                                                         FILED
                                              United States Court of Appeals
                                                      Tenth Circuit

                                                    March 27, 2009
               UNITED STATES COURT OF APPEALS
                                            Elisabeth A. Shumaker
                                                     Clerk of Court
                      FOR THE TENTH CIRCUIT


YORIE VON KAHL;
LEONARD PELTIER,

          Petitioners-Appellants,

v.                                          No. 06-3348
                                    (D.C. No. 04-CV-3418-RDR)
UNITED STATES OF AMERICA;                     (D. Kan.)
ATTORNEY GENERAL OF UNITED
STATES,

          Respondents-Appellees.


YORIE VON KAHL;
LEONARD PELTIER,

          Petitioners-Appellants,
                                            No. 06-3370
v.                                  (D.C. No. 05-CV-3484-RDR)
                                              (D. Kan.)
UNITED STATES PAROLE
COMMISSION; CAMERON M.
BATJER, Former Commissioner of
USPC; CAROL PAVILACK GETTY,
Former Commissioner of USPC;
VINCENT J. FECHTEL, JR., Former
Commissioner of USPC; JASPER R.
CLAY, JR., Former Commissioner of
USPC; SAUNDRA BROWN
ARMSTRONG, Former Commissioner
of USPC; GEORGE MACKENZIE
RAST, Former Commissioner of
USPC; JOHN R. SIMPSON, Former
Commissioner of USPC; EDWARD F.
REILLY, JR., Chairman of USPC;
CRANSTON J. MITCHELL,
    Commissioner of USPC; DEBORAH
    A. SPAGNOLI, Commissioner of
    USPC; MICHAEL J. GAINES, Former
    Commissioner of USPC; EDWIN
    MEESE, III, Former USAG;
    RICHARD THORNBURGH, Former
    USAG; WILLIAM P. BARR, Former
    USAG; JANET RENO, Former USAG;
    ATTORNEY GENERAL, Office of the
    Attorney General; ERIC H. HOLDER,
    JR., * USAG; UNITED STATES
    BUREAU OF PRISONS; J. MICHAEL
    QUINLAN, Former Director of BOP;
    KATHLEEN HAWK SAWYER,
    Former Director of BOP; HARLEY G.
    LAPPIN, Director of Bureau of
    Prisons,

              Respondents-Appellees.


                          ORDER AND JUDGMENT **


Before BALDOCK, BRORBY, and EBEL, Circuit Judges.




*  Pursuant to Fed. R. App. P. 43(c)(2), Eric H. Holder, Jr. is substituted for
Michael B. Mukasey as the respondent in this appeal.

**   After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.


                                        -2-
      Petitioners-Appellants Yorie Von Kahl and Leonard Peltier, federal

prisoners who are serving multiple terms of life imprisonment for the murder of

federal law enforcement officers in separate incidents in North Dakota, appeal the

dismissal of their 28 U.S.C. § 2241 petitions for writ of habeas corpus, filed

during their incarceration at the United States Penitentiary, Leavenworth,

Kansas. 1 They contend that § 235(b)(3) of the Sentencing Reform Act of 1984,

1
       Both suits originally were filed pro se in the Federal District Court for the
District of Columbia. Case No. 06-3348 was filed as a petition for writ of habeas
corpus, and Case No. 06-3370 as a civil rights suit. Neither suit named the
petitioners’ custodian at Leavenworth as respondent. The District Court for the
District of Columbia transferred both cases to the District of Kansas, over
petitioners’ objections, reasoning that the warden at Leavenworth was the proper
respondent.
       A § 2241 petition is properly addressed to the person with custody over the
petitioner. 28 U.S.C. § 2242. While this is generally the warden of the facility
where the petitioner is held, authority in this circuit holds that where a habeas
petitioner challenges a decision of the United States Parole Commission setting a
presumptive parole date, the Commission is the petitioner’s de facto “custodian”
and is therefore the proper respondent. Dunn v. United States Parole Comm’n,
818 F.2d 742, 744 (10th Cir. 1987). Dunn relied on a broad interpretation of
Braden v. 30th Judicial Circuit Court, 410 U.S. 484 (1973). See Dunn, 818 F.2d
at 744. More recently, the Supreme Court seems to have read Braden narrowly.
See Rumsfeld v. Padilla, 542 U.S. 426, 438 (2004). The Supreme Court has
reiterated the proposition that with certain narrowly-defined exceptions, none
applicable here, “the proper respondent [in a habeas case] is the warden of the
facility where the prisoner is being held.” Id. at 435. It is therefore possible that
Dunn is no longer good law, and that the warden at Leavenworth, who has not yet
been formally substituted, is the proper respondent.
       In any event, failure to name the proper custodian as respondent does not
affect our subject-matter jurisdiction, or that of the district court. See id. at 434
n.7; and see id. at 451 (Kennedy, J., concurring) (stating that rule requiring
habeas action be brought against custodian is “not jurisdictional in the sense of a
limitation on subject-matter jurisdiction.”). Whoever the proper respondent may
be, the Government has filed a brief on his or its behalf. We therefore proceed to
                                                                         (continued...)

                                          -3-
Pub. L. 98-473, Ch. II, § 235(b)(3), 98 Stat. 2032 (Oct. 12, 1984), gave them a

right to the issuance of specific parole release dates, and that their continued

incarceration violates the Due Process Clause, the Ex Post Facto Clause, and the

Bill of Attainder Clause. Exercising jurisdiction pursuant to 28 U.S.C. § 1291,

we conclude that the statutory interpretations upon which these claims rely were

rejected in our previous decisions, Bledsoe v. United States, 384 F.3d 1232

(10th Cir. 2004), and Lewis v. Martin, 880 F.2d 288 (10th Cir. 1989). Therefore,

we affirm the district court’s dismissal of both cases. 2

                                  BACKGROUND

      Mr. Peltier was convicted in 1977 in federal district court for the first

degree murder of two FBI agents and sentenced to two consecutive life terms. He

was subsequently convicted for escape and possession of a firearm and sentenced

to consecutive terms totaling seven more years. His convictions have been upheld

in the face of multiple challenges. See Peltier v. Henman, 997 F.2d 461 (8th Cir.

1993); United States v. Peltier, 800 F.2d 772 (8th Cir. 1986); United States v.

Peltier, 585 F.2d 314 (8th Cir. 1978).



1
 (...continued)
the merits.
2
       Although these cases were ultimately assigned to the same district court
judge, petitioners did not seek consolidation before the district court. They
sought consolidation on appeal, which we denied. Nevertheless, because they are
related cases which depend on the same flawed statutory construction, we dispose
of them in a single order and judgment.

                                          -4-
      Mr. Von Kahl was convicted in 1983 in federal district court for offenses

involving the murder of two U.S. Marshals in a gun battle and was sentenced to

two concurrent life terms, four concurrent ten-year terms consecutive to the life

terms, and two concurrent five-year terms consecutive to the ten-year terms, for a

total of life plus fifteen years. He was sentenced pursuant to 18 U.S.C.

§ 4205(b)(2) which provided for release on parole “at such time as the

Commission may determine.” His conviction was upheld in United States v.

Faul, 748 F.2d 1204 (8th Cir. 1984).

      At the time that both men committed their crimes and were convicted,

authority over the terms of federal sentences rested with the U.S. Parole

Commission (“Commission”). See Parole Commission and Reorganization Act of

1976 (“PCRA”), § 2, Pub. L. No. 94-233, 90 Stat. 219-231 (codified at 18 U.S.C.

§§ 4201-4218 (1982)). Both men’s offenses are rated Category Eight. 3 They

have received parole hearings and statutory interim hearings throughout their

incarceration, and neither of them have been granted parole. This Court has

rejected Mr. Peltier’s previous challenges to the Commission’s decisions. See

Peltier v. Booker, 348 F.3d 888 (10th Cir. 2003).

      After each of the petitioners was sentenced, Congress passed the

Sentencing Reform Act of 1984 (“SRA”). See Pub. L. No. 98-473, 98 Stat. 1987

3
      Offense categories are used as part of a guideline matrix to set the
customary total time to be served before release. See 28 C.F.R. § 2.20. Category
Eight is the highest category of offense severity.

                                         -5-
(1984). The SRA was enacted as Chapter II of the Comprehensive Crime Control

Act of 1984 (CCCA), which was itself “an amalgamation of various bills

originally drafted in the expectation of being enacted independently of other

bills,” leading to some ambiguity once consolidated. Romano v. Luther, 816 F.2d

832, 834 (2d Cir. 1987). “The SRA became effective on November 1, 1987, when

it repealed and replaced the PCRA. Under the SRA, parole was to be abolished,

the Parole Commission was to be phased out, and prisoners were to serve uniform

sentences under sentencing guidelines.” Bledsoe, 384 F.3d at 1233 (citations

omitted). Section 235(b)(3) of the SRA, the basis for petitioners’ claims, was “a

‘winding-up’ provision to ensure that the Parole Commission will set release

dates for all prisoners sentenced under the old statutes before it goes out of

business on November 1, 1992.” Bledsoe, 384 F.3d at 1234 (quoting Lewis, 880

F.2d at 290). It provided a five year window “after the effective date of this Act”

during which the Commission was required to “set a release date, for an

individual who will be in its jurisdiction the day before the expiration” of the

window. 4 18 U.S.C. § 3551 note (1998).

4
      Section 235(b)(3) as originally enacted provided:

      The United States Parole Commission shall set a release date, for an
      individual who will be in its jurisdiction the day before the
      expiration of five years after the effective date of this Act, that is
      within the range that applies to the prisoner under the applicable
      parole guideline. A release date set pursuant to this paragraph shall
      be set early enough to permit consideration of an appeal of the
                                                                         (continued...)

                                         -6-
         Soon after the SRA went into effect, however, Congress amended it through

the Sentencing Act of 1987, “clarify[ing] that the terms of the PCRA would

continue to govern the sentences of those prisoners sentenced prior to the

effective date of the SRA.” Bledsoe, 384 F.3d at 1234; see Pub. L. No. 100-182

§ 2(b)(2), 101 Stat. 1266 (1987). The Commission would still be required to set

release dates before going out of business, but these dates would now be set

pursuant to 18 U.S.C. § 4206, as they were prior to the SRA, rather than

exclusively within the parole guideline range. See Bledsoe, 384 F.3d at 1234.

         Beginning in 1990, Congress has repeatedly amended the five-year time-

window language of § 235(b)(3), replacing it with larger time spans and thereby

effecting a greater life span for the Commission. In 2005, Congress replaced the

time-window language with “21 years,” which would last until November 1, 2008.

See United States Parole Commission Extension and Sentencing Commission

Authority Act of 2005, Pub. L. No. 109-76, § 2, 119 Stat. 2035 (2005) (codified

at 18 U.S.C. § 3551 note). And, most recently, Congress amended that language

to extend the life of the Commission an additional three years, replacing the “21

years” with “24 years,” until November 1, 2011. See United States Parole



4
    (...continued)
          release date, in accordance with Parole Commission procedures,
          before the expiration of five years following the effective date of this
          Act.

Pub. L. 98-473, Ch. II, § 235(b)(3) (Oct. 12, 1984).

                                             -7-
Commission Extension Act of 2008, Pub. L. No. 110-312, § 2, 122 Stat. 3013

(2008) (codified at 18 U.S.C. § 3551 note).

      Numerous prisoners have attempted to capitalize on ambiguities in the

drafting of the SRA and Congress’s subsequent clarification, arguing that the

winding-up provision in § 235(b)(3) requires their release on parole. We have

issued opinions rejecting such claims in 1989, see Lewis, 880 F.2d at 291, and

2004, see Bledsoe, 384 F.3d at 1235-40, along with various unpublished

dispositions. Accordingly, the district court rejected each of petitioners’

arguments and dismissed their petitions.

                                     ANALYSIS

      Under § 2241, a federal prisoner is entitled to habeas relief if he can show

that “[h]e is in custody in violation of the Constitution or laws or treaties of the

United States.” 28 U.S.C. § 2241(c)(3). We review a district court’s denial of a

writ under § 2241 de novo. Bledsoe, 384 F.3d at 1235. Petitioners attempt to

prove (1) that they were entitled to have a release date set for them, and (2) that

this release date should have been set under the parole guidelines, which would

already have entitled them to release. Their claims depend largely on erroneous

statutory interpretations that we have already rejected.

      1. Entitlement to Release Date

      Petitioners assert that § 235(b)(3) established their right to be provided

with release dates. We rejected a similar contention in Lewis, where we held that


                                           -8-
§ 235(b)(3) “does not require the Commission to take immediate action on the

release date of any prisoner.” 880 F.2d at 290. We disavowed the notion that the

provision could be “transformed from a mere phase-out provision into a sweeping

decision to grant earlier release dates to large numbers of federal prisoners

currently serving time.” Id. at 290-91. Instead of vesting rights in prisoners,

§ 235(b)(3) dealt with “a very specific problem—the need to be sure a parole date

is established for all those who will still be in prison the day before the Parole

Commission ceases to exist.” Id. at 291. This conclusion was reaffirmed in

Bledsoe. See 384 F.3d at 1235 (“[P]etitioners have no statutory interest—and

therefore no vested liberty interest—in release under the SRA when there is no

certainty that they may be in the custody of the Parole Commission when it

expires.”).

      2. Effective Date of § 235(b)(3)

      Petitioners assert that the effective date of § 235(b)(3) was October 12,

1984. They argue that two consequences flow from this effective date. First, the

Commission was required to establish release dates for them within five years of

that date. Second, the Commission no longer exists, having expired on

October 12, 1989, and any action it has purported to take after that date is

therefore void. Petitioners reason that the five year extension enacted on

December 1, 1990 and periodically renewed to November 1, 2011, came too late

to revive the Commission.


                                          -9-
      Putting aside the question of whether a belated extension of the

Commission’s existence would be void, it is clear that petitioners’ claim must

fail. Our prior cases hold that the five-year period began to run on November 1,

1987, the effective date of the SRA, rather than October 12, 1984, the date the

CCCA was enacted. See Bledsoe, 384 F.3d at 1233 n.1; Lewis, 880 F.2d at 290. 5

Though petitioners urge us to do so, we cannot overrule the prior panel decision

in Bledsoe. Thompson R2-J School Dist. v. Luke P., ex rel. Jeff P., 540 F.3d

1143, 1150 n.6 (10th Cir. 2008), cert. denied, 2009 WL 425136, 77 USLW 3369

(U.S. Feb. 23, 2009) (No. 08-800).

      3. Applicability of 1987 Amendment to Petitioners

      Petitioners next assert that the 1987 amendment to § 235(b)(3), continuing

the PCRA regime for inmates sentenced prior to the effective date of the SRA,

applied only to offenses committed after December 7, 1987, and therefore does

not apply to them. Thus, they contend, they were entitled to a parole date under

the original version of § 235(b)(3), within the parole guidelines rather than the

PCRA. In support, they quote § 26 of the Sentencing Act of 1987, which

5
       Any statement to the contrary in Dallis v. Martin, 929 F.2d 587, 589 & n.4
(10th Cir. 1991), was dicta and was not binding on the panel in Bledsoe. In both
Bledsoe and Lewis, we followed the Second Circuit’s lucid reasoning in Romano,
816 F.2d at 837, that § 235(b)(3)’s reference to the effective date of “this Act”
properly refers to the SRA rather than the entire CCCA. Moreover, the Third
Circuit’s disagreement on this point does not unsettle our conclusion. See Lyons
v. Mendez, 303 F.3d 285, 292 (3d Cir. 2002) (“Seeing no clear contrary intention
in the text, we hold that § 235(b)(3) took effect upon enactment on October 12,
1984.”).

                                        -10-
provided a general effective date, declaring “[t]he amendments made by this Act

shall apply with respect to offenses committed after the enactment of this Act.”

Pub. L. No. 100-182, § 26, 101 Stat. 1266 (1987).

      Petitioners’ theory was not directly addressed in our prior cases, but simple

logic precludes it. We agree with the district court that “despite Congress’

imprecision in sticking a general non-retroactivity provision in the Sentencing Act

of 198[7], the specific amendment to Sec. 235(b)(3) was not thereby rendered

applicable to the opposite set of inmates than that which it was created to cover.”

Aplt. App., No. 06-3348, at 53. Because § 235(b)(3) as originally enacted had no

application to prisoners sentenced after the SRA went into effect on November 1,

1987, it would be absurd to read the 1987 amendment to § 235(b)(3) as

inapplicable to all the prisoners sentenced prior to the effective date, leaving

essentially no one affected by the amendment. The context of the statute

precludes such an application of § 26.

      Petitioners’ further assertion that § 235(b)(3) eliminated the Commission’s

discretion to exceed the parole guidelines and ordered release dates to be set is

partially true, but it has no application here. Lewis states that in § 235(b)(3), as

originally enacted, “Congress chose not to require service of [certain prisoners’]

maximum sentences but instead to afford them release on parole within their

applicable parole guideline ranges.” Lewis, 880 F.2d at 291. However, as

previously explained, that provision has direct application only to prisoners still


                                         -11-
incarcerated “the day before the Parole Commission ceases to exist,” id., and does

not provide a vested right to all prisoners. Thus it did not give a settled right to

issuance of a release date within five years, even though the original window for

action was five years. Further, the 1987 amendment “delete[d] the clause

requiring the Commission to set release dates within the guideline range.” Id. at

290. That change restored the Commission’s authority to set release dates

pursuant to 18 U.S.C. § 4206, “which permits release dates outside the guideline

range.” Id. Petitioners’ arguments lack merit.

        4. Upper Limits to Parole Guidelines

        The district court concluded that “[a] final, simple answer to all petitioners’

claims is that . . . each has an offense severity rating of Category 8, which puts

him in a guideline range with no specified upper limit.” Aplt. App., No. 06-3348,

at 57. We agree. Thus, even if § 235(b)(3) required the Commission to set a

release date, the Commission did not violate that statute by denying parole to

petitioners, because the denial was within each petitioner’s unlimited guideline

range. Petitioners contend, however, that the parole guideline for their offenses

does contain an upper limit, set at 48 months above the lower limit established by

Commission regulations. Thus, they argue, under § 235(b)(3), the Commission

could and should have established a firm release date under the guidelines for

them.




                                          -12-
      The guidelines for Category Eight range from “100+” to “180+” months,

depending on offender characteristics. 28 C.F.R. § 2.20. A guideline note for

Category Eight explains that “no upper limits are specified due to the extreme

variability of the cases within this category.” Id. § 2.20 n.1. The note further

provides that “[f]or decisions exceeding the lower limit of the applicable

guideline category by more than 48 months, the Commission will specify the

pertinent case factors upon which it relied in reaching its decision, which may

include the absence of any factors mitigating the offense.” Id. Petitioners assert

that this requirement of a statement of reasons required the Commission to

establish a firm release date for them.

      The guideline note goes on to explain, however, that this practice of

providing a statement of reasons should not be read “to suggest that a grant of

parole is to be presumed for any class of Category Eight offenders.” Id. Thus,

the guidelines themselves foreclose petitioners’ argument. See Madonna v. U.S.

Parole Comm’n, 900 F.2d 24, 26 (3d Cir. 1990) (stating, with regard to argument

identical to that advanced by petitioners, that the “guidelines themselves . . .

explain this practice and foreclose [the petitioner’s] interpretation of it.”). 6




6
       Petitioners also argue that the language of § 2.20, establishing that there is
“no upper limit” to the parole guideline for Category Eight offenses, itself
represents an Ex Post Facto violation as applied to them. See Aplt. Br., No. 06-
3348, at 22-23. They fail to show that they raised this argument before the
district court; accordingly, we do not consider it.

                                          -13-
      5. Additional Constitutional and Statutory Arguments

      In light of the statutory and regulatory framework discussed above, we can

easily reject petitioners’ claim that “retroactive” application of the 1987

amendment violates the Due Process, Ex Post Facto, and Bill of Attainder

Clauses, and the related claim that application of the 1987 amendment to them

violates the Congressional mandate. Because petitioners had no upper guideline

range under their Category Eight classification, the original version of § 235(b)(3)

did not narrow the discretion of the Commission in selecting a release date for

them; consequently, the 1987 amendment reinstating the Commission’s authority

to issue release dates outside the guideline range, pursuant to 18 U.S.C. § 4206,

had no effect on them. This is one reason they have suffered no constitutionally

cognizable harm.

      Furthermore, as we held in Bledsoe, there was no Ex Post Facto Clause

violation because the applicable sentencing law is no harsher now than when

petitioners committed their crimes. See Bledsoe, 384 F.3d at 1239. They remain

subject to the same provisions that were then applicable, and any short-lived

changes are irrelevant.

      Application of the 1987 amendment to these petitioners creates no due

process violation because “petitioners have no statutory interest—and therefore

no vested liberty interest—in release under the SRA” because “there is no

certainty that they may be in the custody of the Parole Commission when it


                                        -14-
expires.” Id. at 1235. The Bill of Attainder Clause is not implicated because

petitioners have not been targeted as “identifiable individuals.” Id. at 1238.

      Further, for the reasons we explained above, contrary to petitioners’

reading of the 1987 amendment, Congress did not mandate that the amendment

apply only to post-1987 convictions. Therefore, application of the 1987

amendment to petitioners could not violate a Congressional mandate. In sum,

Mr. Von Kahl and Mr. Peltier have not established that their incarceration is in

violation of the Constitution or a statute; as long as Congress continues to extend

the Commission’s existence, Mr. Von Kahl and Mr. Peltier properly remain under

the Commission’s authority. Therefore, the district court’s dismissal of both

cases is AFFIRMED. Mr. Von Kahl’s motion to supplement the record is

denied.


                                                    Entered for the Court



                                                    Wade Brorby
                                                    Circuit Judge




                                        -15-
