case. Nothing in Standing Order No. 18-3 or Carter mandates transfer of any § 2241 cases to Chief Judge Robinson. But even if they did, Mr. Bradin does not explain, nor do we see, how the district court's failure to transfer his case to Chief Judge Robinson deprived the court of jurisdiction.

2. Right to hire counsel

Mr. Bradin also argues that although he represented himself, he did not waive his Sixth Amendment right to hire counsel, and therefore the district court lacked jurisdiction under Johnson v. Zerbst, 304 U.S. 458 (1938), overruled on other grounds by Edwards v. Arizona, 451 U.S. 477 (1981). We are not persuaded. In Johnson, the Supreme Court explained that "[t]he Sixth Amendment withholds from federal courts, in all criminal proceedings, the power and authority to deprive an accused of his life or liberty unless he has or waives the assistance of counsel." Id. at 463 (footnote omitted). However, a defendant generally has no right to counsel in a § 2241 proceeding because the Sixth Amendment "right to appointed counsel extends to the first appeal of right, and no further." Pennsylvania v. Finley, 481 U.S. 551, 555 (1987). Consequently, any inability of Mr. Bradin to hire counsel of choiceto represent him in his § 2241 proceeding did not divest the district court of jurisdiction over his § 2241 petition. To the extent Mr. Bradin's argument is instead based on his refusal to waive an alleged right to hire counsel in his parole revocation hearing, we consider it irrelevant to the district court's jurisdiction over his § 2241 petition.

B. Challenge to disposition of § 2241 petition

We discern only one challenge to the district court's disposition of the merits of Mr. Bradin's § 2241 petition. Mr. Bradin argued in his petition that deferring his parole revocation hearing until after expiration of his state sentence violated due process. The district court denied relief on this issue, concluding that under Moody v. Daggett, 429 U.S. 78 (1976), Mr. Bradin was not entitled to a revocation hearing promptly after the warrant was issued in 1992 because he was confined in state prison pursuant to a valid conviction.

"When reviewing the denial of a habeas petition under § 2241, we review the district court's legal conclusions de novo and accept its factual findings unless clearly erroneous." al-Marri v. Davis, 714 F.3d 1183, 1186 (10th Cir. 2013).

On appeal, Mr. Bradin does not address the...