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Robert Calvin Plummer v. Archie B. Longley

March 28, 2011

ROBERT CALVIN PLUMMER, PETITIONER,
v.
ARCHIE B. LONGLEY, RESPONDENT.



The opinion of the court was delivered by: Magistrate Judge Susan Paradise Baxter

OPINION AND ORDER*fn1

I. Introduction

Petitioner Robert Calvin Plummer is a federal inmate serving a 30-month term of imprisonment imposed by the U.S. District Court for the Southern District of New York. Before the Court is his petition for writ of habeas corpus, which he has filed pursuant to 28 U.S.C. § 2241. In the petition, he disputes the Bureau of Prisons' (the "BOP's" or "Bureau's") computation of his federal sentence. *fn2 He claims he is entitled to additional credit against his sentence.

II. Background

On June 17, 2008, Petitioner was arrested by the New York City Police and charged with the state crime of Third Degree Assault at Criminal Docket No. 36888C-208 in the Bronx County Supreme Court. The next day, on June 18, 2008, the police notified the Bureau of Immigration and Customs Enforcement ("ICE") that Petitioner was in their custody. [ECF No. 16-2, Ex. 2, Declaration of Bryan Erickson, at ¶¶ 4(c)-(g)]. That same day, the ICE lodged a detainer with the New York Police Department against Petitioner. The detainer explained that an investigation had been initiated to determine whether Petitioner was subject to removal from the United States and advised that the ICE would assume custody of Petitioner within 48 hours of his release from state custody. [ECF No. 16-2, Ex. 2a, Immigration Detainer].

On November 19, 2008, Petitioner pleaded guilty to Third Degree Assault in the Bronx County Supreme Court. On December 17, 2008, the court sentenced him to an eight month term of imprisonment. [ECF No. 16-2, Ex. 2, Erickson Decl. at ¶ 4(f)]. The state sentence computation information provided by the New York City Department of Corrections to the BOP establishes that all of the time that Petitioner served from June 18, 2008, through November 26, 2008, was credited against his state sentence. [ECF No. 16-2, Ex 2b, email message from the New York City Department of Corrections].

On December 19, 2008, Petitioner was released from the New York City Department of Corrections to the ICE detainer. [ECF No. 16-2, Ex. 2, Erickson Decl. at ¶ 4(e)]. The ICE determined that he was the same person who was convicted in 1990 of Attempted Criminal Sale of a Controlled Substance in the Third Degree, in violation of New York Penal Law, and that he had been removed from the United States in 2004. Thus, on December 30, 2008, a Criminal Complaint was filed in the U.S. District Court for the Southern District of New York charging Petitioner with Illegal Re-Entry of a Deported Alien, in violation of 8 U.S.C. §§ 1326(a) and (b)(2). Petitioner was arrested on that date. He was removed from ICE custody and placed in the custody of the United States Marshals Services ("USMS") pending processing of criminal charges. The ICE lodged a detainer with the USMS against Petitioner for purposes of deportation or removal from the United States. [ECF No. 16-2, Ex. 2, Erickson Decl. at ¶¶ 4(i)-(m)].

On February 3, 2009, Petitioner pleaded guilty in the U.S. District Court for the Southern District of New York. The court sentenced him on May 20, 2009, to 30 months of imprisonment, with a two year term of supervised release to follow. [ECF No. 16-2, Ex. 2, Erickson Decl. at ¶¶ 4(n)-(p)].

A federal prisoner's sentence calculation is governed by 18 U.S.C. § 3585, Calculation of a term of imprisonment. Paragraph (a) of the statute governs the date upon which a prisoner's sentence commences, and paragraph (b) governs credit he receives for time he spent in official detention prior to the date his sentence commenced (known as "prior custody credit"). The BOP's policies regarding sentence computation are set forth in Program Statement 5880.28, Sentence Computation Manual ("PS 5880.28").*fn3

In Petitioner's case, the BOP computed his federal sentence under § 3585(a) as having commenced on May 20, 2009, which is the date it was imposed. Petitioner does not challenge this portion of the BOP's sentence calculation.*fn4 Rather, he takes issue with the BOP's calculation of his prior custody credit. The BOP determined that he is entitled to 165 days of prior custody credit pursuant to § 3585(b). [ECF No. 16-1, Ex. 1a, Inmate Data Sheet]. In his petition for habeas relief [ECF No. 5],

Petitioner contends that he is entitled to additional prior custody credit. In his Response [ECF No. 16], the Warden counters that the BOP has calculated his sentence properly. Petitioner has filed his Reply [ECF No. 17], and the case now is ripe for review.

III. Discussion

A. Subject Matter Jurisdiction

A challenge to a federal sentence as imposed must be made under 28 U.S.C. § 2255 and filed with the federal district court that convicted and sentenced the petitioner. In cases such as this, where the petitioner is challenging the BOP's execution of his federal sentence, the habeas petition is properly brought in the district of confinement under 28 U.S.C. § 2241. See, e.g., Barden v. Keohane, 921 F.2d 476, 478-79 (3d Cir. ...


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