UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY
November 14, 2011
J.T. SHARTLE, RESPONDENT.
The opinion of the court was delivered by: Jerome B. Simandle U.S. District Judge
SIMANDLE, District Judge:
This matter comes before the Court upon petitioner Dennis Roie's ("Petitioner") submission of an amended petition and it appears that:
1. On August 26, 2011, the Clerk received Petitioner's § 2241 petition ("Petition"). The Petition, a five-page document, suggested that Petitioner, a federal inmate currently confined at the F.C.I. Fairton, Fairton, New Jersey, wished to assert challenges related to the holding of Barden v. Keohane, 921 F.2d 476 (3d Cir. 1990). See id. at 2.
2. On October 6, 2011, this Court issued a memorandum opinion and order ("October Order") addressing the challenges stated in the Petition. See Docket Entry No. 2. The content of the Court's lengthy October Order need not be repeated in the instant Memorandum Opinion and, thus, it shall suffice to state that the Court: (a) dismissed Petitioner's challenges without prejudice, since these challenges appeared unexhausted; and, in addition, (b) explained to Petitioner the limited scope of review allowed to federal courts under the holding of Barden. Specifically, the Court detailed as follows:
In Barden, the BOP contended that it had no discretion to consider giving credit for state sentences that were: (a) served; and (b) imposed to run concurrently with federal sentences. The Court of Appeals disagreed, pointing out that the United States Attorney General (or the BOP, as the Attorney General's delegatee) had discretionary power to calculate federal sentences by crediting the already-served state sentence. The term "discretionary power" means just that: upon good faith consideration of the statutory factors, the BOP may either grant or deny such credit. Indeed, had the BOP been obligated to grant credit, it would have no discretion. See Barden, 921 F.2d at 483 ("We hold only that the Bureau has power [but not the obligation] to grant relief"). Therefore, the role of the federal court sitting in habeas review is limited to determining whether the BOP gave the prisoner's application for nunc pro tunc credit good faith consideration in light of the applicable statutory factors; absent evidence that the BOP exercised its discretion in an impermissible way, the federal court sitting in habeas review is obligated to defer to the BOP's determination reached in its exercise of the discretionary power plainly established by the statutory regime. See, e.g., Galloway v. Warden of F.C.I. Fort Dix, 2009 U.S. Dist. LEXIS 71201 (D.N.J. Aug. 12, 2009), reconsid. denied, Galloway v. Bureau of Prisons, 2009 U.S. Dist. LEXIS 82000 (D.N.J. Sept. 4, 2009), aff'd, 358 Fed. App'x 301 (3d Cir. 2009), app. dismissed, 385 Fed. App'x 59 (3d Cir. 2010), cert. denied, Galloway v. Zickefoose, 131 S. Ct. 1709 (2011).*fn1 Therefore, Petitioner's challenges here could have presented a viable claim only if Petitioner asserted facts indicating that the BOP, being served with Petitioner's request to grant Petitioner nunc pro tunc credit either: (i) outright refused to consider the factors enumerated in § 3621(b); or (ii) exercised its discretion in an impermissible way. See id. Here, however, the Petition contain no single fact so asserting.
Id. at 7-10 (footnote in original).
3. The Court's October Order closed with the statement that, in the event Petitioner did seek the Barden credit through administrative means, and the BOP either refused to consider § 3621(b) factors or exercised its discretion in an impermissible way, Petitioner could file an amended § 2241 habeas petition challenging the so-deficient determination. See id. at 10 and 14, and n. 5.
4. On October 27, 2011, Petitioner submitted his amended petition ("Amended Petition").
See Docket Entry No. 4. While the submission made by Petitioner in conjunction with his filing of the Amended Petition was voluminous, see id. (reflecting a 36-page document), the actual Amended Petition is brief, see id. at 1-5; and the remainder of the submission is consumed by Petitioner's exhibits ("Exhibits"). See id. at 6-35.
5. The Exhibits verify that Petitioner did, indeed, exhaust his administrative remedies at all three levels of the Bureau of Prisons ("BOP"). The response to Petitioner's challenges, issued by the Central BOP Office / National Inmate Appeals ("Central Office"), reads as follows:
This is in response to your Central Office Administrative Remedy Appeal in which you request the Bureau of Prisons recompute your sentence, to run concurrent to your state sentence. You provide no new information in this matter beyond that which you supplied at the institution and regional levels. However, as a result of Barden v. Keohane, 921 F.2d 476');">921 F. 2d 476 (3 Cir. 1990) your case was reviewed for a "nunc pro tunc" designation. We have reviewed your appeal according to the factors provided in 18 U.S.C. §3621(b). In your case, we have determined the relevant factors under the statute are (2), (3), and (4). With respect to factor (2), your instant federal offenses is Armed Bank Robbery, Aiding and Abetting, and Use of a Firearm During and in Relation to a Crime. With respect to factor (3), our records reveal that at the time of sentencing for your instant offense, you were in custody of the State of Pennsylvania. You were sentenced to a 6 year term for Manufacture, Sale, Deliver, or Possess Drugs. In addition, your criminal history includes convictions for Involuntary Manslaughter, and institutional infractions of Giving/Accepting Money without Authorization and Fighting with Another Person. Finally, considering factor (4), any statement by the Court which imposed the sentence; the federal Judgment and Commitment Order was silent regarding the relationship of the federal sentence to any impending state sentence. Title 18 U.S.C. §3584, Multiple Terms of Imprisonment states, in part: "Multiple terms of imprisonment imposed at different times run consecutively unless the court orders that the terms are to run concurrently." However, the sentencing Court was contacted and requested to provide input regarding your request. The Court stated they have no position on retroactivity, but requested we assess your conduct and behavior while incarcerated. Based on the foregoing, we have determined that a "nunc pro tunc" designation is not consistent with the goals of the criminal justice system due to the nature of your state conviction, repetitive criminal conduct, and the intent of the court. Additionally, the [Willis] credit you seek has already been applied toward your state sentence. Your sentence has been computed as directed by federal statute and Program Statement 5880.28, Sentence Computation Manual . . . . Your appeal is denied.
Docket Entry No. 4, at 19.
6. In accord with Petitioner's challenges raised administratively, Petitioner's Amended Petition now asks the Court to award Petitioner "a" credit, which would allow him to have the term of his state confinement deducted from the federal term he is currently serving; in support of his request, Petitioner: (a) cites the holding of Willis v. United States, 438 F.2d 923 (5th Cir. 1971); (b) reiterates, once again, his reference to Barden; and, in addition, (c) asserts, generally, that [P]petitioner negotiated a plea agreement with the Commonwealth of Pennsylvania . . . . In an apparent oversight, [P]petitioner's . . . assume[d] that the plea agreement was valid at the time of its formation. . . . [However, P]petitioner's . . . faith in the concurrent sentence recommendation in his plea agreement was fostered, or at least not dispelled, by the State prosecutor and sentencing judge, [and if Petitioner's faith in the validity of concurrent sentence recommendation was misplaced, then his] his guilty plea was not knowing and voluntary. The State prosecutor, defense counsel, and [the state] court should have known that the [s]tate [c]court had no authority to dictate how [P]petitioner's undischarged federal sentence would be served. The prosecutor's promise of a concurrent sentence therefore was hollow. . . . Petitioner claims that his guilty plea to state charges was induced by a promise which was later negated by an act of the BOP. Docket Entry No. 4, at 3-4.
The Court will address each of Petitioner's challenges based upon the record.
7. Here, authorities in the Commonwealth of Pennsylvania arrested Petitioner prior to his arrest on federal charges. Therefore, the Commonwealth retained primary jurisdiction over Petitioner during the entire time until his release from his state sentence into federal confinement, i.e., when Petitioner's state sentence was satisfied and the state relinquished primary authority to the BOP. See Del Guzzi v. United States, 980 F.2d 1269 (9th Cir. 1992); Thomas v. Whalen, 962 F.2d 358 (4th Cir. 1992). Since the Commonwealth had primary jurisdiction over Petitioner and credited the period of his custody to his state sentence, Petitioner is not entitled to receive credit for prior custody on his federal sentence. While, in certain limited circumstances, such as those enumerated by the Fifth Circuit in Willis and by the Seventh Circuit in Kayfez v. Gasele, 993 F.2d 1288 (7th Cir. 1993), an inmate may obtain a double credit for prior custody, the inmate may receive such double credit only when the federal sentence is ordered to run concurrently with the state one. Conversely, in those circumstances where an inmate finished serving his state sentence before his federal sentence commenced, "the Kayfez and Willis line of cases [is] inapplicable." Castro v. Sniezek, 2011 U.S. App. LEXIS 13514, at *6 (3d Cir. June 29, 2011); see also Galloway, 385 Fed. App'x 59, at 61 (explaining that an inmate could "not qualif[y] for a double credit under either Willis . . . or Kayfez . . . because his federal sentence was not [ordered] concurrent with his state sentence"). Since there is no dispute that Petitioner's federal judge did not impose a sentence running concurrently with Petitioner's then-already-existing state sentence, Petitioner's reliance on Willis is without merit. Therefore, to the extent Petitioner seeks award of a Willis credit, this Court is constrained to agree with the BOP's determination to deny Petitioner's request.
8. Petitioner's Barden-based challenges were already addressed by this
Court and dismissed
with a qualification that Petitioner may reassert these challenges
only in the event the
BOP either refused to consider § 3621(b) factors or exercised its
discretion in an
impermissible way. See Docket Entry No. 2. The above-quoted response
Central Office indicates, in no ambiguous terms, that the BOP duly
considered the §
3621(b) factors. It appears that Petitioner does not dispute this
fact; rather, it seems that
Petitioner aims to assert that the BOP exercised its discretion in an
because: (a) Petitioner's federal judge, upon being contacted by the
the BOP to assess Petitioner's conduct while incarcerated;*fn2
(b) during his federal
incarceration, Petitioner earned certain certificates while attending
trainings;*fn3 but (c) the BOP did not conclude that
these certificates outweigh other
considerations prompting against awarding him the Barden credit.
based argument is without merit. Here, the BOP based its conclusion
should not be awarded the Barden credit) upon weighing in the facts,
as mandated by the
statute, such as Petitioner's federal offenses underlying his current
armed bank robbery, aiding and abetting, and use of a firearm during
execution of his
crime), Petitioner's prior criminal history (i.e., involuntary
manufacture, sale, delivery and possession of drugs), Petitioner's
(i.e., giving/accepting money without authorization, as well as an his
another person) and the fact that Petitioner's federal judge expressly
took no position on
whether Petitioner should or should not be awarded the Barden credit.
argues that his satisfactory completion of certain BOP training
programs had to outweigh
all above-listed considerations, Petitioner's position is without
merit: the BOP's
determination cannot qualify as abuse of the agency's discretion.
Therefore, to the degree
Petitioner wished to re-raise his Barden argument, the record provided
by Petitioner's Amended Petition verifies that Petitioner's Barden challenges are
9. Finally, the Court notes Petitioner's positions that: (a) the BOP's decision effectively "negated" the benefit of the plea agreement reached between Petitioner and his prosecutors (pursuing state charges against Petitioner); and/or (b) Petitioner's plea agreement entered in the state court should be deemed involuntary, since it was based on Petitioner's lack of understanding that the state court's sentencing decision would not bind the BOP and/or was a result failure of state prosecutor or state defense counsel and/or state court to clarify this aspect to Petitioner prior to his entry of guilty plea.
However, neither one of these positions merits habeas relief. To the degree Petitioner aims to mount plea-agreement-related challenges against the BOP, these challenges are facially deficient, since the United States and the BOP were not parties to Petitioner's plea agreement with regard to his state charges. Therefore, the BOP was neither bound by that agreement nor could the BOP be held to breach it. That leaves the Court solely with Petitioner's claims asserting lack of voluntariness of his state guilty plea.
10. It is self-evident that Petitioner cannot litigate the
voluntariness of his state guilty plea in
the instant § 2241 action: Section 2241 is an appropriate mechanism
for a prisoner to challenge the execution of his federal sentence, not the validity of
his state conviction, see Coady v. Vaughn, 251 F.3d 480, 485-86 (3d Cir. 2001); Barden, 921 F.2d
at 478-79; it is 28 U.S.C. § 2254 that should be the vehicle to challenge a state
conviction. Here, it would be futile to re-characterize Petitioner's Amended Petition into
a § 2254 application, not only because such application would be
untimely*fn5 and unexhausted in state courts,*fn6 but also because Petitioner is no
longer "in custody" pursuant to the state judgment of conviction associated with his plea agreement.*fn7
Since Petitioner's Amended
Petition, re-characterized into a § 2254 application, would
necessarily be subject to dismissal for lack of jurisdiction due to Petitioner's failure to meet
the "in-custody" requirement, such re-characterization would be futile.
11. The Court has also considered whether Petitioner's Amended Petition may qualify as an application for a writ of error coram nobis, see United States v. Stoneman, 870 F.2d 102, 105-06 (3d Cir. 1989), since the coram nobis writ "is used to attack allegedly invalid convictions which have continuing consequences, when the petitioner has served his sentence and is no longer 'in custody.'" Id. at 105-06; see also United States v. Baptiste, 223 F.3d 188, 189 (3d Cir. 2000). "In federal courts the authority to grant a writ of coram nobis is conferred by the All Writs Act, which permits 'courts established by Act of Congress' to issue 'all writs necessary or appropriate in aid of their respective jurisdictions.'" United States v. Denedo, 129 S. Ct. 2213, 2221 (2009) (quoting 28 U.S.C. § 1651(a)). Here, however, re-characterization of the Amended Petition into an application for a writ of error coram nobis would, too, be futile, since "coram nobis is not available in a federal court as a means of attack on a state criminal judgment." Obado v. New Jersey, 328 F.3d 716, 718 (3d Cir. 2003); accord Finkelstein v. Spitzer, 455 F.3d 131, 134 (2d Cir. 2006); Lowery v. McCaughtry, 954 F.2d 422, 423 (7th Cir. 1992). In other words, the writ of error coram nobis is available in federal court only with regard to those convictions that were rendered by a federal court. See 28 U.S.C. 1651(a); Neyor v. I.N.S., 155 F. Supp. 2d 127, 136 (D.N.J. 2001).
12. In conclusion, the Court will dismiss the Amended Petition without prejudice to Petitioner's raising his plea-related challenges in state courts. The Court, however, stresses that no statement made in this Memorandum Opinion and Order shall be construed as expressing this Court's position as to validity or invalidity or timeliness of Petitioner's plea-related challenges to his state conviction, that is, if Petitioner raises such challenges in state courts.
The accompanying Order will be entered.
Jerome B. Simandle