Unpublished Disposition, 868 F.2d 1272 (9th Cir. 1987)

MEMORANDUM^* 

Wilfred M. Gray appeals the denial of his writ of habeas corpus contending that the Oregon state court wrongfully ordered his state sentence to run consecutively to his federal sentence, which had not yet been imposed. We affirm. The fact that Gray's federal sentence for kidnapping was subject to modification did not prevent the state court from lawfully imposing a state sentence for murder to commence when Gray was delivered following his period of federal incarceration to the Oregon State Penitentiary.

Background

Gray was convicted in federal court on October 22, 1965, by his guilty plea to the offense of kidnapping. Gray was committed by the federal court to imprisonment for a period of his natural life, and for a study as described in Title 18, United States Code, Section 4208(c). The sentence of imprisonment imposed was subject to modification in accordance with Title 18, United States Code, Section 4208(b).¹ 

On March 30, 1966 the federal district court affirmed its previous sentence of October 22, 1965 and committed appellant to life imprisonment with parole eligibility "at such time as the Board of Parole may determine."

Gray was paroled from federal custody on July 30, 1980, and transferred to the Oregon State Penitentiary.

The Oregon Board of Parole determined that Gray's state sentence began on July 30, 1980, the date of his transfer from federal to state custody. Gray appealed to the Oregon Court of Appeals, which affirmed the Board of Parole's determination in an order filed January 23, 1985. The Oregon Appellate Court reasoned that Gray's "Oregon sentence was consecutive to his federal sentence and commenced on July 30, 1980, when he was delivered to the custody of Oregon authorities."

The Oregon Appellate Court denied Gray's petition for reconsideration on March 8, 1985. The Oregon Supreme Court denied Gray's petition for review on April 2, 1985. Gray's state court habeas corpus petition was dismissed on September 24, 1985. On July 30, 1987 the United States District Court denied Gray's federal petition for writ of habeas corpus, concluding that the fact that Gray's federal sentence for kidnapping was subject to modification did not prevent the state court from lawfully imposing a state sentence for murder to commence when Gray was delivered to the Oregon State Penitentiary.

DISCUSSION

A district court's denial of a prisoner's habeas corpus petition is reviewed de novo. Terrovona v. Kincheloe, 852 F.2d 424, 426 (9th Cir. 1988).

Under Oregon law, imposing a sentence consecutive to an unimposed sentence is impermissible. State v. Walker, 77 Or.App. 464, 713 P.2d 666-68 & n. 1 (1986), citing State v. Mastrilli, 62 Or.App. 464, 661 P.2d 124 (1983), State v. Ward, 59 Or.App. 42, 650 P.2d 164 (1982) and State v. DeChenne, 39 Or.App. 901, 594 P.2d 831 (1979).

In De Chenne, the Oregon Court of Appeals held that the principal requirement in imposing a consecutive sentence, which by its nature commences when the first sentence is terminated, is that there be a sufficiently definite event for commencement of the consecutive sentence in order that the Corrections Division may implement the sentence. De Chenne, 594 P.2d at 832. See also, Trahan v. Cupp, 8 Or.App. 466, 493 P.2d 1391 (1972), cert. denied, 409 U.S. 884 (1972).

Gray argues that because the state court sentenced him during the pendency of his federal sentencing study his consecutive state sentence was wrongfully imposed before his necessarily precedent federal sentence was effective. Gray relies upon United States v. Behrens, 375 U.S. 162 (1963) to support his contention that he was not effectively sentenced in federal court until after his study. Gray avers that this court has interpreted Section 4208 strictly under the language of Behrens that "as far as the sentence is concerned the original order entered under Section 4208(b) is wholly tentative." 375 U.S. at 164-65.

In Behrens, the Supreme Court based on its reasoning in Corey v. United States, 375 U.S. 169 (1963) held that a defendant has the right to be present for his second sentencing following a Sec. 4208 study. See Behrens, supra, at 166.

The court in Corey held that an initial section 4208(b) commitment is clearly not lacking in sufficient finality to support an immediate appeal. Hence a defendant can appeal within 10 days after the entry of the original commitment order under section 4208(b). Corey, supra, at 174. The court reasoned:

While an initial commitment under Sec. 4208(b) is ... freighted with sufficiently substantial indicia of finality to support an appeal, the fact remains that the proceedings in the trial court are not actually terminated until after the diagnostic study, review of the same by the district judge, and final sentence. Cf. Behrens v. United States, ante, p. 162.

Corey supra at 175. A defendant, therefore, can appeal either after the initial imposition of sentence before the study or after the second sentence in light of the study. In any event the term of the final sentence runs from the date of the original commitment under section 4208.

Here, Gray's sentence was sufficiently definite for the Oregon Prisons to implement it notwithstanding that appellant was sentenced in state court during the pendency of his federal study because his state sentence provided that his state incarceration should start on the day of delivery to Oregon prison custody. The Oregon Department of Corrections could easily implement a life sentence starting upon an inmate's arrival.

Furthermore, contrary to Gray's argument, the imposition of sentence when a period of study is ordered is not a fiction. That sentence is final for purposes of appeal, and, even if changed, the effective date of the final sentence relates back to the initial sentencing date. It is not merely a provisional sentence for administrative purposes only.

Gray's reliance on 18 U.S.C. § 3552(b) as the successor to 18 U.S.C. § 4208 is misplaced. A section 3352(b) presentence study and report by the Bureau of Prisons is not preceded by an actual, appealable sentence but is instead merely "treated for administrative purposes as a provisional sentence."

Gray also argues that the Oregon Corrections Division is equitably estopped from enforcing the state court's consecutive sentence because of their erroneous representations to Gray that his state sentence commenced on December 16, 1965. Assuming but not admitting the applicability of the doctrine of estoppel to the present situation, Gray's estoppel argument fails because he could not reasonably rely on these representations.

First, Gray's state court sentence expressly provided that his life term in state prison commenced upon his transfer from federal to state custody. Second, Gray's assertion that the Oregon Board of Parole concluded in March of 1984 that Gray's term in state custody commenced on December 16, 1965 is unfounded because one document Gray relies upon gives an adjusted inception date of July 30, 1980, the date of Gray's transfer from state to federal custody. As the district court concluded, Gray's estoppel argument lacks merit.

The district court did not err in concluding that although Gray's federal sentence was subject to modification such did not prevent the state court from lawfully imposing a state sentence to commence when Gray was delivered to the Oregon State Penitentiary. Accordingly, the district court's denial of appellant's petition for writ of habeas corpus is

AFFIRMED.