Opinion
Civil Action No. 03-40204-PBS.
April 27, 2004
REPORT AND RECOMMENDATION ON PETITION FOR WRIT OF HABEAS CORPUS (#1)
I. Introduction
On September 10, 2003, Daniel Capaldo ("Capaldo" or the "petitioner") commenced the instant action by filing a petition for writ of habeas corpus (the "petition") pursuant to 28 U.S.C. § 2241 (#1). On November 28, 2003, the respondent David L. Winn ("Winn" or the "respondent") filed a Motion for Summary Judgment (#6) along with a Memorandum in Support of Motion for Summary Judgment and exhibits (#7). On December 19, 2003, the District Court granted the motion for summary judgment without opposition from the petitioner. The petitioner filed a motion to reconsider order granting summary judgment (#8) on January 8, 2004.
On February 5, 2004, the District Judge to whom this case is assigned (Saris, J.) referred the respondent's motion for summary judgment to the undersigned for a Report and Recommendation.
II. The Facts and the Procedural History
The petitioner's recitation of the facts and procedural history is set out at pp. 1-6 of the Petition for Writ of Habeas Corpus (#1), and the respondent's version is at pp. 3-8 of his Memorandum in Support of Motion for Sum mary Judgment (#7). For the purposes of brevity, I restate herein only those facts that are relevant for purposes of issuing a Report and Recommendation on the instant petition and often quote the facts verbatim.
On June 13, 1992, the petitioner was arrested by County of Kings, New York law enforcement authorities and charged with two counts of trafficking in cocaine (#1, ¶ 4). An indictment was filed at No. 7969 of 1992 charging the petitioner with acting as an intermediary between a co-defendant and an undercover police officer on May 15 and June 4, 1992 (#1, ¶ 5). Bail was not posted and the petitioner was remanded to custody (#1, ¶ 6). On December 21, 1992, the petitioner was arrested by Richmond County, New York law enforcement authorities on a criminal indictment, charging the petitioner with delivering 3.8 ounces of cocaine (#1, ¶ 7).
On January 7, 1993, the petitioner was sentenced to not less than five and one half years and not more than a life of custody for each of the two charges brought by County of Kings (#1, ¶ 8). The sentences were to be served consecutively to each other and concurrent to any sentence imposed for the Richmond County charges (#1, ¶ 8). The petitioner was then sentenced by Richmond County to not less than eight years and not more than life on Count I and to not less than three years and not more than nine years on Count II (#1, ¶ 9). These sentences were ordered to be served consecutive to the County of Kings' sentence, however, they were imposed concurrently (#1, ¶¶ 9-10). The petitioner was remanded to the custody of the New York State Department of Corrections.
On April 11, 1995, while serving his state prison sentences, the petitioner was arrested and charged by federal authorities pursuant to an indictment and warrant filed in the United States District Court, Eastern District of New York (#1, ¶ 11). On February 21, 1996, the petitioner entered a plea of guilty to Counts 2 and 9 of the indictment pursuant to a negotiated plea agreement (#1, ¶ 12). Count 2 of the indictment charged that between 1988 and 1995, the petitioner and others conspired to distribute and to process with intent to distribute cocaine in violation of 28 U.S.C. § 841(b)(1)(A) and 846 (#1, ¶ 14). Count 9 of the indictment charged that between 1988 and 1995, the petitioner and others concealed their criminal activity in order to avoid taxes on their illegal income in violation of 18 U.S.C. § 371 (#1, ¶ 15).
On June 28, 1996, the petitioner was sentenced according to the negotiated plea agreement to a sentence of 168 months on Count 2, and a concurrent 60 months on Count 9, and ordered that the sentences be served concurrent to the earlier New York sentences (#1, ¶ 16). The petitioner was then transferred to a state correctional facility.
On July 26, 2001, the petitioner was paroled from New York State custody and taken into federal custody to complete his sentence (#1, ¶ 18). Upon transfer to a federal corrections facility, the petitioner was issued a Sentencing Monitoring Computation Data Sheet which informed him of the time remaining on his sentence and the credits that he has received for his time served (#1, ¶ 20 and Ex. G). The Data Sheet indicated that the petitioner received no credit for his time spent in state custody from June 13, 1992 through sentencing in federal court on June 28, 1996 (#1, ¶ 22). The petitioner initiated the process of seeking remedy through BOP Administrative Relief Procedure, alleging that he was due credit for the 48 months served in state custody prior to sentencing in federal court on June 28, 1996 (#1, ¶ 23). The BOP denied the petitioner's request for credit throughout the review process. On August 30, 2002, the petitioner's final appeal to the BOP was denied and the instant action was commenced (#1, ¶ 24).
Bureau of Prisons ("BOP") records indicate that the petitioner was received into federal custody on July 30, 2001 (#7, ¶ 9).
III. Analysis
The petitioner filed his Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. Section 2241(a) provides that:
(a) Writs of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions. The order of a circuit judge shall be entered in the records of the district court of the district wherein the restraint complained of is had.
Title 28 U.S.C. § 2241(a).
The petitioner is within the authority of the courts to seek such a writ due to the fact that "he is in custody under or by color of the authority of the United States or is committed for trial before some court thereof." 28 U.S.C. § 2241(c)(1).
The petitioner argues that the BOP did not compute his sentence correctly and that he should receive 48 months and 14 days credit for the time served beginning after his arrest by Kings County, New York on June 13, 1992 through his sentencing in Federal Court on June 27, 1996. The petitioner contends that the time served stems from the same conduct to which he was sentenced in federal court and that his federal plea agreement calls for a total sentence of 14 years including the time spent in state custody (#1, ¶¶ 25-27).
In order to determine if the petitioner is entitled to the credit for time served in state custody, two things must be determined. First, when does the federal sentence commence and second, to what extent the defendant is entitled to credit for time served? See Jimenez v. Warden, FDIC, Fort Devin, 147 F. Supp.2d 24, 27 (D. Mass. 2001).
Title 18 U.S.C. § 3585 ("section 3585") governs all sentence computations. The statute provides:
(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.
Title 18 U.S.C. § 3585.
"A federal sentence does not commence until the Attorney General receives the defendant into his custody for service of the federal sentence. Jimenez, 147 F. Supp.2d at 27(citing Pinaud v. James, 851 F.2d 27 (2 Cir., 1988)). However, when the BOP designates a state facility for the service of the federal sentence, the federal sentence may commence. See Rogers v. U.S., 180 F.3d 349, 356 (1 Cir., 1999); Barden v. Keohane, 921 F.2d 476, 483 (3 Cir., 1990); Jimenez, 147 F. Supp.2d at 28.
Under section 3585, the earliest date that a federal sentence may commence is the date it is imposed. See 18 U.S.C. § 3585(a). Therefore, a federal sentence imposed after a state sentence commences on the date that it is imposed, not on the date of the state sentence or some earlier date. See Shelvy v. Whifield, 718 F.2d 441, 444 (D.C. Cir., 1983). Under section 3585(a) and the cases cited above, the BOP is precluded from determining that the petitioner's sentence started on a date prior to the imposition of the sentence, thus the petitioner's federal sentence could not have begun before June 28, 1996, when it was imposed.
The second determination is whether the petitioner is entitled to credit for time served in state custody prior to the imposition of the federal sentence. Section 3585(b) allows a defendant to receive credit for prior custody in two instances. First, a defendant may receive credit for time served if the time served was imposed as a result of the offense for which the sentence was imposed. See 18 U.S.C. § 3585(b)(1). Second, a credit may be given if the time served is a result of any other charge that the defendant was arrested for after the commission of the offense for which the sentence was imposed. See 18 U.S.C. § 3585(b)(2). However, both of these allowances for credit are limited to such time "that has not been credited against another sentence." 18 U.S.C. § 3585(b).
The BOP argues correctly that the last clause of section 3585(b) precludes an award of credit to the petitioner for his time served in state custody prior to federal sentencing. The Supreme Court has held that the intent of the last clause in section 3585(b) is to prevent double credit for time served. See United States v. Wilson, 503 U.S. 329, 332-33 (1992). In Wilson, the defendant was arrested and placed in custody pending federal and state prosecutions. Id. at 330. On November 29, 1989, Wilson was sentenced to 96 months for the federal offenses. Id. Subsequently on December 12, 1989, he was sentenced in state court. Id. The time served prior to sentencing in both state and federal court was credited to his state sentence. Id. The District Court did not award any credit for this time. Id. The Supreme Court upheld the District Court decision to not give credit for the time served. Id. In the instant case, the credit requested by the petitioner has already been credited to his state offenses; thus, he is not entitled to a double credit.
While the petitioner did not oppose the motion for summary judgment, his counsel did, in the motion for reconsideration, cite three cases, none of which are apposite. In United States v. Dorsey, 166 F.3d 558 (3 Cir., 1999), the Third Circuit held that, under certain provisions of the Sentencing Guidelines, i.e., U.S.S.G. § 5G1.3 cmt. n. 2, a sentencing court did have the power to shorten a guidelines sentence to take account on time served by the defendant as a result of a conviction in a state court in certain circumstances. Dorsey, 166 F.3d at 562. To the same end, in Ruggiano v. Reish, 307 F.3d 121 (3 Cir., 2002) the Third Circuit ruled that the BOP must honor a sentencing court's determination pursuant to U.S.S.G. § 5G1.3 cmt. n. 2 even if the determination is in the form of a recommendation. Ruggiano, 307 F.3d at 133. Similarly, United States v. Caraballo, 200 F.3d 20 (1 Cir., 1999) dealt with the power of the sentencing court but not with the issue of time spent in state custody before the imposition of the federal sentence.
In the instant case, the sentencing court made no directive, recommendation or order to BOP to grant the petitioner any "credit" for time spent in state custody prior to federal sentencing. While the record with respect to the imposition of the sentence is somewhat murky and confused, it appears that the sentencing judge had already given the petitioner credit on his federal sentence for the 48 months and 14 days served prior to his federal sentencing by means of a what might be called a downward departure, i.e., the imposition of a sentence below the guideline range.
Neither the record nor the sentencing report clea rly indicates that the downward departure in the federal sentence was a result of the petitioner's time served in state custody. However, neither the sentencing court nor the record provides any other potential explanation for the downward departure. Section 5G1.3 of the sentencing guidelines provides a District Court with the authority to decrease a sentence as credit for time served.
There is much confusion as to how to effectuate such a "credit." In the Dorsey opinion, the Third Circuit notes that if the sentencing court decides to impose a sentence less than the guideline range to give "credit" for that portion of a state sentence which was served before the imposition of the federal sentence, the Court should impose the lesser sentence and then ". . . should note on the sentencing order what it has done so that the adjustment is not confused with a departure from the guideline range but rather recogn ized as a `credit' under § 5G1.3(b) for time served `that will not be credited to the federal sentence under 18 U.S.C. § 3585(b),'" Dorsey, 166 F.3d at 560. In Ruggiano, 307 F.3d at 133, the Third Circuit changed its mind and recommended use of the term "adjustm ent" rather than the term "credit" or the phrase "dow nward departure."
The exhibits attached to the Respondent David L. Winn's Memorandum in Support of Motion for Summary Judgment (#7) indicate that in the presentence investigation report, a sentence of 235 to 293 months was proposed under the sentencing guidelines. (#7, document 1c, ¶ 2). However, the Government's attorney as well as the petitioner's attorney contacted the Probation Officer in charge of compiling the presentence investigation report to inform her that the petitioner would have been in custody for 48 months by the date of federal sentencing. (#7, documents 1d, 1e). The petitioner was subsequently sentenced to 168 months by the District Court. (#7, document 1b). It would certainly appear that the petitioner received credit for the 48 months served when the court sentenced him to 67 months less than what the sentencing guidelines required.
But that is perhaps beside the point because the record does not explicitly state what the reason for the lesser sentence was. However, what is clear is that in the absence of some sort of directive, recommendation or order by the sentencing judge granting the petitioner "credit" from the actual jail term which the Court did impose, BOP cannot be compelled to decrease the petitioner's sentence as a result of service of a state sentence prior to the date of the imposition of the federal sentence.
IV. Recommendation
For the reasons stated, I RECOMMEND that the petitioner's petition for writ of habeas corpus (#1) be DENIED.
V. Review by the District Judge
The parties are hereby advised that pursuant to Rule 72, Fed.R.Civ.P., any party who objects to this recommendation must file a specific written objection thereto with the Clerk of this Court within 10 days of the party's receipt of this Report and Recommendation. The written objections must specifically identify the portion of the recommendation, or report to which objection is made and the basis for such objections. The parties are further advised that the United States Court of Appeals for this Circuit has repeatedly indicated that failure to comply with Rule 72(b), Fed.R.Civ.P., shall preclude further appellate review. See Keating v. Secretary of Health and Human Services, 848 F.2d 271 (1 Cir., 1988); United States v. Emiliano Valencia-Copete, 792 F.2d 4 (1 Cir., 1986); Scott v. Schweiker, 702 F.2d 13, 14 (1 Cir., 1983); United States v. Vega, 678 F.2d 376, 378-379 (1 Cir., 1982); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603 (1 Cir., 1980); see also Thomas v. Arn, 474 U.S. 140 (1985).