Anderberg v. Martin, CIV-87-1939-T.

• Decision Date: 30 December 1987
• Docket Number: No. CIV-87-1939-T.,CIV-87-1939-T.
• Citation: 679 F. Supp. 1034
• Parties: Craig ANDERBERG, Petitioner, v. T.C. MARTIN, Warden, and U.S. Parole Commission, Respondents.
• Court: U.S. District Court — Western District of Oklahoma

679 F. Supp. 1034

Craig ANDERBERG, Petitioner, v. T.C. MARTIN, Warden, and U.S. Parole Commission, Respondents.

No. CIV-87-1939-T.

United States District Court, W.D. Oklahoma.

December 30, 1987.

Craig Anderberg, pro se.

H. Lee Schmidt, U.S. Atty., Oklahoma City, Okl., for respondents.

ORDER

RALPH G. THOMPSON, Chief Judge.

Petitioner brings this action, pro se and in forma pauperis, for a writ of habeas corpus. 28 U.S.C. § 2241. Petitioner alleges that his due process and equal protection rights have been violated by respondents who have deprived him of his liberty by refusing to give him credit for a brief period during which he was incarcerated in a community treatment center.

The Court has determined that an evidentiary hearing is not necessary in this matter, inasmuch as it can be resolved on the basis of the record. See Edgemon v. Lockhart, 768 F.2d 252 (8th Cir.1985); Hill v. Lockhart, 731 F.2d 568 (8th Cir.1984). Moreover, the granting of such a hearing is within the discretion of the Court and the Court finds that such a hearing is not necessary inasmuch as there is no real dispute as to facts, but rather the dispute is as to the treatment of those facts. See Brofford v. Marshall, 751 F.2d 845 (6th Cir.1985), cert. denied, 474 U.S. 872, 106 S.Ct. 194, 88 L.Ed.2d 163 (1985), reh'g denied, 474 U.S. 1000, 106 S.Ct. 418, 88 L.Ed.2d 369 (1985).

Petitioner was originally sentenced on December 20, 1982, to a 4-year term of imprisonment and a special 3-year parole term for distribution of cocaine. He was released on September 11, 1985, with 342 days remaining on his 4-year sentence. The United States Probation Office filed a parole violation report on February 12, 1986, indicating that petitioner had tested positive for use of marijuana, recommending continued supervision. The petitioner's special parole term began February 20, 1986. The Parole Commission placed petitioner in a community treatment center. Thereafter, a second parole violation report dated August 4, 1986, indicated that he had tested positive for the use of marijuana and morphine. This report also indicated that he had been charged with aggravated assault. A special condition of parole was recommended requiring him to reside in a community treatment center for no more than 120 days and by notice of action dated August 21, 1986, he was required to participate in such a program. Petitioner was admitted to the community treatment center on August 25, 1986, at 5:00 p.m. A parole violation report dated August 26, 1986, requested that the Parole Commission issue a violator warrant for the petitioner. This was done on September 5, 1986, and the petitioner was arrested on the warrant September 11, 1986. Petitioner's revocation hearing was held November 10, 1986, and his special parole term was revoked. He was to receive credit for all time on parole and his term was to continue to expiration of his sentence with a special drug aftercare condition. Subsequently, the Commission was informed that, on December 4, 1986, petitioner entered a guilty plea to the aggravated assault charge and received a 4-year sentence to run concurrently with his September 11, 1986, federal sentence. By notice of action dated January 17, 1987, petitioner was notified that his case was to be reopened for special consideration. This was done and, after a hearing, petitioner was informed that none of the time spent on parole would be credited. Petitioner argues that he should be credited with the time from August 25, 1986, to September 11, 1986, served at the community treatment center, while on parole.

Although respondents argue that petitioner has failed to exhaust any administrative remedies, the Court finds that petitioner has shown this claim to be inaccurate. The merits of petitioner's case will be considered.

Petitioner argues that 18 U.S.C. § 3568 requires that he be given the sentence credit at issue. However, the Court finds this section inapplicable to petitioner's case. The purpose of this section is to remove confusion as to the date on which a sentence commences and to insure that persons receive credit toward service of their sentence for any days spent in custody in connection with the acts for which sentence was imposed, all as provided in § 3568. In the instant case, there is no question about the date that the sentence began to run, that being the date upon which petitioner first went to the "penitentiary, reformatory or jail for service of such sentence." 18 U.S.C. § 3568. It is equally clear that the time spent by petitioner in the community treatment center was not time "spent in custody in connection with the offense or acts for which sentence was imposed." Id.

Furthermore, it is clear that physical incarceration is required if credit is to be received. See Ortega v. United States, 510 F.2d 412, 413 (10th Cir.1975); Marrera v. Edwards, 812 F.2d 1517 (6th Cir.1987). Petitioner contends that because he was not completely at liberty while staying in the community treatment center, he was in custody and entitled to credit. The Court, however, finds that custody means detention or imprisonment in a place of confinement and does not refer to stipulations or conditions imposed upon a person who is not subject to full, physical incarceration. See United States v. Hoskow, 460 F.Supp. 929, 930 (E...