Ronald Louis Casebeer, Petitioner-appellant, v. United States of America, Respondent-appellee, 531 F.2d 949 (9th Cir. 1976)

Petitioner Ronald Casebeer filed a motion pursuant to 28 U.S.C. § 2255 on January 18, 1974, seeking an order setting aside his pleas of guilty on February 22, 1972, to three counts of armed bank robbery and murder incidental thereto, 18 U.S.C. § 2113(a), (d), (e), and the federal sentence imposed. He was granted an evidentiary hearing on his motion on October 30, 1974. Following that hearing the court, after making findings of fact and conclusions of law, denied Casebeer's motion and dismissed his action. This appeal followed.

Petitioner-appellant was indicted on November 19, 1971, on the three counts of armed bank robbery and murder, supra. In addition, petitioner was indicted on felony-murder charges in the Circuit Court of the State of Oregon for Lane County, for acts committed by an accomplice during one of the bank robberies, pursuant to Ore.Rev.Stat. § 163.010(1) (repealed in 1972). He instructed his counsel, whose ability is not questioned, to make the best possible bargain for him in exchange for guilty pleas. That bargain was incorporated into a letter dated January 31, 1972, which was read into the court record at the time of the plea.¹ 

At the evidentiary hearing held in connection with this petition the court found that Casebeer pleaded guilty to a state charge of felony murder and was sentenced on February 9, 1972, and that he was processed into the Oregon State Penitentiary on February 14, 1972, and then immediately released to the custody of federal authorities. At the federal sentencing proceeding after his guilty plea but before sentencing, appellant altered his bargain by stating that he wished his place of confinement to be in the Oregon State Penitentiary, which was nearer his home. A recess was requested by appellant's attorney and was granted in order that Casebeer might withdraw his pleas if he desired. He returned and announced that he was ready to proceed upon the understanding that only a recommendation could be made as to the place of confinement.² 

Both the government and the court made the requested recommendations.³  Notwithstanding those recommendations, petitioner was confined at McNeil Island Federal Penitentiary. It was further found by the court that assuming concurrent sentences were imposed, Casebeer would receive credit upon his state sentence for the time served in a federal penitentiary.⁴  The court found that 'while in federal custody at the time of his plea and sentencing in Federal Court, and thereafter when confined in a federal penal institution, petitioner has been serving his state sentence pursuant to his plea of guilty in State Court in February 1972.' Appellant makes much of the fact that as matter of law a district court lacks authority to order a federal sentence to be served concurrently with a prior state sentence. United States v. Myers, 451 F.2d 402, 404--05 (9th Cir. 1972); Chunn v. Clark, 451 F.2d 1005--06 (5th Cir. 1971); Joslin v. Moseley, 420 F.2d 1204, 1205--06 (10th Cir. 1969). The reason for the rule is that under18 U.S.C. § 3568 the sentence commences to run from the date on which the prisoner is received at the place of his confinement for service of his sentence. Here, appellant by virtue of the designation by the Attorney General, began his federal sentence at McNeil. The time served there became a credit upon his state sentence because of the commitment by the Oregon prison authorities that this be done. Thus, pursuant to the sentencing procedures followed and the consensual arrangements made, Casebeer has obtained the concurrency which he bargained for.

Appellant also contends that the bargain was violated because he was later transferred from McNeil to another place of federal confinement. The contention is without merit. Although a preference for federal confinement was expressed and McNeil Island specified, the government notified appellant and his counsel that the decision rested ultimately with the Attorney General of the United States. Both the government counsel and the court made the requested recommendations and they were accepted. Casebeer's later transfer to the federal prison at Marion, Illinois, for disciplinary reasons, was not a violation of the plea bargain but, as the court concluded, for good and valid cause. Neither his own attorney nor the court gave his assurances that he would be imprisoned at McNeil permanently. The court found that the government attorney specifically informed petitioner through his counsel that he could be moved for good and valid cause.

Finally, appellant argues that had he pleaded guilty first in federal court, the conviction resulting would have constituted a bar to his later prosecution in the state. The state statute relied upon is Ore.Rev.Stat. § 131.240(1) (repealed in 1974).⁵  The statute has never been judicially construed in the Oregon courts, although a New York court has apparently construed a similar statute as appellant contends. See People v. Lo Cicero, 14 N.Y.2d 374, 378--79, 251 N.Y.S.2d 953, 956--57, 200 N.E.2d 622, 624--25 (1964). Appellant also relies upon an unpublished order of the Coos County Circuit Court entered approximately seven months after his guilty pleas were entered. The argument is speculative in the extreme. A plain reading of the statute makes it doubtful that the federal courts are 'another state, territory or country' within the meaning of the statute. If the Coos County Circuit Court order is to be accorded precedential value it must also be given retroactive effect. We think that retroactive effect of this order is barred by State v. Fair, 263 Ore. 383, 502 P.2d 1150, 1152--53 (1972). We do not deem the argument of sufficient persuasive value here to reverse the judgment of the trial court. See also Moore v. Illinois, 55 U.S. 13, 19, 14 How. 13, 19, 14 L. Ed. 306, 308 (1852), affirmed in Bartkus v. Illinois, 359 U.S. 121, 131--33, 79 S. Ct. 676, 682--83, 3 L. Ed. 2d 684, 691--92 (1959).

Judgment affimred.