Dutton v. U.S. Attorney Gen., 08-CV-0874(VEB).

Citation713 F.Supp.2d 194
Decision Date20 May 2010
Docket NumberNo. 08-CV-0874(VEB).,08-CV-0874(VEB).
PartiesShon DUTTON, Petitioner,v.U.S. ATTORNEY GENERAL, et al., Respondents.
CourtUnited States District Courts. 2nd Circuit. United States District Court of Western District of New York

COPYRIGHT MATERIAL OMITTED

Shon C. Dutton, Bradford, PA, pro se.

Joel L. Violanti, U.S. Attorney's Office, Buffalo, NY, for Respondents.

DECISION AND ORDER

VICTOR E. BIANCHINI, United States Magistrate Judge.

I. Introduction

Pro se petitioner Shon Dutton filed the instant habeas petition pursuant to 28 U.S.C. § 2241 on or about December 1, 2008, while he was a State inmate in the custody of the New York Department of Corrections at the Livingston Correctional Facility, serving a state sentence of three years imprisonment with a five year term of post-release supervision for Sexual Abuse in the First Degree.

Previously, in January 2003, he had been sentenced in the United States District Court for the Western District of New York (Arcara, Chief District Judge) to a 57 month sentence with a three-year term of supervised release to follow for a charge of Felon in Possession of a Firearm. On January 31, 2006, he was released from the Federal Bureau of Prisons custody to supervised release.

While he was on federal supervised release, he was arrested on State rape charges in February 2007, which was the reason for his state court incarceration at Livingston Correctional Facility.

On March 2, 2007, he was sentenced to 21 months in the United States District Court for the Western District of New York for violating the terms of supervised release based upon this new arrest on State-law charges. The Federal supervised release term commenced upon his release from the State sentence he was serving when he filed this Petition.

In his Petition, Dutton alleges the BOP erred in the execution of his supervised release violator term, because it should have commenced, but did not, upon the date it was imposed (March 2, 2007). Dutton seeks to have all time served in New York State custody and Federal custody credited against his Federal supervised release violator (“SRV”) term. Dutton is challenging the computation of the length of his sentence by the Bureau of Prisons; that is, his Petition concerns the execution of the sentence, not its legality. Therefore, this petition is properly brought under 28 U.S.C. § 2241. See Levine v. Apker, 455 F.3d 71, 77-78 (2d Cir.2006) (“A challenge to the execution of a sentence-in contrast to the imposition of a sentence-is properly filed pursuant to § 2241. Execution of a sentence includes matters such as ‘the administration of parole, computation of a prisoner's sentence by prison officials, prison disciplinary actions, prison transfers, type of detention and prison conditions.’) (quoting Jiminian v. Nash, 245 F.3d 144, 146 (2d Cir.2001); other citations omitted).

II. Factual Background and Procedural History

On January 27, 2003, Dutton was sentenced in the United States District Court for the Western District of New York to a 57-month term of imprisonment with a three-year term of supervised release to follow for his conviction of the charge of Felon in Possession of a Firearm, in violation of 18 U.S.C. § 922(g)(1).

On January 31, 2006, Dutton was released from Federal custody as a result of good conduct time being credited against the 57-month Federal sentence.

On June 16, 2006, while on Federal supervised release, Dutton was arrested by New York State authorities pursuant to State-law rape charges and held in State custody pending disposition of the charges.

Also on June 16, 2006, a Federal arrest warrant was issued pursuant to the Notice of Federal Supervised Release Violation filed by the United States Attorney's Office (“the Government”).

On January 24, 2007, the United States District Court for the Western District of New York issued a federal writ of habeas corpus ad prosequendum directing that Dutton be produced in the District Court on January 31, 2007. Accordingly, on January 31, 2007, Dutton was “borrowed” from the State authorities by the United States Marshal pursuant to this writ of habeas corpus ad prosequendum.

In District Court on January 31, 2007, Chief Judge Arcara read the Federal criminal charges based upon Dutton's supervised release violation to Dutton, who indicated he would admit to the charges.1 On February 1, 2007, Dutton was returned to the custody of the State authorities in satisfaction of the Federal writ of habeas ad prosequendum.

On February 5, 2007, a second writ of habeas corpus ad prosequendum was issued directing that Dutton be produced in Federal court on February 8, 2007, for his plea hearing. Accordingly, on February 8, 2007, Dutton was borrowed from State authorities by the United States Marshals Service for his appearance in Federal court.

At the February 8, 2007, appearance, Dutton entered a guilty plea to the first charge of the Government's Petition for Warrant or Summons for Offender Under Supervision. The Plea Agreement acknowledged the maximum sentence for the supervised release violator conviction was 24 months with a three-year term of supervision, less any term of imprisonment that was imposed upon revocation of supervised release. The Plea Agreement was silent as to whether the supervised release violator term was to run consecutively to, or concurrently with, the State term of imprisonment that would be imposed for the underlying criminal conduct (the alleged rape charges) giving rise to the supervised release violation.

On February 8, 2007, Dutton was returned to State authorities in satisfaction of the Federal writ.

On March 2, 2007, Dutton was borrowed again from the State authorities via a Federal writ of habeas corpus ad prosequendum. That day, March 2, 2007, he was sentenced in the United States District Court for the Western District of New York to 21 months for violating the terms of supervised release. The Federal Judgment and Commitment Order-like the Plea Agreement-was silent as to the relationship of the supervised release violator (SRV) term with any other sentence to which Dutton was or would be subject.

On May 16, 2007, he was sentenced in State court to a three-year term of incarceration followed by a five-year term of supervision for the sexual offense conviction.

Dutton was released from State custody during the pendency of the instant habeas Petition and is now serving his SRV term in Federal detention, at McKean Federal Correctional Institution.

As grounds for Federal habeas relief, Dutton asserts the following: (1) his Federal sentence should have commenced upon imposition because (a) the Federal sentencing court intended that its sentence run concurrently with the State sentence; (b) he should be in primary Federal custody because the Federal sentence was imposed prior to the imposition of his State sentence, and (c) the State sentencing court intended that its sentence run concurrently with the Federal sentence.2

III. Analysis of the PetitionA. Computation of Sentence

In computing a Federal sentence, two separate decisions must be made: (1) when the Federal sentence commences and (2) to what extent the defendant can receive credit for time spent in custody prior to commencement of sentence. E.g., United States v. Smith, 812 F.Supp. 368, 370 (E.D.N.Y.1993). For offenses committed on or after November 1, 1987, as Dutton's was, commencement of a Federal sentence is governed by 18 U.S.C. § 3585(a), and prior custody credit is governed by 18 U.S.C. § 3585(b). 3

1. Commencement

As noted above, 18 U.S.C. § 3585(a) governs the commencement of a Federal sentence and provides in pertinent part as follows:

Commencement of Sentence to a term of imprisonment commences on the date the defendant is received in custody awaiting transportation to, or arrives voluntarily to commence service of sentence at, the official detention facility at which the sentence is to be served.

18 U.S.C. § 3585(a). The underlying principle of 18 U.S.C. § 3585(a) is that a Federal sentence commences when the defendant is received by the Attorney General of the United States for service of his federal sentence. Pinaud v. James, 851 F.2d 27 (2d Cir.1988); Salley v. United States, 786 F.2d 546 (2d Cir.1986).

The earliest date a Federal sentence may commence is the date it is imposed. 4 A threshold issue in determining the commencement date of a Federal sentence is whether the defendant was in primary Federal or primary non-Federal custody (in this case, New York State or Local custody) at the time the Federal sentence was imposed. If the defendant was in primary Federal custody, the Federal sentence will commence upon imposition. 18 U.S.C. § 3585(a).

If, however, the defendant was in primary State or other non-Federal custody at the time the Federal sentence was imposed, the Bureau of Prisons must determine whether the Federal sentencing court expressly indicated its intent as to whether the federal sentence run concurrently with, or consecutively to, the non-Federal sentence. 18 U.S.C. § 3584(a). If the Federal court expressly indicated an intention to have its sentence run concurrently with the non-Federal sentence, the Bureau of Prisons will designate the State correctional facility as the place for the defendant to serve his Federal sentence. In such cases, the Federal sentence will be deemed to commence upon imposition. See 18 U.S.C. §§ 3585(a), 3621(b). However if the Federal sentencing court was silent as to whether it intended its sentence to run concurrently, the court's silence will be construed as an intent to impose a consecutive sentence. 18 U.S.C. § 3584(a). In such cases, the Federal sentence will commence only when primary non-Federal custody over the defendant is relinquished. 18 U.S.C. § 3585(a).5

2. Primary Custody

“As a general rule, the first sovereign to arrest an offender has priority of jurisdiction over him for trial, sentencing, and incarceration. Thomas v. Brewer, 923 F.2d 1361, 1365 (9th Cir.1991); accord, e.g., United States v. Gonzalez, No. S-194 CR. 313(C...

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