Opinion
Civil Action No. 4:04-CV-0320-Y.
August 18, 2004
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND NOTICE AND ORDER
This cause of action was referred to the United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(b), as implemented by an order of the United States District Court for the Northern District of Texas. The Findings, Conclusions and Recommendation of the United States Magistrate Judge are as follows:
I. FINDINGS AND CONCLUSIONS
A. NATURE OF THE CASE
This is a petition for writ of habeas corpus by a federal prisoner pursuant to 28 U.S.C. § 2241.
B. PARTIES
Petitioner Salvatore Ballato, Reg. No. 04938-054, is a federal prisoner who is currently incarcerated in the Federal Medical Center, Fort Worth, Texas.
The Respondent is L.E. Fleming, Warden of the Federal Medical Center, Fort Worth, Texas.
C. PROCEDURAL HISTORY
On May 14, 1999, Ballato was convicted of conspiracy to obstruct commerce by robbery in violation of 18 U.S.C. § 1951 and sentenced to 84 months' imprisonment in the United States District Court for the Eastern District of New York. (Resp't Appendix A at 1.) By way of this petition, Ballato disputes the Bureau of Prisons's sentence computation calculation. According to Ballato, he is entitled to an additional "698 days jail time credit" for "time in custody of the federal government from October 28, 1993 to July 5, 1995." (Petition at 2.)
The record reflects that Ballato was convicted in New York state court of possession of stolen property on August 27, 1993 and ordered to serve a term of imprisonment of seven years, seven months and twenty-one days. (Resp't Appendix C at 11.) Apparently, on October 28, 1993, Ballato was transferred to the custody of the U.S. Marshalls Service on the basis of a writ of habeas corpus ad prosequendum for federal court appearance in the Eastern District of New York. While in temporary federal custody, he continued to serve his state sentence. (Petition at Exhibit D; Resp't Response at 4.) Ballato was paroled from his state sentence on July 6, 1995.
Ballato contends that he was transferred to federal custody for investigation into federal charges stemming from the same criminal activity that resulted in his state conviction. (Petition at 2.) He further contends that as a result of his federal custody, he missed his state parole hearing in November 1994. ( Id.) Thus, Ballato seeks to have his federal sentence run concurrently with his state sentence and he seeks credit for the time he spent in temporary federal custody from October 28, 1993 to July 5, 1995. ( Id.) Ballato pursued his claim through the prison administrative appeals process to no avail. ( Id. at Exhibit A; Resp't Appendix D.) Thereafter, Ballato filed this habeas corpus petition in the United States District Court for the Northern District of Texas, Fort Worth Division. The government has filed a response and motion to dismiss with supporting documentary exhibits, to which Ballato has filed a reply.
D. DISCUSSION
To the extent Ballato contends his state and federal sentences should run concurrently, he relies on § 5G1.3 of the United States Sentencing Guidelines. Generally, § 5G1.3(b), entitled "Imposition of Sentence on a Defendant Subject to an Undischarged Term of Imprisonment," requires a federal sentence to run concurrently with an undischarged state sentence if the state sentence resulted from the same conduct. United States Sentencing Commission, Guidelines Manual § 5G1.3 (Nov. 1, 2003). A § 2241 habeas corpus proceeding, however, is not the proper vehicle within which to raise Ballato's argument as it pertains to § 5G1.3(b). The appropriate vehicle to raise this claim is a motion under 28 U.S.C. § 2255 in the sentencing court. See Jeffers v. Chandler, 253 F.3d 827, 830 (5th Cir. 2001); Wilson v. Reese, 89 Fed. Appx. 901, 902 (5th Cir. 2004); McKinley v. Haro, 83 Fed. Appx. 591, 592 (5th Cir. 2003); Prewitt v. United States, 83 F.3d 812, 816 (7th Cir. 1996); United States v. Werber, 51 F.3d 342, 349 n. 7 (2d Cir. 1995).
Ballato's remaining claims lack merit. As to his due process claim, Ballato argues that he had a liberty interest in his "parole eligibility" in November 1994 and that he was "deprived of this eligibility" because he was in federal custody. (Petition at 4.) In order for a state prisoner to have an interest in parole that is protected by the Due Process Clause, he must have a legitimate expectancy of release that is grounded in the state's statutory scheme. See, e.g., Greenholtz v. Inmates of the Nebraska Penal Corr. Complex, 442 U.S. 1, 11-13 (1979); Berard v. Vermont Parole Bd., 730 F.2d 71, 75 (2d Cir. 1984); Boothe v. Hammock, 605 F.2d 661, 663 (2d Cir. 1979). The New York parole scheme is not one that creates in any prisoner a legitimate expectancy of release. See Barna v. Travis, 239 F.3d 169, 170-71 (2d Cir. 2001).
As to Ballato's claim that he is entitled to additional time credit under the Bureau's Program Statement 5880.28, it is necessary to review 18 U.S.C. § 3585, entitled "Calculation of a term of imprisonment." Section 3585 determines when a federal sentence of imprisonment commences and whether credit against that sentence must be granted for time spent in "official detention" before the sentence began. It states:
(a) Commencement of sentence. — A sentence to a term of imprisonment commences on the date the defendant is received in custody awaiting transportation to, or arrives voluntarily to commence service of sentence at, the official detention facility at which the sentence is to be served.
(b) Credit for prior custody. — A defendant shall be given credit toward the service of a term of imprisonment for any time he has spent in official detention prior to the date the sentence commences —
(1) as a result of the offense for which the sentence was imposed; or
(2) as a result of any other charge for which the defendant was arrested after the commission of the offense for which the sentence was imposed;
that has not been credited against another sentence.18 U.S.C. § 3585 (emphasis added).
The Bureau's view of § 3585(b) is explained in Program Statement 5880.28(c), which reads as follows:
Prior Custody Time Credit. The [Sentencing Reform Act] includes a new statutory provision, 18 U.S.C. § 3585(b), that pertains to `credit for prior custody' and is controlling for making time credit determinations for sentences imposed under the SRA. . . .
Bureau of Prisons Program Statement 5880.28(c) (Feb. 14, 1997).
The parties did not provide a copy of Program Statement 5880.28(c), however the Bureau's program statements are available on the Internet. U.S. Department of Justice, Federal Bureau of Prisons/Freedom of Information Act/Policy/Bureau Program Statements (policies), available at http://www.bop.gov.
Here, the Bureau determined that under § 3585(b) and Program Statement 5880.28 Ballato was not entitled to credit toward his federal sentence for October 28, 1993 through July 5, 1995, even though he was in temporary federal custody, because the detention was not the result of the instant federal offense and because he was serving a state sentence and received credit from the state for that time. (Resp't Appendix B at 5.) Because the court did not order that Ballato's federal sentence run concurrently with any state sentence, this appears to be a proper interpretation of the law. See 18 U.S.C. § 3584(a) (providing that "[m]ultiple terms of imprisonment imposed at different times run consecutively unless the court orders that the terms are to run concurrently"); Adams v. Morrison, 84 Fed. Appx. 419, 420 (5th Cir. 2003); United States v. Gay, No. 3:03-CV-2815-G, 2004 WL 246247, at *1-2 (N.D. Tex. Feb. 2, 2004) (not designated for publication), adopted, 2004 WL 743714 (N.D. Feb. 24, 2004); United States v. VonWillie, 59 F.3d 922, 930-31 (9th Cir. 1995). Moreover, it appears Ballato was in federal custody during the relevant period on the basis of a writ of habeas corpus ad prosequendum. (Resp't Appendix B at 5.) A prisoner is not entitled to credit towards a federal sentence for the time spent in a federal detention center under a writ of habeas corpus ad prosequendum if the prisoner received credit for such time on his state sentence. See Vignera v. Att'y Gen. of the United States, 455 F.2d 637, 637-38 (5th Cir. 1972); Wilson, 89 Fed. Appx. at 902; Adams v. Morrison, No. 1:03-CV-0043, 2003 WL 23319593, at *4 (E.D. Tex. Mar. 14, 2003) (not designated for publication).
II. RECOMMENDATION
Based on the foregoing discussion, it is recommended that the government's motion to dismiss be GRANTED to the extent that this petition for writ of habeas corpus be DENIED.III. NOTICE OF RIGHT TO OBJECT TO PROPOSED FINDINGS, CONCLUSIONS AND RECOMMENDATION AND CONSEQUENCES OF FAILURE TO OBJECT
Under 28 U.S.C. § 636(b)(1), each party to this action has the right to serve and file specific written objections in the United States District Court to the United States Magistrate Judge's proposed findings, conclusions, and recommendation within ten (10) days after the party has been served with a copy of this document. The court is extending the deadline within which to file specific written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation until September 8, 2004. The United States District Judge need only make a de novo determination of those portions of the United States Magistrate Judge's proposed findings, conclusions, and recommendation to which specific objection is timely made. See 28 U.S.C. § 636(B)(1). Failure to file by the date stated above a specific written objection to a proposed factual finding or legal conclusion will bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any such proposed factual finding or legal conclusion accepted by the United States District Judge. See Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc op. on reh'g); Carter v. Collins, 918 F.3d 1198, 1203 (5th Cir. 1990).
IV. ORDER
Under 28 U.S.C. § 636, it is ORDERED that each party is granted until September 8, 2004, to serve and file written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation. It is further ORDERED that if objections are filed and the opposing party chooses to file a response, a response shall be filed within seven (7) days of the filing date of the objections.
It is further ORDERED that the above-styled and numbered action, previously referred to the United States Magistrate Judge for findings, conclusions, and recommendation, be and hereby is returned to the docket of the United States District Judge.