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Richardson v. Perdue

United States District Court, M.D. Pennsylvania

January 6, 2017

DEVIN RICHARDSON, Petitioner,
v.
WARDEN R.A. PERDUE, Respondent.

          MEMORANDUM

          Kosik, Judge

         Before the court for consideration is the habeas corpus petition filed pursuant to 28 U.S.C. § 2241 by Devin Richardson (“Petitioner”). Petitioner challenges his sentence computation imposed by the Bureau of Prisons (“BOP”). He is currently confined at the Federal Correctional Institution (“FCI”) at Schuylkill, Pennsylvania. According to Petitioner, he is entitled to five (5) months and six (6) days of custody credit against his sentence.[1] He basically raises two arguments in support of his claim. He first argues that the time he spent in pre-trial detention was not credited to any sentence. He additionally argues that he was designated to the New York Department of Corrections (“DOC”), via a nunc pro tunc designation, for service of his federal sentence. For the reasons that follow, the petition will be denied.[2]

         I. Background

         Petitioner has a history of criminal behavior which involves custody, parole, parole revocation and re-parole. The court will attempt to set forth the relevant facts necessary to the instant petition and Petitioner's claim that he is being denied credit against the federal sentence he is currently serving.

         According to Petitioner, he was first arrested by New York State authorities in November of 2001 on charges of possession of a controlled substance. At some point, he was paroled, and the parole was later revoked for violating conditions. An absconder warrant was issued by New York due to Petitioner's failure to report. He was arrested and held in custody by non-federal authorities in Vermont on April 11, 2013, pursuant to a Fugitive From Justice warrant issued by New York for the parole violation. (Doc. 10, Ex. 1, ¶ 5, Attachs. 1-3.[3])

         At the time Petitioner was arrested, he was on parole from both the 4-year to life term of imprisonment imposed on October 31, 2002, in Bronx County, New York and also the 4-year term of imprisonment imposed on June 19, 2008, also in Bronx County, New York. He was transferred to the custody of New York state authorities on April 18, 2013. (Ex. 1 ¶ 5, Attach. 1 (omitted), Attach. 2 at 2.) On May 14, 2013, Petitioner's parole was revoked in Bronx County, New York Supreme Court. He was later re-paroled on July 30, 2013. (Ex. 1 ¶ 6, Attach. 1 (omitted), Attach. 4 at 2.)

         On February 2, 2014, Petitioner was arrested by non-federal authorities in New York on assault and obstruction of government administration charges, but released on the same day. These charges were later filed under the Bronx County, New York criminal court case No. 2014 BX 005908, and were later dismissed on October 3, 2014. (Ex. 1 ¶ 7, Attach. 1 (omitted), Attach. 5 at 2.).

         On March 27, 2014, Petitioner was again arrested by non-federal authorities in New York with respect to a case that is currently sealed. (Id. at ¶ 8, Attach. 5 at 2, Attach. 6 at 2.) A parole violator warrant was issued on March 29, 2014. (Ex. 1 ¶ 9, Attach. 6 at 2, Attach. 7 .) On April 3, 2014, a Grand Jury for the United States District Court for the District of Vermont returned a one-count indictment which charged Petitioner with possession with the intent to distribute oxycodone on or around April 11-12, 2013. (Id. ¶ 10, Attach 1 (omitted).) Petitioner was transferred to federal custody pursuant to a federal writ on June 3, 2014, but remained in the primary custody of the New York state authorities. (Id., Ex. 1 ¶ 11, Attach. 8 at 2, Application for Writ of Habeas Corpus, Attach. 9 at 2-3, U.S. Marshals Service Prisoner Tracking System.)

         On July 15, 2014, a two-count Superseding Indictment was returned by the Grand Jury for the District Court of Vermont charging Petitioner with conspiracy to distribute oxycodone and heroin in count one, and with possession with the intent to distribute oxycodone in count two. (Id., Ex. 1 ¶ 13.) On June 11, 2015, while in federal custody pursuant to the writ, the State of New York revoked Petitioner's parole, and assigned an expiration date of September 11, 2015. The Parole Revocation Certificate of Disposition reveals that Petitioner's parole was revoked and that he was returned to the New York Department of Corrections. (Id. at ¶ 12, Attach. 6 at 2, Attach. 10 at 2.)

         On August 25, 2015, Petitioner received a federal sentence of 48 months imprisonment on count one of the superseding indictment for conspiracy to distribute oxycodone and heroin. (Id. at ¶ 14, Attach. 11 at 2-3, Judgment.) The other counts (Count 1 of the indictment and Count 2 of the superseding indictment) were dismissed. The federal sentence was ordered to be served concurrent to any undischarged term of imprisonment. (Id.)

         Petitioner's New York state parole revocation time expired on September 11, 2015, and he was released to supervision by the State of New York. (Id. at ¶ 15, Attach. 6 at 2, Attach. 10 at 2, Attach. 12.) It was at this time that he was in exclusive federal custody.

         Petitioner's federal sentence was computed as follows by the BOP, according to 18 U.S.C. § 3585(a) and BOP Program Statement 5880.28, Sentence Computation Manual. Petitioner's federal sentence was found to commence on August 25, 2015, the day in which he came into exclusive federal custody. Title 18 U.S.C. § 3585(a) provides that “[a] sentence to a term of imprisonment commences on the date the defendant is received in custody awaiting transportation to, or arrives voluntarily to commence service at, the official detention facility at which the sentence is to be served.” Additionally, Program Statement 5880.28 states, “[a] prisoner who is in non-federal custody at the time of sentencing may begin service of the federal sentence prior to arriving at the designated federal facility if the non-federal facility is designated in accordance with the Program Statement on Designation of State Institution for Service of Federal Sentence and 18 U.S.C. § 3621 (Imprisonment of a convicted person).” (Id. at ¶ 16, Attach. 13 at 3.)

         Title 18 U.S.C. § 3621(b), as referenced in Program Statement 5160.05, establishes the BOP's authority to designate a state institution for the service of a federal term of imprisonment. (Id. at ¶ 17, Attach. 14 at 3.) In the instant case, Petitioner's federal judgment in his criminal case did order that his federal sentence run concurrent to any undischarged term of imprisonment. (Ex. 1 ¶ 14, Attach. 11 at 2-3.) As such, the BOP designated that New York state facility for service of the federal sentence, commencing on August 25, 2015, the date the sentence was imposed. (Id. at ¶ 17, Attach. 11 at 2-3, Attach. 13 at 2-3, Attach. 14, Attach. 15 at 3.) Petitioner's federal sentence, under no circumstances, could commence any earlier than it was imposed. See PS 5880.28 and 18 U.S.C. § 3585(a). Petitioner's sentence commenced at the earliest possible time, August 25, 2015, the date it was imposed.

         The possibility for prior custody credit for sentences is set forth in 18 U.S.C. § 3585(b) and PS ...


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