William Bishop, Petitioner-appellee, v. Janet Reno, U.S. Attorney General,director of the United States Bureau of Prisons,u.s. Bureau of Prisons, Warden, Dade County Jail,federal Detention Center, Miami, U.S. Parole, Respondents-appellants, 210 F.3d 1295 (11th Cir. 2000)

This appeal requires us to determine whether a district court has subject matter jurisdiction to entertain habeas corpus relief for a foreign sentence of a United States citizen, who is serving the foreign sentence in the United States pursuant to treaty transfer. The district judge granted habeas relief and reduced the foreign sentence. We reverse and remand for dismissal.

In July, 1995, petitioner-appellee and United States citizen, William Bishop, was convicted by a Bahamian court of conspiracy to possess with intent to supply 1,956 pounds of marijuana. He was sentenced to a five-year term of imprisonment and an $80,000 fine. If Bishop failed to pay the fine by the end of this five-year term of imprisonment, then the Bahamian court sentenced him to serve an additional five years in prison "bringing the to [t]al imprisonment to 10 years." R1-1-Exh. A- 1.¹ 

In a March 22, 1996, letter to the Attorney General of the Bahamas, the United States Department of Justice ("DOJ") requested that Bishop be transferred to the United States to serve the remainder of his sentence pursuant to the Council of Europe Convention on the Transfer of Sentenced Persons, Mar. 21, 1983, 35 U.S.T. 2867, T.I.A.S. No. 10824 (entered into force in the United States on July 1, 1985) ("Treaty"), to which the United States and the Bahamas are signatories. The DOJ letter specifically states that " [t]he United States will apply the 'continued enforcement' provision of the [Treaty] to the United States nationals transferred from the Bahamas to serve their sentences in the United States." R1-11-Exh. D, Attachment C. In accordance with 18 U.S.C. 4108, a United States magistrate judge conducted a hearing in the Bahamas that included Bishop and other similarly sentenced offenders to verify their consent to the transfer.

At this April 10, 1996, hearing, Bishop and the other convicted transferees were represented by an assistant federal public defender from the Southern District of New York. That counsel subsequently testified at an evidentiary hearing that he advised the transferees "that a sentence can only be modified or set aside by a proceeding brought in the Bahamas and not in the United States."²  R2-9. During the hearing, the magistrate judge explained the consequences of the convicts' consent to transfer. He informed the sworn transferees collectively: " [Y]ou understand that your conviction or sentence can only be modified or set aside through appropriate proceedings brought by you, or on your behalf, in the Commonwealth of the Bahamas." R1-11-Exh. E-13. Bishop raised his hand acknowledging his understanding. Pursuant to individual questioning as to understanding of the result of the transfer, Bishop stated that he understood the consequences. See id. at 18. In the presence of the magistrate judge, Bishop additionally signed a verified consent form, showing his agreement to being transferred to the United States to serve the remainder of his Bahamian sentence.³ 

Because Bishop did not pay his imposed fine, the Bureau of Prisons ("BOP") calculated his sentence to include the additional five-year incarceration ordered by the Bahamian court if the fine was not paid.⁴  This five-year term subsequently was translated by the United States Parole Commission ("Parole Commission") into supervised release.⁵  An assistant federal public defender in the Southern District of Florida wrote the BOP on Bishop's behalf that his imprisonment for his inability to pay his fine violated the United States Constitution under Tate v. Short, 401 U.S. 395, 91 S. Ct. 668, 28 L. Ed. 2d 130 (1971). While the BOP acknowledged that a defendant's imprisonment because of his inability to pay a fine would be unconstitutional in the United States, it explained that "the sentence is enforceable in the United States as required by the treaty. The defendant was fully aware of, and accepted, the conditions under which the transfer was made." R1-1-Exh. D at 5 (BOP Bahamian Foreign Treaty Sentences memorandum). The BOP response further advised "that the defendant's method of relief should be taken up with the Bahamian courts or by way of a petition for a writ of habeas corpus with the federal court." Id. at 6.

The assistant federal public defender then filed a petition for writ of habeas corpus under 28 U.S.C. 2241 in federal court for the Southern District of Florida and asserted that a prison term imposed for indigence "may not be enforced and a federal court has authority to release an inmate from service of such an illegal sentence." R1-1-3. In a consolidated response for respondents Attorney General Janet Reno, the BOP Director, and the Federal Detention Center Warden, the government asserted that the district court was without jurisdiction under the Treaty to modify Bishop's Bahamian sentence. Because of his verified and documented consent to the conditions of his transfer to the United States to serve the remainder of his Bahamian sentence, the government alternatively argued that Bishop had waived his right to challenge his Bahamian sentence in a United States court.

Following two reports and recommendations by a magistrate judge that Bishop's habeas corpus petition be granted as well as an evidentiary hearing, the district judge conducted a status conference in Bishop's case and the other transferee cases presenting the same issue. With respect to Bishop, the following exchange occurred between the assistant federal public defender and the district judge:

[COUNSEL]: When Mr. Bishop filed his initial petition, he had a ten year sentence. The Parole Commission has reduced that to five years, which was the imprisonment relief he sought by way of this petition, but they tacked on a five year period of supervised release to follow.

As to Mr. Bishop, our request is for the Court to strike the five year period of supervised release which would make his sentence longer in effect.

THE COURT: What authority do I have to do that? I either vacate-you get the whole thing or nothing.

....

[COUNSEL]: You could. That is an alternative you have. You can either strike-you can vacate the treaty transfer determination of the Parole Commission completely. They can hold a new hearing or you can just strike that portion of it which offends the constitution which at this point is the supervised release portion of five years.

R3-4, 5 (emphasis added). The government maintained its position that the district judge was without jurisdiction to strike any part of Bishop's sentence based on his Bahamian sentence.

Thereafter, the district judge granted Bishop's habeas petition by striking the Bahamian five-year sentence for failure to pay his fine: "The terms of imprisonment that were imposed shall be ADAPTED, in accordance with the U.S.- Bahamas Treaty, Art. 10 2, Art. 9 3, to include only that portion of the sentence which was actually imposed, and not the remaining portion which is optional upon the payment of a fine." R1-36-2. Although Bishop has completed the incarceration portion of his sentence, he remains on supervised release pending this appeal. On appeal from the grant of habeas relief to Bishop, the government pursues its argument that the district court lacked jurisdiction to reduce Bishop's Bahamian sentence.⁶ 

Subject matter jurisdiction of the district court is a legal question that we review de novo. See Abebe-Jira v. Negewo, 72 F.3d 844, 846 (11th Cir. 1996). "Federal courts are courts of limited jurisdiction" and "possess only that power authorized by Constitution and statute." Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377, 114 S. Ct. 1673, 1675, 128 L. Ed. 2d 391 (1994); see Celotex Corp. v. Edwards, 514 U.S. 300, 307, 115 S. Ct. 1493, 1498, 131 L. Ed. 2d 403 (1995) (stating that the jurisdiction of "federal courts ... is grounded in, and limited by, statute"). "It is to be presumed that a cause lies outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction." Kokkonen, 511 U.S. at 377, 114 S. Ct. at 1675 (citation omitted). "As courts of limited jurisdiction, the federal district courts possess no warrant to create jurisdictional law of their own." Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 711, 102 S. Ct. 2099, 2109, 72 L. Ed. 2d 492 (1982).

Questions of statutory and treaty interpretation present legal questions that are subject to plenary review. See United States v. MacAllister, 160 F.3d 1304, 1306 (11th Cir. 1998) (per curiam), cert. denied, --- U.S. ----, 120 S. Ct. 318, 145 L. Ed. 2d 114 (1999); United States v. Puentes, 50 F.3d 1567, 1575 (11th Cir. 1995). " [I]t is a well established axiom of statutory interpretation that in construing a statute, courts must first look to the plain meaning of the statute itself." Solis-Ramirez v. United States Dep't of Justice, 758 F.2d 1426, 1430 (11th Cir. 1985) (per curiam). "When the text of the statute is clear, our interpretive inquiry ends." Fogerty v. Fantasy, Inc., 510 U.S. 517, 538, 114 S. Ct. 1023, 1035, 127 L. Ed. 2d 455 (1994) (Thomas, J., concurring). " 'In expounding a statute, we must not be guided by a single sentence or member of a sentence, but look to the provisions of the whole law, and to its object and policy.' " Philbrook v. Glodgett, 421 U.S. 707, 713, 95 S. Ct. 1893, 1898, 44 L. Ed. 2d 525 (1975) (citation omitted). Penal laws are construed strictly because legislatures, not courts, define crimes and establish punishments. See Yates v. United States, 354 U.S. 298, 304, 77 S. Ct. 1064, 1069, 1 L. Ed. 2d 1356 (1957), overruled on other grounds, Burks v. United States, 437 U.S. 1, 98 S. Ct. 2141, 57 L. Ed. 2d 1 (1978). Therefore, "we must adopt the plain meaning of a statute, however severe the consequences." Jay v. Boyd, 351 U.S. 345, 357, 76 S. Ct. 919, 927, 100 L. Ed. 1242 (1956).

"When interpreting a treaty, we 'begin "with the text of the treaty and the context in which the written words are used." ' " Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 699, 108 S. Ct. 2104, 2108, 100 L. Ed. 2d 722 (1988) (citations omitted). In construing treaties, " ' "we may look beyond the written words to the history of the treaty, the negotiations, and the practical construction adopted by the parties." ' " Id. at 700, 108 S. Ct. at 2108. Under the Supremacy Clause, "an Act of Congress, which must comply with the Constitution, is on a full parity with a treaty."⁷  Reid v. Covert, 354 U.S. 1, 18, 77 S. Ct. 1222, 1231, 1 L. Ed. 2d 1148 (1957). While we construe treaties and statutes alike in determining meaning from the terms, see United States v. Alvarez-Machain, 504 U.S. 655, 663, 112 S. Ct. 2188, 2193, 119 L. Ed. 2d 441 (1992), the "rule of equality" prohibits implementing statutory law that renders any treaty term nugatory, Asakura v. City of Seattle, 265 U.S. 332, 341, 44 S. Ct. 515, 516, 68 L. Ed. 1041, amended on other grounds, 44 S. Ct. 634 (1924).

To decide if the district court had jurisdiction to grant collateral, habeas relief on a foreign sentence is to delineate the interaction between the Treaty and the implementing statutes, which determine the procedure in the United States for administering a foreign-imposed sentence to be completed here. See Cannon v. U.S. Dep't of Justice, 973 F.2d 1190, 1197 (5th Cir. 1992) ("Procedural legislation which makes operation of a Treaty more convenient cannot amend or abrogate a self-executing Treaty."). The Treaty signatories recognized "that foreigners who are deprived of their liberty as a result of their commission of a criminal offense should be given the opportunity to serve their sentences within their own society" and "that this aim can be achieved by having them transferred to their own countries."⁸  Treaty, 35 U.S.T. at 2870 (preamble)⁹ ; see Kanasola v. Civiletti, 630 F.2d 472, 474 (6th Cir. 1980) (per curiam) (acknowledging that our country enters into transfer treaties with foreign nations "to permit an American citizen convicted of a crime in a foreign country to serve his sentence in a prison at home where conditions are much better"). Nevertheless, " [a] sovereign nation has exclusive jurisdiction to punish offenses against its laws committed within its borders, unless it expressly or impliedly consents to surrender its jurisdiction." Wilson v. Girard, 354 U.S. 524, 529, 77 S. Ct. 1409, 1412, 1 L. Ed. 2d 1544 (1957). Furthermore, provisions of our Constitution, including the writ of habeas corpus, "have no relation to crimes committed without the jurisdiction of the United States against the laws of a foreign country"; an American citizen who commits a crime in a foreign country is subject to trial and punishment under the laws of that country. Neely v. Henkel, 180 U.S. 109, 122, 123, 21 S. Ct. 302, 307, 45 L. Ed. 448 (1901).

"A sovereign does not lose its power to keep a convict in custody by turning the convict over to another sovereign for service of a sentence....' [T]he question of jurisdiction and custody is one of comity between the two governments and not a personal right of the prisoner.' " Tavarez v. U.S. Attorney General, 668 F.2d 805, 809 (5th Cir. 1982) (citation omitted) (alteration in original). Because foreign governments likely would not consent to the transfer of United States citizens serving sentences in their countries for crimes committed while abroad if the United States were to disregard the convictions and sentences of transferees in this country, jurisdictional exclusivity is a reasonable treaty term. See Rosado v. Civiletti, 621 F.2d 1179, 1200 (2d Cir. 1980) ("In assessing the interacting interests of the United States and foreign nations, 'we must move with the circumspection appropriate when [a court] is adjudicating issues inevitably entangled in the conduct of our international relations.' " (quoting Romero v. International Terminal Operating Co., 358 U.S. 354, 383, 79 S. Ct. 468, 486, 3 L. Ed. 2d 368 (1959) (alteration in original))).

A "sentence" under the Treaty means imprisonment for a criminal conviction. See Treaty, art. 1, a, 35 U.S.T. at 2870. The Treaty "applies only" to implementing this "deprivation of liberty ... regardless of whether the person concerned is already serving his sentence or not." Explanatory Report at 8, 13. Upon agreement between the sentencing country and the administering country to a prisoner's transfer, see Treaty, art. 3, 1, f, 35 U.S.T. at 2872, enforcement of the sentence is suspended in the sentencing country, see Treaty, art. 8, 1, 35 U.S.T. at 2876, and the administering country must either continue or convert the sentence of the sentencing country, see Treaty, art. 9, 1, 35 U.S.T. at 2876. See also Asare v. United States Parole Comm'n, 2 F.3d 540, 541 (4th Cir. 1993) (interpreting this Treaty). The distinction between "continued enforcement" and "conversion of sentence" in the administering country is that the former "continues to enforce the sanction imposed in the sentencing state," although it may be adapted in accordance with the Treaty, while the latter converts the sentence "into a sanction of the administering state, with the result that the sentence enforced is no longer directly based on the sanction imposed in the sentencing state." Explanatory Report at 15, 46.

When the administering country elects continued enforcement, as in this case, the Treaty provides:

Continued enforcement

1. In the case of continued enforcement, the administering State shall be bound by the legal nature and duration of the sentence as determined by the sentencing State.

2. If, however, this sentence is by its nature or duration incompatible with the law of the administering State, or its law so requires, that State may, by a court or administrative order, adapt the sanction to the punishment or measure prescribed by its own law for a similar offense. As to its nature, the punishment or measure shall, as far as possible, correspond with that imposed by the sentence to be enforced. It shall not aggravate, by its nature or duration, the sanction imposed in the sentencing State, nor exceed the maximum prescribed by the law of the administering State.

Treaty, art. 10, 35 U.S.T. at 2876. Consequently, the administering country "is bound by" two conditions of the sentence as imposed by the sentencing country: the legal nature and the duration of the sentence. Explanatory Report at 16, 49. "Legal nature" means "the kind of penalty imposed where the law of the sentencing state provides for a diversity of penalties involving deprivation of liberty, such as penal servitude, imprisonment or detention." Id. "Duration" is the term of the sentence to be served in the administering country, subject to that country's decision on conditional release or remission corresponding to the original sentence and "taking into account the time served and any remission earned in the sentencing state up to the date of transfer." Id.

When the sentencing country and the administering country "have different penal systems with regard to the division of penalties or the minimum and maximum lengths of sentence," Explanatory Report at 16, 50, the Treaty permits the administering country to adapt the sentence in accordance with "the punishment or measure prescribed by its own law for a similar offence," Article 10, 2. This adaptation by the administering country, however, is restricted: the administering country may adapt the original sentence so long as it does not render a more severe detention in nature or duration than the sentence imposed by the sentencing state "and it must not exceed the maximum prescribed by the law of the administering state." Explanatory Report at 16, 50. Under the adaptation procedure of Article 10, 2, the administering country adapts the original sentence "to an equivalent sanction prescribed by its own law in order to make the sentence enforceable" and "thus continues to enforce the sentence imposed in the sentencing state, but it does so in accordance with the requirements of its own penal system." Id.; see Herrmann v. Meese, 849 F.2d 101, 102-03 (3d Cir. 1988) (interpreting the same Treaty with the Explanatory Report, the Third Circuit determined that Article 10, 2 is applicable only if the government chooses to adapt the foreign sentence). In contrast to the adaptation procedure of Article 10, 2, the sentence conversion of Article 11 "substitutes a sanction for that imposed in the sentencing state." Explanatory Report at 16, 50.

Additionally, Article 13 provides that " [t]he sentencing State alone shall have the right to decide on any application for review of the judgment." Treaty, art. 13, 35 U.S.T. at 2878. The Treaty defines "judgment" as the sentencing order of the court in the sentencing country. See Treaty, art. 1, b; Explanatory Report at 8, 14. While the convicted prisoner may challenge his sentence factually and legally, the exclusive jurisdiction of the sentencing country to review the sentence is justified because such "review proceedings are not part of enforcement" in the administering country. Explanatory Report at 18, 60. Under the plain meaning of its terms, " [t]he Treaty does not create new rights which enable a foreign convict to have a review of an otherwise final foreign judgment." Pfeifer v. United States Bureau of Prisons, 615 F.2d 873, 876 (9th Cir. 1980) (affirming denying habeas relief to United States citizen serving remainder of Mexican sentence in federal penitentiary).

Significantly, the DOJ's letter informed the Bahamian government that the United States would continue Bishop's Bahamian sentence. Under the Treaty, that election committed the United States to maintain the nature and duration of Bishop's Bahamian sentence, although adaptation in accordance with our penal law was permissible. See Treaty, art. 10, 35 U.S.T. at 2876; Herrmann, 849 F.2d at 102-03. The Treaty terms, therefore, required the United States to retain Bishop's Bahamian sentence of five years of imprisonment for his drug crime, with an additional five years of imprisonment for his failure to pay his $80,000 fine as imposed by the Bahamian court.¹⁰ 

Our implementing legislation governing treaty transferees who are completing their foreign sentences in the United States, 18 U.S.C. 3244 and 4100 et seq.,¹¹  is consistent with the Treaty in establishing procedure in the United States for administering foreign sentences. Section 3244 provides:

When a treaty is in effect between the United States and a foreign country providing for the transfer of convicted offenders-

(1) the country in which the offender was convicted shall have exclusive jurisdiction and competence over proceedings seeking to challenge, modify, or set aside convictions or sentences handed down by a court of such country;

....

(3) all proceedings instituted by or on behalf of an offender transferred to the United States pertaining to the manner of execution in the United States of the sentence imposed by a foreign court shall be brought in the United States district court for the district in which the offender is confined or in which supervision is exercised....

18 U.S.C. 3244(1), (3) (emphasis added). With respect to 3244, jurisdiction in the Bahamian courts or federal district court turns on whether Bishop's habeas corpus proceeding is one "to challenge, modify, or set aside" his Bahamian sentence, 3244(1), which plainly reserves jurisdiction in the sentencing court in the foreign country,¹²  or pertains solely "to the manner of execution in the United States" of his Bahamian sentence, 3244(3), which places jurisdiction in the district court in the district where the convicted transferee is imprisoned or supervised.¹³ 

Once a sentence has been imposed by a foreign sentencing court and translated by the Parole Commission into a sentence under our penal law, it is the BOP's determination of service credits that has been challenged in habeas corpus proceedings under "manner of execution."¹⁴  See Kass v. Reno, 83 F.3d 1186, 1191 (10th Cir. 1996) ("Congress made it clear that despite the provision barring United States courts from reviewing the validity of a foreign conviction or sentence, 'a transferred offender may challenge in the [United States] ... the manner of the execution of his confinement' and ' [a]ny challenge in the courts of the [United States], other than to the foreign conviction or sentence is not precluded by [the implementing statutes], or any treaty.' " (quoting H.R.Rep. No. 95-720, at 43 (1977), reprinted in 1977 U.S.C.C.A.N. 3146, 3165) (alterations in original) (emphasis added)). The district judge adopted the magistrate judge's conclusion that Bishop's habeas petition "involve [d] questions concerning both the nature of the sentence and the execution of the sentence." R1-32-4. Accordingly, the district judge determined that he properly had jurisdiction to consider Bishop's habeas petition pursuant to 3244(3), and that is the argument of Bishop's counsel in this court.

We disagree. Although the district judge purported to have adapted Bishop's Bahamian sentence, he actually converted it into a new sentence by impermissibly eliminating the additional five-year imprisonment term of Bishop's sentence for failure to pay the $80,000 fine imposed by the Bahamian court. Because the United States had informed the Bahamian government that it would continue the original sentence, the district judge had no jurisdiction to convert or override Bishop's Bahamian sentence by fiat, when neither the Treaty nor the implementing statutes authorizes a district judge to convert a foreign-imposed sentence. Furthermore, the district judge did not even have jurisdiction to adapt Bishop's Bahamian sentence because Congress has charged the Parole Commission with the authority to translate a foreign sentence of a transferee into a sentence recognized under United States law. See 18 U.S.C. 4106A; Asare, 2 F.3d at 542 (recognizing that the Treaty and statutory scheme do not authorize the Parole Commission to impose a new sentence but to translate the original, foreign sentence into one that can be administered under United States law).

As we have explained, the term of Bishop's sentence, as adapted by the Parole Commission to retain his Bahamian sentence, was consistent with and not "in violation of the Constitution or laws or treaties of the United States."¹⁵  28 U.S.C. 2241(c) (3). The implementing statutes clarify "that while the laws of the receiving nation shall govern the manner in which the sentence is served, the laws of the sentencing nation shall continue to govern both the validity of the conviction and the term of the sentence." Tavarez, 668 F.2d at 808. Therefore, we reverse the district judge's grant of habeas relief to Bishop because the judge had no jurisdiction to entertain Bishop's habeas corpus petition challenging his sentence, much less to eliminate the supervised release established by the Parole Commission to retain the original Bahamian sentence. See Bennett v. United States Parole Comm'n, 83 F.3d 324, 328 (10th Cir. 1996).

This appeal concerns whether a district court has subject matter jurisdiction to consider habeas corpus relief for a foreign-imposed sentence of a United States citizen who is to serve the remainder of his sentence in the United States pursuant to Treaty transfer. As analyzed, we conclude that the district judge did not have jurisdiction to grant Bishop collateral relief as to the five-year term of supervised release imposed by the Parole Commission for his failure to pay the fine imposed for his drug crime by the Bahamian court. Accordingly, the grant of habeas corpus relief to Bishop is REVERSED, and we REMAND with instructions that the district judge dismiss this case for lack of jurisdiction.