Patrick D. Cole v. J.E. THOMAS, Warden

* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The Honorable Lee H. Rosenthal, District Judge for the U.S. District
Court for the Southern District of Texas, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PATRICK D. COLE,
Petitioner - Appellant,
v.
J.E. THOMAS, Warden,
Respondent - Appellee.
No. 12-35678
D.C. No. 3:12-cv-00412-ST
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
Marco A. Hernandez, District Judge, Presiding
Argued and Submitted April 10, 2013
Pasadena, California
Before: TALLMAN and M. SMITH, Circuit Judges, and ROSENTHAL, District
Judge.**
Petitioner-Appellant Patrick D. Cole (Cole), a federal prisoner, appeals the
Oregon district court’s dismissal of his petition for a writ of habeas corpus
FILED
APR 24 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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pursuant to 28 U.S.C. § 2241. We have jurisdiction under 28 U.S.C. § 2253, and
we affirm.
The District Court for the Southern District of Texas previously considered
the legality of the Bureau of Prisons’s (BOP) administration of Cole’s sentence
when it reviewed and dismissed Cole’s habeas petition to that court in 2002. The
Oregon district court therefore properly dismissed Cole’s 2012 petition as
successive under 28 U.S.C. § 2244(a). The recent case of Setser v. United States,
132 S. Ct. 1463 (2012), does not undermine this determination.
Additionally, the BOP’s letter to the judge who imposed Cole’s federal
sentence did not violate Cole’s rights. The BOP “ultimately has to determine how
long the District Court’s sentence authorizes it to continue [a prisoner’s]
confinement.” Setser, 132 S. Ct. at 1473. The BOP by statute considers “any
statement by the court that imposed the sentence concerning the purposes for
which the sentence to imprisonment was determined to be warranted or
recommending a type of penal or correctional facility as appropriate.” 18 U.S.C. §
3621(b)(4). The BOP interprets § 3621 to authorize recognition of state prison
time, inter alia, “when it is consistent with the intent of the federal sentencing
court . . . .” Reynolds v. Thomas, 603 F.3d 1144, 1150 (9th Cir. 2010) (citing BOP
Program Statement 5160.05 (January 16, 2003)). Because the letter to the district
judge attempted to determine the intent of the federal sentencing judge, it was not a

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due process violation. See, e.g., Reynolds, 603 F.3d at 1153 (W. Fletcher, J.,
concurring) (“The federal Bureau of Prisons (‘BOP’) acted properly in construing
the sentencing judge’s answer to the BOP’s letter.”).
AFFIRMED.

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