Arnold R. Huskey v. P.W. Keohane, etc. ( 1998 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 96-3069
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Arnold R. Huskey, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the Western
* District of Missouri.
P. W. Keohane, Warden, United States *
Medical Center for Federal Prisoners, * [UNPUBLISHED]
*
Appellee. *
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Submitted: December 26, 1997
Filed: January 6, 1998
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Before FAGG, BOWMAN, and MURPHY, Circuit Judges.
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PER CURIAM.
In 1978, Arnold Huskey was sentenced by a federal court to a twenty-year prison
term for kidnapping. He escaped from prison in 1984 and committed murder in
Oregon. An Oregon court sentenced him to life imprisonment, to be served
consecutively to the federal sentence. In 1985, a federal court sentenced Huskey for
the escape to a five-year prison term, running consecutively to the first federal sentence.
In 1988, Huskey pleaded guilty to committing mail fraud in 1985 and 1986, and a
federal court sentenced him to a consecutive five-year term. Pursuant to Oregon&s law,
Huskey&s state sentence began running concurrently with his federal sentences in 1991.
The Bureau of Prisons (BOP) later aggregated Huskey&s three federal sentences.
Huskey challenged the aggregation of his mail-fraud sentence in two similar petitions for
writ of mandamus. The District Court1 consolidated the cases, construed the petitions
as 28 U.S.C. § 2241 petitions, and dismissed them without prejudice, finding that
Huskey&s claims lacked merit. On appeal, Huskey seeks to prevent the BOP from
aggregating his mail-fraud sentence with his other two federal sentences. He also has
filed a motion to strike the government’s brief and a motion requesting an expedited
appeal. We deny those motions, and affirm the District Court&s judgment.
As Huskey is challenging the execution of his sentence, the District Court
correctly construed his petitions as § 2241 petitions. See Chatman-Bey v. Thornburgh,
864 F.2d 804, 808-10 & n.4 (D.C. Cir. 1988) (en banc) (holding § 2241 was exclusive
remedy for claim that authorities failed to properly aggregate consecutive sentences in
determining parole eligibility, and noting efficacy of habeas precludes mandamus).
Because the Oregon sentence is running concurrently with Huskey&s aggregated
federal sentence, aggregation gives him maximum credit toward service of all his
sentences. Contrary to Huskey&s argument, the BOP had authority to aggregate his
consecutive federal sentences. See 18 U.S.C. § 4161 (repealed effective Nov. 1, 1987);2
Briest v. United States Bureau of Prisons, 459 F.2d 284, 285-86 (8th Cir. 1972) (per
curiam) (noting under § 4161, consecutive sentences are treated as single term for
computing good-time credit; finding BOP had authority to aggregate consecutive prison
terms). Aggregating consecutive sentences allows inmates to accumulate statutory
1
The Honorable Russell G. Clark, United States District Judge for the Western
District of Missouri, adopting the report and recommendations of the Honorable
James C. England, United States Magistrate Judge for the Western District of Missouri.
2
Section 4161 was repealed as of November 1, 1987, but it remained in effect
for five years thereafter as to an individual who committed an offense before
November 1, 1987, and thus it applies to Huskey. See Sentencing Reform Act of 1984,
Pub. L. No. 98-473, §§ 218(a)(4), 235(b)(1)(B), 98 Stat. 2027 (1984).
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good time at the highest rate. See Briest, 459 F.2d at 286. Furthermore, Huskey may
not complain about the order in which he is to serve his sentences. See Jeter v.
Keohane, 739 F.2d 257, 258 (7th Cir. 1984) (per curiam) (stating whether individual
should be in federal or state custody is dispute between two sovereigns, and violator of
laws of two sovereigns may not complain about order of serving sentences).
Accordingly, the judgment is affirmed.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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