Opinion
Case No. 98-40029-01, 02-3291-RDR
June 2, 2003
MEMORANDUM AND ORDER
This matter is presently before the court upon defendant's motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255. Having carefully reviewed the arguments of the parties, the court is now prepared to rule.
The defendant entered a guilty plea on December 2, 1998 to conspiracy to possess with intent to distribute methamphetamine in violation of 21 U.S.C. § 846 and possession with intent to distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1).
As part of the plea agreement, the government "agreed and recommended that defendant should receive credit towards the federal sentence beginning from the date of his arrest on the federal Indictment and that such date was March 20, 1998." Additionally, the government agreed to recommend a sentence of "120 months on each count to be served concurrently." The court subsequently sentenced the defendant to a term of imprisonment of 168 months on each count to be served concurrently. The defendant filed a timely notice of appeal to raise a sentencing issue. On December 2, 1999, the Tenth Circuit affirmed the defendant's sentence. United States v. Bias, 201 F.3d 449, 1999 WL 1083749 (10th Cir. 1999). The defendant filed the instant motion on September 12, 2002.
The court was notified on November 28, 2000 by the Bureau of Prisons (BOP) that it would be unable to follow the court's recommendation concerning presentence confinement. The BOP noted that, under 18 U.S.C. § 3585(b), it could not provide the defendant with time served prior to sentencing to his federal sentence because it had been credited to a previous state sentence.
On April 24, 2001, the defendant wrote the court and raised the issue of the execution of his sentence. He sought advice because of the BOP's refusal to grant him credit for presentence confinement as recommended by the court at the time of sentencing. On May 1, 2001, the court wrote the defendant the following response:
I am unable to provide you with any relief. It is the Attorney General, through the Bureau of Prisons, and not the district court that is authorized pursuant to 18 U.S.C. § 3585(b) to grant a defendant credit for time served prior to sentencing. See United States v. Wilson, 503 U.S. 329, 335 (1992). I have only the power to recommend.
You need to raise this issue with the Bureau of Prisons and exhaust your administrative remedies. Only after an inmate seeks administrative review of the computation of this credit, see 28 C.F.R. § 542.10-542.16, and has exhausted administrative remedies, may the inmate then seek judicial review pursuant to 28 U.S.C. § 2241. See Wilson, 503 U.S. at 335.
The defendant then apparently sought review of the BOP's decision. On May 22, 2002, the BOP declined to give the defendant credit for presentence confinement on the sentence imposed by this court. Rather, the BOP determined pursuant to 18 U.S.C. § 3585(b) that credit could not be awarded to this sentence because the defendant received credit from California authorities for a state sentence he was serving at the time of the sentence imposed by this court. On July 3, 2002, the BOP denied defendant's appeal.
In the instant motion, the defendant contends that his plea agreement has been violated by the BOP's failure to provide him with credit as recommended by this court. The government contends that the defendant's motion should be denied because it is untimely.
An evidentiary hearing must be held on a § 2255 motion "unless the motion and files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255; United States v. Galloway, 56 F.3d 1239, 1240 n. 1 (10th Cir. 1995). To be entitled to an evidentiary hearing, the defendant must allege facts which, if proven, would entitle him to relief. See Hatch v. Oklahoma, 58 F.3d 1447, 1471 (10th Cir. 1995), cert. denied, 517 U.S. 1235 (1996). The court finds that a hearing on the defendant's motion is not necessary. The court finds that the materials in the file demonstrate that a hearing is not required.
The Anti-Terrorism and Effective Death Penalty Act imposes a one-year limitation period for filing motions under 28 U.S.C. § 2255. The one-year limitations period is not jurisdictional, but is instead subject to equitable tolling. See Moore v. Gibson, 250 F.3d 1295, 1299 (10th Cir. 2001). The court is persuaded that the instant motion is untimely. The motion was filed almost three years after his appeal was decided and over one year after the defendant learned that he was not being credited with presentence confinement. See Montalvo v. United States, 174 F. Supp.2d 10, 14 (S.D.N.Y. 2001).
Even if the court were to consider this motion timely, we would deny it on the merits. The defendant's breach of plea agreement argument is cognizable in a § 2255 motion. See United States v. Buck, 194 F.3d 1321, 1999 WL 8111685 at **3 (10th Cir. 1999). In considering a claim of breach of a plea agreement, the court must construe the plea agreement according to the principles of contract law and decide whether the government violated the terms of the plea agreement. United States v. Veri, 108 F.3d 1311, 1313 (10th Cir. 1997); United States v. Belt, 89 F.3d 710, 713 (10th Cir. 1996). We first examine the nature of the plea agreement itself. United States v. Rockwell Intern. Corp., 124 F.3d 1194, 1199 (10th Cir. 1997). Then, we analyze the plea agreement based upon defendant's reasonable understanding at the time he entered the plea agreement. Id. Although we give credence to the plain language of the plea agreement, we will not construe the language so literally that the purpose of the plea agreement is frustrated. Id. Accordingly, we consider terms implied by the plea agreement as well as those expressly provided. Id. The party who asserts a breach of a plea agreement has the burden of proving the underlying facts that establish a breach by a preponderance of the evidence. Allen v. Hadden, 57 F.3d 1529, 1534 (10th Cir. 1995).
The plea agreement is quite clear. In exchange for the plea of guilty, the government agreed to "recommend that defendant receive credit for time served in custody since the date of his arrest on the Indictment in this matter (March 20, 1998)." The government also agreed to "recommend that defendant be sentenced to a term of imprisonment of 120 months on each count, to be served concurrently with each other." The agreement also contained the following provisions:
The defendant understands that the foregoing recommendations by the Government as to the sentence to be imposed do not bind the Court and that the defendant has no right to withdraw the plea of guilty in the event the Court does not accept the Government's recommendations.
* * * * *
Defendant understands and agrees that this agreement relates only to matters within the jurisdiction of the United States Attorney for the District of Kansas and is not binding on any state authorities or any federal officials outside the District of Kansas.
The court does not find that any breach of the plea agreement occurred. The government agreed to recommend that he receive credit for his federal sentence, and the government adhered to its agreement. The court finds no breach of the plea agreement. The defendant was warned that the government's recommendations were not binding on the court or any federal officials outside this district. The court fails to find any breach of the plea agreement.
The court notes that the defendant could have filed a motion under 28 U.S.C. § 2241 challenging the execution of his sentence, but he specifically decided against it.
IT IS THEREFORE ORDERED that defendant's motion to vacate, set aside or correct sentence (Doc. # 92) be hereby denied.
IT IS SO ORDERED.