Opinion
9:99-CV-1147 (DNH)(GLS)
February 15, 2001
FOR THE PETITIONER: RICKEY LEE WHITE, Petitioner, Pro Se, FCI Ray Brook, Ray Brook, NY.
FOR THE RESPONDENT: HON. DANIEL J. FRENCH, OF COUNSEL: CHARLES E. ROBERTS Assistant U.S. Attorney, Syracuse, NY.
ORDER and REPORT-RECOMMENDATION
I. Background
Petitioner, pro se Rickey Lee White ("White") commenced this action pursuant to 28 U.S.C. § 2241 on July 26, 1999. Docket No. 1. This court granted his in forma pauperis application and directed the respondent to respond to the petition. Docket No. 5. On January 12, 2000, a motion to dismiss was filed, Docket No. 13, and White filed a reply. Docket No. 17.
White argues that both the sentencing judge and the Federal Bureau of Prisons ("BOP") have failed to credit his federal sentence with time served in state custody, and that, as a result, his federal sentence must be reduced by approximately ten (10) months. Respondent argues that the sentence is correct, and that the challenges raised are either without merit or not properly asserted in a § 2241 petition. Docket Nos. 14-15. In reply, White reiterates his belief that his federal sentence "was incorrectly and unlawfully computed." Docket No. 17.
II. Discussion
A. Prior Proceedings
On June 30, 1992, White was sentenced in a Michigan state court to a term of three to ten years imprisonment for bank robbery ("state sentence"). Pet. at 1. He then pled guilty to a bank robbery charge before the Hon. Horace W. Gilmore, U.S. District Judge of the Eastern District of Michigan. See Judgment of Conviction (3/23/93) (attached to Docket No. 3). On March 23, 1993, White was sentenced by Judge Gilmore to a 109 month term of imprisonment, to run concurrent with the state sentence. Id. On June 1, 1993, the BOP designated Michigan's Adrian Temporary Facility as the facility in which White could serve his federal sentence. This designation noted it was effective March 23, 1993 — the date White was sentenced in federal court. Declaration of James Cochran (Docket No. 14), Att. B.
A court reviewing a motion to dismiss may consider documents attached to the pleadings as well as documents outside the pleadings that are integral to or relied upon by a party in preparing the pleadings. See International Audiotex Network, Inc. v. American Tel. and Tel. Co., 62 F.3d 69, 72 (2d Cir. 1995). White attached an affidavit and memorandum of law to his petition which were docketed separately by the Clerk for ease of reference.
In imposing this sentence, Judge Gilmore relied, in part, on U.S.S.G. § 5G1.3 which addresses concurrent sentences.
White contends that his federal sentence must be reduced due to the time he was: (i) in state custody prior to imposition of the state sentence (from May 11, 1992, through June 29, 1992); and, (ii) incarcerated after his state sentencing, and before his federal sentence was imposed (June 30, 1992, through March 22, 1993). See attachment to Docket No. 3 (Federal Correctional Institution Memorandum from James Cochran to Gary Scott (4/20/98) ("FCI Memorandum")). White argues that both the District Court and the BOP have violated the Sentencing Guidelines and 18 U.S.C. § 3584(a) by their failure to credit White's sentence with this time.
This statute provides, in part: Multiple sentences of imprisonment
(a) Imposition of concurrent or consecutive terms.
* * *
Multiple terms of imprisonment imposed at the same time run concurrently unless the court orders or the statute mandates that the terms are to run consecutively.
B. Merits of Petition
1. Claims Properly Asserted in § 2241 Petition
18 U.S.C. § 3585 delineates when a federal sentence commences and when a defendant should receive sentence credit. U.S. v. Montez-Gaviria, 163 F.3d 697, 701 (2nd Cir. 1998). This statute reads, in part:
(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(b) (emphasis added).
In interpreting this statute, the Second Circuit has noted this credit "is granted by the Attorney General through the Bureau of Prisons after a defendant is sentenced." U.S. v. Labeille-Soto, 163 F.3d 93, 99 (2nd Cir. 1998) (citations omitted). Therefore, Judge Gilmore could not properly credit White's sentence for the time referenced in the petition because § 3585(b) authorizes the Attorney General (through the Bureau of Prisons), and not district courts, to compute this credit. Labeille-Soto, 163 F.3d at 99; United States v. Wilson, 503 U.S. 329, 334 (1992).
Additionally, the BOP has not erred in computing White's sentence. All of the time White seeks to have deducted from his federal sentence was already credited to his state sentence. See FCI Memorandum. "[A] defendant has no right to credit on his federal sentence for time that has been credited against his prior state sentence." Labeille-Soto, 163 F.3d at 99. Thus, " 18 U.S.C. § 3585(b) bars double-counting" of time spent in official detention before the imposition of a federal sentence where the inmate has received state credit for this period. Werber v. U.S., 149 F.3d 172 (2nd Cir. 1998); see also, United States v. Kramer, 12 F.3d 130, 132 (8th Cir. 1993) (holding that BOP "properly decided not to award [petitioner] credit for the time served" where "[t]he record show[ed] that [petitioner] received credit toward his state sentence for that same time period").
Moreover, any argument that White must be given credit for the time he was allegedly in the "custody" of the U.S. Marshals Service for the federal court proceedings relating to the bank robbery conviction must also fail. As the court noted in Thomas v. Whalen, 962 F.2d 358 (4th Cir. 1992), a prisoner "is not even in custody for purposes of Section 3568 when he appears in federal court pursuant to a writ ad prosequendum; he is merely 'on loan' to federal authorities" Id. at 361, n. 3 (citations omitted); see also, Bultron v. U.S., 1999 WL 566322, at *2 (S.D.N.Y. Aug. 3, 1999) (year petitioner spent in federal detention facility was credited toward petitioner's state sentence and cannot be credited toward federal sentence, "[p]etitioner was only 'on loan' to the federal authorities until his state sentence was complete"). In light of the fact that neither Judge Gilmore nor the BOP have wrongfully failed to credit White's federal sentence with the time referenced by him, the court recommends these claims be denied.
White was in the custody of the U.S. Marshals during the periods October 19, 1992, to December 18, 1992, and February 18, 1993, to March 24, 1993. See FCI Memorandum.
2. Claims Properly Asserted in § 2255 Petition
White also appears to allege that the district court committed error when it imposed the sentence on him. Docket No. 1 at Grounds One and Two; Docket No. 3 at 3-5 (district court improperly applied U.S. Sentencing Guidelines in imposing sentence). A challenge to the execution of a sentence is properly filed pursuant to 28 U.S.C. § 2241; a challenge to the legality of a sentence is to be brought pursuant to 28 U.S.C. § 2255. Chambers v. U.S., 106 F.3d 472, 474-75 (2nd Cir. 1997) (citations omitted). Collateral attacks on a federal sentence are to be brought in the sentencing court rather than the district where the prisoner is confined. Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 497 (1973).
The court notes that conversion of any portion of the present application to a motion under § 2255 is improper. Adams v. United States, 155 F.3d 582, 583-84 (2d Cir. 1998).
Where habeas claims are raised in the wrong judicial district, a court may dismiss or transfer such claims. See e.g., Starnes v. McGuire, 512 F.2d 918, 931 n. 18 (D.C. Cir. 1974) (citing 28 U.S.C. § 1406(a)); Rigler v. Keller, 1997 WL 17654 (N.D.N.Y. Jan. 14, 1997) (Pooler, J.) (denying appeal of Magistrate Judge's order transferring § 2255 motion to District where sentencing occurred).
The Federal Rules of Civil Procedure apply to habeas corpus proceedings. Choice v. Coughlin, 1996 WL 97154, at *1 (S.D.N.Y. Mar. 6, 1996) (citing Fed.R.Civ.Proc. 81(a)).
As a result of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2255 now includes a one year period of limitation that applies to motions brought under this section. One caveat to this rule provides that this limitation period runs from "the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence." Id.
Attached to White's petition is a document dated April 20, 1998, in which the BOP stated it will provide White "with zero (0) days of presentence credit" for the time White served in state court prior to federal sentencing. See FCI Memorandum. Therefore, assuming arguendo, this was "the date on which the factual predicate of [White's] claim could have been discovered," 28 U.S.C. § 2255, White was required to file a § 2255 motion asserting this claim no later than April 20, 1999. White signed his habeas petition on July 12, 1999. Thus, the claims that challenge the validity of the sentence imposed by Judge Gilmore are clearly untimely under the AEDPA. Therefore, the court recommends the dismissal of such claims as time-barred by the AEDPA.
White would apparently face another hurdle if he sought to bring a § 2255 motion in the Eastern District of Michigan, as it appears he has already brought one such motion in that District. See attachment to Docket No. 17. Under the AEDPA, a federal prisoner cannot file a second or successive § 2255 motion in a federal district court unless the prisoner first obtains permission to do so from a court of appeals. In re Gray, 163 F.3d 394, 394-95 (6th Cir. 1998); Muniz v. U.S., 236 F.3d 122, 125 (2nd Cir. 2001).
3. Failure to Notify the Court of Address Change
Finally, the court notes that an administrative notice sent to White by the Clerk was returned as undeliverable to him at his last known address. Docket No. 19. White was previously advised by the court that he was required to "promptly notify the Clerk's Office of any change in his address; his failure to do same will result in the dismissal of the instant action." Docket No. 5 at 4 (emphasis in original). Thus, the court recommends that the petition be dismissed due to White's failure to comply with that order and keep the court apprised of his current address.
WHEREFORE, based upon the above, it is hereby
RECOMMENDED, that White's claims under § 2241 be DENIED and DISMISSED as without merit, and it is further
RECOMMENDED, that White's claims that challenge the legality of the imposition of a sentence be DENIED and DISMISSED as time-barred under the AEDPA, and it is further
RECOMMENDED, that the petition be DENIED and DISMISSED due to White's failure to keep the Court and Clerk apprised of his current address, and it is further
ORDERED, that the Clerk serve a copy of this Order on the parties by regular mail.
NOTICE: pursuant to 28 U.S.C. § 636(b)(1), the parties have TEN (10) DAYS within which to file written objections to the foregoing report-recommendation. Any objections shall be filed with the clerk of the court. FAILURE TO OBJECT TO THIS REPORT WITHIN TEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e) and 72.