Unpublished Disposition, 916 F.2d 716 (9th Cir. 1990)

Annotate this Case
US Court of Appeals for the Ninth Circuit - 916 F.2d 716 (9th Cir. 1990)

George Don GREGORY, Petitioner-Appellant,v.UNITED STATES of America, Defendant-Appellee.

No. 88-6295.

United States Court of Appeals, Ninth Circuit.

Submitted Feb. 7, 1990.* Decided Sept. 24, 1990.

Before CANBY, BRUNETTI and FERNANDEZ, Circuit Judges.


AMENDED MEMORANDUM** 

George Don Gregory, formerly a federal prisoner, appeals pro se the district court's dismissal of his habeas corpus petition filed pursuant to 28 U.S.C. § 2241. Gregory contends that the Parole Commission acted without good cause and in violation of due process in setting his parole 22 months above the guidelines. We dismiss Gregory's petition on the ground that it is moot.

Gregory was indicted on November 21, 1985 for 28 counts of mail and wire fraud in violation of 18 U.S.C. §§ 1341 and 1343, respectively. He entered into a plea agreement with the government whereby it was stipulated that (1) Gregory would plead guilty to counts 1, 2, 3, and 4; (2) at the time of sentencing the remaining counts would be dismissed; and (3) as to count 4, the defendant would be placed on probation. Gregory was sentenced on October 27, 1986 as follows:

Five Years as to each counts 1, 2, and 3, said sentences to commence and run concurrently.

The defendant shall become eligible for parole pursuant to Title 18, United States, Section 4205(b) (2).

IT IS ADJUDGED as to count 4 of the indictment, that the imposition of sentence, as to imprisonment only, be suspended and the defendant is placed on probation for a period of Five (5) Years....

At his parole hearing, Gregory's parole date was set 22 months above the applicable guidelines. Gregory appealed to the National Appeals Board which affirmed the Parole Commission's decision.

Gregory filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. The district court construed the petition as a motion made pursuant to 28 U.S.C. § 2255 and summarily dismissed the petition. Gregory timely appeals.

The denial of a petition filed under section 2241 is reviewed de novo, Carter v. McCarthy, 806 F.2d 1373, 1375 (9th Cir. 1986), cert. denied, 108 S. Ct. 1098 (1987), as is the dismissal of a section 2255 motion, United States v. Quan, 789 F.2d 711, 713 (9th Cir.), cert. denied, 108 S. Ct. 16 (1986).

* Gregory contends that the district court erroneously construed his section 2241 habeas petition as a motion to vacate his sentence filed pursuant to section 2255.

A motion to vacate under section 2255 can test only the propriety of the sentence imposed, not the manner of its execution. United States v. Giddings, 740 F.2d 770, 772 (9th Cir. 1984). A defendant's challenge to the execution of his sentence is proper only through a petition for writ of habeas corpus under 28 U.S.C. § 2241. Id. Because Gregory is challenging the execution of his sentence, rather than its propriety, the district court erred in construing the petition as a section 2255 motion. See id.

II

On May 23, 1990, we issued an order to show cause why Gregory's habeas corpus petition should not be dismissed for mootness because Gregory has been paroled from prison. Gregory contends that his petition is not moot because had the Parole Commission not set his parole date 22 months above the guidelines, he would have been paroled earlier, thereby allowing his probation to commence earlier. He claims that his probationary term would have expired by this time had he been paroled on the appropriate date.

Federal courts lack jurisdiction to decide a case if it is moot. Sample v. Johnson, 771 F.2d 1335, 1338 (9th Cir. 1985), cert. denied, 475 U.S. 1019 (1986). A case is moot when "the issues are no longer live or the parties lack a legally cognizable interest in the outcome" and when "a court's decision will no longer have an impact on [the petitioner]." Id. at 1338-39.

Gregory has been released on parole which is the relief he sought in his habeas corpus petition. Nevertheless, his petition is not moot if his parole date was erroneously set 22 months above the guidelines, and this error caused his probationary term to commence later and continue to this time. Therefore, we must determine when Gregory's term of probation was to begin and whether it was in fact affected by the Parole Commission's decision.

A review of the plea agreement, sentencing order, and district court record fail to reveal when Gregory's probationary term was to commence. When a sentencing order is silent as to when the probationary term commences, there is a strong presumption that the term starts on the date sentence is imposed and runs concurrently with any period of imprisonment imposed on any remaining count or counts. United States v. Adair, 681 F.2d 1150, 1151 (9th Cir. 1982), see also Puccinelli v. United States, 5 F.2d 6, 7 (9th Cir. 1925). If a sentencing court does not intend this result, then the probationary sentence should state explicitly and precisely when probation is to commence. Adair, 681 F.2d at 1151 n. 3; see also United States v. Carter, 827 F.2d 546, 548 (9th Cir. 1987). A prisoner's incarceration is not an impediment to applying the presumption of concurrency. Adair, 681 F.2d at 1152; see also Burns v. United States, 287 U.S. 216, 223 (1932); United States v. Jones, 712 F.2d 1316, 1323 (1983); Green v. United States, 298 F.2d 230, 232 (9th Cir. 1961).

Because the sentencing order does not specify when the probationary term was to commence, we must presume it commenced when the sentence was imposed. This presumption is buttressed by the language of the sentencing order that " [T]he imposition of sentence, as to imprisonment only, be suspended and defendant is placed on probation...." (emphasis added). Hence, Gregory's probationary term was not affected by the Parole Commission's decision. Because any adjudication by this court as to the propriety of the Parole Commission's decision would have no impact on Gregory, his petition is moot.

DISMISSED.

 *

The panel finds this case appropriate for submission without argument pursuant to 9th Cir.R. 34-4 and Fed. R. App. P. 34(a)

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.