Opinion
Civil No. 03-2862 ADM/AJB
August 20, 2003
Victor Rivera, pro se.
Tricia A. Tingle, Esq., Assistant United States Attorney, Minneapolis, MN, on behalf of Respondent.
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
Petitioner Victor Rivera ("Rivera") has filed a Petition for Writ of Habeas Corpus [Docket No. 1] ("Habeas Corpus Petition") under 28 U.S.C. § 2241 to challenge calculation of his sentence as determined by the Bureau of Prisons ("BOP"). The matter is before the undersigned United States District Judge pursuant to Rivera's Objections to Report and Recommendation [Docket No. 15] ("Objections"). The July 17, 2003 Report and Recommendation [Docket No. 14] ("RR") of Magistrate Judge Arthur J. Boylan recommends that Rivera's Habeas Corpus Petition be denied and dismissed with prejudice. RR at 8. For the reasons set forth below, the RR is adopted and Rivera's Habeas Corpus Petition is dismissed with prejudice.
The RR sets forth the factual background for this matter, which is hereby incorporated by reference for the purposes of Rivera's present Objections.
II. ANALYSIS
In reviewing an RR, the District Court "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1)(C); see also D. Minn. LR 72.1(c)(2). Consequently, a district judge "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C); see also D. Minn. LR 72.1(c)(2).The RR provides several bases to dismiss Rivera's Habeas Corpus Petition with prejudice. First, while the sentencing judge intended Rivera to serve a forty-two month term consecutive to his state sentence, at the time of Rivera's federal sentencing, the state sentence was twenty-three years. RR at 6-7; Declaration of Diane Frederiksen ¶ 3 [Docket No. 8] ("Frederiksen Decl."). Furthermore, the RR notes that the record is silent of indication that the federal sentencing judge considered that Rivera's state sentence would be reduced. RR at 7. The RR concluded that Rivera was given a "147 month prison term, concurrent to the unexpired state term, beginning December 28, 1995. Petitioner's sentence was properly calculated." RR at 8.
On June 4, 1999, Rivera's state sentence was reduced from twenty-three years to fifteen years. Frederiksen Decl. at Attach. B. The reduction in the state sentence did not occur until three-and-a-half years after the federal sentence was imposed. Id. at Attach. D.
To the RR, Rivera launches six objections. The primary objection is that the RR fails to recognize the clear intent of the sentencing judge that Rivera serve only forty-two months of time consecutive to his state term. Objections at 7. Instead, the RR "whack's Mr. Rivera with [seven] years of federal prison time rather than [three-and-a-half] years." Id. Rivera's second objection is his claim that the sentencing transcript does not mention that the forty-two month "incremental" sentence is tied to the twenty-three year state sentence. Id. at 8. Third, Rivera objects to the RR's characterization that the record is silent as to whether or not the sentencing judge would have reduced Rivera's sentence to a forty-two month term consecutive with his fifteen-year sentence. Id. Rivera's fourth argument is that he "is entitled to credit" on his 147 month federal sentence for the time he did on his state sentence. Id. at 9. Fifth, Rivera questions the RR's alleged neglect of the "line of cases set forth in the [§] 2241 [p]etition making it clear that oral pronouncement of a sentence trumps the written JC." Id. Finally, Rivera questions the RR's conclusion that no evidentiary hearing is required. Id. at 10.
A. Intent of the Sentencing Judge Regarding Rivera's Sentence.
Generally, where the oral sentence and the written judgment conflict, the oral sentence controls. United States v. Glass, 720 F.2d 21, 22 n. 2 (8th Cir. 1983) (citing Johnson v. Mabry, 602 F.2d 167, 170 (8th Cir. 1979)). Indeed the supremacy of the oral sentence is woven into the fabric of the Constitution. See United States v. Gagnon, 470 U.S. 522 (1985) (noting that the right protected by the Sixth Amendment's Confrontation Clause "is protected . . . in some situations where the defendant is not actually confronting witnesses or evidence against him"); see also United States v. Agostino, 132 F.3d 1183, 1200 (7th Cir. 1997) (noting that the rule "has as its source the Confrontation Clause of the Sixth Amendment and the Due Process Clause of the Fifth and Fourteenth Amendments"). The rule is not steadfast, however. It is only applicable where the language used at oral sentencing is unambiguous. United States v. Daddino, 5 F.3d 262, 266 (7th Cir. 1993).
Initially, the sentencing judge ordered that Rivera be imprisoned for "135 months with forty-two months of that term to run consecutive to the conclusion of" his state sentence. December 28, 1995 Sentencing Tr. at 26, in Argument and Points and Authorities in Support of Petition Under 28 U.S.C. § 2241 [Docket No. 2] ("Sentencing Tr."). A supervised release term of five years was also imposed. Id. This sentence was altered in open court to 147 months concurrent with his state sentence and was to begin on the day of sentencing. Id. at 49-50. The modification was made to ensure that the BOP would properly execute the sentence, that Rivera serve forty-two months above and beyond his state sentence, which was at that time twenty-three years. Id. at 36 ("[W]hat I am trying to do is add three and a half years to Mr. Rivera's state sentence of 23 years."). While other portions of the transcript assert that the intent of the court was to add forty-two months to Rivera's state sentence without mention of the twenty-three years, the record is devoid of evidence suggesting the sentencing judge contemplated the reduction of the state sentence which eventually transpired when Rivera's sentence was reduced to a fifteen-year term. The sentencing judge's intent is clear and the oral sentence is in accord with the punishment imposed. Rivera was to receive "a term of one hundred forty seven (147) months on Count 1." Frederiksen Decl. at Attach. D at 2.
Indeed, it is not clear that any of the parties involved anticipated the reduced sentence. The concept to change the sentence to a straightforward 147 month term concurrent to the unexpired state sentence was introduced by defense counsel. Sentencing Tr. at 47-48. Moreover, Judge Rovner's comment "I have given you a break, Mr. Rivera" does not, as Rivera suggests, provide evidence that the intent was to give him a forty-two month sentence consecutive to his state sentence regardless of how long his state sentence would ultimately be. To the contrary, in context it is understood to mean that the sentencing judge was cognizant of her ability to have imposed a sentence that was entirely consecutive. See Id. at 24 (stating during imposition of the initial 135 month sentence, "I also have considered carefully that I have the discretion to run this sentence concurrently or consecutively with the [state] sentence").
Rivera argues that incarceration until August 2006 would constitute a "gross increase" in his sentence in that he would spend seven years in federal prison instead of three-and-a-half years. Objections at 2, 7. The sentencing court intended to give Rivera a term of 147 months to run concurrent to the unexpired state sentence and beginning on the date of sentencing (December 28, 1995). Sentencing Tr. at 50; Frederiksen Decl. ¶ 5, Attach. E. The BOP has properly calculated Rivera's sentence to carry out the intent of the sentencing judge. Rivera's claim that his sentence has been increased is unfounded. Rivera's "out date" has remained the same from the day he was sentenced until present. Indeed, if this Court were to adopt Rivera's argument on the present petition, he would serve less than the statutory minimum sentence of 120 months for cases involving five or more kilograms of cocaine. 21 U.S.C. § 841(b)(ii).
Rivera raises the ancillary argument that imposition of the full 147 month term from the date of sentencing would result in a total period of incarceration exceeding the 168 month maximum under the guidelines. Objections at 6. Rivera neglects to mention that the federal sentence of 147 months has not changed at all. Thus, whether the state sentence had remained at twenty-three years or was reduced to fifteen years, his combined state and federal sentence was always going to exceed 168 months.
If Rivera should have been released in January 2003, as he argues, his sentence would fall short of the statutory minimum by approximately thirty-five months, since the federal sentence began on December 28, 1995. See Sentencing Tr. at 50; see also 18 U.S.C. § 3584, 3585; 21 U.S.C. § 841(b)(ii); Frederiksen Decl. at Attach. E (nunc pro tunc designation).
B. The RR Did Not Mischaracterize the Sentencing Court's Intent.
Rivera's second objection is that the RR incorrectly stated the sentencing court's intent regarding his sentence. Specifically, Rivera challenges the assertion made in the RR that Judge Rovner "clearly intended to achieve an incremental punishment of an additional forty two months beyond Petitioner's twenty three year sentence." Objections at 8. Rivera asserts that "[t]here is no place in the sentencing transcript that this is said." Id. But a close reading of the Sentencing Transcript only serves to reinforce the veracity of Judge Boylan's statement. As noted earlier, the sentencing judge revealed her intent when she said "what I am trying to do is add three and a half years to Mr. Rivera's state sentence of 23 years." Sentencing Tr. at 36.
C. There is no Indication that the Sentencing Court would have Reduced Rivera's Sentence.
Rivera next challenges Judge Boylan's statement that there is no indication "that the federal sentencing judge would have reduced the federal term . . . if she had known that Petitioner's state sentence would be reduced." Objections at 8. Rivera points to the original 135 month term as evidence that the federal term may have been reduced in such a case. Id. The conclusion drawn by Rivera is not borne out by the facts, as Judge Rovner consistently intended to sentence to forty-two months running consecutive to Rivera's twenty-three year state sentence. Sentencing Tr. at 36.
D. Rivera is Not Entitled to Credit for his Incarceration Prior to Federal Sentencing.
Rivera's fourth objection is to the RR's reliance on 18 U.S.C. § 3585 to compute Rivera's sentence. Objections at 9. Instead, Rivera argues that he "is entitled to credit on the 147 months from commencement of his state sentence" as was the case in Ruggiano v. Reish, 307 F.3d 121 (3d Cir. 2002). Id. While a sentencing court has authority to grant a prisoner credit for time already served on a state sentence pursuant under U.S.S.G. § 5G1.3, in this case such credit was not intended or granted. Indeed, Judge Rovner specifically stated that the federal term would run concurrent with the "unexpired state sentence." Sentencing Tr. at 50 (emphasis added).
E. An Evidentiary Hearing is Not Required.
Rivera's fifth objection effectively repeats his first. Namely, that the "oral pronouncement of a sentence trumps the written JC." See Objections at 9. See section A analysis.
It is entirely within the District Court's discretion whether or not to grant an evidentiary hearing. Riley v. Lockhart, 726 F.2d 421, 423 (8th Cir. 1984). Dismissal of a habeas corpus petition is proper when "the facts are not in dispute, or if the dispute can be resolved on the basis of the record." Edgemon v. Lockhart, 768 F.2d 252, 255 (8th Cir. 1985) (citing Lindner v. Wyrick, 644 F.2d 724, 729 (8th Cir. 1981), cert. denied, 454 U.S. 872 (1981)); see also Johnston v. Luebber, 288 F.3d 1048, 1059 (8th Cir. 2002) (holding that an evidentiary hearing on a habeas corpus petition "may be denied if it would not assist in the resolution of the petitioner's claim"). Because Rivera's petition can be resolved on the basis of the record now before this Court, an evidentiary hearing is not warranted.
III. CONCLUSION
Based on the foregoing, and all the files, records, and proceedings herein, IT IS HEREBY ORDERED that:
1. Rivera's Objections [Docket No. 15] are DENIED,
2. The RR [Docket No. 14] is ADOPTED and
3. Petitioner's Writ of Habeas Corpus [Docket No. 1] is DENIED and DISMISSED WITH PREJUDICE.