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Polanco v. Zenk

August 21, 2009

JUAN POLANCO, PETITIONER
v.
MICHAEL ZENK, THE WARDEN OF MOSHANNON VALLEY CORRECTIONAL CENTER, RESPONDENT



The opinion of the court was delivered by: Chief Magistrate Judge Amy Reynolds Hay

MEMORANDUM OPINION

Juan Polanco ("Petitioner) is currently serving a federal sentence of 41 months after pleading guilty to Illegal Re-entry after Removal. 18 U.S.C. § 1326. He is serving his sentence at the Moshannon Valley Correctional Center ("MVCC") which is located within this District. He filed this Section 2241 petition, challenging the way in which the United States Bureau of Prisons ("BOP") determined to credit his federal sentence. Specifically, he challenges the BOP's denial of his request to retroactively designate a state prison as the place he commenced his federal sentence, which would effectively give Petitioner a credit of roughly 13 months against his federal sentence for time he was serving his state sentences (on drug charges) in state prison and before he formally began serving his federal sentence in a federal prison. Petitioner contends that although he was arrested by state authorities first (on drug charges) and then later arrested by federal authorities (while he was in state pre-trial detention) on the illegal re-entry charge, he was convicted and sentenced in federal court before he was convicted and sentenced in state court. Only after being paroled from the state sentences did Petitioner then immediately commence his federal sentence. Thereafter, Petitioner requested the retroactive designation. The BOP considered Petitioner's nunc pro tunc request but, in the exercise of its discretion, denied it. Petitioner now seeks to challenge that exercise of discretion as being violative of his rights. Because he has not carried his burden to show entitlement to relief, the petition is properly denied.

Petitioner's Section 2241 petition was eventually docketed, Dkt. [4], and the Court directed that an answer be filed. Dkt. [2]. The Respondents filed an answer, with attached evidentiary materials, explaining that Petitioner was not entitled to relief. Dkt. [7]. Both parties have filed their consent to have the Magistrate Judge exercise plenary authority. Dkt. [8] & [9].

The following factual recitation is taken mostly from the Respondent's Answer and does not appear to be disputed by Petitioner. On June 17, 2005, Petitioner was arrested by officers of the Reading, Pennsylvania Police Department, pursuant to drug trafficking charges. Dkt. [6-8] at 3, ¶ 5d, Declaration of Richard Courtot (referencing Presentence Investigation Report (PSR)). On September 26, 2005, Petitioner was arrested by federal authorities at the Berks County, Pennsylvania Prison. Dkt. [6-9] (United States Marshals Service Form 129). Thereafter, he was produced from Pennsylvania state custody pursuant to a federal writ of habeas corpus ad prosequendum, for purposes of processing the federal criminal charge. Dkt. [6-8] at 4, ¶ 6(c). On September 29, 2005, Petitioner was returned to Berks County Prison with a federal detainer, in satisfaction of the federal writ. Id., at 5, ¶ 6(d).

On December 1, 2005, Petitioner pleaded guilty to the federal criminal charge. Id., at ¶ 6(e). On March 13, 2006, Petitioner again was produced from Pennsylvania state custody pursuant to a writ of habeas corpus ad prosequendum, for sentencing. See id., at ¶ 6(f).

Petitioner was sentenced on March 14, 2006, in the United States District Court for the Eastern District of Pennsylvania ("federal sentencing court") to a 41 month term of imprisonment, with a three year term of supervised release to follow for Illegal Re-Entry After Removal, 18 U.S.C. §§ 1326(a), (b)(2). Dkt. [6-10] (Judgment and Commitment Order). The federal sentencing court recommended that Petitioner receive credit for time spent in custody from September 26, 2005, and it recommended that the BOP designate Petitioner to an institution in or near the state of Florida. However, the federal sentencing court was silent as to whether Petitioner's federal sentence should run consecutively to or concurrently with any other sentence. Id. Following sentencing, Petitioner was returned to the custody of the Commonwealth of Pennsylvania with a federal sentencing detainer to continue serving his state sentence, in satisfaction of the federal writ. Dkt. [6-8] at 5, ¶ 6(h).

More than a year later, on December 6, 2006, Petitioner was sentenced in state court to a state sentence of 11-1/2 months to 23 months for Conspiracy to Commit Manufacture of a Controlled Substance (Marijuana) and Manufacture of a Controlled substance (Marijuana), in violation of 18 Pa.C.S.A. § 903(a)(1)(2)F and 35 P.S. § 780-113(a)(30)F, respectively. The state sentencing court directed that Petitioner receive a credit of 538 days of time served against his state sentence. Id., at 5, ¶6(i); Dkt. [6-11] at 2 (Sentencing Order, Commonwealth v. Juan Rivera, 06-CR-3421-2005, Count 4); Dkt. [6-11] at 2 (Sentencing Order, Commonwealth v. Juan Rivera, 06-CR 3421-2005, Count 2).

On April 10, 2007, Petitioner was paroled to the federal detainer. Dkt. [6-8] at 5, ¶6(j). Five months later, on September 10, 2007, Petitioner was designated to MVCC. Id., ¶6(k).

In a letter dated October 4, 2007, MVCC advised the BOP's Designation and Sentence Computation Center ("DSCC") that Petitioner had requested prior custody credit toward his federal sentence for time spent in service of his state sentence. Dkt. [6-14] (letter dated October 4, 2007). The effect of such a designation would be to commence Petitioner's federal sentence on March 14, 2006, i.e., the date of imposition of his federal sentence.

In a letter dated November 8, 2007, the BOP contacted Petitioner's federal sentencing court, seeking the court's position regarding a retroactive designation of the state prison for service of Petitioner's federal sentence. It was explained that at the time Petitioner's federal sentence was imposed, he was in primary state custody, and the federal Judgment and Commitment Order was silent as to whether the court intended Petitioner's federal sentence to run consecutively to or concurrently with Petitioner's state sentence. It was explained that if a retroactive designation was consistent with the federal sentencing court's intent, Petitioner's federal sentence would be deemed to have commenced on March 14, 2006, the date of imposition. However, if a retroactive designation was not consistent with the court's intent, the commencement of Petitioner's federal sentence would remain effective April 10, 2007, the date he was paroled by the State. Dkt. [6-15] (letter dated November 8, 2007).

As of the filing of the answer, the federal sentencing court had not yet responded to the November 8, 2007 letter from the Bureau of Prisons. Dkt. [6] at 4.

On November 29, 2007, Petitioner submitted a Request for Administrative Remedy with the Warden of MVCC, in which he requested to have his federal sentence commence on September 26, 2005. Dkt. [6-4] at 2 (Administrative Remedy, Case Number 476359). In a Response dated December 6, 2007, the Warden denied Petitioner's Request. It was explained that 18 U.S.C. § 3585(b) prohibited Petitioner from receiving such credit against his federal sentence. It was also explained that his request for a retroactive designation of the state prison for service of Petitioner's federal sentence was forwarded to the DSCC for review and evaluation. Id., at 3.

On December 18, 2007, Petitioner filed an Administrative Remedy Appeal with the BOP's Privatization Branch, in which he sought a nunc pro tunc designation of the state institution for service of his federal sentence and prior custody credit against his federal sentence for all time served in official detention prior to the commencement of his federal sentence. Id., at 5. In a response dated January 17, 2008, Petitioner was advised that his request was forwarded to the DSCC for a review and determination. Id., at 6.

On February 8, 2008, Petitioner appealed the Privatization Branch's Response to the National Inmate Appeals administrator. Id., at 7. In a Response dated March 12, 2008, Petitioner's Appeal was denied. Id., at 8. The Response explained that the prior custody credit Petitioner requested was prohibited under 18 U.S.C. § 3585(b), because all of the time served prior to the commencement of his federal sentence was credited against another sentence. Id. Petitioner was advised further that his request for a retroactive designation was considered pursuant to the factors set forth at 18 U.S.C. § 3621(b) and Program Statement 5160.05, Designation of State Institution for Service of Federal Sentence. In addition, Petitioner was advised that the federal sentencing court was silent on whether his sentence should run consecutively to or concurrently with any other sentence, and unless the court explicitly orders that the terms are to run concurrently, pursuant to 18 U.S.C. § 3584, "multiple terms of imprisonment imposed at different times run consecutively." Finally, ...


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