United States of America v. Samuel L. Eakm An, Jr.

PRECEDENTIAL
UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
No. 03-1835
UNITED STATES OF AMERICA,
Appellee
v.
SAMUEL L. EAKM AN, JR.,
Appellant
Appeal from the United States District
Court for the Western District of
Pennsylvania
(D.C. Crim. No. 98-cr-00029-2)
District Judge: Honorable Gary L.
Lancaster
Argued March 11, 2004
Before: SLOVITER and NYGAARD,
Circuit Judges, and SHADUR,1 District
Judge
(Opinion filed July 12, 2004 )
Shelley Stark
Federal Public Defender
Lisa B. Freeland, Esq. (Argued)
Assistant Federal Public Defender
1450 Liberty Center
1001 Liberty Avenue
Pittsburgh, PA 15222
Attorneys for Appellant
Mary Beth Buchanan
United States Attorney
Christine A. Sanner, Esq. (Argued)
Bonnie R. Schlueter, Esq.
Assistant United States Attorneys
633 U.S. Post Office and Courthouse
Pittsburgh, PA 15219
Attorneys for Appellee
OPINION OF THE COURT
SHADUR, District Judge.
Federal prisoner Samuel L. Eakman
(“Eakman”) appeals from the district
court’s denial of his 28 U.S.C. § 22552
motion that seeks the vacation or
amendment of his prison sentence.
Eakman claims that his current sentence is
constitutionally invalid because the district
judge relied on a mistaken understanding
of the law in believing that the Bureau of
Prisons (“Bureau”) had the discretion to
place him in a community corrections
1 Honorable Milton I. Shadur,
United States District Court Judge for the
Northern District of Illinois, sitting by
designation.
2 All further references to Title 28
provisions will take the form “Section
–.”

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2
center (also known as a “halfway-house”),
when in fact the Bureau lacked such
authority under the law.3 On the record
before us it appears highly likely (at a
minimum) that the district court would
have imposed a different sentence had it
not been for its contrary understanding.
We hold that under such
circumstances the sentence imposed
violated due process, so that a hearing on
Eakman’s Section 2255 motion should
have been granted. We therefore remand
for further proceedings in accordance with
this opinion.
Background
Eakman pleaded guilty on October
30, 1998 to two counts of conspiracy, one
pertaining to the possession of anabolic
steroids and the other charging money
laundering. On September 9, 1999 the
court sentenced him to 18 months’
imprisonment. For reasons not relevant to
this appeal, on July 10, 2000 we issued a
nonprecedential opinion (reported in table,
229 F.3d 1139 (3d Cir. 2000)) vacating
Eakman’s original sentence and remanding
the case to the district court for
resentencing. On October 20, 2000 the
district court imposed a new imprisonment
term of one year and a day, with this
recommendation to the Bureau:
T H I S S E N T E N C E
SHOULD BE SERVED AT
A C O M M U N I T Y
CORRECTIONS CENTER
WITH THE DEFENDANT
B E I N G G R A N T E D
I M M E D I A T E W O R K
RELEASE STATUS.
On November 7, 2002 (over two
years after he was sentenced) Eakman
began to serve his prison term at a
community corrections center. But on
December 13, 2002 the Department of
Justice's Office of Legal Counsel issued a
memorandum concluding that the Bureau
had no statutory authority to assign
prisoners to community corrections centers
for the imprisonment portion of the
sentence. Accordingly the Bureau
changed its prior practice and planned to
transfer to other facilities all prisoners
(including Eakman) who as of December
16, 2002 had more than 150 days
remaining on their prison terms.
Eakman then moved the district
court to vacate or amend his sentence
under Sections 2241 and 2255 and asked
for the appointment of counsel.4 On
January 22, 2003 the district court
appointed a Federal Public Defender to
represent Eakman but denied his Section
2241 and 2255 motions. Eakman sought
3 More on the latter subject later.
4 As the government raises no issue
as to Section 2255's one-year statute of
limitations, we need not determine
whether Eakman’s claim fits within that
time restriction (Robinson v. Johnson,
313 F.3d 128, 135–37 (3d Cir. 2002)).

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3
and obtained a certificate of appealability
as to this claim:
Petitioner’s sentence was
imposed in violation of his
federal constitutional right
to due process where (1) this
Court relied upon material
m i s i n f o r m a t i o n w h e n
sentencing Petitioner, i.e.,
that the Bureau of Prisons
(“BOP”) had the discretion,
under 18 U.S.C. § 3621(b),
to designate a community
corrections center for
service of that sentence, and
(2) had it been known that
the BOP would repudiate
the discretion the parties and
the Court believed it had,
counsel for Petitioner could
have advocated for (and the
court could have granted) a
downward departure that
would have resulted in a
sentence that [required]
Petitioner to serve a year
and a day in a community
confinement center.
Eakman filed a timely notice of appeal,
and the district court released Eakman on
bond pending appeal.
Section 2255 or 2241?
Eakman originally invoked both
Sections 2241 and 2255 in the court
below, but he limits his challenge on
appeal to Section 2255, conceding that the
district court did not have jurisdiction
under Section 2241 because he failed to
serve (or name) his custodian. In response
the government argues that only Section
2241 provides a potential source of relief
because Eakman essentially contests the
place of his imprisonment, not the validity
of his sentence. And to be sure, Section
2255 “is expressly limited to challenges to
the validity of the petitioner's sentence”
and “Section 2241 is the only statute that
confers habeas jurisdiction to hear the
petition of a federal prisoner who is
challenging not the validity but the
execution of his sentence” (Coady v.
Vaughn, 251 F.3d 480, 485 (3d Cir.
2001)).
But here Eakman does contest the
validity of his sentence: He argues that the
district court committed an error of law in
assuming that the Bureau could lawfully
place Eakman in a community corrections
center, a mistake that he says
fundamentally tainted the sentencing
proceeding. Eakman seeks resentencing,
not a determination that the Bureau's
change in practice was unlawful or an
order preventing his transfer from the
community corrections center. Hence his
claim is suitable for consideration under
Section 2255. And because the district
court denied Eakman’s motion as a matter
of law and without a hearing, we review its
ruling de novo (United States v. Cleary, 46
F.3d 307, 309–10 (3d Cir. 1995)).
Section 2255 provides in pertinent
part:

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A prisoner in custody under
se n t e n c e o f a c o u rt
established by Act of
Congress claiming the right
to be released upon the
ground that the sentence
was imposed in violation of
the Constitution or laws of
the United States, or that the
c o u r t w a s w i t h o u t
jurisdiction to impose such
sentence, or that th e
sentence was in excess of
the maximum authorized by
law, or is otherwise subject
to collateral attack, may
move the court which
imposed the sentence to
vacate, set aside or correct
the sentence.
Unless the motion and the
files and records of the case
conclusively show that the
prisoner is entitled to no
relief, the court shall cause
notice thereof to be served
upon the United States
attorney, grant a prompt
hearing thereon, determine
the issues and make findings
of fact and conclusions of
law with respect thereto. If
the court finds that the
judgment was rendered
without jurisdiction, or that
the sentence imposed was
not authorized by law or
otherwise open to collateral
attack, or that there has been
s u c h a d e n i a l o r
i n f r in g e m e n t o f t h e
constitutional rights of the
prisoner as to render the
judgment vulnerable to
collateral attack, the court
shall vacate and set the
judgment aside and shall
discharge the prisoner or
resentence him or grant a
new trial or correct the
sentence as may appear
appropriate.
Because Eakman raises no issues as to the
constitutionality or lawfulness of the
sentence itself, and because nothing in the
record suggests that the district court
lacked jurisdiction to impose the sentence,
we need decide only whether the record
sufficiently demonstrates that Eakman’s
sentence is “otherwise open to collateral
attack.”
Error of Constitutional Magnitude
United States v. Addonizio, 442
U.S. 178, 184 (1979), confirms that “[i]t
has, of course, long been settled law that
an error that may justify reversal on direct
appeal will not necessarily support a
collateral attack on a final judgment.”
Section 2255 permits relief for an error of
law or fact only where the error constitutes
a “fundamental defect which inherently
results in a complete miscarriage of
justice” (id. at 185, quoting Hill v. United
States, 368 U.S. 424, 428 (1962)). We
have applied that teaching by requiring a
petitioner who collaterally attacks his

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5
sentence based on some error in the
sentencing proceeding to allege (1) that the
district court received “misinformation of
a constitutional magnitude” and (2) that
the district judge relied at least in part on
that misinformation (United States v.
Spiropoulos, 976 F.2d 155, 163 (3d Cir.
1992)).
As the government would have it,
Eakman’s sentencing proceeding was not
fundamentally defective as a matter of law
because the district court had no
enforceable expectation of Eakman’s
placement in a community corrections
center. At best, argues the government,
Eakman alleges that the district court’s
subjective expectations may have been
frustrated, but that does not suffice to
show an error of “constitutional
magnitude.” In that respect the
government urges that Eakman’s claim is
no different from that in Addonizio, where
a federal prisoner mounted a collateral
attack to his sentence under Section 2255
because post-sentencing the United States
Parole Commission significantly modified
the weight it placed on several factors in
deciding whether to grant parole.5
According to the prisoner, he would have
been released when he became eligible for
parole under the old parole system (the one
in effect at the time of his sentencing), but
he was instead denied parole twice as a
direct consequence of the change in parole
policy (442 U.S. at 182).
Both the Addonizio district court
and Court of Appeals (incidentally this
Court) found the prisoner was entitled to
relief under Section 2255 (id. at 183), with
the district judge ruling that the Parole
Commission’s change in policy had
thwarted his sentencing expectation by
denying the prisoner “the kind of
‘meaningful parole hearing’ that the judge
had anticipated when sentence was
imposed” (id.). As the district judge
explained, he had expected that the
prisoner would be released after serving
one-third of his sentence, assuming good
behav ior, w i t h that “sente ncin g
expectation [being] based on the Court’s
understanding – which was consistent with
generally-held notions – of the operation
of the parole system in 1970” (id. at 181
n.3). We affirmed the judgment.
But the Supreme Court reversed,
ruling that the prisoner’s claim was not
cognizable under Section 2255 because
“[t]he claimed error here – that the judge
was incorrect in his assumptions about the
future course of parole proceedings – does
not meet any of the established standards
of collateral attack” (442 U.S. at 186).
Although the Court recognized that a
lawful sentence may be set aside under
Section 2255 if it is based on
5 Addonizio actually involved the
claims of not one but three prisoners, but
it presented the facts only as to one of
them, both to sharpen the focus of the
legal issues and because the claims of the
other two prisoners were identical (442
U.S. at 179–80). We follow that lead and
refer only to the prisoner whom the
Supreme Court discussed in its opinion.

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6
“misinformation of constitutional
magnitude,” it held that “there is no basis
for enlarging the grounds for collateral
attack to include claims based not on any
objectively ascertainable error but on the
frustration of the subjective intent of the
sentencing judge” (id. at 187). As the
Court continued (id. at 187-88):
As a practical matter, the
subjective intent of the
sentencing judge would
provide a questionable basis
for testing the validity of his
judgment. The record made
w h e n J u d g e B a r l o w
pronounced sentence against
Addonizio, for example, is
entirely consistent with the
view that the judge then
thought that this was an
exceptional case in which
the severity of Addonizio’s
offense should and would be
considered carefully by the
Parole Commission when
Addonizio became eligible
for parole. If the record is
ambiguous, and if a § 2255
motion is not filed until
years later, it will often be
difficult to reconstruct with
any certainty the subjective
intent of the judge at the
time of sentencing.
Addonizio, id. at 190, found that
opening sentences to collateral attack
based on a court’s expectations about
when a prisoner is likely to be released
would be at odds with Congress’
delegation of authority to the Parole
Commission to determine whether and
when prisoners should be released:
[T]h e judge has no
enforceable expectations
with respect to the actual
release of a sentenced
defendant short of his
statutory term. The judge
may well have expectations
as to when release is likely.
But the actual decision is
not his to make, either at the
time of sentencing or later if
his expectations are not met.
To require the Parole
Commission to act in
accordance with judicial
expectations, and to use
collateral attack as a
mechanism for ensuring that
these expectations are
c a r r i e d o u t , w o u l d
substantially undermine the
congressional decision to
e n t r u s t r e l e a s e
determ inations to th e
Commission and not the
courts. Nothing in § 2255
supp orts – let alone
m a n d a t e s – s u c h a
frustration of congressional
intent.
In sum, Addonizio refused to expand
habeas relief beyond “objectively
ascertainable errors” to errors that would,
to paraphrase Skycom Corp. v. Telstar

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7
Corp., 813 F.2d 810, 814 (7th Cir. 1987),
“invite a tour through [the judge’s]
cranium, with [the judge] as the guide.”
Instead the error must be “objectively
ascertainable” in the sense that it can be
determined from the record and also in the
sense that it does not depend on assessing
the particular intention of the sentencing
judge.
Some district courts that have faced
claims like the one at issue here have
attempted to distinguish Addonizio on the
basis that petitioners in those cases have
expressly asserted a constitutional basis for
their collateral attacks, while the prisoner
in Addonizio failed to articulate such a
basis for his claim. For instance, Pearson
v. United States, 265 F.Supp.2d 973, 980
(E.D. Wis. 2003) ob serve d th at
“petitioner’s claim is explicitly based on
the Due Process Clause, unlike that of the
defendant in Addonizio, who asserted no
constitutional basis for his motion” (see
also Smith v. United States, 277 F.Supp.2d
100, 107-08 (D. D.C. 2003); Culter v.
United States, 241 F.Supp.2d 19, 26-27 n.7
(D. D.C. 2003)). We find that distinction
problematic. Surely those cases cannot
suggest that Addonizio added a heightened
pleading standard to Section 2255 motions
(see Swierkiewicz v. Sorema N.A., 534
U.S. 506, 513-14 (2002)). As Educadores
Puertorriqueños en Acción v. Hernández,
367 F.3d 61, 66 (1st Cir. 2004) observes:
Swierkiewicz has sounded
the death knell for the
imposition of a heightened
pleading standard except in
cases in which either a
federal statute or specific
Civil Rule requires that
result.
And Section 2255 certainly does not
contain such a requirement. All that a
Section 2255 petitioner must do is to
allege (and eventually prove) that the
sentencing court committed an error of
constitutional magnitude and that the error
influenced the sentence.
Addonizio, 442 U.S. at 186,
rejected the petitioner’s motion not
because of some pleading mistake, but
rather because it concluded that a
sentencing court’s expectations about the
future course of discretionary parole
proceedings cannot give rise to an error of
constitutional magnitude. If Eakman’s
motion presented no more than a similar
allegation – that the district judge expected
the Bureau to exercise its discretion to
require Eakman to serve his sentence at a
community confinement center, but the
Bureau did not conform to that expectation
– his motion would meet the same fate,
because (as the government correctly
states) the Bureau has the exclusive
authority to determine the place of
imprisonment under 18 U.S.C. § 3621(b)
(see United States v. Serafini, 233 F.3d
758, 777-78 (3d Cir. 2000)).
But that is not Eakman’s
contention. Instead he asserts that the
district judge believed the Bureau could
lawfully place him in a community
corrections center when, according to the

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government, 18 U.S.C. § 3621(b) never
gave the Bureau the legal authority to do
so. Unlike Addonizio, Eakman does not
challenge his sentence on the basis that the
district judge made a bad predictive
judgment about how his sentence would be
executed – he rather argues that the court
misunderstood the law.
King v. Hoke, 825 F.2d 720 (2d
Cir. 1987), provides some guidance on that
score. There the Second Circuit granted
habeas relief where the sentencing court
relied on a flawed understanding of the
law as to when the prisoner would be
eligible for parole (id. at 724-25). King,
id. at 725, distinguished Addonizio:
In Addonizio the sentencing
judge had made an incorrect
prediction of how the Parole
Commission would exercise
its discretion. By contrast,
in the pending case, the
sentencing judge made an
“objectively ascertainable
error,” [Addonizio, 442
U.S.] at 187, about King’s
minimum statutory parole
eligibility date, a matter of
law rather than a prediction
concerning an agency’s
discretion.
We agree with King and hold that
Addonizio does not control where, as here,
a prisoner alleges that the district court
made an error of law that can be
ascertained from the record.6 In fact, it is
hard to imagine how a sentence could ever
be deemed fair when there is some way to
verify the sentencing court’s error
externally (whether an error of fact or an
error of law) and when that error caused
the misguided sentence.
B e c a u s e s u c h o b j e c t i v e ly
ascertainable errors that a sentencing court
has materially relied upon will always be
of “constitutional magnitud e,” the
appropriate test inquires whether (1) the
district court made an objectively
ascertainable error (one that does not
require courts to probe the mind of the
sentencing judge) and (2) the district court
materially relied on that error in
determining the appropriate sentence.7 If
the answer to both questions is “yes,” then
– unless the record conclusively shows that
6 We note that Atehortua v. Kindt,
951 F.2d 126, 129-30 (7th Cir. 1991),
contains a dictum that appears to look in
the opposite direction. Atehortua
suggests that a petitioner may be out of
luck even where the government, the
defendant and the district court judge
were all clearly mistaken about the
parole consequences of a sentence based
on an improper application of the statute
governing parole.
7 Framing the first part of the two-
prong test in this way states the material
requirements for Section 2255 relief
more succinctly, but it does not
materially change the analysis from our
earlier opinions.

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the prisoner is not entitled to relief – the
prisoner is entitled to a hearing. And if the
court determines after the hearing that the
error did indeed result in a miscarriage of
justice, it must vacate the sentence and
resentence the prisoner.
Objectively Ascertainable Error
Indisputably the district judge
believed the Bureau had the authority to
place Eakm a n in a co m m unit y
confinement center, for otherwise the
judge’s recommendation to that effect
would have been pointless. And if as the
government contends the Bureau did not
actually have the legal authority to assign
prisoners to community confinement
centers, the judge clearly committed an
error of law. In that respect the
government misses the point in calling
upon Serafini, 233 F.3d at 777-78, and
United States v. Jalili, 925 F.2d 889, 894
(6th Cir. 1991), to urge that the district
court’s recommendation cannot be used to
invalidate Eakman’s sentence because it
had no binding authority, over the Bureau
as to the place of imprisonment. After all,
Eakman does not contend that his sentence
violates due process because the Bureau
has ordered him to serve time at an
institutional prison despite the court’s
recommendation otherwise. Instead he
argues that a material misunderstanding of
the law (as plainly evidenced by the
court’s recommendation) rendered his
sentencing proceeding invalid.
Because neither Eakman nor the
government challenges the Bureau’s
interpretation of its own legal authority,
and because the Bureau is not a party to
this action, we prescind the question
whether the Department of Justice’s view,
adopted by the Bureau, is correct. We
rather assume arguendo that the Bureau
never had the legal authority to place
Eakman in a community confinement
center, so that the district court erred in
believing differently. But it is certainly
worth observing that if it were otherwise,
the Bureau’s decision to repudiate its own
discretion under the statute would raise
serious ex post facto concerns (U.S. Const.
art. I, § 9 cl. 3; see Culter, 241 F.Supp.2d
at 24-25 n.6; Ashkenazi v. Attorney Gen.,
246 F.Supp.2d 1, 9 (D. D.C. 2003),
vacated as moot, 346 F.3d 191, 192 (D.C.
Cir. 2003)).8 That clause protects against
retroactive changes in the law that create
“a sufficient risk of increasing the measure
of punishment attached to the covered
crimes” (Garner v. Jones, 529 U.S. 244,
250 (2000), quoting California Dep’t of
Corrections v. Morales, 514 U.S. 499, 509
8 We are mindful that according to
United States v. Ferri, 686 F.2d 147, 158
(3d Cir. 1982), we would lack
jurisdiction to decide the ex post facto
issue under Section 2255 – that Eakman
would rather have had to present such a
claim via Section 2241. We raise the ex
post facto issue only to note that the
government would likely have to travel a
perilous road even if we were to reject
(as we have not for purposes of this
opinion) the Bureau’s pronouncement of
its own legal authority.

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(1995)).
Although the government takes the
position that the Bureau’s former practice
was unlawful, it argues that the Bureau did
not change the applicable law when it
announced its new procedure, but merely
conformed its practice to a number of
holdings that “community confinement”
cannot constitute imprisonment under
United States Sentencing Guideline §
5C1.1 (see, e.g., Serafini, 233 F.3d at 777-
78; United States v. Adler, 52 F.3d 20, 21
(2d Cir. 1995) (per curiam); United States
v. Swigert, 18 F.3d 443, 445 (7th Cir.
1994); Jalili, 925 F.2d at 892-93)). But the
government does not suggest how that fact
helps it respond to Eakman’s due process
claim. No case of which we are aware has
ever relied on such a notion to deny a
collateral challenge to a sentence based on
due process, for due process clearly
guarantees all defendants the right to be
sentenced under an accurate understanding
of the law (United States v. Barnhart, 980
F.2d 219, 225 (3d Cir. 1992)).9 And the
record before us unequivocally shows the
district judge did not contemplate the total
absence of Bureau discretion, an absence
as to which the parties now concur. We
conclude that Eakman’s Section 2255
motion has sufficiently alleged that the
district judge made an objectively
ascertainable error during his sentencing
proceeding.
Reliance
As the government would have it,
Eakman must demonstrate (1) that the
Bureau made some express assurance to
the district court that it would honor its
recommendation to place Eakman in a
community confinement center and (2) that
the district court would have imposed a
lighter sentence had it not been misled.
We reject the notion that Section 2255
requires a petitioner to satisfy such an
onerous burden – certainly not before the
sentencing court conducts a hearing.
Section 2255 is clear in its directive that
the sentencing court must grant a prompt
hearing “[u]nless the motion and files and
records of the case conclusively show that
the prisoner is not entitled to relief. . . .”
To be sure, a prisoner is not entitled to a
hearing unless there is some basis in the
record to support the prisoner’s contention
that the district court relied at least in part
9 Even in the ex post facto context
Weaver v. Graham, 450 U.S. 24, 29
(1981), explains that “a law need not
impair a ‘vested right’ to violate the ex
post facto prohibition.” Instead the
absence of fair notice is the essential
inquiry under the Ex Post Facto Clause
(id. at 30). And as several district courts
have observed, the Bureau gave no
advance warning that it would abruptly
change its former practice, which had
been in place for decades, of placing
some prisoners in community
confinement centers (see, e.g., United
States v. Serpa, 251 F.Supp.2d 988, 992
(D. Mass. 2003) and Ashkenazi, 246 F.
Supp. 2d at 7)).

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on bad information, and at the hearing the
prisoner retains the burden to demonstrate
that he is entitled to relief (see Barnes v.
United States, 579 F.2d 364, 366 (5th Cir.
1978); Williams v. United States, 481 F.2d
339, 346 (2d Cir. 1973)). To that end it is
enough for the prisoner to show that the
district court paid sufficient heed to the
error that the integrity of the sentencing
proceeding is called into doubt
(Spiropoulos, 976 F.2d at 163; King, 725
F.2d at 724).
There is plainly enough in the
record to entitle Eakman to a hearing. As
we have already discussed, the district
judge specifically recommended that the
Bureau place Eakman in a community
confinement center, with an obvious
awareness of the Bureau’s longstanding
p r a c t i c e o f e n t e r t a i n i n g s u c h
recommendations. Clearly the district
judge acted under a legal misapprehension
– a belief in the existence of the Bureau’s
discretion in that respect. Indeed, the
district judge had already granted the
government’s motion under Guideline §
5K1.1 for a downward departure, and he
could have departed further had he been
properly informed of the Bureau’s lack of
discretion to assign Eakman to community
confinement.
Conclusion
Eakman’s Section 2255 motion
sufficiently raises a constitutional question
about the fairness of his sentencing
proceeding. And because the record does
not “conclusively show that the prisoner is
entitled to no relief,” the statute expressly
compels a hearing to determine whether
the judge in fact relied upon his mistaken
belief that the Bureau had the discretionary
authority to assign Eakman to a
community confinement center. We
therefore remand the case to the district
court to conduct a hearing as provided
under Section 2255. Should the district
judge confirm such mistaken reliance, he
is ordered to vacate Eakman’s current
sentence and resentence him.

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