Emig v. Bell, Civ. No. B-77-233.

• Decision Date: 12 January 1978
• Docket Number: Civ. No. B-77-233.
• Court: U.S. District Court — District of Connecticut
• Parties: Donald George EMIG v. Griffin BELL, Attorney General, Department of Justice, et al.

456 F. Supp. 24

Donald George EMIG v. Griffin BELL, Attorney General, Department of Justice, et al.

Civ. No. B-77-233.

United States District Court, D. Connecticut.

January 12, 1978.

Donald George Emig, pro se.

Frank H. Santoro, Asst. U. S. Atty., New Haven, Conn., for respondents.

MEMORANDUM OF DECISION

NEWMAN, District Judge.

Petitioner, an inmate at Federal Correctional Institution, Danbury, brings this action to secure credits against his federal sentence. The facts are somewhat complex. Petitioner was arrested by Colorado authorities on April 12, 1973, on check fraud charges. Unable to post bond he remained in state custody until transferred to Syracuse, New York, where he was sentenced in federal district court on October 11, 1974, for making a false statement on a loan application. He was returned to state custody in Colorado. On January 15, 1975, a federal court in Colorado sentenced petitioner on another charge of making a false statement on a loan application, and he was again returned to state custody.

On February 14, 1975, petitioner was convicted of the state charge of check fraud. Before sentencing, however, on February 18, 1975, petitioner was charged by Colorado authorities with conspiracy to commit second-degree burglary. On May 30, 1975, he was sentenced on the first state charge to a term of sixteen years. On June 11, 1975, federal detainers were lodged against him. On July 3, 1975, he pled guilty to the second state charge and was sentenced to a concurrent term of fifteen to twenty years. That sentence was reduced by the court on September 29, 1975, to an indeterminate term of up to ten years. On July 6, 1976, his conviction on the first state charge was reversed by the Colorado Supreme Court. Petitioner remained in state custody pursuant to the conviction on the second state charge until May 6, 1977, when he was paroled to federal custody. Petitioner subsequently filed this action seeking credit on his federal sentence for portions of the time he spent in state custody.

The starting point in considering the multiple claims presented is the fundamental proposition that time served on an unrelated state sentence that has been voided cannot be credited against a federal sentence. Scott v. United States, 434 F.2d 11, 21 (5th Cir. 1970); Green v. United States, 334 F.2d 733, 736 (1st Cir. 1970); Mize v. United States, 323 F.Supp. 792, 794-5 (N.D. Miss.1971).

Petitioner's entitlement to credit, if any, depends on the application of 18 U.S.C. § 3568, which provides that "The Attorney General shall give a federal prisoner credit toward service of his sentence for any days spent in custody in connection with the offense or acts for which sentence was imposed." This section is applied according to the regulations contained in Bureau of Prisons Policy Statement 7600.59 (May 27, 1975) (the Policy). The Policy provides in § 4(b)(1) that credit can be given for time spent in "actual or constructive" federal custody, and § 4(c) describes what constitutes "constructive" custody for this purpose.

One set of circumstances constituting constructive custody arises when "the federal inmate has been in state custody on essentially the same charges," in which case credit will be given on the federal sentence for time spent in state custody. § 4(c)(1)(b). The standard for finding that the state and federal sentence resulted from the "same charges" is a strict one. See, e. g., Policy § 4(c)(1)(b), examples; Fontaine v. United States, 434 F.2d 1310, 1311 (5th Cir. 1970); Gilbert v. United States, 299 F.Supp. 689, 692 (S.D.N.Y.1969); Dillinger v. Blackwell, 277 F.Supp. 389, 390 (N.D.Ga.1967); United States v. Beeker, 275 F.Supp. 608, 609 (D.Md.1967).

From the allegations in the petition, it does not appear that there is a sufficient relationship between either of the state convictions and either of the federal convictions to meet this standard. It is most unlikely that the federal conviction in New York for making a false statement on a loan application has anything to do with the state charges in Colorado. Similarly, the federal conviction in Colorado for making a false statement on a loan application is almost surely unrelated to the state conviction for conspiracy to commit second-degree burglary. To the extent it may be related to the state conviction for check fraud, petitioner has not alleged any facts to indicate the requisite relationship. Therefore, insofar as the petition may be alleging that a state and federal conviction arose from the "same charges," it is dismissed with leave to amend if petitioner can allege facts to show sufficient relatedness.

A federal prisoner may also receive credit when the state and federal sentences are unrelated if "a federal detainer is lodged, the prisoner does not make state bail, and the state fails to give jail credit for the time." Policy § 4(c)(2)(b). Petitioner seeks to apply this provision to the period of pre-trial state incarceration that began with his arrest on October 12, 1973, and continued until the first state sentence was imposed on May 30, 1975. In order to determine the validity of petitioner's claim, each of the three criteria in the regulation must be considered in turn.

One criterion is inability to make bail. Petitioner alleges that after his arrest bail was set but that he was unable to make bail because of his indigency. The Government has not challenged this assertion in its answer or in either of its two supplemental responses. I will therefore accept, as undisputed, that bail was set and that petitioner was unable to make it. If the Government wishes to challenge this factual assertion by the petitioner, it may do so by a motion to reconsider submitted with supporting affidavits within thirty days of the filing of this opinion.

Another criterion for credit is that a federal detainer has been lodged. In this case a federal detainer was not lodged until June 11, 1975 — after the date of petitioner's sentencing on the first state charge. However, the petitioner had been sentenced by a federal court on October 11, 1974, and again on January 15, 1975. The issue therefore is whether a prisoner can receive credit for time spent in state custody while unable to make bail when there is a federal sentence outstanding against him, but a federal detainer has not yet been lodged. A similar issue was presented in United States v. Gaines, 449 F.2d 143 (2d Cir. 1971). In that case petitioner was in state custody and unable to make bail while there was an outstanding federal sentence. The state charges were later dropped and Gaines sought credit on his federal sentence for the time spent in state custody. The Second Circuit had first rejected the claim, 436 F.2d 1069, but after remand, 402 U.S. 1006, 91 S.Ct. 2195, 29 L.Ed.2d 428, the Court agreed that credit should be given on the theory that if Gaines had been able to make bail on the state changes, he could have begun serving his federal sentence. See United States v. Downey, 469 F.2d 1030, 1031 (8th Cir. 1972); Sancinella v. Henderson, 380 F.Supp. 1393, 1395 (N.D.Ga.), aff'd, 502 F.2d 784 (5th Cir. 1974). That is the same position that petitioner here is in. He could have begun serving his federal sentence when it was imposed on October 11, 1974, if he had been able to raise the state bail. Therefore, the purpose of the detainer requirement of the regulation has also been met.

More problematic is the criterion that the petitioner has not already received credit from the state. Under the terms of the Policy, "ordinarily, if a sentence results from the state charges, there will be a presumption that the prisoner did receive credit for pre-sentence time, however, this may be rebutted if the prisoner can demonstrate that the state did not credit the time." § 4(c)(2)(b). In the present case the presumption is applicable because the state charge that precipitated the pre-trial incarceration resulted in a sentence. That sentence was later voided however, so the presumption is rebutted under the provision in the same section of the Policy that "failure to give jail credit (by the state) may be assumed in any of the following events: . . . (2) the state sentence is vacated with further prosecution deferred, thereby effectively vacating the state's prior award of jail credit . . .." Under that provision it appears that the petitioner did not receive credit from the state and that he should receive it on his federal sentence.

In this case, however, the petitioner was convicted of a second state offense and sentenced on July 3, 1975. This was after the original sentence began on May 30, 1975, but before the original sentence was vacated on July 6, 1976. The second sentence was ordered to run concurrently with the first sentence and contained the following provision: "consideration given for time spent in Jail awaiting trial and sentencing in setting this sentence."

The Government vigorously argues that this language demonstrates that the second state sentence — for conspiracy to commit second-degree burglary — took into account the time spent in pre-trial incarceration and that the petitioner should not now receive credit for it. The difficulty with that position is that the July 3, 1975, sentence, as originally imposed, is not the one the petitioner actually served. That sentence was modified on September 29, 1975, by reducing it to an indeterminate term of up to ten years. It is this later sentence which must be considered to determine if the pre-trial time was taken into account.

Und...