The opinion of the court was delivered by: Judge Caldwell
On September 5, 2006, Petitioner, Marcos Tadeo Galan-Paredes, incarcerated at FCI-Allenwood, White Deer, Pennsylvania, filed a pro se petition under 28 U.S.C. § 2241 for a writ of habeas corpus, challenging the calculation of his sentence by the Federal Bureau of Prisons (the BOP). He alleges the BOP has erroneously refused to give him credit for time he spent in custody from June 10, 2001, the date of his arrest after a traffic stop, through October 25, 2001, the date of his federal indictment, a period of about four and one-half months.
No issue of exhaustion is presented, and we have authority to review the BOP's sentencing calculation by way of section 2241. See Coady v. Vaughn, 251 F.3d 480, 485-86 (3d Cir. 2001); United States v. Smith, 101 F. Supp. 2d 332, 338 (W.D. Pa. 2000). The issue presented is whether the contested period was time spent under 18 U.S.C. § 3585(b)(1) in "official detention" on the federal conviction or time spent in "civil detention" (as Respondent here phrases it) awaiting the outcome of immigration proceedings. If the former, credit must be awarded; if the latter, then not.
On June 10, 2001, police in the City of Virginia Beach, Virginia, stopped Galan-Paredes for reckless driving. He was arrested and held in custody. He was also issued a traffic citation for reckless driving not involving an accident. (Doc. 2, traffic citation attached as an exhibit). The citation ordered him to appear in traffic court on July 6, 2001.*fn1
On July 6, 2001, Petitioner was sentenced on the traffic violation to a thirty-day loss of his driver's license, a fine of $130, and costs in the amount of $30. (Doc. 10, Resp't's Ex. 1, ¶ 6, Gemberling's penalty-of perjury declaration). After receiving the sentence for reckless driving, Respondent asserts Galan-Paredes "remained detained at the Virginia Beach County Jail in civil detention status" for the Bureau of Immigration and Customs Enforcement (ICE), the administrative successor to the INS. (Id., ¶ 7).
Respondent also asserts that "[o]n August 28, 2001, Galan-Paredes' detention continued at the Virginia Beach County Jail as he was detained in an Administrative Felony Deportation Proceedings status and charged with Removal Proceedings." (Id., ¶ 8). The government's brief on Petitioner's direct appeal of his criminal conviction indicates that August 28, 2001, was also the date Petitioner was interviewed by INS agent Ambrosone. In that brief, the government wrote:
[O]n August 28, 2001, I.N.S. Special Agent Nicholas Ambrosone (hereinafter "Ambrosone") made contact with Galan. Galan admitted to Ambrosone that he was a native and citizen of Columbia, that he had been previously deported and that he had not obtained permission before reentering the United States. (Presentence Report p. 3).
United States v. Galan-Paredes, supra, Brief of the Appellee, 2002 WL 32726060, at *3.
On October 25, 2001, Galan-Paredes was indicted in the United States District Court for the Eastern District of Virginia with illegal re-entry by a deported alien, (id., ¶ 9), a violation of 8 U.S.C. § 1326(a) and (b)(2). After a plea of guilty, he was sentenced on April 11, 2002, to 70 months' imprisonment. (Id.). His presumptive parole date is February 15, 2007, according to the BOP's website, www.bop.gov.
The BOP credited his sentence for the period of October 25, 2001, the date of his federal indictment, through April 10, 2002, the day before he was sentenced. (Id., ¶ 10). The BOP has refused to credit his sentence for the time from June 10, 2001, the date of his arrest after the traffic stop, through October 24, 2001, the day before he was indicted, on the basis that he was being held during that time by ICE in civil detention pending a final determination of deportability and was not in "official detention" on his federal conviction within the meaning of 18 U.S.C. § 3585(b)(1).
In part, Galan-Paredes contends that he is entitled to credit for the period in question simply because his custody ultimately led to the criminal charge of violating immigration law. It is immaterial that he might have been initially held in ICE custody during this time for immigration purposes only. Because the detention led to the conviction, the detention should be considered time spent in official detention on his federal conviction for which he should receive credit under 18 U.S.C. § 3585(b)(1).*fn2 Petitioner adds that it is unrealistic to believe that once he reentered the country, his detention would simply be an ...