Babcock v. Pepe
| Decision Date | 03 March 2011 |
| Docket Number | Civil Action No. 09–11713–PBS. |
| Citation | 767 F.Supp.2d 234 |
| Parties | John C. BABCOCK, Petitioner,v.Peter PEPE, Respondent. |
| Court | U.S. District Court — District of Massachusetts |
OPINION TEXT STARTS HERE
John C. Babcock, Concord, MA, pro se.Jessica Vincent Barnett, Office of the Attorney General, Boston, MA, for Respondent.
The petitioner John Babcock was sentenced by the United States District Court for the District of Vermont to 30 years on charges of kidnapping during a bank robbery and five years for use of a firearm during the commission of a crime of violence. He was subsequently sentenced on five Massachusetts state charges to from nine to ten years on four of the counts, and to from three to five years on the remaining count, with all of the state sentences to be served concurrently. By his instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, Babcock is challenging a ruling by the Massachusetts Appeals Court that the State sentences were not to begin to run until after Babcock had served the aggregate of his federal sentences. Under this calculation, Babcock is not be to released until March 12, 2012. It is Babcock's contention that his state sentences should have run concurrently with whichever of his federal sentences he was serving at the time his state sentences were imposed. If Babcock is correct, he should have been released prior to his filing of the instant habeas petition.
In his habeas petition, Babcock contends that the Appeals Court made an unreasonable determination of facts in concluding that the state sentencing judge had intended petitioner's sentence to run consecutively to the aggregate of the previously-imposed federal sentences. However, as detailed herein, Babcock has alleged only an error of state law, which is not cognizable in his federal habeas petition. Moreover, even if this court were to reach the merits of his claim, Babcock has not met the high burden of establishing that the Appeals Court's findings of fact were unreasonable. Therefore, and for all the reasons detailed herein, this court recommends to the District Court to whom this case is assigned that Babcock's petition for a writ of habeas corpus (Docket No. 1) be DENIED.
On July 28, 1987, Babcock pleaded guilty in the United States District Court for the District of Vermont to charges of kidnapping during a bank robbery, in violation of 18 U.S.C. §§ 2, 2113(a), (e), and use of a firearm during the commission of a crime of violence in violation of 18 U.S.C. § 924(c)(1). In re Babcock, 71 Mass.App.Ct. 687, 688, 885 N.E.2d 853, 854 (2008). He was sentenced to 30 years on the bank robbery/kidnapping charges, for which he was eligible for parole, and a consecutive sentence of five years on the § 924(c) firearm charge, for which he was not eligible for parole. Id. At that time, the Federal Bureau of Prisons (“BOP”) required prisoners to serve their § 924(c) non-parolable sentences before serving any parolable sentence, regardless of the orders of the sentencing court. Id. Therefore, Babcock was first considered to be serving his five-year non-parolable sentence upon his incarceration. Id.
On May 3, 1988, Babcock was sentenced in the Massachusetts Superior Court on five counts: two counts of breaking and entering a building in the nighttime with intent to commit a felony in violation of Mass. Gen. Laws ch. 266, § 16; possession of burglarious instruments in violation of Mass. Gen. Laws ch. 266, § 49; armed robbery and unlawful possession of a firearm in violation of Mass. Gen. Laws ch. 269, § 10. Id. at n. 2. He was sentenced to from nine to ten years on four of the counts, and to from three to five years on the remaining count, with all of the state sentences to be served concurrently. Id. at 688, 885 N.E.2d at 854. Although the language is slightly different in each sentence, “in each instance, the mittimus referred to a Federal sentence being served at the time of imposition of the State sentences as the point of reference from which commencement of the concurrent State sentences would take place.” Id. See, e.g., SA 221 (armed robbery sentence (No. 82882) to run “from and after Federal Sentence deft is presently serving”); SA 222 (firearm sentence (No. 82884) to be “from and after Federal sentence deft. is presently serving imposed on 7/28/87 in Federal District Court of Vermont and concurrent with sentence in 82882”); SA 223 (breaking and entering sentence (No. 79867) to be “from and after sentence now serving imposed on 7/27/87 in Federal District Court of Vermont and concurrent with sentence in 82882 and 82884”).
In 1987, the United States Supreme Court ruled that the BOP's practice of requiring that non-parolable sentences under 18 U.S.C. § 924(c) be served first unlawfully conflicted with the statutory authority of federal trial judges to determine the order that sentences are to be served. See United States v. Gonzales, 520 U.S. 1, 6–8, 117 S.Ct. 1032, 1035–37, 137 L.Ed.2d 132 (1997). Consequently, the BOP revised its policy retroactively so that sentences would be served in the sequence specified in the judgment and commitment order. Babcock, 71 Mass.App.Ct. at 689, 885 N.E.2d at 855. In Babcock's case, that resulted in his incarceration being deemed to have commenced with the 30 year sentence (or whatever portion of that sentence he actually served as a result of parole or other offsets), then followed by the five-year sentence (or that portion actually to be served after credits were applied). Id. As a result, Babcock was paroled from his 30 year sentence on February 26, 2003, at which time he began serving his five year federal sentence. Id. Babcock was transferred to the custody of the Massachusetts Department of Correction (“DOC”) and began serving his state sentences on May 4, 2006, after he had completed his federal sentence, including good time credits. Id. & n. 4. His expected release date, including good time credits, was recorded as January 17, 2009. Id. This was based on the assumption that the state sentences would commence once the first federal sentence, i.e., the 30 year sentence, was completed, and that the state sentences would run concurrent with the second federal sentence (the five year sentence). Id. at 690 n. 6, 885 N.E.2d at 856 n. 6. This was subsequently amended as detailed below.
Shortly after his transfer to DOC custody, Babcock, on August 24, 2006, filed a petition for a writ of habeas corpus in state court. See SA 3. Therein, he contended that the state sentencing judge had intended that the concurrent state sentences he imposed were to commence “from and after” the five-year sentence that he was then deemed to have been serving, and that the state sentences were to run concurrently with the subsequent 30 year federal sentence. Babcock, 71 Mass.App.Ct. at 689–90, 885 N.E.2d at 855. Under this scenario, his “State sentences would have been completed in 1996, his Federal sentences would have been completed when he was paroled from the subsequent thirty-year sentence, and he would therefore be eligible for immediate release from State custody.” Id. at 690, 885 N.E.2d at 855.
The DOC opposed Babcock's habeas petition. In so doing, it recalculated his release date to March 12, 2012. Id. at 690, 885 N.E.2d at 856. “This was based on the department's view that the State sentences could commence only after the petitioner had served both Federal sentences because, among other things, the State sentencing judge had not stated explicitly that the State sentences were to be served concurrently with any portion of the Federal sentences, thereby requiring that the date of commencement of the State sentences be changed from February 26, 2003 (the date of release from the thirty-year Federal sentence) to May 4, 2006 (the date of release from the five-year Federal sentence).” Id. at 690–91, 885 N.E.2d at 856 (footnote omitted). On January 12, 2007, the state court judge dismissed the habeas petition on the merits. SA 6. As the Appeals Court explained:
In doing so, [the judge] stated in dictum that the Federal sentences imposed on the petitioner in 1987 appeared to be interdependent, and therefore should be aggregated for the purpose of determining commencement of the State sentences. In the final analysis, however, he based his ruling exclusively on the proposition that, whether the Federal sentences were viewed in the aggregate, or only service of the thirty-year sentence was considered, the State sentences would have commenced at the earliest in February, 2003. If so, the petitioner's presumptive release date would take place in January, 2009, he was not presently eligible for immediate release, and a writ of habeas corpus could not issue.
Babcock, 71 Mass.App.Ct. at 691, 885 N.E.2d at 856.
The Appeals Court affirmed the dismissal of Babcock's habeas petition, albeit under a different analysis than the Superior Court judge. Thus, in a decision dated May 8, 2008, the Appeals Court found that the order in which Babcock was to have served his federal sentences was irrelevant, because “the State sentences were intended to be served from and after completion of the Federal sentences in the aggregate.” Id.2 It reached this conclusion based both on sentencing law and on the sentencing record.
Specifically, the Appeals Court ruled that at the time of Babcock's firearm conviction under 18 U.S.C. § 924(c)(1), the statute provided that the sentence for using a firearm in relation to a crime of violence was five years of imprisonment “in addition to the punishment provided...
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