CHARLESTON v. LOTHROP (2021)

United States Court of Appeals, Ninth Circuit.2021-07-26No. No. 20-16367

Summary · law.co

Holding. The district court's order dismissing Charleston's habeas corpus petition was affirmed because the Bureau of Prisons correctly executed a valid and unmodified judgment, and the court lacked jurisdiction to address the constitutional challenge to the conviction and reinstatement.

Phillip Charleston, proceeding without counsel, challenged the Bureau of Prisons' execution of his sentence on the ground that it improperly included an 84-month term for Count 2, which he claimed had been dismissed. The record demonstrated, however, that although Count 2 was initially dismissed, it was reinstated six days later at the government's request, while Count 3 was dismissed instead. Charleston was convicted by jury on the reinstated Count 2 and received an 84-month sentence, which remains the valid judgment of the district court. Because the judgment has never been vacated or amended, the Bureau of Prisons was acting properly in executing the sentence as imposed.

Charleston also raised a constitutional challenge to the reinstatement and conviction on Count 2, but this court lacked authority to consider that claim because it had not been certified for appeal. Charleston's request for reconsideration of the denial of a certificate of appealability on that claim was rejected.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether the Bureau of Prisons properly executed a sentence for a count that was reinstated after initial dismissal
Jurisdiction to review constitutional challenges to conviction when no certificate of appealability was granted

Procedural posture

Charleston appealed pro se from a district court's dismissal of his 28 U.S.C. § 2241 habeas corpus petition challenging the execution of his sentence.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

MEMORANDUM **

Phillip T. Charleston appeals pro se from the district courts order dismissing his 28 U.S.C. § 2241 habeas corpus petition. We have jurisdiction under 28 U.S.C. § 1291. We review de novo, Stephens v. Herrera, 464 F.3d 895, 897 (9th Cir. 2006), and we affirm.

Charleston contends that the Bureau of Prisons (“BOP”) is improperly executing his sentence by including 84 months for Count 2, which had been dismissed. The record shows that, at the governments request, Count 2 was reinstated six days later and Count 3 was instead dismissed. The record further shows that the jury convicted Charleston of Count 2 and the district court imposed an 84-month sentence thereon. The judgment has not been vacated or amended to change the 84-month sentence. Therefore, the BOP is correctly executing a valid judgment and the district court properly denied § 2241 relief. See United States v. Wilson, 503 U.S. 329, 335, 112 S.Ct. 1351, 117 L.Ed.2d 593 (1992) (“After a district court sentences a federal offender, the Attorney General, through the BOP, has the responsibility for administering the sentence.”).

This court lacks jurisdiction to consider Charlestons constitutional challenge to the reinstatement and conviction on Count 2 because it was not certified for appeal. See Beaty v. Stewart, 303 F.3d 975, 984 (9th Cir. 2002) (“Courts of Appeals lack jurisdiction to resolve the merits of any claim for which a COA is not granted.”); see also Porter v. Adams, 244 F.3d 1006, 1007 (9th Cir. 2001) (order) (holding that a successive § 2255 motion disguised as a § 2241 petition requires a COA). Insofar as Charleston seeks reconsideration of this courts denial of a COA as to that claim, it is denied.

AFFIRMED.