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UNITED STATES v. SMITH

May 30, 2000

UNITED STATES OF AMERICA, RESPONDENT,
V.
RONALD EDWARD SMITH, PETITIONER.



The opinion of the court was delivered by: Lee, District Judge.

  MEMORANDUM OPINION

Background

Before the Court is defendant Ronald Edward Smith's pro se (i) Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (Document No. 199 at Criminal No. 94-222) (hereafter, "section 2255 motion to vacate"). After careful consideration of the section 2255 motion to vacate, with memorandum of law in support, the government's response and memorandum in opposition thereto, and defendant's reply to the government's response, the Court will grant petitioner's motion in part and deny it in part.*fn1

This case requires navigation of the labyrinth found at the conjunction of the various statutory provisions and United States Sentencing Guidelines regarding concurrent versus consecutive state and federal sentences, credit for time spent in incarceration, commencement of sentence and the authority of courts versus the Bureau of Prisons ("BOP") regarding the correct computation of defendant's sentence. The BOP concluded that defendant should not get any credit for time he spent serving state sentences in state custody even though the state court judges expressly made their sentences concurrent to this Court's previously imposed federal sentence, and even though the state offenses for which he received his state sentences were treated as relevant conduct by the Government and the probation office in arriving at an appropriate federal sentence. In effect, then, the BOP treated petitioner's federal 84 month sentence as running consecutive to his state sentence, which means petitioner will be released several years beyond the date he expected to be released in light of the state judges making their sentence concurrent to this Court's sentence.

Facts

The relevant facts set forth in the section 2255 motion to vacate are essentially undisputed, and are summarized in the following chronology of events:

? April 27, 1994]. Date specified in Count II of ten count federal indictment for petitioner's possession with intent to distribute 7.7 grams of crack cocaine. The conspiracy to distribute crack cocaine charged in Count I of the Indictment was alleged to have taken place between April, 1994, and August 18, 1994. (Petitioner was named as a defendant only at Counts I and II.)
? May 5, 1994]. Arrested by City of Pittsburgh police officers on state charges of possession of 7 grams of crack cocaine with intent to distribute. Released on bond. (Evidence of this incident was admitted in federal prosecution as prior criminal conduct pursuant to F.R.E. 404(b)).

? October 18, 1994]. Federal indictment issued.

? December 2, 1994] Arrested by City of Pittsburgh police officers on state charges of possession of 1.9 grams of crack cocaine, aggravated assault and resisting arrest. Defendant not released on bond.

? December 8, 1994]. Federal indictment unsealed.

? December 14, 1994]. Taken into federal custody pursuant to writ of habeas corpus ad prosequendum (according to Presentence Investigation Report, or "PSI").
? April 25, 1995]. Jury verdict returned; petitioner was convicted at Count I of the indictment for conspiracy to distribute crack cocaine between April and August, 1994, along with his two co-defendants, and acquitted at Count II of possession with intent to distribute on April 27, 1994.
? July 14, 1995]. Sentenced by this Court to 84 months imprisonment; judgment order states defendant is to be committed to BOP.
? August 29, 1995]. According to BOP printouts attached to petitioner's section 2255 motion to vacate, petitioner returned to state custody this day. BOP gives petitioner credit on federal sentence for time period between December 14, 1995, and August 29, 1995.
? August 30, 1995]. Court of Common Pleas of Allegheny County, Judge Terrence O'Brien, sentences petitioner to 2-4 years imprisonment concurrent to federal sentence on the charges stemming from the May 5, 1994, incident.
? March 7, 1996]. Court of Common Pleas of Allegheny County, Judge Walter Little, sentences petitioner to 2-5 years imprisonment concurrent to both the federal and previously imposed state sentences, on the charges stemming from the December 2, 1994, incident.
? March 12, 1996]. Transported to state facility to serve state sentences, which initially rejected petitioner because state officials believed he was still in federal custody (according to petitioner, but undisputed by Government).
? March 13, 1996]. Accepted into state facility to serve state sentences.
? October 18, 1996]. Conviction and judgment of sentence affirmed on direct appeal by the United States Court of Appeals for the Third Circuit.
? November 23, 1998]. After being paroled by state officials on the state sentence, petitioner transported to FCI- Cumberland, Maryland, at which point he learns, for the first time, that the BOP will not give him credit for the time served in state prison on the state sentence, and that his 84 months federal sentence is deemed to commence as of this date.
? February 8, 1999]. Petitioner filed Request for Administrative Remedy with BOP/FCI- Cumberland. Warden Mark Henry denied relief initially in March, 1999, and his decision was affirmed on administrative appeal.
? August 10, 1999]. Petitioner's habeas corpus application pursuant to 28 U.S.C. § 2241 is denied by United States District Court for the District of Maryland.
? March 29, 2000]. District Court's denial of relief on petitioner's § 2241 petition is affirmed per curiam by the United States Court of Appeals for the Fourth Circuit. Smith v. Henry, 2000 WL 364206 (4th Cir. 2000).

On October 18, 1999, petitioner, Ronald Edward Smith, filed his section 2255 motion to vacate, "based on the failure of the petitioner to receive a lawful sentence, and effective assistance of counsel. The defendant Prays for a reduction of Sentence or Order that the Federal Sentence be made to run concurrent with the State sentences the defendant has already served." Petition, Prayer for Relief. Petitioner also requests appointment of counsel, discovery, and an evidentiary hearing should immediate relief not be granted, and any other relief that this Court deems just and appropriate under the circumstances.

In summary, petitioner's well drafted and researched section 2255 motion to vacate asserts that the BOP has failed to give him proper credit for time spent in state custody on state sentences that were imposed after this Court entered its sentence, where the state court judges specifically directed that the state sentences were to be concurrent both to each other and to the federal sentence. When he was released from state custody and transported to FCI- Cumberland, Maryland, to begin serving his federal sentence on November 23, 1998, petitioner learned, for the first time, that the BOP was not crediting him with federal custody for the time spent in a state facility serving his state sentences. If petitioner is correct, the BOP has "added" up to several years to his federal sentence (although it appears it has given him credit for the period between December 14, 1994, and August 29, 1995).*fn2

The section 2255 motion to vacate argues both that the BOP abused its discretion in failing to properly credit him for the time served in state custody, and that this Court's sentence of July 14, 1995, was illegal because it failed to specify that it should be served concurrently with the yet to be imposed state sentences, and that counsel was ineffective for failing to request the Court to run his federal sentence concurrent to those not yet imposed state sentences or otherwise take steps to ensure that his time spent in state custody on the subsequently imposed state sentences would count toward his 84 months' imprisonment in federal custody.

Specifically, petitioner raises the following four issues:

A. Ground one: Ineffective Assistance of Counsel

Defense Counsel failed to ensure that the defendant would be properly sentence (sic) pursuant to 5G1.3 of the Guidelines. Had defense counsel properly moved the District Court under 5G1.3, the Court could have tailored the sentence to a term of undischarged imprisonment. The District Court could have also Order (sic) the Federal Sentence to be fully concurrent with the state sentence if the state judges had also made their sentences to run concurrently with the federal sentence. The failure of the defense counsel to take any ...

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