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Vargas v. K. Lane

United States District Court, M.D. Pennsylvania

July 12, 2019

DOMINGO VARGAS, #64952-066, Petitioner,
v.
K. LANE, Warden, Respondent.

          MUNLEY, J.

          REPORT AND RECOMMENDATION

          JOSEPH F. SAPORITO, JR. UNITED STATES MAGISTRATE JUDGE

         This proceeding was initiated by a petition for a writ of habeas corpus filed by the pro se petitioner, Domingo Vargas, on April 6, 2017, pursuant to 28 U.S.C. § 2241. (Doc. 1.) At the time of filing, Vargas was incarcerated at FCI Allenwood Low, which is located in Union County, Pennsylvania.

         I. Background

         On August 15, 2009, Vargas was arrested in Philadelphia, Pennsylvania, and charged by state authorities with various felony and misdemeanor firearm offenses. Commonwealth v. Vargas, Docket No. CP-51-CR-0012559-2009 (Philadelphia Cty. (Pa.) C.C.P.). At the time of his arrest on these state charges, Vargas was on parole for a prior drug conviction. Commonwealth v. Vargas, Docket No. CP-51-0602491-1996 (Philadelphia Cty. (Pa.) C.C.P.). On November 2, 2009, Vargas was transferred into the custody of the Pennsylvania Department of Corrections (“DOC”) pending parole violation proceedings.

         On January 26, 2010, while he remained in state custody, federal criminal proceedings were commenced in the United States District Court for the Eastern District of Pennsylvania by the filing of an indictment charging him with possession of a firearm by a convicted felon. United States v. Vargas, No. 2:10-cr-00044 (E.D. Pa.). On February 4, 2010, the state firearm charges against Vargas were nolle prossed in light of the federal firearms prosecution. Commonwealth v. Vargas, Docket No. CP-51-CR-0012559-2009 (Philadelphia Cty. (Pa.) C.C.P.).

         On February 16, 2010, Vargas was temporarily borrowed from the primary custody of Pennsylvania authorities pursuant to a writ of habeas corpus ad prose quendum so he could appear to answer the federal charges before the United States District Court for the Eastern District of Pennsylvania. On September 12, 2011, while still in temporary federal custody, Vargas reached his maximum sentence date for the 1996 drug charge upon which his parole violation proceedings were based.

         On or about May 2, 2012, while still in temporary federal custody, Vargas was charged with attempted murder and related offenses in state court. Commonwealth v. Vargas, Docket No. CP-51-CP-0005164-2012 (Philadelphia Cty. (Pa.) C.C.P.).[1]

         On May 23, 2012, following a guilty plea, Vargas was sentenced on the federal felon-in-possession charge to serve a term of 57 months in prison, which the sentencing judge ordered to run concurrently with an anticipated, yet-to-be-imposed parole violation sentence.[2] On June 14, 2012, Vargas was returned to state custody and his federal judgment of conviction was lodged as a detainer.

         On December 20, 2012, Vargas appeared, together with counsel, before the Pennsylvania Board of Probation and Parole (the “Parole Board”) for a parole violation hearing. On March 4, 2013, the Parole Board issued a decision in his parole violation proceedings, continuing Vargas on parole and closing his case as of that date. (Doc. 2, at 24.) Until that point, Vargas's detention for state custody purposes had been pursuant to a parole violator warrant. Vargas thereafter remained in state custody as a pretrial detainee with a federal detainer.

         On November 25, 2013, the state attempted murder charge against Vargas was dismissed under the state's speedy trial rule, Pa. R. Crim. P. 600. Instead of transferring Vargas to federal custody to serve his federal sentence, state officials mistakenly released him from custody altogether. Vargas remained at large until he was arrested by state officials on November 21, 2014, and charged with various state drug and firearms offenses. Commonwealth v. Vargas, Docket No. CP-51-CR-0001697-2015 (Philadelphia Cty. (Pa.) C.C.P.).[3] On February 24, 2015, while he remained in state custody, federal criminal proceedings were commenced in the United States District Court for the Eastern District of Pennsylvania by the filing of an indictment charging him with possession of a firearm by a convicted felon. United States v. Vargas, No. 2:15- cr-00066 (E.D. Pa.).

         On March 11, 2015, Vargas was temporarily borrowed from the primary custody of Pennsylvania authorities pursuant to a writ of habeas corpus ad prosequendum so he could appear to answer the federal charges before the United States District Court for the Eastern District of Pennsylvania. On April 23, 2015, while still in temporary federal custody, the state drug and firearm charges against Vargas were nolle prossed in light of the federal firearms prosecution. Commonwealth v. Vargas, Docket No. CP-51-CR-0001697-2015 (Philadelphia Cty. (Pa.) C.C.P.).

         On September 10, 2015, following a guilty plea, Vargas was sentenced on the federal felon-in-possession charge to serve a term of 60 months in prison. The sentencing court further ordered that this new federal sentence be served consecutive to the previous, unserved 57-month prison term imposed in the prior federal criminal proceedings.

         On October 8, 2015, Vargas was received into the custody of the United States Bureau of Prisons (“BOP”). The BOP computed Vargas's aggregate 117-month sentence as commencing on May 23, 2012, the date when his first federal sentence was imposed. The BOP gave Vargas 253 days of jail credit toward service of his federal sentence-for the period beginning the day following expiration of his state term of parole on September 12, 2011, and ending on the day before his first federal sentence was imposed on May 23, 2012. Vargas was not given credit for the 361-day period when he was erroneously released (from November 26, 2013, through November 21, 2014), nor was he given credit for time spent in official custody on or before September 12, 2011, which was credited toward a state sentence imposed on a 1996 drug charge.

         Vargas submitted the instant § 2241 petition challenging the computation of his federal sentence. Vargas contends that: (a) because his 2012 sentencing order directed that his 57-month federal sentence run concurrently with his anticipated parole violation sentence, he should receive credit for his time in custody on or before September 12, 2011; and (b) because the erroneous release was not his fault, he should receive credit for the 361 days of “inoperative time” when he was out of custody, from November 26, 2013, through November 21, 2014.

         II. Discussion

         A federal habeas court may only extend a writ of habeas corpus to a federal inmate if he demonstrates that “[h]e is in custody in violation of the Constitution or laws of the United States.” 28 U.S.C. § 2241(c)(3). The following statutes are relevant to our evaluation of the petition:

a. 18 U.S.C. § 3584(a), which governs a federal sentencing court's authority to order that a federal sentence be served concurrently with a state sentence;
b. 18 U.S.C. ยง 3621(b), which governs the BOP's authority to designate a state prison as a place of confinement ...

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