Opinion
CASE NO. 2:08-CV-734, CRIM. NO. 2:06-CR-271.
April 6, 2010
ORDER
Petitioner, a federal prisoner, brings the instant motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. This matter is before the Court on the instant motion, respondent's return of writ, petitioner's traverse, and the exhibits of the parties. For the reasons that follow, petitioner is DIRECTED to submit a written waiver of his attorney-client privilege as it relates to his claim of ineffective assistance of counsel within ten (10) days. Failure to do so may result in dismissal of this action.
Respondent is DIRECTED to file a supplemental response including documentation regarding the nature of petitioner's state criminal charges and sentence, and an affidavit from defense counsel in response to petitioner's allegations within twenty (20) days thereafter.
FACTS and PROCEDURAL HISTORY
Petitioner's underlying criminal conviction on conspiracy to distribute over 100 kilograms of marijuana, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(vii), is the result of his May 23, 2007, guilty plea pursuant to the terms of his negotiated plea agreement. See Doc. No. 86. On January 17, 2008, petitioner was sentenced to sixty months incarceration plus five years supervised release. Doc. No. 132. He did not file an appeal.
On July 28, 2008, petitioner filed the instant motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. Petitioner asserts that he was denied the effective assistance of counsel because his attorney did not delay petitioner's federal sentencing hearing until after petitioner's sentencing on state criminal charges, so that petitioner would be sentenced under 5G1.3, Application Notes 3 and 4. In short, petitioner asserts that, but for the ineffective assistance of counsel, his sentence on this underlying criminal offense would have been served concurrently, rather than consecutively, to his sentence in state court.
It is the position of the respondent that this claim is without merit.
MERITS
In his sole claim for federal habeas corpus relief, petitioner asserts that he was denied the effective assistance of counsel because his attorney failed to postpone his sentencing hearing to ensure that petitioner would receive credit for his time served on his related state court conviction in this federal criminal case. Petitioner further alleges that his attorney misled him to believe that he would receive credit in his federal sentence for time served on state criminal charges involving a related offense, and was "tricked into thinking that" his sentence would run concurrent to all previous time served in state custody. See Petitioner's Reply, Doc. No. 144. It appears from the record that, on November 25, 2006, or November 30, 2006, petitioner was arrested on related state criminal charges involving illegal marijuana distribution. On October 25, 2007, and in a judgment entry filed on January 17, 2008, the District Court sentenced petitioner to sixty months incarceration. See PreSentence Investigation Report; Return of Writ, at 2. Petitioner indicates that, on March 10, 2008, he was sentenced by the State of Ohio to one year incarceration, such sentence to be served concurrently to his federal sentence, with credit for 365 days already served. Petition, at 2.
U.S.S.G. § 5G1.3 provides:
Imposition of a Sentence on a Defendant Subject to an Undischarged Term of Imprisonment
(a) If the instant offense was committed while the defendant was serving a term of imprisonment (including work release, furlough, or escape status) or after sentencing for, but before commencing service of, such term of imprisonment, the sentence for the instant offense shall be imposed to run consecutively to the undischarged term of imprisonment.
(b) If subsection (a) does not apply, and a term of imprisonment resulted from another offense that is relevant conduct to the instant offense of conviction under the provisions of subsections (a)(1), (a)(2), or (a)(3) of § 1 B 1.3 (Relevant Conduct) and that was the basis for an increase in the offense level for the instant offense under Chapter Two (Offense Conduct) or Chapter Three (Adjustments), the sentence for the instant offense shall be imposed as follows:
(1) the court shall adjust the sentence for any period of imprisonment already served on the undischarged term of imprisonment if the court determines that such period of imprisonment will not be credited to the federal sentence by the Bureau of Prisons; and
(2) the sentence for the instant offense shall be imposed to run concurrently to the remainder of the undischarged term of im-prisonment.
(c) (Policy Statement) In any other case involving an undischarged term of imprisonment, the sentence for the instant offense may be imposed to run concurrently, partially concurrently, or consecutively to the prior undischarged term of imprisonment to achieve a reasonable punishment for the instant offense.Id. Application Note 2(D) gives an example of how the provision of 5G1.3(b) is applied:
(D) Example. — The following is an example in which subsection (b) applies and an adjustment to the sentence is appropriate:
The defendant is convicted of a federal offense charging the sale of 40 grams of cocaine. Under § 1B1.3, the defendant is held accountable for the sale of an additional 15 grams of cocaine, an offense for which the defendant has been convicted and sentenced in state court. The defendant received a nine-month sentence of imprisonment for the state offense and has served six months on that sentence at the time of sentencing on the instant federal offense. The guideline range applicable to the defendant is 12-18 months (Chapter Two offense level of level 16 for sale of 55 grams of cocaine; 3 level reduction for acceptance of responsibility; final offense level of level 13; Criminal History Category I). The court determines that a sentence of 13 months provides the appropriate total punishment. Because the defendant has already served six months on the related state charge as of the date of sentencing on the instant federal offense, a sentence of seven months, imposed to run concurrently with the three months remaining on the defendant's state sentence, achieves this result.
Additionally, 18 U.S.C. § 3585(b) provides:
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(b). A District Court cannot apply this statute at sentencing.
[T]he Attorney General must . . . compute the credit under § 3585(b) as he did under the former § 3568. . . .
After a district court sentences a federal offender, the Attorney General, through the BOP, has the responsibility for administering the sentence. See 18 U.S.C. § 3621(a) ("A person who has been sentenced to a term of imprisonment . . . shall be committed to the custody of the Bureau of Prisons until the expiration of the term imposed"). To fulfill this duty, the BOP must know how much of the sentence the offender has left to serve. Because the offender has a right to certain jail-time credit under § 3585(b), and because the district court cannot determine the amount of the credit at sentencing, the Attorney General has no choice but to make the determination as an administrative matter when imprisoning the defendant.
* * *
Federal regulations have afforded prisoners administrative review of the computation of their credits, see 28 CFR §§ 542.10-542.16 (1990); Lucas, supra, at 1556, and prisoners have been able to seek judicial review of these computations after exhausting their administrative remedies, see United States v. Bayless, 940 F.2d 300, 304-305 (CA8 1991); United States v. Flanagan, 868 F.2d 1544, 1546 (CA11 1989); United States v. Martinez, 837 F.2d 861, 865-866 (CA9 1988).United States v. Wilson, 503 U.S. 329, 333-35 (1992). However, neither the PreSentence Investigation Report, nor the transcript of petitioner's sentencing hearing refer to petitioner's state criminal charges, which apparently remained pending at the time he was sentenced in this case. See PreSentence Investigation Report; Transcript, Sentencing Hearing.
Petitioner is DIRECTED to submit a written waiver of his attorney-client privilege as it relates to his claim of ineffective assistance of counsel within ten (10) days. Failure to do so may result in dismissal of this action. Respondent is DIRECTED to file a supplemental response including documentation regarding the nature of petitioner's state criminal charges and sentence, and an affidavit from defense counsel in response to petitioner's allegations within twenty (20) days thereafter.
IT IS SO ORDERED.