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Bernard Campbell v. Donna Zickefoose

February 28, 2011

BERNARD CAMPBELL,
PETITIONER,
v.
DONNA ZICKEFOOSE,
RESPONDENTS.



The opinion of the court was delivered by: Hon. Jerome B. Simandle

OPINION

Petitioner Bernard Campbell filed a Petition challenging the calculation of his projected release date by the Bureau of Prisons ("BOP"). Petitioner argues that, because his detention from February 12, 2000, through April 24, 2001, has not been credited against another sentence, 18 U.S.C. § 3585(b) obligates the BOP to grant him credit for this period against his federal sentence. The BOP argues that it correctly denied credit for this 437-day period on the ground that the Commonwealth of Pennsylvania will credit this period against Petitioner's Pennsylvania sentence when federal authorities release Petitioner and he begins to serve the Pennsylvania sentence. For the reasons set forth below and because this 437-day period of incarceration "has not been credited against another sentence,"

18 U.S.C. § 3585(b), this Court will grant the Writ and direct the BOP to recalculate Petitioner's release date, giving him credit against his federal sentence for the period of incarceration from February 12, 2000, through April 24, 2001.*fn1

I. BACKGROUND

Petitioner is currently serving a federal sentence of 190 months imposed by judgment of the United States District Court for the Eastern District of Pennsylvania on December 1, 2003, for possessing a firearm on February 12, 2000, in violation of 18 U.S.C. § 922(g)(1). See United States v. Campbell, Crim. No. 01-0213 (PBT) judgment (E.D. Pa. filed Dec. 15, 2003). The facts are undisputed. On February 12, 2000, Philadelphia police arrested Petitioner for carrying a firearm.*fn2 On March 20, 2000, the Pennsylvania Board of Probation and Parole issued a written decision to detain Petitioner pending the resolution of criminal charges relating to the February 12, 2000, arrest and to recommit him to a state correctional institution as a technical parole violator when available to serve a six month sentence for violation of the conditions of parole. (Docket Entry #7-1, p. 8.) On April 24, 2001, a federal grand jury in the Eastern District of Pennsylvania returned an indictment charging Petitioner with possession of a firearm by a convicted felon on February 12, 2000.*fn3 Federal authorities took custody of Petitioner on May 10, 2001, pursuant to a federal writ of habeas corpus ad prosequendum. He was found guilty by a jury, and on December 1, 2003, Judge Petrese B. Tucker sentenced Petitioner to a 190-month term of imprisonment.

On December 3, 2003, federal officials returned Petitioner to state custody. On April 12, 2004, the Pennsylvania Board of Probation and Parole issued a written decision recommitting Petitioner to a state correctional institution as a parole violator to serve 18 months "when available," for the federal possession of a firearm conviction.*fn4 (Docket Entry #7-1, p. 19.)

On May 5, 2004, state officials turned custody of Petitioner over to the U.S. Marshal for service of the 190-month federal sentence. (Docket Entry 7-1, p. 4.) The BOP computed the sentence as beginning on December 1, 2003 (the date Judge Tucker imposed it) and gave Petitioner prior custody credit for the period from April 25, 2001 (the day after Petitioner was indicted on the federal charge) to November 30, 2003 (the day before imposition of the federal sentence). (Id., p. 5.) Petitioner's projected release date is February 9, 2015. (Id.)

On February 9, 2009, Petitioner filed a request for administrative remedy seeking prior custody credit from February 12, 2000, through April 24, 2001. (Docket Entry #7-2, p. 11.)

On April 13, 2009, then Warden J. Grondolsky denied relief on the ground that "[t]he jail credit you requested has been awarded to you by the State of Pennsylvania." (Docket Entry #7-2, p. 13.) Petitioner timely appealed, and on June 3, 2009, Northeast Regional Director D. Scott Dodrill denied the appeal on the ground that "[t]he period of time for which you seek credit on your federal sentence will be awarded by the State toward your parole violation term. Pursuant to § 3585(b), this period cannot be awarded to the federal sentence." (Docket Entry #7-2, p. 17.) Petitioner timely appealed to the Central Office. On August 26, 2009, Harrell Watts, Administrator of National Inmate Appeals, issued the BOP's final administrative decision denying the appeal as follows:

We reviewed applicable records and found you[] were arrested on February 12, 2000, by local authorities. Ultimately these charges were dismissed in lieu of federal prosecution, even though you remained in state custody. Records show you were temporarily removed from state custody on May 10, 2001, pursuant to a writ of habeas corpus for prosecution. You were sentenced on December 1, to 190 months and returned to the custody of the State of Pennsylvania, pending disposition of an outstanding parole violation warrant, which was instigated by the state arrest and federal prosecution.

On May 4, 2004, the state declined to pursue revocation proceedings pending the completion of your federal sentence. You were transferred to federal custody for service of your 190-month sentence, which was executed the day it was imposed. According to documentation, the State of Pennsylvania is prepared to revoke your parole upon completion of your Federal Sentence and apply credit to your violation term starting with February 12, 2000, to April 24, 2001. Accordingly, credit was applied to your federal sentence starting on April 25, 2001, through the day before it was imposed. Program Statement 5880.28, Sentence Computation Manual (CCCA), states it is presumed the state has or will apply presentence time on the sentence it imposed, either before or after the time the federal sentence commences unless documentation indicates otherwise. In your case the State of Pennsylvania indicates you will serve 18 months for violating the conditions of your parole and credit for the time you request will be applied. (Docket Entry #7-2, p. 19) (emphasis added).

On October 13, 2009, Petitioner filed the present § 2241 Petition challenging the BOP's final determination that he is not eligible, pursuant to 18 U.S.C. § 3585(b), for credit toward the service of his 190-month term of imprisonment for the 437-day period from February 12, 2000, through April 24, 2001. On November 2, 2009, Petitioner supplemented the Petition to include a copy of the August 26, 2009, final determination. On May 6, 2010, this Court issued an order directing Respondents to answer the Petition, as supplemented. The May 6, 2010, Order expressly directed Respondent to show why 18 U.S.C. § 3585(b) does not require the BOP to grant Petitioner credit for this 437-day period and to file with the answer "documentary evidence showing that the Commonwealth of Pennsylvania credited the period from February 12, 2000, through April 24, 2001, against a Pennsylvania sentence." (Docket Entry #4, p. 3.)

On June 21, 2010, Respondent filed an Answer (docket entry #7), declaration of J.R. Johnson, declaration of Tara Moran, together with various exhibits. Respondent acknowledges that Petitioner exhausted administrative remedies and contends that 18 U.S.C. § 3585(b) prohibits Petitioner's receiving credit for the 437 days "because the Pennsylvania Board of Probation and Parole advised the BOP that such a period would be credited towards Campbell's 18-month parole violation sentence. A letter, dated June 17, 2010, from the Pennsylvania Board of Probation and Parole . . . confirms that the period from February 12, 2000, through April 24, 2001, will be credited against the backtime Campbell owes on his parole violations." (Docket Entry #7-1, p.5.) The letter on which Respondent relies, dated June 17, 2010, from Victoria Malone, Case Analysis Director of the Pennsylvania Board of Probation and Parole, to Franklin Clark, BOP, Grand Praire, Texas, provides in full:

This is a response to your request, via Assistant General Counsel Jennifer Dannels, for written confirmation on whether the Pennsylvania Board of Probation and Parole ("Board") will be providing Mr. Campbell with 437 days (or 1 year, 2 months, 12 days) of ...


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