The opinion of the court was delivered by: Hon. Renee Marie Bumb
Petitioner Eugene Ciraolo, an inmate at FCI Fort Dix in New Jersey, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 challenging the calculation of his projected release date by the Bureau of Prisons ("BOP"). The BOP filed an Answer seeking dismissal of the Petition, together with two declarations and several exhibits. Petitioner filed a Reply, arguing that he is entitled to prior custody credit for the 572-day period from July 11, 2007 (state arrest date), through February 1, 2009 (day before commencement of federal sentence).
By way of the Supplemental Answer, Respondents advised this Court that the BOP recalculated Petitioner's sentence by giving him 284 days of prior custody credit from April 24, 2008 (date of imposition of federal sentence), through February 1, 2009 (day prior to release from state custody). In light of this recalculation and for the reasons set forth in this Opinion, this Court will dismiss the Petition.
Since the BOP has now credited Petitioner for the 284 days (April 24, 2008, through February 1, 2009) that was not credited against his 288-day Pennsylvania sentence, the only question is whether the BOP abused its discretion in denying Petitioner's request to nunc pro tunc designate the Pennsylvania facility as the place of incarceration during the 288 days from July 11, 2007 (date of state arrest), through April 23, 2008 (day before imposition of federal sentence).
Petitioner was arrested by federal authorities on August 18, 2006, for cocaine possession and released on bond the same day. On July 11, 2007, Pennsylvania police arrested him on unrelated Pennsylvania charges. On August 7, 2007, the United States filed a motion in the United States District Court for the Middle District of Pennsylvania to revoke bail and to issue an arrest warrant because there was probable cause to believe Petitioner committed a new crime on July 11, 2007. See United States v. Ciraolo, Crim. No. 06-0300 motion (M.D. Pa. Aug. 7, 2007). On December 19, 2007, the state turned Ciraolo over to the U.S. Marshal pursuant to a writ of habeas corpus ad prosequendum, and on April 24, 2008, Judge Vanaskie sentenced Petitioner to a term of 70 months. On May 5, 2008, federal officials returned him to a state facility and lodged a detainer.
On November 7, 2008, Petitioner entered a guilty plea before the Pennsylvania Court of Common Pleas; the Pennsylvania judge entered an order reducing bail to the sum of $1.00; and Petitioner was remanded to the Monroe County Correctional Facility in lieu of bail. (Dkt. 6-2 at 24.) On February 2, 2009, the Pennsylvania Court sentenced Petitioner to a term of 288 days to 630 days, to run concurrently to the federal sentence, credited him with 288 days (from July 11, 2007, through April 23, 2008), and released him on parole effective April 24, 2008. See State v. Ciraolo, Crim. No. CP-45-CR-0000973-2007 order (Pa. Ct. of Common Pleas, Feb. 2, 2009) (Dkt. 6-2 at 25, 27-28); Letter from Kimberly A. Borger, Monroe County Probation Dept., dated March 17, 2011 (Dkt. 10-1).
The BOP initially calculated Petitioner's 70-month sentence as commencing on February 2, 2009 (date of release from state custody). The BOP awarded him one day of prior custody credit for August 18, 2006. (Dkt. 6-2 at 3.)
Petitioner submitted a request to the BOP for nunc pro tunc designation of a state institution for service of his federal sentence for the 572 days from July 11, 2007, through February 1, 2009. By letter dated November 23, 2009, the BOP asked Judge Vanaskie whether the court objected to nunc pro tunc designation of the state facility for service of Petitioner's federal sentence, pursuant to Barden v, Keohane, 921 F.2d 476');">921 F. 2d 476 (3d Cir. 1990).*fn1 On December 10, 2009, Judge Vanaskie responded to the BOP that he does not recommend "that Eugene Ciraolo receive credit toward his federal sentence for the time spent in state custody." (Dkt. 6-2 at 43.) On January 26, 2010, the BOP denied Petitioner's request for nunc pro tunc designation.*fn2 (Dkt. 6-2 at 46.) Petitioner appealed to the Regional Director, who denied the appeal. On February 17, 2010, Harrell Watts, National Inmate Appeals Administrator, issued a final decision denying Petitioner's request for retroactive nunc pro tunc designation as follows, in relevant part:
[A]s a result of the decision in Barden v. Keohane, the Bureau considers an inmate's request for prior custody credit for time spent in state custody, as a request for a nunc pro tunc designation. In accordance with Program Statement 3160.05, Designation of State Institution for Service of Federal Sentence, a designation effecting concurrent service of state and federal sentences is made only when it is consistent with the intent of the sentencing federal court or the goals of the criminal justice system.
We have reviewed your appeal in accordance with the factors provided in 18 U.S.C. § 3621(b). In your case, we have determined the relevant factors under 18 U.S.C. § 3621(b) are (2), (3), and (4). Under factor (2), your federal offense is Conspiracy to Distribute and Possess with Intent to Distribute in Excess of 500 Grams of Cocaine and Marijuana.
Under factor (3), your record indicates you have an adult criminal conviction for 9 month and 13-days to a 21 month term for Unlawful Contact and Communication with a Minor-Sexual Offenses Probation Violation. In addition, while you were in federal custody, you received incident report for unauthorized item.
Under factor (4), the federal J&C was silent on whether your sentence should run consecutively or concurrently to any other sentence. Pursuant to 18 U.S.C. § 3584, "multiple terms of imprisonment imposed at different times run consecutively unless the court orders that the terms are to run concurrently." Nevertheless, the federal sentencing court was contacted for a statement concerning its position on a retroactive designation. The federal sentencing court opposes granting your request for a concurrent sentence.
Based on the foregoing, we have determined that a nunc pro tunc designation is not appropriate in your case. (Dkt. 6-1 at 18-19.)
Petitioner filed the § 2241 Petition presently before this Court on February 23, 2010. (Dkt. 1 at 11.) The Clerk received it on March 11, 2010. The Petition challenges the BOP's failure to grant prior custody credit from July 11, 2007, through February 2, 2009 (572 days), pursuant to 18 U.S.C.A. § 3585(b) and Willis v. United States, 438 F.2d 923 (5th Cir. 1971), and Barden v. Keohane, 921 F.2d 476 (3d Cir. 1991).
After Respondents filed an Answer, this Court appointed the Federal Public Defender for the District of New Jersey to represent Petitioner and to file a supplemental reply focusing on whether the BOP erred and/or abused its discretion by denying Petitioner prior custody credit for the 572-day period from July 11, 2007 (date of state arrest), to February 1, 2009 (day before commencement of federal sentence).
Petitioner argued in the Supplemental Reply: (1) because the 284 days from April 24, 2008, to February 2, 2009, was not credited against Petitioner's Pennsylvania sentence, 18 U.S.C. § 3585(b) required the BOP to credit this 284 days against his federal sentence; (2) the BOP abused its discretion in denying Petitioner's request for a nunc pro tunc designation for the 288 days from July 11, 2007 (date of state arrest) and April 23, 2008 (day before imposition of federal sentence) because it failed to acknowledge that the Pennsylvania judge ordered the 288-day Pennsylvania sentence (from July 11, 2007, through April 23, 2008) to run ...