Unpublished Disposition, 922 F.2d 845 (9th Cir. 1987)

MEMORANDUM^** 

John Parker ("Parker"), a federal prisoner, appeals the district court's order denying his motion to vacate his sentence under 28 U.S.C. § 2255. We affirm.

BACKGROUND FACTS

In 1986, Parker was convicted in Hawaii state court for selling cocaine. Parker received a state sentence of four years' of imprisonment. In 1987, a Hawaii federal grand jury indicted Parker on one count of conspiracy to commit fraud, one count of extortion, and one count of false subscription. All counts arose out of his defrauding a Honolulu hospital by selling chemicals and supplies at grossly inflated market prices. Parker entered guilty pleas to those charges. Parker was sentenced in federal court to three years' imprisonment on the conspiracy charge and three years' on the false subscription charge, both sentences to run concurrently.

At Parker's sentencing hearing, the district court noted Parker's existing state sentence, and stated that it lacked authority to impose the federal and state sentences concurrently. Because of that, the district court imposed less than the Government's recommended sentence.

Parker then petitioned the district court under 28 U.S.C. § 2255 to vacate his sentence on the grounds that he had been denied effective assistance of counsel at sentencing because his attorney failed: (1) to ask the court to recommend that his federal sentence run concurrently with the existing state sentence, and (2) to ask the Bureau of Prisons to designate a Hawaii state prison as his place of confinement for purposes of serving his federal sentence. The district court refused to vacate Parker's sentence. The court held that Parker failed to prove that his attorney rendered ineffective assistance of counsel and that it lacked authority (1) to direct that Parker's state and federal sentences run concurrently, and (2) to designate Parker's place of confinement.

JURISDICTION AND STANDARD OF REVIEW

The district court had jurisdiction under 28 U.S.C. § 2255. We have jurisdiction under 28 U.S.C. §§ 2255 and 1291.

This court reviews de novo the district court's denial of a 28 U.S.C. § 2255 motion to vacate, set aside or correct a sentence. United States v. Freeny, 841 F.2d 1000, 1001 (9th Cir. 1988).

DISCUSSION

To claim ineffective assistance of counsel, a defendant must prove that his counsel's performance was deficient and that the deficient performance prejudiced his case. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984). We have applied the Strickland two-prong test to a district court's denial of a defendant's motion to vacate his sentence under 28 U.S.C. § 2255. See Freeny, 841 F.2d at 1001-02. Whether the attorney's representation prejudiced the defendant depends in large part on whether the defendant's arguments would have succeeded. Hill v. Lockart, 474 U.S. 52, 59, 106 S. Ct. 366, 371, 88 L. Ed. 2d 203 (1985).

Here, "prejudice" means that if Parker's counsel had not rendered ineffective assistance, Parker would have received concurrent sentences and his request for a state facility as his place of confinement would have been honored.

Under former 18 U.S.C. § 3568, federal judges could not impose concurrent sentences for a prisoner's federal and state convictions when the prisoner was in state custody. United States v. Terrovona, 785 F.2d 767, 768-69 (9th Cir.), cert. denied, 476 U.S. 1186, 106 S. Ct. 2926, 91 L. Ed. 2d 553 (1986). The district court lacked authority to impose concurrent sentences since the federal term could not begin until the prisoner was in the custody of federal authorities. See United States v. Eastman, 758 F.2d 1315, 1317-18 (9th Cir. 1985). The Attorney General could in effect cause the sentences to run concurrently; the district court could only make a recommendation. Terrovona, 785 F.2d at 768-69.

The new law, 18 U.S.C. § 3584, grants the district court authority to specify that a federal sentence run either concurrently with or consecutively to a prior state sentence. Terrovona, 785 F.2d at 769. However, Section 3584 applies only to offenses committed after November 1, 1987. Parker was charged and convicted of offenses occurring between 1983 and 1985. Therefore, Section 3568, not Section 3584 controlled the sentencing court's actions.

Although the district court had broad discretion to determine the length and type of sentence, the court lacked jurisdiction to select the place where the prisoner would serve his sentence. United States v. Dragna, 746 F.2d 457, 458 (9th Cir. 1984) (per curiam), cert. denied, 469 U.S. 1211, 105 S. Ct. 1179, 84 L. Ed. 2d 327 (1985). Rather, the Attorney General determined where to confine the prisoner. See 18 U.S.C. § 4082(a) (1988); United States v. Doe, 734 F.2d 406, 407 (9th Cir. 1984). Any approach allowing the judicial branch to designate a federal prisoner's place of confinement--no matter how well justified--conflicts with 18 U.S.C. § 4082 which gives the Attorney General exclusive authority to determine where to house federal prisoners. In re Gee, 815 F.2d 41, 42 (7th Cir. 1987).

Therefore, Parker's attorney did not render ineffective assistance since the district court lacked authority to impose concurrent sentences and to designate a state facility as Parker's place of confinement. Counsel's failure, if any, did not result in prejudice. In fact, the sentencing procedure greatly benefited Parker. Rather than impose a longer sentence, and then hope that the Attorney General would assign Parker to a state facility, the district court simply lowered the length of the federal sentence it would have imposed and removed the danger that the overall time served would be excessive. Parker can hardly complain of that.

Finally, Parker properly used Section 2255 to challenge his sentence. His petition challenged the district court's imposition of consecutive sentences and alleged ineffective assistance of counsel. Both are proper under section 2255. See United States v. Espinoza, 866 F.2d 1067, 1070 (9th Cir. 1988); Wallace v. Willingham, 351 F.2d 299, 300 (10th Cir. 1965).

AFFIRMED.