In September 1981, the Superior Court of Essex County, NewJersey sentenced Petitioner to a term of nine to eighteen years for conspiracy, first-degree bank robbery, and murder ("Essex sentence"). One month later, pursuant to a writ of habeas corpus ad prosequendum, Petitioner was taken into temporary federal custody for charges then pending before the United States District Court for the District of New Jersey. On December 8, 1981, the district court sentenced Petitioner to a twenty-five year term of imprisonment for bank robbery, assault, conspiracy and racketeering activities. The district court specified that the sentence was to be served consecutively to any state term of imprisonment. Three days later, Petitioner was returned to the custody of the State of New Jersey.
On June 4, 1982, while serving the Essex sentence, the Superior Court of Union County, New Jersey sentenced Petitioner to a term of ten years imprisonment for conspiracy and robbery ("Union sentence"). This was imposed consecutively to the Essex sentence. On April 20, 2001, upon completion of the Essex and Union sentences, U.S. Marshals took custody of Petitioner and transported him to a federal prison to serve out his federal sentence. (Conerly v. Yates, Civil No. 03-1057 (M.D. Pa. 2003)(internal citations omitted).)
On September 10, 2002, the Commission conducted an initial parole determination hearing for Petitioner. During the hearing, the Commission discussed Petitioner's severity rating, salientfactor score, and guidelines. The hearing report states the following:
The prisoner contests the description of the facts in this case, noting that he himself was not involved in any of the robberies, noting that his only function was the planning of the robberies, which included obtaining vehicles that would be utilized in the robberies. He indicated that he was aware that the individuals would be using weapons, but was not aware initially that the individuals that were committing the robberies would resort to violence. He reported that he had nothing to do with the police officer's death, but did admit that he along with the individual that killed the police officer were the only individuals that received consecutive federal sentences to their New Jersey state sentences. He reported that co-defendant Lawson received a 25-to-life term in the State of New Jersey and has a 25-year consecutive term to complete once he is released from state custody. The subject reported that he and Lawson were the only individuals that were still in custody, noting that the other individuals were sentenced in state and federal courts but that the other individuals received concurrent federal sentences. The subject did not dispute the guideline range.
The subject has maintained clear conduct throughout his time in federal custody which began in April 2001. The subject reported that while in the state custody of New Jersey he maintained clear conduct since his arrest in January 1981. Subject did report that he was given one institutional infraction for wearing the wrong shoes at work but he did not receive any disciplinary sanctions. Since the subject has been in federal custody, he has been involved in a number of self-improvement courses such as accounting, business management, programming, and real estate classes...[The Panel recommends that] continue for a 15 year reconsideration hearing in September 2017, or continue to expiration, whichever comes first.
(Resp.'s Answer, Ex. 1.)
After the hearing, a Notice of Action dated October 2, 2002, was issued which adopted the Panel's recommendation,stating the following reasons:
Your offense behavior has been rated as Category Eight severity because it involved you committing racketeering activities that included murder and bank robberies. Your salient factor score (SFS-98) is 8. You have been in federal confinement as a result of your behavior for a total of 17 months as of September 19, 2002. Guidelines established by the Commission indicate a range of 100+ months to be served before release for cases with good institutional adjustment and program achievement. After review of all relevant factors and information presented, a decision exceeding the lower limit of the applicable guideline category by more than 48 months is warranted based on the following pertinent aggravating factors: you were a leader in the organization and helped plan the bank robberies which included providing transportation and weapons to the co-defendants which resulted in the murder of a police officer by co-defendant Lawson.
(Id.)
On November 14, 2002, the Appeals Board affirmed this decision. The Appeals Board stated:
The Commission recognizes that you have served approximately 21 years in New Jersey State custody for offenses largely overlapping the overt acts behind your federal racketeering conviction, and that giving you credit for this time (241 months) would place you above the guideline minimum for Category Eight (100 months). However, the fact that your federal racketeering sentence reflects an important, aggravating aspect of your crime which is not accounted for by your New Jersey convictions, persuades the National Appeals Board that you should be held to a fully consecutive accounting on your federal sentence. The nature of the organization in which you functioned as a leader involved a uniquely dangerous mix of religious, political and paramilitary aspects, which resulted in a wave of bank robberies carried out in the manner of a disciplined terrorist enterprise. Individuals capable of organizing such an extraordinary threat to society must be held to account as more than ordinary criminals. In your capacity as a "minister" in this conspiracy, you controlled other members ("soldiers") and planned an armed bank robbery inwhich a police officer was cruelly executed. Although your appeal urges the Board to absolve you of responsibility for this murder, you must be held fully accountable for it because any armed bank robbery creates a high risk that a police officer, bank guard, teller or customer will be killed in the process. As the planner of a bank robbery in which such a predictable event took place, you bear a primary responsibility.
Finally, the National Appeals Board recognizes that you were 23 at the time, but this is not such a youthful age as to warrant compassion for the incarceration you have endured. At age 23, you were fully capable of comprehending that you were helping to carry out the activities of an organization which was essentially at war with society. Further, at age 45, you must still be regarded as presenting a very long-term risk of renewed violent criminal activity.
(Id. at Ex. 4.)
On June 25, 2003, Petitioner filed his first petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2241, in which he argued that a two-month credit should be applied to the federal sentence for time spent in temporary federal custody awaiting sentencing by the district court. Petitioner also argued that because the charges in the state and federal cases arose from the same facts, credit should be applied to the federal sentence for time spent serving the state sentence. (Conerly v. Yates, Civil No. 03-1057 (M.D. Pa. 2003)).
On December 2, 2004, the District Court for the Middle District of Pennsylvania entered an opinion and order denying the petition. The Court found that
[b]ecause Conerly was taken into temporary federal custody via a writ of habeas corpus ad prosequendum, New Jersey did not relinquish primary jurisdiction overConerly, and he cannot receive credit toward his federal sentence...Nor can Conerly receive credit for time spent serving the Essex and Union sentences. Although Conerly contends that 18 U.S.C. § 35682 mandates federal credit for time served in state sentences when the state and federal punishments are based on the same facts, his interpretation of that statute is incorrect...This section was intended to credit time to those held in custody prior to sentencing—not to provide federal credit for time spent in custody pursuant to a state sentence. See Gilbert v. United States, 299 F. Supp. 689 (S.D.N.Y. 1969). Conerly was not held in federal custody prior to the commencement of his federal sentence, and thus cannot receive credit for the time served in the Essex and Union sentences.
(Id. at Docket Entry No. 24.) This decision was affirmed by the Third Circuit on October 11, 2005. (Id. at Docket Entry No. 33.)
On October 15, 2003, Petitioner filed his second petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2241. (Conerly v. Yates, Civil No. 03-1831 (M.D. Pa. 2003)). He argued that the Parole Commission improperly classified his offense severity rating as category eight; impermissibly "double-counted" his murder offense; denied him credit on his federal sentence for 241 months served in state custody; and failed to consider his youthful age as a mitigating factor. (Id. at Docket Entry No. 11.) In denying the petition, the Middle District found that the Commission had reasonably equated the offense severity ratings of Petitioner and his six most culpable co-defendants and Petitioner failed to show that this comparative action was flagrant, unwarranted, or unauthorized. (Id.)...
