Opinion
Civil Action No. 3:16-CV-0261
03-24-2017
JUAN DIANISIO NOBA ROSARIO, Petitioner, v. SEAN M. KUTA, Warden, MVCC, Respondent.
cc: JUAN DIONISIO NOBA ROSARIO 71441-066 Moshannon Valley Correctional Institution D05 555-I Geo Drive Phillipsburg, PA 16866 (via U.S. First Class Mail) Michael Comber Michael Ivory U.S. Attorney's Office (via ECF electronic notification)
United States District Judge Kim R. Gibson MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION I. RECOMMENDATION
It is respectfully submitted that the Petition for Writ of Habeas Corpus be denied. II. REPORT
Petitioner, Juan Dionisio Noba Rosario, a federal prisoner, filed a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241. (ECF No. 1.) He is not proceeding in forma pauperis as he has paid the $5.00 filing fee applicable to habeas cases. Petitioner is incarcerated at Moshannon Valley Correctional Institution, a federal correctional institution operated by The GEO Group, Inc., a private corporation. See https://www.bop.gov.locations/ci/mvc/. (last visited March 24, 2017). He is serving a 50-month term of imprisonment imposed on December 8, 2014, by the United States District Court for the Eastern District of Pennsylvania, Case No.: 13-cr-000032-001, of which this Court takes judicial notice.
Petitioner claims that the Bureau of Prisons ("BOP") has erroneously computed his sentence because he asserts that the time he was on federal writ from June 24, 2014 through December 8, 2014, was not credited against either his state or federal sentences. Petitioner seeks to have all time from June 24, 2014, through December 8, 2014, credited against his federal sentence as prior custody credit.
A. Relevant Background
The record evidence, which Petitioner does not dispute, reflects the following. On September 27, 2012, Petitioner was arrested by local law enforcement officers in Philadelphia, Pennsylvania, and charged with state criminal drug offenses.
On January 24, 2013, a federal grand jury for the United States District Court for the Eastern District of Pennsylvania returned an indictment against Petitioner charging him with Illegal Reentry After Deportation, in violation of Title 8, United States Code, §§ 1326(a) and (b)(2).
On April 29, 2014, Petitioner pled guilty in state court to Manufacture, Delivery, or Possession with Intent to Manufacture or Deliver. Afterwards, Petitioner was sentenced to a state sentence of two (2) to ten (10) years imprisonment. The state sentencing court directed he receive credit against his state sentence for all time served from September 27, 2012, through April 29, 2014.
On June 3, 2014, while Petitioner was serving his state sentence, the United States District Court for the Eastern District of Pennsylvania issued a federal Writ of Habeas Corpus ad prosequendum so that Petitioner could appear in federal court on June 30, 2014, to answer his federal charge. On June 24, 2014, Petitioner was physically "borrowed" by federal authorities and transferred to the Eastern District of Pennsylvania.
A prisoner detained pursuant to a writ of habeas corpus ad prosequendum is considered to remain in the primary custody of the first jurisdiction unless and until the first jurisdiction relinquishes jurisdiction over the person. See, e.g., Ruggiano v. Reish, 307 F.3d 121, 135 n.1 (3d Cir. 2002). The receiving sovereign - in this case, the federal government - is, therefore, considered simply to be "borrowing" the prisoner from the sending sovereign for the purposes of indicting, arraigning, trying and sentencing him. Id.
On September 24, 2014, Petitioner pled guilty to the federal charge. On December 8, 2014, Petitioner was sentenced in the United States District Court for the Eastern District of Pennsylvania to a 50-month term of imprisonment. The Judgment and Commitment Order directed the federal sentence be served "consecutive to any other sentence the defendant is currently serving."
On December 16, 2014, Petitioner was returned to the Pennsylvania Department of Corrections in satisfaction of the federal writ of habeas corpus ad prosequendum. Petitioner remained in state custody to serve his state sentence. On September 8, 2015, Petitioner was paroled from his state sentence. On September 10, 2015, Petitioner was released by Pennsylvania authorities to the United States Marshal Service for service of his federal sentence.
The BOP commenced his federal sentence on that date pursuant to 18 U.S.C. § 3583(a). The BOP also determined that Petitioner was entitled to one day of prior custody credit under 18 U.S.C. § 3585(b), for the time served on September 9, 2016, time which had not been credited against any other sentence. Assuming Petitioner receives all good conduct time available to him under Title 18, United States Code, § 3585(b), his projected release date is April 26, 2019.
Petitioner challenges the BOP's sentence calculation and contends that the time he was on federal writ from June 24, 2014 through December 8, 2014, was not credited against either his state or federal sentences. Respondent has filed his Answer (ECF No. 6), along with the Declaration of Patricia Kitka, a Correctional Programs Specialist employed by the United States Department of Justice, Federal Bureau of Prisons, Designations and Sentence Computation Center, which attached records maintained in Petitioner's Judgment and Commitment files, electronic information maintained in the Public Access to Court Electronic Records ("PACER"), and information maintained in the Bureau of Prisons computerized database.
B. Discussion
A federal habeas court may only extend a writ of habeas corpus to a federal inmate if he demonstrates that "[h]e is in custody in violation of the Constitution or laws of the United States[.]" 28 U.S.C. § 2241(c)(3). Petitioner contends that he is in custody in violation of the federal sentencing statutes because the BOP has calculated his sentence incorrectly.
The following statutes are relevant to the evaluation of the petition: 18 U.S.C. § 3584(a), which governs a federal sentencing court's authority to order that a federal sentence be served concurrently with a state sentence; and 18 U.S.C. § 3585(b), which governs the amount of prior custody credit that an inmate may receive. The BOP's policies regarding sentence computation are set forth in Program Statement 5880.28, Sentence Computation Manual ("PS 5880.28").
1. Is federal sentence concurrent with, or consecutive to, a state sentence
In determining whether Petitioner is entitled to any habeas relief, this Court must first examine whether the BOP violated federal law in computing Petitioner's federal sentence as consecutive to his state sentence pursuant to 18 U.S.C. § 3584(a), which provides, in relevant part: " [I]f a term of imprisonment is imposed on a defendant who is already subject to an undischarged term of imprisonment, the terms may run concurrently or consecutively. . . ." 18 U.S.C. § 3584(a).
The Judgment and Commitment Order directed that Petitioner's federal sentence be served "consecutive to any other sentence the defendant is currently serving." Accordingly, pursuant to § 3584(a), the BOP correctly computed Petitioner's sentence as a consecutive sentence that commenced on September 10, 2015, the date Petitioner was released by state authorities to a federal detainer.
2. Commencement of Federal Sentence
Next, this Court must consider whether the BOP violated 18 U.S.C. § 3585(a) in determining that Petitioner's federal sentence commenced on September 10, 2015. The date upon which a federal sentence commences is controlled by 18 U.S.C. § 3585(a), which provides as follows:
(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.18 U.S.C. § 3585(a). The BOP has interpreted § 3585(a) such that it will not commence a federal sentence earlier than the date on which it was imposed. See PS 5880.28, Chapt. 1, Page 6 ("In no case can a federal sentence of imprisonment commence earlier than the date on which it is imposed."). See also Rashid v. Quintana, 372 Fed. Appx. 260, 262 (3d Cir. 2010) ("A federal sentence commences when the defendant is received by the Attorney General for service of his federal sentence. See 18 U.S.C. § 3585(a). See also United States v. Pungitore, 910 F.2d 1084, 1118-19 (3d Cir. 1990). As a result, a federal sentence cannot begin to run earlier than on the date on which it is imposed.").
Petitioner does not dispute the date his federal sentence was deemed to have commenced.
3. Calculation of prior custody credit under § 3585(b)
The second calculation in arriving at Petitioner's projected release date is whether he is entitled to any prior custody credit. Prior custody credit is governed by 18 U.S.C. § 3585(b), which provides as follows.
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 -(emphasis added). The intent of the last clause of § 3585(b) is to prohibit double sentencing credit situations. Wilson, 503 U.S. at 337 (explaining that with the enactment of § 3585(b), "Congress made it clear that a defendant could not receive a double credit for his detention time."). Thus, the BOP may not grant prior custody credit under § 3585(b) for time that has been credited against another sentence. Rios v. Wiley, 201 F.3d 257, 272 (3d Cir. 2001); Vega v. United States, 493 F.3d 310, 314 (3d Cir. 2007); Chambers, 920 F. Supp. at 623 ("Section 3585 does not permit credit on a federal sentence for time served and credited against another sentence.").
(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.
The evidence of record reflects that the time period Petitioner seeks as prior credit, June 24, 2014 through December 8, 2014, was credited against his non-federal sentence. See Declaration of Patricia Kitka, Attachments D, H, I and K. (ECF No. 6.) Accordingly, the BOP is statutorily precluded from granting Petitioner any prior custody credit under § 3585(b) for the time period from June 24, 2014, through December 8, 2014. Rios, 201 F.3d at 271-76; Vega, 493 F.3d at 314 (the BOP did not err when it disallowed credit under § 3585(b) because the time at issue had been credited against the petitioner's state sentence).
The record clearly reflects that Petitioner received credit against his state sentence for time he served while he was borrowed by federal authorities pursuant to a writ of habeas corpus ad prosequendum. The record contains an email dated January 4, 2017, from the Records Administrator of the Pennsylvania Department of Corrections, which states as follows: "The time he was on writ he continued the service of his PA sentence. We don't interrupt or stop their time when they are on writ." Decl. of Patricia Kitka, Attachment K. (ECF No. 6-12.)
4. Certificate of Appealability
Section 102 of the Antiterrorism and Effective Death Penalty Act (28 U.S.C. § 2253) (as amended) codified standards governing the issuance of certificate of appealability for appellate review of a district court's disposition of a habeas petition. Federal prisoner appeals from the denial of a § 2241 habeas corpus proceeding are not governed by the certificate of appealability requirement. United States v. Cepero, 224 F.3d 256, 264-54 (3d Cir. 2000); 28 U.S.C. § 2253(c)(1)(B). III. CONCLUSION
For the foregoing reasons, it is respectfully recommended that the petition for a writ of habeas corpus be denied.
Any party is permitted to file Objections to this Report and Recommendation to the assigned United States District Judge. In accordance with 28 U.S.C. § 636(b), Fed.R.Civ.P. 6(d) and 72(b)(2), and LCvR 72.D.2, Petitioner, because he is a non-electronically registered party, may file objections to this Report and Recommendation by April 13, 2017, and Respondents, because they are electronically registered parties, may file objections by April 10, 2017. The parties are cautioned that failure to file Objections within this timeframe "will waive the right to appeal." Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011).
/s Cynthia Reed Eddy
Cynthia Reed Eddy
United States Magistrate Judge Dated: March 24, 2017 cc: JUAN DIONISIO NOBA ROSARIO
71441-066
Moshannon Valley Correctional Institution
D05
555-I Geo Drive
Phillipsburg, PA 16866
(via U.S. First Class Mail)
Michael Comber
Michael Ivory
U.S. Attorney's Office
(via ECF electronic notification)