SER Massey v. Hun
Annotate this Case
September 1996 Term
_____________
No. 23647
_____________
STATE OF WEST VIRGINIA
EX REL. RUSSELL MASSEY,
Petitioner
v.
NICHOLAS HUN, COMMISSIONER,
WEST VIRGINIA DIVISION OF CORRECTIONS,
AND GEORGE TRENT, WARDEN, MT. OLIVE
CORRECTIONAL CENTER,
Respondents
_____________________________________________________________
Petition for Writ of Mandamus
WRIT DENIED
_____________________________________________________________
Submitted: October 1, 1996
Filed: October 16, 1996
Thomas W. Smith, Esq. Darrell V. McGraw, Jr., Esq.
Smith & Curnutte Attorney General
Charleston, West Virginia Donald Darling, Esq.
Attorney for the Petitioner Senior Deputy Attorney General
Chad M. Cardinal, Esq.
Assistant Attorney General
Charleston, West Virginia
Attorneys for the Respondents
The Opinion of the Court was delivered PER CURIAM.
JUDGE RECHT sitting by temporary assignment.
SYLLABUS BY THE COURT
1. "A writ of mandamus will not issue unless three elements coexist--(1)
the existence of a clear right in the petitioner to the relief sought; (2) the existence of a legal
duty on the part of respondent to do the thing which petitioner seeks to compel; and (3) the
absence of another adequate remedy. Syl. pt. 2, State ex rel. Kucera v. City of Wheeling,
153 W. Va. 538, 170 S.E.2d 367 (1969)." Syllabus Point 1, Hickman v. Epstein, 192 W. Va.
42, 450 S.E.2d 406 (1994).
2. "A writ of mandamus will not be issued in any case when it is
unnecessary or when, if sued, it would prove unavailing, fruitless or nugatory." Syllabus
Point 6, Delardas v. Morgantown Water Commission, 148 W. Va. 776, 137 S.E.2d 426
(1964).
Per Curiam:See footnote 1
In this original proceeding in mandamus, Russell Massey seeks to compel state
prison officials to "act immediately to effectuate . . .[his] transfer to federal custody."
Although Mr. Massey was sentenced by the state court to serve, in federal custody, his state
sentences concurrently with his federal sentence, the federal district court ordered his federal
sentence to be served consecutively with his state sentences. Because of the federal court
order, the Federal Bureau of Prisons refuses to take custody of Mr. Massey until the
expiration of his state sentences. Based on his state sentencing order, Mr. Massey petitioned
this Court for a writ of mandamus to force compliance by state prison officials. However,
because the issuance of a writ of mandamus would be futile in these circumstances, we deny
the relief prayed for in the petition. Although no relief can be obtained by a writ of
mandamus, this order, under Rule 35(b) (1985) of the West Virginia Rules of Criminal
Procedure, should be considered to allow the Circuit Court of Boone County, upon proper
motion, to reduce Mr. Massey's state sentences, if such reduction is deemed just in the sound
discretion of the circuit court.
I.
FACTS AND BACKGROUND
According to the petition, which was filed pro se by Mr. Massey, Mr. Massey
"was convicted of mail fraud after his plea in April 1990 in the United States District Court
for the Southern District of West Virginia." Mr. Massey was sentenced to serve two (2)
years incarceration and three (3) years supervised release. In April 1992, Mr. Massey,
having served his two-year incarceration term, was released and began serving his three years
of supervised release.
On December 26, 1992, Mr. Massey was the driver in a fatal automobile
accident, which resulted in his indictment in April 1993 for driving under the influence
(DUI) causing death. See W. Va. Code 17c-5-1 (1979). Pending disposition of this case,
Mr. Massey remained on federal supervised release.
On April 15, 1993, Mr. Massey was again the driver in a fatal automobile
accident, which resulted in his indictment in September 1993 for DUI causing death. Mr.
Massey continued to remain on federal supervised release.
By order entered on June 22, 1994, Mr. Massey was sentenced by the
Honorable Jay M. Hoke, Judge of the Circuit Court of Boone County, to serve one year in
jail for the 1992 DUI and to serve an indeterminate sentence of one (1) to ten (10) years for
the 1993 DUI with the sentences to be served consecutively.See footnote 2 Judge Hoke also ordered the DUI sentences to be served concurrently, in federal custody, with any sentence to be
imposed by the federal court for Mr. Massey's violation of supervised release.See footnote 3
By order entered on July 5, 1994, Mr. Massey's supervised release was
revoked and he was sentenced by the Honorable Elizabeth V. Hallanan, United States
District Judge for the United States District Court for the Southern District of West Virginia,
to two years imprisonment with his sentence to "be served consecutively to any previously
imposed federal or state sentence. (Footnote omitted.)" Mr. Massey was remanded "for
transfer back to state custody to complete service of two consecutive state sentences." Judge
Hallanan's order noted Mr. Massey had an alcohol concentration in his blood of .18 and .28,
respectively, at the time of the accidents and had "failed to notify the Probation Officer that
he had been questioned or arrested by law enforcement officers concerning these accidents."
By "Supplemental Corrected Order of Sentence" entered on April 19, 1995,
Judge Hoke, again ordered Mr. Massey's state sentences to run concurrently with his federal
sentence and ordered state prison officials to "act to immediately effectuate the defendant's
transfer to federal custody."See footnote 4 According to his petition, shortly thereafter Mr. Massey was transferred from the South Central Regional Jail to the Mt. Olive Correctional Complex,
where he is presently incarcerated.
On April 12, 1996, Mr. Massey, acting pro se, petitioned this Court for a writ
of mandamus seeking to compel the respondent state prison officials to transfer him to
federal custody and to have federal authorities credit him with time served based on his
alleged concurrent federal and state sentences. On July 31, 1996, this Court issued a rule to
show cause, returnable on October 1, 1996. Counsel was appointed to represent Mr. Massey
and presented an oral argument on his behalf. The state prison officials' response to our rule
to show cause submitted the following information: first, a letter dated September 26, 1996
from John White, Inmate System Administrator, Mid-Atlantic Regional Office, Federal
Bureau of Prisons, U.S. Department of Justice, stating that "it would be inappropriate and
a violation of the federal sentencing court's intent, to accept Mr. Massey into federal custody
until he has completed service of his state sentence;" and second, a letter dated May 10, 1995
signed by Kelly D. Ambrose, Assistant United States Attorney, Southern District of West
Virginia, U. S. Department of Justice, indicating that because the state sentence was imposed
first, "at a time when no other sentence existed, Judge Hallanan solely, had the authority to
determine whether her sentence was to run consecutive [sic] or concurrent [sic]."
Against the backdrop of two separate criminal justice systems issuing
contradictory sentencing orders for Mr. Massey, this Court is asked to issue a writ to
effectuate the sentence imposed by the state circuit court.
II.
DISCUSSION
In West Virginia, the general rule outlining the elements necessary for the
issuance of a writ of mandamus was stated in Syllabus point 2, State ex re. Kucera v. City
of Wheeling, 153 W. Va. 538, 170 S.E.2d 367 (1969):
A writ of mandamus will not issue unless three elements
coexist--(1) a clear legal right in the petitioner to the relief
sought; (2) a legal duty on the part of respondent to do the thing
which the petitioner seeks to compel; and (3) the absence of
another adequate remedy.
See Syl. pt. 2, State ex rel. Blankenship v. Richardson, ___ W. Va. ___, ___ S.E.2d ___ (No.
23375 July 17, 1996); Syl. pt. 1, Hickman v. Epstein, 192 W. Va. 42, 450 S.E.2d 406 (1994).
However, we have also recognized that mandamus does not lie where
performance of the thing sought to be compelled is an impossibility. As we stated in
Syllabus point 6 of Delardas v. Morgantown Water Commission, 148 W. Va. 776, 137 S.E.2d 426 (1964): "A writ of mandamus will not be issued in any case when it is
unnecessary or when, if sued, it would prove unavailing, fruitless or nugatory." In accord
Syl. pt. 2, State ex rel. Philyaw v. Williams, 190 W. Va. 272, 438 S.E.2d 64 (1993) (per
curiam); Cox v. Board of Educ. of Hampshire County, 177 W. Va. 576, 355 S.E.2d 365
(1987)(per curiam); State ex rel. Prince v. West Virginia Dept. of Highways, 156 W. Va. 178, 195 S.E.2d 160 (1972); State ex rel. Capitol Business Equip., Inc. v. Gates, 155 W. Va.
64, 180 S.E.2d 865 (1971); State ex rel. Nelson v. Ritchie, 154 W. Va. 644, 177 S.E.2d 791
(1970); State ex rel. Archer v. County Court of Wirt County, 150 W. Va. 260, 144 S.E.2d 791 (1965).
In this case, the respondent state prison officials have been informed that the
Federal Bureau of Prisons will not accept Mr. Massey into federal custody until he has
completed his state sentences. According to Boron Oil Co. v. Downie, 873 F.2d 67, 69 (4th
Cir. 1989), "an action seeking specific relief against a federal official, acting within the scope
of his delegated authority, is an action against the United States, subject to governmental
privilege of immunity. Larson v. Domestic and Foreign Commerce Corp.. 337 U.S. 682,
688, 69 S. Ct. 1457, 1460, 93 L. Ed. 1628 (1949)." The Court of Appeals for the Fourth
Circuit found that proceedings which "'interfere. . . with the public administration'" and seek
to compel a "federal agency to act in a manner different from that in which the agency would
ordinarily choose to exercise its public function. . . fall within the protection sovereign
immunity." Boron Oil Co. V. Downie, 873 F.2d at 71 (citation omitted). See U.S. v. Nordic
Village, Inc., 503 U.S. 30, 33, 112 S. Ct. 1011, 1014, 117 L. Ed. 2d 181, 187 (1992),
superseded by statute, see 11 U.S.C. § 106 (c) allowing specific monetary claims to be
recovered from governmental units; Morgan v. People of State of California, 743 F.2d 728
(9th Cir. 1984).
Given the protection of sovereign immunity and federal prison officials' refusal
to accept Mr. Massey, this Court declines to issue a writ requiring federal prison officials to grant Mr. Massey credit on his federal sentence for the time he served in state custody on his
state sentences. Although this Court could order state prison officials to act, any action
undertaken by state prison officials without the cooperation of federal prison officials would
not transfer Mr. Massey to federal custody. Given our longstanding policy of not issuing a
writ of mandamus where "it would prove unavailing, fruitless, or nugatory," (Syl. pt. 6,
Delardas v. Morgantown Water Commission, supra) we, therefore, deny the prayed for writ
of mandamus.
We note that the conflict between the federal (consecutive) and state
(concurrent) sentences that were imposed on Mr. Massey is not unique. In Del Guzzi v. U.
S., 980 F.2d 1269, 1271 (9th Cir. 1992), the Court of Appeals for the Ninth Circuit found
that under 18 U.S.C. § 3568, "federal authorities need only accept prisoners upon completion
of their state sentence and need not credit prisoners with time spent in state custody.
(Citations omitted.)" See McIntosh v. Looney, 249 F.2d 62, 64 (10th Cir. 1957) (marshal has
no duty to take petitioner into custody until released from second state sentence); Lionel v.
Day, 430 F. Supp. 384, 386 (W.D.Okla. 1976)("Obviously no comment or order by a state
judge can control the service of a federal sentence.") In a concurring opinion in Del Guzzi
v. U.S., after outlining in detail the defendant's expectation of and state order for concurrent
sentences, Judge Norris found no avenue to grant relief and hoped defendant's case would
serve as a lesson. Judge Norris stated:
State sentencing judges and defense attorneys in state
proceedings should be put on notice. Federal prison officials are under no obligation to, and may well refuse to, follow the
recommendation of state sentencing judges that a prisoner be
transported to a federal facility. Moreover, concurrent sentences
imposed by state judges are nothing more than recommendations
to federal officials. Those officials remain free to turn those
concurrent sentences into consecutive sentences by refusing to
accept the state prisoner until the completion of the state
sentence and refusing to credit the time the prisoner spent in
state custody.
Del Guzzi v. U. S., 980 F.2d at 1272-73 (Norris, J., concurring). See Bloomgren v. Belaski,
948 F.2d 688, 691 (10th Cir. 1991) (the question of defendant's federal sentence running
consecutively "to his state sentence is a federal matter which cannot be overridden by a state
court provision for concurrent sentencing on a subsequently-obtained state conviction").
Although we decline, under the circumstances, to issue the requested writ, our
order is this case should, under Rule 35(b) (1985) of the West Virginia Rules of Criminal
Procedure, be considered as an "order or judgment of the Supreme Court of Appeals denying
review of, or having the effect of upholding, a judgment of conviction or probation
revocation," which would permit Mr. Massey to petition the circuit court, within 120 days
after entry of this order, for a reduction in his state sentences.See footnote 5 Rule 35(b) states:
Reduction of Sentence.-- A motion to reduce a sentence may
be made, or the court may reduce a sentence without motion
within 120 days after the sentence is imposed or probation is
revoked, or within 120 days after receipt by the court of a mandate issued upon affirmance of the judgment or dismissal of
the appeal, or within 120 days after entry of any order or
judgment of the Supreme Court of Appeals denying review of,
or having the effect of upholding, a judgment of conviction or
probation revocation. The court shall determine the motion
within a reasonable time. Changing a sentence from a sentence
of incarceration to a grant of probation shall constitute a
permissible reduction of sentence under this subdivision.
(Emphasis added.)See footnote 6
Our designation of this order as allowing, under Rule 35(b), a motion for a
reduction in sentence, is based on the unique circumstances of this case, and today's holding
does not confer similar properties to any other judgments concerning petitions for a writ of
mandamus. We make no determination as to the proper state sentences for Mr. Massey
under these circumstances, relying on the well-settled proposition that a trial court's
discretion when imposing a sentence is broad, and as long as that sentence is within statutory
limits and is not based on some impermissible factor, it is not subject to appellate review.
Syllabus point 12, State v. Broughton, 196 W. Va. 281, 470 S.E.2d 413 (1996); Syllabus
point 9, State v. Hays, 185 W. Va. 644, 408 S.E.2d 614 (1991); Syllabus point 4, State v.
Goodnight, 169 W. Va. 366, 287 S.E.2d 504 (1982).
Based on the above stated reasons, we deny the requested writ of mandamus,
but our holding should be considered as an "order or judgment" of this Court "denying review of, or having the effect of upholding, a judgment of conviction or probation
revocation" under Rule 35(b) (1985) of the West Virginia Rules of Criminal Procedure,
thereby allowing a timely motion to the Circuit Court of Boone County for a reduction in
Mr. Massey's state sentences.
Writ denied.
Footnote: 1
Pursuant to an administrative order entered by this Court on October 15, 1996, the
Honorable Arthur M. Recht, Judge of the First Judicial Circuit, was assigned to sit as a
member of the West Virginia Supreme Court of Appeals commencing October 15, 1996 and
continuing until further order of this Court.Footnote: 2
Neither of the circuit court's sentencing orders specifies which section of the W. Va.
Code was violated by Mr. Massey. Apparently on March 24, 1994, Mr. Massey pled guilty
to Driving Under the Influence Causing Death, a misdemeanor, and Driving Under the
Influence Causing Death, a felony.Footnote: 3
When the circuit court entered its June 22, 1994 sentencing order, the federal court
had not imposed any sentence upon Mr. Massey based on the federal revocation of
supervised release charge.Footnote: 4
Although not specified in the April 19, 1995 order, the order is apparently a
correction under Rule 35(a) (1985) of the West Virginia Rules of Criminal Procedure. See
infra note 5 for text of Rule 35(a).Footnote: 5
Although Rule 35(b) was amended, effective September 1, 1996, in part, by deleting
the above quoted portion of the rule, because Mr. Massey's petition to this Court and our
rule to show cause were issued before the effective date of the rule change, we have applied
the 1985 version of Rule 35(b). See State v. Thornton, ___ W. Va. ___, ___ S.E.2d ___ (No.
23345 Oct. 15, 1996) discussing the 1996 changes to Rule 35(b) and their application.Footnote: 6
Rule 35(a) (1985) of the West Virginia Rules of Criminal Procedure states:
Correction of Sentence.--The court may correct an illegal
sentence at any time and may correct a sentence imposed in an
illegal manner within the time provided herein for the reduction
of sentence.
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