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FERRANTE v. U.S. BUR. OF PRISONS

January 7, 1998

JOHN FERRANTE, Petitioner,
v.
U.S. BUREAU OF PRISONS and W. MORRIS, Warden, Fairton, Respondents.



The opinion of the court was delivered by: ORLOFSKY

 ORLOFSKY, District Judge:

 This petition for a writ of habeas corpus requires that I review the confusing state of the Supreme Court's retroactivity jurisprudence to evaluate the calculation of a prison sentence pursuant to 18 U.S.C. § 3585(b). *fn1" Petitioner, John Ferrante, challenges the retroactive application of the Supreme Court's decision in Reno v. Koray, 515 U.S. 50, 115 S. Ct. 2021, 132 L. Ed. 2d 46 (1995), which reversed the Third Circuit and held that a defendant's prison sentence could not be reduced by the duration of his confinement to a community treatment center as a condition of his release on bail. Petitioner's claim requires the resolution of two novel issues, neither of which has been addressed in any reported decision: (1) whether the doctrine announced in Teague v. Lane, 489 U.S. 288, 103 L. Ed. 2d 334, 109 S. Ct. 1060 (1989), that criminals cannot benefit on habeas review from a rule of criminal procedure announced after their conviction became final, bars the retroactive application of Koray to a petition for a writ of habeas corpus; and (2) whether the Constitution's ex post facto prohibition, as applied to judicial decisions through the Due Process Clause, precludes the retroactive application of Koray as an unforeseeable enlargement of a criminal punishment.

 Because Koray interpreted an existing statute rather than propagated a new rule, and because the application of Koray would benefit the government, rather than Petitioner, I conclude that Teague does not bar the retroactive application of Koray. I also conclude that such an application of Koray does not violate constitutional restrictions on ex post facto laws because the pre-existing disagreement among the Circuit Courts of Appeals, and the filing of a petition for a writ of certiorari following a favorable Third Circuit decision, made the Supreme Court's decision reasonably foreseeable. For these reasons, the petition for a writ of habeas corpus will be denied.

 I. BACKGROUND

 The following facts are based upon the affidavits and other documents submitted by the parties and are undisputed unless otherwise noted. See 28 U.S.C. §§ 2246, 2247. On October 6, 1994, Petitioner was arrested on charges relating to the distribution of cocaine. See Declaration of Roland M. Booher ("Booher Decl.") at P 3. On October 21, 1994, pursuant to the Bail Reform Act of 1984, 18 U.S.C. §§ 3141 et seq., the Honorable M. Faith Angell, United States Magistrate Judge for the Eastern District of Pennsylvania, ordered that Petitioner be detained in federal custody. Booher Decl., Ex. 2 at 1.

 On October 28, 1994, however, Magistrate Judge Angell held another hearing on this matter and a new order was entered setting bail for Petitioner at $ 30,000. Booher Decl., Ex. 3 at 1. The order contained the following conditions for bail:

 
Defendant shall reside with his father at [an address in New Jersey]; Defendant shall cooperate in admission to [the] Discovery drug treatment program in New Jersey ; Defendant shall report to [pre-trial services] in Philadelphia once a week by telephone and twice a week in person; Defendant shall not apply for a passport, nor own any guns; Defendant's travel is restricted to the District of NJ and the City of Philadelphia.

 Id. (emphasis added).

 Petitioner posted a bond for $ 30,000 and was released from the custody of the Attorney General. See Booher Decl. at P 4. In accordance with the conditions of bail, Petitioner attended the Discovery program, a community treatment center, for 76 days between November 11, 1994, and January 25, 1995. Affidavit of John Ferrante ("Ferrante Aff.") at P 3; see Booher Decl., Ex. 4. During that time, Ferrante "was not allowed to leave the premises" and was "confined 24 hours per day." Ferrante Aff. at P 3.

 Petitioner subsequently pled guilty to two counts of a three count indictment charging him with conspiracy to distribute cocaine in violation of 21 U.S.C. § 846 and distribution of cocaine in or near a school in violation of 21 U.S.C. § 860. Booher Decl., Ex. 5. On June 13, 1996, Petitioner was sentenced to a term of incarceration of 30 months imprisonment and 3 years supervised release. Id. Petitioner surrendered to the Bureau of Prisons ("BOP" or the "Bureau") on July 29, 1996, at which time his sentence officially commenced. See 18 U.S.C. § 3585(a).

 Petitioner alleges that on August 13, 1997, he "made a formal request" to Respondents, the BOP and Warden E.W. Morris of FCI Fairton, to credit his time at the Discovery program against the length of his sentence pursuant to 18 U.S.C. § 3585(b). Ferrante Aff. at P 4. Petitioner claims that his request was denied under the authority of Koray. Id. Respondents acknowledge that Petitioner made a written request to Roland M. Booher, the Inmate Systems Manager of FCI Fairton, and that Booher denied that request. Booher Decl. at P 9. According to Booher, Petitioner made no other requests to Respondents while incarcerated at FCI Fairton. Id.

 On September 16, 1997, Petitioner filed a Petition for a Writ of Habeas Corpus by a Person in Federal Custody seeking to reduce the length of his imprisonment by the duration of his confinement at the Discovery program. Petitioner has also requested an expedited decision in this matter because he is scheduled for release to a halfway house on April 12, 1998.

 II. DISCUSSION

 Petitioner does not dispute the validity or legality of his sentence; instead, Petitioner claims that the BOP erroneously calculated the duration of his sentence under § 3585(b). Therefore, I shall treat Petitioner's request as a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. See Chambers v. Holland, 920 F. Supp. 618, 620 (M.D. Pa.) (treating habeas corpus petition as filed pursuant to 28 U.S.C. § 2241, rather than 28 U.S.C. § 2255, where "Petitioner's disagreement lies not with the sentence imposed by [the judge], but with the BOP's computation of that sentence [under § 3585]"), aff'd, 100 F.3d 946 (3d Cir. 1996); Soyka v. Alldredge, 481 F.2d 303, 306 (3d Cir. 1973); Gomori v. Arnold, 533 F.2d 871, 874 (3d Cir. 1976); United States v. Weathersby, ...


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