Pinaud v. James, 972

• Decision Date: 14 June 1988
• Docket Number: D,No. 972,972
• Citation: 851 F.2d 27
• Parties: Peter J. PINAUD, Petitioner-Appellant, v. J.R. JAMES, Warden, Federal Correctional Institution, Otisville, New York; J. Michael Quinlan, Director, United States Bureau of Prisons; Edwin Meese, Attorney General of the United States; and Daniel Lopez, Regional Commissioner, Northeast Region, United States Parole Commission, Respondents- Appellees. ocket 87-2518.
• Court: U.S. Court of Appeals — Second Circuit

Page 27

851 F.2d 27

Peter J. PINAUD, Petitioner-Appellant, v. J.R. JAMES, Warden, Federal Correctional Institution,

Otisville, New York; J. Michael Quinlan, Director, United

States Bureau of Prisons; Edwin Meese, Attorney General of

the United States; and Daniel Lopez, Regional Commissioner,

Northeast Region, United States Parole Commission,

Respondents- Appellees.

No. 972, Docket 87-2518.

United States Court of Appeals, Second Circuit.

Argued May 5, 1988.

Decided June 14, 1988.

Jared J. Scharf, White Plains, N.Y., for petitioner-appellant.

James L. Cott, Asst. U.S. Atty., New York City (Rudolph W. Giuliani, U.S. Atty. for S.D.N.Y., Richard W. Mark, Asst. U.S. Atty., New York City, on the brief), for respondents-appellees.

Before LUMBARD, OAKES, and KEARSE, Circuit Judges.

KEARSE, Circuit Judge:

Petitioner Peter J. Pinaud, a federal prisoner, appeals from a final judgment of the United States District Court for the Southern District of New York, Louis L. Stanton, Judge, dismissing his petition pursuant to 28 U.S.C. Sec. 2241 (1982) to require federal prison officials to grant him credit for time he served on a state sentence which was subsequently vacated. The district court denied the petition on the ground that 18 U.S.C. Sec. 3568 (1982) (repealed effective Nov. 1, 1987, by Pub.L. No. 98-473, tit. II, Secs. 212(a)(2), 235(a)(1), 98 Stat. 1987, 2031 (1984), as amended by Pub.L. No. 99-217, Sec. 4, 99 Stat. 1728 (1985) and Pub.L. No. 100-182, Sec. 2, 101 Stat. 1266 (1987); amended, and reenacted in part as 18 U.S.C. Sec. 3585 effective Nov. 1, 1987, by the same legislation), provided that the date on which a federal sentence begins to run is the date on which the defendant is delivered to federal prison authorities. On appeal, Pinaud contends principally that the denial of credit violates his rights under Sec. 3568 and the Due Process Clause of the Constitution. For the reasons below, we disagree.

I. BACKGROUND

As set forth in greater detail below, Pinaud's claim has its origin in a state-court conviction pursuant to a plea agreement in which the state court promised that Pinaud's state sentence would be served concurrently with an expected federal sentence. The state court sentenced Pinaud prior to imposition of the federal sentence, however, and the latter was not made concurrent with the state sentence. Because the state plea bargain had not been fulfilled, a state appellate court eventually vacated the state conviction. By that time, however, Pinaud had already served his state sentence, and he therefore asks the federal court to reduce the length of his federal sentence by the length of time he served on the state court sentence.

A. The Sequence of Sentences

In 1983, Pinaud, a former Internal Revenue Service revenue agent, was indicted in The scripted sequence did not occur, however, in part because, in the words of Pinaud's counsel, "[u]nfortunately, [Pinaud] committed another crime in the northern district during that summer." Thus, Pinaud was arrested in October 1984 in the Northern District of New York on federal charges of filing fraudulent tax refund claims in June 1984. In addition, having failed to appear in June and July for scheduled state-court hearings relating to his anticipated sentencing, Pinaud was arrested on state charges of jumping bail. The state court promptly revoked Pinaud's bail, and on October 17, 1984, it sentenced him to serve 2 1/3 to 7 years in prison on the stolen property charges. Pinaud was remanded to begin serving this sentence immediately.

state court on charges of possession of stolen property. At that time, he was expecting to be indicted in the Eastern District of New York on unrelated federal charges of tax fraud. Pursuant to a state-court plea agreement entered into in May 1984, Pinaud pleaded guilty to the stolen property charges; the state court promised that Pinaud would not be sentenced earlier than November 7, 1984, and that Pinaud's state sentence would be made concurrent with his anticipated federal sentence.

On October 31, 1984, Pinaud was indicted in the Northern District on four counts arising out of his June 1984 filing of false claims for income tax refunds, in violation of 18 U.S.C. Sec. 287 (1982). He pleaded guilty to two counts in January 1985. In March 1985, District Judge Neal P. McCurn sentenced him to two concurrent 44-month terms of imprisonment, to be served consecutively to his state sentence.

In February 1985, the long-anticipated Eastern District indictment was handed down. Pinaud was indicted on 16 counts charging conspiracy to defraud the United States in violation of 18 U.S.C. Sec. 371 (1982), willfully subscribing to false returns in violation of 26 U.S.C. Sec. 7206(1) (1982), and willfully attempting to evade taxes in violation of 26 U.S.C. Sec. 7201 (1982). He pleaded guilty to two counts in May 1985. In July 1985, then-District Judge Frank X. Altimari sentenced him to two concurrent three-year terms of imprisonment, to be served consecutively to the Northern District sentence.

In March 1986, Pinaud moved in state court to vacate his state conviction on the ground that the plea agreement had been breached. His motion was denied, but the denial was reversed on appeal to the Appellate Division, see People v. Pinaud, 132 A.D.2d 580, 517 N.Y.S.2d 560 (2d Dep't), appeal denied, 70 N.Y.2d 802, 516 N.E.2d 1233, 522 N.Y.S.2d 120 (1987). Thus, Pinaud's state conviction was vacated in July 1987. Pinaud had completed serving his state sentence in February 1987.

B. Pinaud's Attempts To Have His Federal Sentences Reduced

Pinaud was delivered to the Federal Correctional Institute in Otisville, New York ("Otisville"), to begin serving his Northern District sentence on February 6, 1987. In August 1987, he asked respondent J.R. James, warden at Otisville, to grant him credit for the 828 days that he had spent serving his subsequently vacated state sentence, on the ground that that time had delayed the commencement of his federal sentences.

Initially, the warden granted Pinaud the requested credit, and the United States Parole Commission recomputed his presumptive parole date to February 28, 1988. Thereafter, the Bureau of Prisons, having been informed by state prosecutors that the state had requested leave to appeal the vacation of Pinaud's conviction and having otherwise reviewed the matter, determined that credit should not have been granted. Apologizing for dashing Pinaud's expectations, the Bureau wrote Pinaud's attorney as follows:

Regretfully, I must inform you that Mr. Pinaud should not have been awarded the 828 days of credits. Institution staff erred by misinterpreting our program statement relating to jail time credits.

The federal courts have held that a voided or invalid state sentence does not count as time served toward an unrelated federal sentence. Therefore, based on In October 1987, Pinaud commenced the present proceeding pursuant to 28 U.S.C. Sec. 2241, seeking to compel the prison officials to grant him credit for the time spent on the state sentence. The district court denied the petition, stating as follows:

the circumstances surrounding Mr. Pinaud's state conviction, it is our position that he is not entitled to the credits previously awarded.

The principle to be distilled from the cases and the statute, which is previous, 18 United States Code, Section 3568, is that no credit is given on a federal sentence for time improperly served on an unrelated state charge, even if the unrelated state sentence is later vacated.

And the essential reason for that principle, as given in the cases, is that it is compelled by the language of the statute, which provides that the federal sentence shall start to run from the date on which the prisoner is received at the federal facility and that no sentence shall prescribe any other method of computing the term.

Judgment was entered dismissing the petition, and this appeal followed.

II. DISCUSSION

On appeal, though Pinaud concedes that his two federal sentences were lawfully imposed, he contends that it is unfair not to credit him with time served on a state sentence that has been vacated. Two intersecting principles lead us to conclude that the decision of the district court must be affirmed.

First, the federal district court has the undoubted power to impose a federal sentence that is not to commence until service of an existing state sentence for an unrelated offense has been completed. See, e.g., Salley v. United States, 786 F.2d 546, 547 (2d Cir.1986) ("right of federal judges to impose such a sentence has been recognized for many years") (citing cases); United States v. Lee, 500 F.2d 586, 587-88 (8th Cir.), cert. denied, 419 U.S. 1003, 95 S.Ct. 322, 42 L.Ed.2d 279 (1974); Green v. United States, 334 F.2d 733, 736 (1st Cir.1964) ("[c]ertainly there is no impropriety ... in imposing a federal sentence to commence upon completion of a state sentence presently being served"), cert. denied, 380 U.S. 980, 85 S.Ct. 1345, 14 L.Ed.2d 274 (1965). Further, even if the state sentence has been imposed with the expectation that it will be served concurrently with a yet-to-be imposed federal sentence, the federal court need not make its sentence concurrent with the state sentence but remains free to make the federal sentence consecutive. United States v. Sackinger, 704 F.2d 29, 32 (2d Cir.1983). Thus, in Sackinger, we stated that "under the dual sovereignty principle Sackinger could not, by agreement with state authorities, compel the federal government to grant a concurrent sentence." Where the federal officials are not parties to the state plea bargain, we "reject any implication that the federal court is obligated to comply with terms of a plea agreement entered into between the defendant and state authorities." Id.

The second principle is that embodied in Sec. 3568, which governs the calculation of federal sentences imposed for crimes committed prior to November 1, 1987. T...