Opinion
CIVIL ACTION NO. 03-40212-GAO
March 23, 2004
ORDER ADOPTING REPORT AND RECOMMENDATION
After review of the petition, the response to the petition, the report and recommendation of the magistrate judge, and the petitioner's objections, I am satisfied that the disposition recommended by the magistrate judge is correct. The time spent in custody solely because of civil proceedings initiated by the (then) Immigration and Naturalization Service is not to be credited against a sentence for a criminal offense under 18 U.S.C. § 3585.
The petition is dismissed with prejudice.
It is SO ORDERED.
REPORT AND RECOMMENDATION ON PETITION FOR A WRIT OF HABEAS CORPUS
The above-entitled habeas case, brought under the provisions of 28 U.S.C. § 2241, was referred to this court for report and recommendation consistent with the provisions of 28 U.S.C. § 636(b) and Rule 2(b) of the Rules for United States Magistrate Judges in the United States District Court for the District of Massachusetts.I. Prior Proceedings
The relevant facts are not disputed, and show as follows:
1. Between August and December of 2001, petitioner fraudulently used another's credit card;
2. Alerted to his misdeeds, the Piano, Texas, police department arrested petitioner on January 5, 2002, on a charge of possession of stolen property;
3. On March 12, 2002, the local authorities chose not to prosecute on the basis of anticipated federal charges for the same fraudulent conduct;
4. On the next day, March 13, 2002, petitioner as released from state custody, and was taken into custody by the Immigration and Naturalization Service for deportation proceedings;
5. On April 2, 2002, an INS hearing officer ordered the removal ("deportation") of petitioner;
6. At some time thereafter, petitioner was indicted in the United States District Court for the Eastern District of Texas on charges of fraudulent use of access devices;
7. Based on that indictment, the United States Marshal for the Eastern District of Texas lodged a detainer against the petitioner with INS, in whose custody petitioner remained, on May 7, 2002;
8. Petitioner entered a plea of guilty to the federal charges, and, on August 22, 2002, he was sentenced to imprisonment for 37 months;
9. Upon his incarceration, petitioner was credited with "time served" for the period January 5, 2002, to and through March 12, 2002. He was also given credit for the period May 7, 2002, through August 22, 2002.
For the reason that, although held in state custody during that period of time, the federal charges somewhat mirrored the state charges, and the federal charges were based on the same conduct as were the state charges.
When the United States Marshal for the Eastern District of Texas lodged the detainer.
The date of sentencing on the federal charges.
II. Petitioner's Claim
At bottom, petitioner contends that he is entitled to another 26 days credit — i.e., that period of time during which he was held in the custody of the Immigration and Naturalization Service for deportation proceedings, to and through the date on which the federal detainer was lodged against him — i.e., between March 13, 2002, and May 7, 2002.
In his petition before this court, petitioner generally alleges (Petition — # 01, p. 4) that he is entitled to credit for 229 days — i.e., from January 5, 2002 (the date on which he was arrested by the Piano, Texas, police), to and through August 22, 2002 (the day that he was sentenced on the federal charges. But, as indicated above, he was given credit for all the time to which he refers except that period of time when he was solely in the custody of INS for deportation proceedings, that is, between March 13, 2002, and May 7, 2002, when the United States Marshal for the Eastern District of Texas lodged the detainer. Agaisnt petitioner with INS. Thus, the total time at stake is 26 days.
Based on the current computation by the Bureau of Prisons, assuming good time credits, petitioner is slated for release on October 8, 2004.
III. Discussion
In the circumstances, petitioner's claim for yet another 26 days of credit for time served is patently without merit.
Petitioner's entitlement to credit for time served is governed exclusively by the provisions of 18 U.S.C. § 3585. That statute provides:
§ 3585. Calculation of a term of imprisonment
(a) Commencement of sentence. — 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 of sentence at, the official detention facility at which the sentence is to be served.
(b) Credit for prior custody. — A defendant shall be given credit toward the service of a term of imprisonment for any time he has spent in official detention prior to the date the sentence commences —
(1) as a result of the offense for which the sentence was imposed: or
(2) as a result of any other charge for which the defendant was arrested after the commission of the offense for which the sentence was imposed; that has not been credited against another sentence. (Emphasis added).
It is patently clear that that period of time during which petitioner was confined by the Immigration and Naturalization Service was not theresult of the offense for which he was convicted, within the meaning of Section 3583(b)(1) To the contrary, he was in INS custody solely for the purpose of deportation proceedings. So, too, with Section 3585(b)(2). He was not in INS custody on another charge for which he was arrested after the commission of the federal offenses.
It is settled in this Circuit that absent extraordinary circumstances, none of which are even alleged here, deportation proceedings, and custody therefor, are civil in nature, not criminal in nature. See United States v. Garcia-Martinez, 254 F.3d 16 (1st Cir. 2001). In that case, the Court observed, in rejecting a claim that by the taking of a person into custody by the Immigration and Naturalization Service for deportation proceedings triggered the Speedy Trial clock (Id. at 19(:
The STA states that "[a]ny . . . indictment charging an individual with the commission of an offense shall be filed within thirty days from the date on which such individual was arrested . . . in connection with such charges." 18 U.S.C. § 3161(b). It further provides that "[i]f, in the case of any individual against whom a complaint has been filed charging such individual with an offense, no indictment . . . is filed within the time limit required by section 3161(b) . . . such charge against that individual contained in such complaint shall be dismissed or otherwise dropped." 18 U.S.C. § 3162(a)(1). The STA applies only to federal criminal prosecutions, and the time limit is triggered only by an arrest "in connection with [a criminal] charge." 18 U.S.C. § 3161(b). All of the circuits that have considered the issue have concluded that an arrest on civil charges does not normally trigger the thirty-day clock under the STA. See, e.g., United States v. Cepeda-Luna, 989 F.2d 353, 356-58 (9th Cir. 1993) (STA not triggered when defendant detained on civil charges by INS); see also United States v. Noel, 231 F.3d 833, 836 (11th Cir. 2000) (collecting cases). Cf. United States v. Chapman, 954 F.2d 1352, 1358 n. 8 (7th Cir. 1992) (STA not triggered when defendant arrested by state officers and questioned by federal officers); United States v. Blackmon, 874 F.2d 378, 381-82 (6th Cir. 1989) (same); United States v. Taylor, 814 F.2d 172, 174-75 (5th Cir. 1987) (STA not triggered when defendant arrested by state officers on state charges even though federal detainer had been lodged); United States v. Bell, 833 F.2d 272, 277 (11th Cir. 1987) (STA not triggered when defendant arrested by state authorities on state charges although in a joint state-federal investigation). We find the reasoning of these cases persuasive and hold that an arrest on civil charges by the INS ordinarily does not trigger the STA when criminal charges are filed later. (Emphasis added).
Although Garcia-Martinez construed the nature of INS custody for deportation proceedings in the context of the Speedy Trial Act, it's rationale fits comfortably to Section 3585 as well. That is to say, given that, as the Garcia-Martinez court concluded, deportation proceedings are civil in nature, petitioner cannot fairly contend that he was, while in the custody of INS awaiting a deportation hearing, he was in custody ". . . as a result of the offense for which the sentence was imposed . . ." or ". . . as a result of any other charge for which the defendant was arrested after the commission of the offense for which the sentence was imposed . . ." within the meaning of Section 3883.
And its attendant custodial setting.
IV. Conclusion
For the reasons set forth above, this court recommends that the district judge to whim this case is assigned dismiss the petition for a writ of habeas corpus for failure to state a claim upon which relief may be granted.
The parties are hereby advised that under the provisions of Rule 72(b) of the Federal Rules of Civil Procedure and Rule 2(b) of the Rules for United States Magistrate Judges in the United States District Court for the District of Massachusetts, any party who objects to these proposed findings and recommendations must file specific and written objections thereto with the Clerk of this Court within 10 days of the party's receipt of this Report and Recommendation. The written objections must specifically identify the portion of the proposed findings, recommendations, or report to which objection is made and the basis for such objections. The parties are further advised that the United States Court of Appeals for this Circuit has repeatedly indicated that failure to comply with this rule shall preclude further appellate review. See Keating v. Secretary of Health and Human Services, 848 F.2d 271 (1st Cir. 1988); United States v. Emiliano Valencia-Copete, 792 F.2d 4 (1st Cir. 1986); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603 (1st Cir. 1980); United States v. Vega, 678 F.2d 376, 378-379 (1st Cir. 1982); Scott v. Schweiker, 702 F.2d 13, 14 (1st Cir. 1983); see also, Thomas v. Am, 474 U.S. 140, 106 S.Ct. 466 (1985).