Opinion
Nos. CV 02-2436, 99 Cr. 280 (JGK), 99 Cr. ___
April 30, 2002
JOSE DIFO VASQUEZ, Inmate No. 46130-054, Brooklyn, New York, Petitioner Pro Se.
HONORABLE ALAN VINEGRAD, UNITED STATES ATTORNEY EASTERN DISTRICT OF NEW YORK, Brooklyn, New York, Attorney for Respondents.
Memorandum and Order
Jose Difo Vasquez, proceeding pro se, petitions this court for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 granting him presentence jail credit. After a careful review of Vasquez's petition, which was received on April 16, 2002, the court concludes that even if this court has jurisdiction over Vasquez's suit, his action is more appropriately venued in the United States District Court for the Southern District of New York.
Factors to be considered in determining the appropriate venue for a § 2241 petition include (1) where the material events at issue took place, (2) where records and witnesses relevant to petitioner's claim are to be found, and (3) the convenience of the forum for both petitioner and respondent. See Henderson v. INS, 157 F.3d 106, 128 n. 25 (2d Cir. 1998) (citing Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 493-94 (1973)); 28 U.S.C. § 1404(a) ("For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought."). Applying these factors to this case, it is apparent that the convenience of the parties and the interests of justice are best served by transferring this case to the Southern District of New York.
Although Vasquez is currently detained in this district, he is challenging a sentence imposed by the United States District Court for the Southern District of New York. As the material events took place in that district, the records that are relevant to petitioner's claim are located there and that court is familiar with the issues surrounding his claim to presentence jail credit. Moreover, that court also has jurisdiction over the respondent. Finally, the forum is convenient for both petitioner and respondent as it is also located within New York City.
In the exercise of discretion and in furtherance of justice, this court hereby transfers this petition to the Southern District of New York. See 28 U.S.C. § 1404(a). The provision of Rule 83.1 of the Local Rules for the Eastern District of New York requiring a five-day delay in the transfer of relevant case materials is waived. Upon prompt transfer of the case, the Clerk of the Court is to mark the case closed.
INTRODUCTORY STATEMENT
NOW COMES DIFO — Petitioner in the above entitled action and respectfully moves this Court for the issuance of a Writ of Habeas Corpus and Order To Show Cause pursuant to 28 U.S.C. § 2241, and 2243.
Petitioner further requests the Court to construe these Pro Se pleadings under the interpretation of Haine v. Kerner, 404 U.S. 519, 92 S.Ct.594, 30 L.Ed.2d 652 (1972), not holding pro se pleadings to the higher standards demanded of a professional practitioner and Frey v. Schuetzle, 78 F.3d 359 (8th Cir. 1996), Pro Se habeas petition must be given liberal construction and petitioner is not required to identify specific legal theories or offer case citations in order to be entitled to relief.
JURISDICTION
The Court has both Subject Matter, and Personal Jurisdiction because Petitioner seeks to challenge the legality of the execution of his sentence relevant to the issue of presentence jail credit which has been afforded by the Bureau of Prisons.
Pursuant to 18 U.S.C. § 3585(b), the Bureau Prisons is mandated to aply all credit for time served in pre-trial federal custody against the federal sentence of an inmate when once committed to the Bureau of Prisons, by computation of sentence.
An affected inmate may challenge the computation of his sentence credits under a 2241 motion (See U.S. v. Tootle, C.A.4 (N.C.) 1995, 65 F.3d 381, cert. den. 116 § Ct. 1360, 517 U.S. 1123, and U.S. v. Espinoza, 866 F.2d 1067 (1989).
A Federal District Court may grant relief to habeas corpus Petitioner who alleges erroneous computation of Petitioner's sentence credits for time in detention prior to sentencing (see McClain v. BOP, C.A.6 (1993, 9 F.3d 503).
Petitioner proceeds before the Court under a 2241 as opposed to a 2255 habeas petition in that "a claim for credit for time served cannot be raised in a 28 U.S.C. § 2255 motion inasmuch as such a claim challenges the Attorney General's execution of the sentence rather than the district court's imposition of it, as set forth in Espinoza, Id. at 1067.
PROCEDURAL HISTORY
Petitioner was arrested by the New York state authorities for Criminal Possession of a Controlled Substance. On September 29, 1997, he was sentenced to a three to six-year term of imprisonment by the State Supreme Court in the county of New York. On March 30, 1999, he was brought or taken on a federal writ pursuant to a Federal Writ of Habeas Corpus Ad Prosequendum for prosecution on the charge of Unlawfully Reentering (Reentering) and Being in the U.S. after being deported subsequent to a Conviction for An Aggravated Felony — though the indictment was returned until after the statute of limitations had run out because I reentered the United States in January 1992. On September, 2000, he was sentenced in the U.S. District Court for the Southern District of New York to a 57-month term of imprisonment to run concurrent with the undischarged portion of the New York state sentence he was serving. On February 1, 2001, he was paroled from the New York state sentence and turned over to the U.S. Marshals Service for service of the remainder of his federal sentence. However, had it not been for the nefarious motive on the part of the federal government, he would have been paroled well before.
Ostensibly and based on the record, the date that his parole was set to be held and, hopefully his being released from State prison, the Federal government nefariously and wittingly held him in custody. Accordingly, his sentences for both State and the Feds. had run in a way so he has received double punishment.
To note that the basis of his federal conviction is the result of the state possession of a Controlled Substance. Thus, his request has been that his federal sentence run concurrent with the state sentence so he is not punished twice.
Not only had he been brought before the Court on the indictment on time, he would have had the opportunity to enrol in programs and activities that would set the stage for early parole. As a result, he would have an opportunity to have served some concurrent time, as many as the 18 months and 7 days.
Petitioner asks the Court to take "Judicial notice of McClain v. BOP C.A.6 1993, 9 F.3d 503, which held:
Federal District Courts may grant relief to habeas corpus Petitioner who alleges erroneous computation of petitioner's sentence credits for time in detention prior to sentencing . . .
Respectfully this Court is asked to consider the issuance of the Writ of Habeas.In examining whether a Court should issue the Writ, the issue as to whether or not a district court may review administrative decisions of the Bureau of Prisons has well been addressed in United States v. Lucas, 898 F.2d 1554 (11th Cir. 1990). Effectively, the Attorney General is responsible for the administration of federal sentence to include the calculation of time that a defendant must serve. See United States v. Wilson, 503 U.S. 329, 112 § Ct. 1351 (1992). The authority of the Attorney General to compute sentences has been delegated to the Federal Bureau of Prisons ("BOP") by 28 C.F.R. § 0.96 (1966). See United States v. Pineyro, 112 F.3 43 (2d Cir. 1997). Ostensibly, if upon the BOP's computation of a defendant's release date from federal custody, the defendant is dissatisfied with the computation, he may seek to pursue an appeal within the Bureau of Prisons' administrative system. See 28 C.F.R. § 542.10-542.16 (1990). Petitioner in the instant case at bar has exhausted the requirement herein mentioned, from "Inmate Request To Staff Member" (Cop Out) to the "Administrative Remedy Section, Office of General Counsel" (BP-11). However, they all have failed to respond satisfactorily to Petitioner's legitimate claim. So, the opportunity for redress, if any, is within the federal court and this Court has a legal basis to resentence the Petitioner on the basis of his legitimate claim that the Federal Bureau of Prisons failed to adhere to the provisions set forth in 18 U.S.C. § 3584(a) through(d), which stipulate, in order to achieve a reasonable punishment and avoid unwarranted disparity, the Court should consider the factors set forth in the above — mentioned Section:
(a) The type (e.g., determinate, indeterminate/parolable) and length of the prior undischarged sentence;
(b) The time served on the discharged sentence and time likely to be served before release;
(c) The fact that the prior undischarged sentence "may have been imposed in state court rather than federal court, or at different federal court; and
(d) Any other circumstances relevant to the determination of an appropriate sentence for the instant offense.
Second, the Feds. had kept Petitioner in jail for 18 months and 7 days "in abeyance", and he had not been sentenced immediately after he pled guilty. Furthermore, his state release date was August 26, 2000, and he was not sentenced by the Federal Court until September 29, 2000, at least one month after his state discharged term — a release date that had been postponed on numerous times. Thus, not only had he been brought before the Court on the indictment on time, he would have had the opportunity to enrol in programs and activities that would set the stage for early parole. Consequently, he would have had an opportunity to have served some concurrent time, maybe as many as 18 months and 7 days.
Of course, there did appear something nefarious about the delay, on the part of the government. Indeed, Petitioner had almost completed his state sentence when the Judge ordered his sentence to run concurrently with the undischarged portion — merely one-and-half months — of the New York State sentence he was serving. Had the Court been aware of its completion, it would have been more precise in its ruling. To substantiate this point, Petitioner's state release date was effectuated on February 1, 2001.
Specifically, the Court stated:
"In any event, the decision whether this sentence should be concurrent, consecutive, or partially concurrent with the undischarged term of the state court conviction is a matter within the sentencing court's discretion. See § 5G1.3. The court has carefully taken into account the length of the state court sentence, the time served and the factors set forth in 18 U.S.C. § 3553(a). . . ."
"Taking all of the factors into account, the court concludes that a sentence of 57 months, to run concurrently with the undischarged term of the defendant's state court conviction, will serve the purposes of sentencing, including reflecting the seriousness of the offense for which the court is sentencing the defendant and the need for deterrence."
It then continued:
"Therefore, the court chooses not to exercise its discretion to downwardly depart. See also United States v. Acevedo 2000 Westlaw 1209426 (2d Cir. August 25, 2000)."
"To be clear, the court appreciates its discretion to depart downwardly but chooses not to exercise that discretion, because the sentence that the court has fashioned withing the guideline range serves all of the purposes of sentencing in this case."
From a scholarly analysis, the Court disclined to grant the downward departure in part because it thought or had in mind that the 57-month sentence imposed to run concurrently with the `undischarged term' of the Petitioner would amount to a worthy relief, thereby minimizing the time that Petitioner would have served at the federal level. Indeed, the Court took into account the illegal re-entry offense, which is nothing more than an offense commited by virtue of the economic and family circumstances. As a matter of fact, it is not a crime of violence. The entire family of Petitioner Jose Difo Vasquez have been living in the United States. For society's sake and communities' ties, reuniting with his family, let alone his children, was the purpose of his re-entry to the United States.
The Court's oversight of that apparent short term of undischarged sentence can now be cured under Fed.R.App.Pro. 36 ("[E]rrors in the record arising form oversight or omission may be corrected by the Court at any time and . . ., if any has the court orders."), See United States v. Burd, 86 F.3d 285, 288-89 (2d Cir. 1996); United States v. Werber, 51 F.3d 342, 346-49 n. 13 (2d Cir. 1995); under 28 U.S.C. § 2241, see Werber, 51 F.3d at 349 n. 17.
§ 5G1.3, subsection (b), App. Note 2, of the U.S.S.G; provide in part: "When a sentence is imposed pursuant to subsection (b), the Court should adjust the sentence for any period of imprisonment already served as a result of the conduct taken into account in determining the guidelines range for the instant offense if the Court determines that period of imprisonment will not be credited to the federal sentence by the Bureau of Prisons." See also United States v. Hicks, 4 F.3d 1358 6th Cir. 1993) ("Where the Court of appeals for the Sixth Circuit held that sentence imposed on defendant for weapons offense was required to run concurrently with sentence defendant had already received for aggravated assault in state court.").
Furthermore, subsection (c), in circumstances not covered under subsection (a) or (b), applies whenever the Court feels that a reasonable punishment and unwarranted disparity in sentencing can be achieved, to wit: To achieve a reasonable punishment and avoid unwarranted disparity, the Court should consider the factors set forth in 18 U.S.C. § 3553 (referencing 18 U.S.C. § 3553(a)). See, 3584 supra.
In United States v. Burgos, 2 Fed Appx. 134 (2nd Cir. 2001), defendant appeals from a sentence imposed by the United States District Court for the Northern District of New York (McAvoy, J.), arguing that his sentence should be corrected to ensure that it runs concurrently with a previously imposed New York State sentence. The Court of Appeals affirmed the decision of the District Court in part because defendant Colon failed to file a notice of appeal on a timely basis. In other words, in conformity with F.R.A.P., 28 U.S.C.A. he must have filed the notice of appeal within ten days after the entry of the judgment or motion to file appeal out of time within an additional 30 days. Indeed, the Court, even the government, acknowledged that his sentence would have "run concurrent with [the state sentence] to avoid double jeopardy in sentencing." Had the Court of Appeals had jurisdiction, it would have ordered that said defendant's sentence be run concurrent with the "prior undischarged term" whatever time he had already served before the imposition of the federal sentence. See McCarthy v. Doe, 146 F.3d 118, 121 (2d Cir. 1998); United States v. Phipps, 68 F.3d 159, 163 (7th Cir. 1995)(Easterbrook, J.).
As mentioned supra, the Court that sentenced Difo had discretion in instances not covered by § 5G1.3(c) or (b) to sentence him under 5G1.3(c) because he had already spent a lot of time in the state jail and that the federal government's pernicious motive of keeping him in detention well after he pled guilty to the Illegal Reentry charge no doubt had deprived him of being involved in activies or programs which would make him eligible for early parole. The Sentencing Court ignored his counsel's request for a downward departure on this point. See United States v. Labeille-Soto, 163 F.3d 93, 98 (2d Cir. 1998).
To note that the Illegal Reentry charge is not easy to win on the part of any defendant who is caught and subject to prosecution by the federal government. So Petitioner Difo had this idea in mind and pled guilty to an "information complaint" in order to save the government time and money and for him to obtain a reduction in his potential sentence. Rather than accommodating him for his deeds, he has been severely penalized. A.P.S.R. usually takes 8 to 10 weeks to complete and Petitioner Difo volunteered all the required information to thoroughly accomplish this task Instead, it took 18 months and 7 days to sentence him. The undischarged term to which the sentencing Court made reference is the "prior undischarged" term of 18 months and 7 days. Obviously, it was, and that's why Judge Koelt ran Petitioner's sentence concurrently.
While the District Court clearly did not make adjustments required by § 5G1.3(b) and Application Note 2 when it imposed the 57-month term of imprisonment, it did, however, have in mind the conduct surrounding the instant offenses — Illegal Reentry — which was fully taken into consideration by the District Court. While Petitioner's sentences for both State and the Feds. do not constitute double jeopardy under the dual sovereignty doctrine, it is contrary to the philosophy of the Sentencing Guidelines to allow excessive punishment and that it would be illogical to order Petitioner's sentence to be run concurrent only with a mere 2 and 1/2 months of the so-called "undischarged state sentence." What a Faustian strategy!
Accordingly, "The prior undischarged term" of 18 months and 7 days must be credited to Petitioner's federal sentence in the in the interest of justice and reasonable punishment, as outlined in 18 U.S.C. § 3584(a) through (d).
As a matter of fact and law, whenever a federal conviction is the result of a state one, a defendant is entitled to a full reduction for the period he spent in federal custody prior to being sentenced at the federal level and up to it. See United States v. Kiefer, 20 F.3d 874 (8th Cir. 1994).
Petitioner submits, and this Court will concur, that treatment of a prior offense conduct as relevant conduct can justify imposition of a "bona fide" concurrent sentence under the undischarged sentencing guidelines. Although prior offense conduct might technically qualify as "relevant conduct" in a federal prosecution, a defendant cannot enjoy the benefits of the undischarged sentencing guideline unles the District Court in fact incorporated his prior offense as relevant conduct in the instant prosecution. U.S.S.G. § 5G1.3(b) 18 U.S.C.A. In Petitioner's case, the guideline range catapulted a sentencing range of 57-71 in part because of the prior offenses, which put Petitioner at History Category IV. Inasmuch as the took into consideration the prior offense in deciding his appropriate sentence, Petitioner would ask the Court to reconsider his sentence by running it fully concurrently. i.e., granting him the full 18 months and 7 days, not barely 20% of the "prior undischarged term" when the federal government arrested him from which time he had been incarcerated until sentencing.
Cf. United States v. Dorsey, 166 F.3d 558, 563 (3d Cir. 1999)("[T]he court must able to award [the time-served] credit to make the sentences truly concurrent.").
Petitioner argues that his prior state conviction(s) was considered as "relevant conduct" in setting his offense level. See U.S.S.G. § 1B1.3 (defining "relevant conduct"). See also the following caselaws of our Circuit: United States v. Garcia-Hernandez, 237 F.3d 105, 109 (2d Cir. 2000)., Brown, 232 F.3d at 48-49; United States v. Livorsi, 180 F.3d 76, 82-83 (2d Cir. 1999)., United States v. Fuentes, 107 F.3d 1515, 1522 (11th Cir. 1997) (holding that "the fully taken into account requirement of section 5G1.3(b) is satisfied when the undischarged term resulted from an offense that section 1B1.3 requires to be included as relevant conduct, regardless of whether the sentencing court actually took that conduct into account"). In Petitioner's case, the Court did take his state offenses into account but the sentence it fashioned out still fell short of expectation in part because the Court was unaware of the time left Petitioner would have to spend at the state level. See Sentencing TR. at 13-16.
In United States v. Gonzalez, 192 F.3d 35(2d Cir. 1999), the district erred when it failed to adjust the sentence it imposed to reflect the amount of time he had spent in custody on charges arising out of the same course of conduct and instead attempted improperly to "backdate" his sentence to give him credit for his prior custody. The government did agree with this contention when it was asserted, and Petitioner firmly believes the same course of action will be taken with respect to his situation. Accordingly, remand for resentencing was required when it was unclear whether the district court in the above — mentioned case, i.e; in Gonzalez, believed that only few months were left for defendant. Similarly, Petitioner Difo found himself in the same situation. Remand for resentencing is now required because it was unclear whether the District Court was aware that only 2 1/2 months were for Difo to be paroled by the State. It's like a catch — 22 because if Petitioner were to be sentenced consecutively, he would have only served (30) thirty months at the state level. Then thereafter, he would have to deal with the federal one. However, he ended up spending an additional twelve (12) months inasmuch as he served forty two months in the state when in fact he would be paroled when he completed only thirty (30) months the minimum (36 months) minus the Merit Time (6 months). This would amount to only thirty (30) months. See Gonzales, id 355, where "the district court thus correctly followed Guideline § 5G1.3(b) in making Roman's new sentence run concurrently with his prior New Jersey charges. The court, however, improperly sought to achieve this result by bacdating" the sentence it imposed, rather than following Application Note 2's procedure and subtracting time already served from the sentence. Accordingly, the District Court should ponder carefully the crux of this motion, rise above emotionalism and look at the issues before it in a scholarly analysis, revisit its decision to full concurrent sentence and vacate Petitioner's sentence.
CONCLUSION
Therefore, this Court should be guided by the fact that there has not been an adjudication of Petitioner's Constitutional claims in a previously filed habeas corpus petition, and his current one under 2241 should be heard on the merits because it's an issue that affects his substantial rights inasmuch as he is in custody in violation of the Constitution or laws or treaties of the United States. Petitioner, nonetheless, only seeks release from custody given his legal arguments with respect to the failure of the Federal Bureau of Prisons to award pre-trial jail credits. The foregoing issues present a manifestly substantial showing of a constitutional claim, and is judicially ripe for determination by this Court under § 2241.
Thus, it would be in error for Petitioner's 2241 motion to be denied without first adjudicating the constitutional claims therein.
For the foregoing reason, the Court should issue a Writ of Habeas under 28 U.S.C. § 2241 and an Order to Show Cause under 28 U.S.C. § 2243.
FURTHERMORE, A CERTIFICATE of Appealability pursuant to 28 U.S.C. § 2253(c) should be issued from the Court.
CERTIFICATE OF SERVICE
On January 23, 2002, I hereby certify that I mail a copy of Application for A Writ of Habeas Corpus to each of following:
(1) Dennis W. Hasty, Warden MDC Brooklyn 100-80 29th Street Brooklyn, New York 11232
And:
(2) Federal Bureau of Prisons David M. E. Ray, Regional Director U.S. Customs House, 7th Floor 2nd Chestnut Streets Philadelphia, PA 19106
(3) AUSA Ronnie Abrams U.S. Attorney's Office-SDNY 500 Pearl Street New York, New York 10007
AFFIRMATION
In accordance with 18 U.S.C. § 1746, I hereby declare that the foregoing information is true and accurate to the best of my knowledge and belief.
_________________ Jose Difo Vasquez
discretion to downwardly depart in this case. The defendant was warned that reentering the United States without permission was a felony. He chose to do so in the face of that advice. The fact that he believed he faced a lower penalty does not obviate the seriousness of the crime or the need for deterrence.
Finally, in its most recent submission, the defendant argues that this court should downwardly depart under 5K2.0 of the guidelines because of the government's alleged delay in bringing the present indictment. The defendant argues that this delay limited the ability of the court to make the current sentence concurrent with the undischarged term of the state court sentence and limited his ability to participate in various prison programs.
The court appreciates its ability to downwardly depart under section 5K2.0 of the guidelines where there has been delay in bringing a prosecution. The court chooses not to exercise its discretion in this case. It is clear that there is no claim that the prosecution is barred by the statute of limitations. There is no evidence that the timing of the prosecution was caused by any nefarious purpose by the government. Indeed, the defendant does not argue that there was anything nefarious about the delay.
The defendant points to the fact that the INS stamped his passport in 1994 for temporary evidence of lawful admission. The defendant concedes that this does not mean that the defendant did not illegally reenter the United States without permission after the commission of an aggravated felony and does not affect the defendant's criminal liability for the offense to which the defendant pleaded. The fact that the defendant went to the INS in 1994 is not evidence that the government was aware of the defendant's illegal reentry into the United States when the defendant went to the INS in 1994. Indeed, the defendant was only interviewed at Rikers Island by the INS in November 1998. The indictment was returned in March 1999.
In any event, the decision whether this sentence should be concurrent, consecutive, or partially concurrent with the undischarged term of the state court conviction is a matter within the sentencing court's discretion. See section 5G1.3. The court has carefully taken into account the length of the state court sentence, the time served, and the factors set forth in 18 U.S.C. § 3553(a), including the seriousness of the federal offense, the need for deterrence, particularly given the defendant's extensive criminal history, including the crimes he has committed since illegal reentry into the United States.
Taking all of these factors into account, the court concludes that a sentence of 57 months, to run concurrently with the undischarged term of the defendant's state court conviction, will serve the purposes of sentencing, including reflecting the seriousness of the offense for which the court is sentencing the defendant and the need for deterrence.
Therefore, the court chooses not to exercise its discretion to downwardly depart. See also United States v. Acevedo, 20000 Westlaw 1209426 (2d Cir. August 25, 2000).
To be clear, the court appreciates its discretion to depart downwardly but chooses not to exercise that discretion, because the sentence that the court has fashioned within the guideline range serves all of the purposes of sentencing in this case.
Therefore, the sentence that I intend to impose — and then I will listen again to all of the parties — is, I intend to impose a sentence of custody of 57 months, to run concurrently with the undischarged term of the defendant's state court conviction. I intend to impose a term of supervised release of three years to follow imprisonment, with the standard conditions of supervised release in this district, together with the conditions recommended by the Probation Department. I will not impose a fine, because I find that the defendant lacks the ability to pay a fine. After taking into account the presentence report, the defendant's lack of assets, his limited earning ability, and his responsibilities, I will impose a $100 special assessment. I will not impose restitution, because there is no victim.
INDICTMENT The Grand Jury charges:
From at least in or about January 1992, up to and including on or about April 6, 1994, in the Southern District of New York and elsewhere, JOSE LUIS DIFO-VASQUEZ, a/k/a "Jose Lui Difo-Vasquez," a/k/a "Jose L. Difo-Vasquez," a/k/a "Jose Difo-Vasquez," a/k/a "Jose L. Vasquez-Difo," a/k/a "Jose Vasquez-Difo," a/k/a "Jose Luis Difo," a/k/a "Jose L. Difo," a/k/a "Jose Difo," a/k/a "Jose Vosquez," a/k/a "Jose Vasquez," and a/k/a "Juan Rodriguez," the defendant, being an alien, unlawfully, willfully, and knowingly did enter and was found in the United States after having been deported from the United States, subsequent to a conviction for the commission of an aggravated felony, to wit, a conviction on January 18, 1988, in the Superior Court of New Hampshire, Hillsborough County, for possession of a narcotic drug, cocaine, with intent to sell, without having obtained the express consent of the Attorney General of the United States to reapply for admission.
(Title 8, United States Code, Section 1326(a) (b)(2).)
_______________ ______________________ FOREPERS ON MARY JO WHITE United States Attorney