Summary
holding that an inmate's challenge to the execution of his sentence is properly brought pursuant to a writ of habeas corpus "in the district in which the petitioner is incarcerated, not the district in which petitioner was sentenced"
Summary of this case from United States v. KingOpinion
Case No. 99 CR 893 (SAS).
February 13, 2007.
Pedro R. Vittini-Morey, FCI McRae, McRae, Georgia, Defendant (Pro Se).
Edward C. O'Callaghan, Assistant United States Attorney, One St. Andrew's Plaza, New York, New York, For the Government.
MEMORANDUM OPINION AND ORDER
Pedro Rounaldo Vittini-Morey, proceeding pro se, moves for clarification of his sentence. Defendant contends that his federal sentence should have begun on November 15, 2003, the mandated conditional release date of his previously-imposed state sentence, rather than April 14, 2006, the date defendant was transferred from state to federal custody. For the following reasons, defendant's motion is without merit and, in any event, is procedurally barred. Accordingly, defendant's motion for clarification of sentence is denied.
See Motion for Clarification ("Def. Mot."). Construing defendant's pro se application most liberally, the Court will assume that defendant intended to seek a writ of habeas corpus pursuant to 28 U.S.C. § 2241, which is the only remedy available to him to challenge the execution of his sentence.
See id. at 8.
I. BACKGROUND
On January 13, 2000, defendant pled guilty to a one-count Indictment charging him with illegal re-entry after deportation pursuant to title 8, United States Code, section 1326(a). On April 14, 2000, this Court sentenced defendant to fifty-two months in custody. At the time of sentencing, defendant was already serving a state sentence imposed on November 1, 1999, for Criminal Possession of a Controlled Substance in the First and Third Degrees. Defendant was sentenced to fifteen years to life imprisonment on this conviction.
I chose to impose a sentence that was partially concurrent to defendant's state court sentence, recognizing the likelihood that the defendant would, in fact, serve less than the minimum fifteen year term on that conviction.Thus, defendant's federal sentence was scheduled to "commence when the defendant is released on parole from state custody or on November 14, 2009, whichever is earlier." The written sentence memorialized in the Judgment and Commitment was consistent with the verbal pronouncement of defendant's sentence. By imposing a partially concurrent sentence, I intended that defendant would serve no more than fifteen years on both his federal and state convictions combined. However, the sentence imposed also sought to account for the likelihood that defendant would serve less than fifteen years on his state conviction.
See id. at 19 ("So the sentence is to commence, the federal sentence on November 14, 2009 or the date on which the state paroles him for deportation of in fact for any other purpose, whichever is earlier.").
See 4/14/00 Judgment and Commitment, Ex. A to the 1/8/07 Letter from AUSA Edward C. O'Callaghan ("O'Callagahn Ltr."), at 2.
See 4/14/00 Transcript of Sentencing Proceedings, Ex. B to O'Callaghan Ltr., at 16 ("It is my intention then to impose a sentence of 52 months in custody to be followed by a three-year period of supervised release.").
I calculated the expiration date of defendant's fifteen year state sentence to be November 14, 2014, and then subtracted the fifty-two months of the federal sentence, and concluded that the appropriate date to commence the federal sentence would be November 14, 2009, or the date on which the state paroled the petitioner, whichever was earlier. See id.
That possibility became a reality when defendant was re-sentenced by New York State Supreme Court Justice Bruce Allen on May 6, 2005, to eight years in custody. Justice Allen recognized this Court's intention to impose a partially concurrent sentence and understood that if the state sentence was reduced below a term of ten years six months, the federal sentence would run entirely consecutive to the state sentence. Because Justice Allen re-sentenced defendant to a term of eight years imprisonment, defendant's federal sentence became fully consecutive to his state sentence and commenced when he was paroled from state to federal custody.
See 5/6/05 Opinion and Order of Justice Bruce Allen, Ex. 1 to Def. Mot., at 3.
See id.
According to defendant, the mandated conditional release date for sentences between five and ten years is six years and eight months imprisonment. See Def. Mot. at 5-6.
Defendant was paroled to federal custody on April 14, 2006, which is the date his federal sentence began to run. The Bureau of Prisons ("BOP") calculated his remaining term of federal custody to be fully consecutive to his state sentence and set his projected release date for January 21, 2010. Defendant is serving his federal sentence at the Federal Correctional Institution ("FCI") in McRae, Georgia.
See Sentencing Monitoring Computation Data, Ex. 4 to Def. Mot., at 2.
See id.
II. LEGAL STANDARD
An inmate's challenge to the execution of his sentence, rather than the underlying conviction, is properly brought pursuant to a writ of habeas corpus under 28 U.S.C. § 2241. However, the BOP has an Administrative Remedy Program, the purpose of which is to allow inmates to seek formal review of issues relating to their confinement. An inmate must first exhaust all available administrative remedies prior to seeking relief through a habeas corpus petition. As stated by the Supreme Court, the authority to calculate an inmate's federal prison term and the determination of the amount of credit to be applied to an inmate's federal sentence for previous custody resides with the BOP, not the sentencing court. This is so because "[a]fter a district court sentences a federal offender, the Attorney General, through BOP, has the responsibility for administering the sentence." Therefore, a petitioner seeking to challenge the calculation of his sentence "must first exhaust the administrative procedures available under 28 C.F.R. §§ 542.10-542.16 (1993) before seeking relief in the district court." Furthermore, where there is a procedural default, such as the failure to exhaust administrative remedies, a petitioner seeking relief pursuant to section 2241 must justify that procedural default through a showing of cause and prejudice.
See Carmona v. United States Bureau of Prisons, 243 F.3d 629, 632 (2d Cir. 2001).
See 28 C.F.R. §§ 542.10 — 542.16.
See Carmona, 243 F.3d at 634.
See United States v. Wilson, 503 U.S. 329, 332-37 (1992) (interpreting 18 U.S.C. § 3585).
Id. at 335 (citing 18 U.S.C. § 3621(a) ("A person who has been sentenced to a term of imprisonment . . . shall be committed to the custody of the Bureau of Prisons until the expiration of the term imposed. . . .)).
Martinez v. United States, 19 F.3d 97, 99 (2d Cir. 1994).
See id.
Finally, the proper respondent in a petition brought under section 2241 is the warden who has physical custody of the defendant. The Supreme Court reaffirmed this "immediate-custodian" rule when it stated that "whenever a § 2241 habeas petitioner seeks to challenge his present physical custody within the United States, he should name his warden as respondent and file the petition in the district of confinement." The Court's ruling with regard to the proper respondent to a section 2241 petition was unambiguous:
Rumsfeld v. Padilla, 542 U.S. 426, 447 (2004).
[i]n challenges to present physical confinement, we reaffirm that the immediate custodian, not a supervisory official who exercises legal control, is the proper respondent. If the `legal control' test applied to physical-custody challenges, a convicted prisoner would be able to name the State or the Attorney General as a respondent to a § 2241 petition. As the statutory language, established practice, and our precedent demonstrate, that is not the case.
Id. at 439.
Thus, a section 2241 petition must be brought in the district in which the petitioner is incarcerated, not the district in which petitioner was sentenced. Accordingly, the only proper venue for review of a section 2241 petition is in the district of confinement.
III. DISCUSSION
Defendant's allegation that the BOP's sentencing calculation was improper is without merit and must be denied. Pursuant to 18 U.S.C. § 3585, the BOP calculation of a federal term of imprisonment "commences on the date the defendant is received in custody . . . at the official detention facility at which the sentence is to be served." According to BOP records, defendant's period of incarceration in federal custody began on April 14, 2006, the date he was released from state to federal custody. The BOP correctly calculated the full term expiration date of defendant's sentence to be August 13, 2010, with a projected statutory release date, taking into account anticipated good time credit, of January 21, 2010. Any challenges to these computations are without merit.
18 U.S.C. § 3585(a) ("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.").
Defendant concedes that he was transferred from state to federal custody on April 14, 2006. See Def. Mot. at 8.
See Sentencing Monitoring Computation Data at 2.
The following additional grounds for dismissal mandate dismissal of the instant motion: 1) failure to exhaust administrative remedies; and 2) improper venue. First, defendant has not demonstrated that he exhausted his administrative remedies challenging his sentencing computation prior to the filing of the instant motion. Although Vittini-Morey wrote a letter to BOP officials at FCI McRae inquiring about the calculation of his sentence, he has not shown that he attempted to pursue the administrative remedies available to him, let alone that he exhausted those remedies. Because Vittini-Morey has not shown any cause and prejudice to justify this procedural default, his motion for clarification of sentence, construed as a section 2241 petition for habeas corpus, is procedurally barred.
Second, defendant's motion must be dismissed because it was not brought in the district in which he is confined. Vittini-Morey's motion challenges his present physical confinement by the warden of FCI McRae. The only proper respondent to such a challenge is the warden of the jail in which the inmate is incarcerated. Because the proper respondent is the warden of FCI McRae, the proper venue for defendant's motion is the district court in which that institution is located, not the Southern District of New York.
IV. CONCLUSION
For the foregoing reasons, defendant's motion for clarification of sentence is denied. The Clerk of the Court is directed to close this motion [Document # 19].
SO ORDERED.