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Pope v. Perdue

United States Court of Appeals, Seventh Circuit

May 3, 2018

Jermel Pope, Petitioner-Appellant,
Janet Perdue, Respondent-Appellee.

          Argued November 29, 2017

          Appeal from the United States District Court for the Central District of Illinois. No. 14-cv-01393 - Sara Darrow, Judge.

          Before Wood, Chief Judge, and Ripple and Kanne, Circuit Judges.

          Kanne, Circuit Judge.

          Various statutes vest the Federal Bureau of Prisons ("BOP") with the authority to make decisions that affect aspects of a federal inmate's sentence. In Jermel Pope's case, the BOP used its authority to prolong his federal sentence. Pope argues that the BOP erroneously wielded that authority and asks that we reconsider the BOP decisions that extended his sentence. Pope has completed his term of imprisonment and is now serving a period of federal supervised release, so we must also consider whether Pope's habeas corpus petition is now moot because he is no longer housed in a federal corrections facility.

         I. Background

         On February 8, 2008, Illinois state authorities arrested Jermel Pope and charged him with pandering in violation of Illinois law. While his state case was pending, a federal grand jury returned an indictment against him for violating the federal equivalent of the state pandering law. Both the state and federal charges stemmed from the same events.

         Pope bounced back and forth between state and federal facilities in order to appear in both the state and federal proceedings. These transfers were always conducted under a writ of habeas corpus ad prosequendum. Using this writ, a sovereign may take temporary custody of a prisoner in the custody of another sovereign, for the purpose of prosecution, without acquiring primary custody.

         On June 10, 2009, a federal court sentenced Pope to 100 months' imprisonment on the federal offense. And a few months later, on August 24, 2009, an Illinois court sentenced him to five years' imprisonment on the state charge.

         Then on August 31, 2009-shortly after the imposition of his state sentence and over two months after the imposition of his federal sentence-Pope was moved from an Illinois facility and housed in a federal correctional center. Two hundred and sixty-eight days later, on May 25, 2010, Pope was returned to a state facility. These post-sentencing changes of custody were not accompanied by a writ of habeas corpus ad prosequendum.

         Having returned to a state facility on May 25, 2010, Pope then remained at the state facility for the duration of his state sentence. On August 6, 2010-two years and six months after his arrest-Illinois paroled Pope. That same day Pope was turned over to federal authorities.

         Notwithstanding the fact that the BOP had previously exercised custody over Pope from August 31, 2009, to May 25, 2010, the BOP calculated the start date of his federal sentence as August 6, 2010. The BOP also refused to give Pope credit for time served that had already been credited to his state sentence. Later, it also denied Pope's request that the BOP retro- actively designate the Illinois prison where he served his state sentence as his place of imprisonment for his federal sentence. This retroactive designation would have, in effect, run Pope's federal sentence concurrently with his state sentence.

         Pope's challenges to the BOP's decisions have dragged on for years. After exhausting his administrative remedies, Pope filed this habeas corpus petition on September 29, 2014. Five months later, the district court ordered the Government to show cause why Pope's writ should not be granted. In April 2015, the Government filed its response.

         It was not until July 2016-21 months after Pope filed the petition we now review, and 14 months after the Government filed its response-that the district court returned to Pope's petition. It granted the petition in part, ordering the BOP to credit Pope 30 days. It denied all but one of Pope's additional claims. Because the Government had failed to respond to the substance of that final claim, the district court gave the Government additional time to respond. Finally, on December 13, 2016-over two years after Pope filed initially-the district court denied the remainder of his petition.

         Pope appealed. This Court set a briefing schedule to be completed on September 13, 2017, and scheduled oral argument for November 29, 2017. On November 24, 2017, the BOP released Pope to begin serving his term of supervised release. Then, two days before oral argument, the Government moved to dismiss this case as moot. We now address that motion, as well as the merits of Pope's 28 U.S.C. § 2241 petition, which we review de novo, Brown v. Caraway, 719 F.3d 583, 586 (7th Cir. 2013).

         II. Analysis

         This appeal stems from the BOP's position that Pope should serve his federal sentence consecutively rather than concurrently with his state sentence. To ensure that end, the BOP commenced Pope's federal sentence only after he was paroled by Illinois despite the fact that Pope had already spent months in a BOP facility. It also denied his request for a retroactive designation. Finally, it ...

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