Lopez v. Terrell

• Decision Date: 26 March 2010
• Docket Number: No. 09 Civ. 8148(RJH).,09 Civ. 8148(RJH).
• Citation: 697 F. Supp.2d 549
• Parties: Frank LOPEZ, Petitioner, v. Duke TERRELL, as Warden, Metropolitan Correctional Center—New York, and Joe Norwood, as Regional Director, Northeast Region, Federal Bureau of Prisons, Respondents.
• Court: U.S. District Court — Southern District of New York

697 F. Supp.2d 549

Frank LOPEZ, Petitioner, v. Duke TERRELL, as Warden, Metropolitan Correctional Center—New York, and Joe Norwood, as Regional Director, Northeast Region, Federal Bureau of Prisons, Respondents.

No. 09 Civ. 8148(RJH).

United States District Court, S.D. New York.

March 26, 2010.

Nader Raymond Hasan, Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York, NY, for Petitioner.

MEMORANDUM OPINION AND ORDER

RICHARD J. HOLWELL, District Judge:

Federal law encourages prisoners to behave well. 18 U.S.C. § 3624(b) directs the Federal Bureau of Prisons ("BOP") to apply up to 54 days of Good Conduct Time ("GCT") against a prisoner's sentence for each year that he or she displays "exemplary compliance with institutional disciplinary regulations." The issue in this case is whether the statute permits prisoners to accrue GCT for time served before the day they are sentenced in federal court, and if so, under what circumstances. The BOP awards GCT for time in pretrial detention to any prisoner who is eventually sentenced on "the crime for which he or she was in pretrial status," regardless of whether the pretrial time was served in state or federal custody. 28 C.F.R. § 523.17(l). The agency deviates from that policy, however, where a prisoner serves pretrial time that is also credited against a related state sentence. For example, if a prisoner is convicted of and sentenced for a crime in state court and then writted into federal custody, prosecuted, and sentenced on a related federal charge, the BOP will not award GCT for any time served—whether in state or federal custody—before the federal sentencing date. Frank Lopez, a federal prisoner, served eight years on a state narcotics conviction, four of them in federal pretrial custody, before being convicted and sentenced for a related narcotics conspiracy in federal court. He brings a petition for a writ of habeas corpus under 28 U.S.C. § 2241 challenging the BOP's determination that he is not eligible for GCT under § 3624(b) for either (1) the four years he served in state prison before being writted into federal custody; or (2) the four years he was detained in federal custody prior to his federal sentencing date. The petition is granted. The Court applies Skidmore deference but finds the BOP's interpretation of § 3624(b) unpersuasive. The case is remanded to the BOP for recalculation of Lopez's GCT in a manner consistent with this opinion, based on a term of imprisonment that began when he was arrested on August 11, 2000.

I

Frank Lopez is currently serving a federal sentence for conspiracy to distribute crack cocaine. This Court sentenced Lopez for that crime on June 19, 2008, but by that time he had already served almost eight years in state and federal prisons as a result of the same drug-related conduct that led to the federal sentence. This continuous period of incarceration began on August 11, 2000, when New York City police officers arrested Lopez for selling crack in the Bronx. He pleaded guilty shortly thereafter to criminal sale of a controlled substance and was sentenced to 4.5 to 9 years in prison. After serving a little over four years on this charge, Lopez was writted into federal custody on November 4, 2004, and was indicted in April 2005 in the Southern District of New York on federal charges for conspiring to distribute crack during the period of 1993 through August 2000. The only overt act specified in the indictment was the same crack deal underlying the state conviction. (Hasan Decl. Ex. C.) Lopez pleaded guilty before this Court on September 27, 2007, and was sentenced the following June. New York State credited all of the time Lopez spent in federal pretrial custody (from November 4, 2004, to June 19, 2008) against his state sentence. However, neither state nor federal authorities awarded Lopez any GCT for the time he served from August 11, 2000 to June 19, 2008.¹

In the nine month period between the federal plea date and the sentencing date, the Court held a conference and received supplemental briefing on whether Lopez should receive sentencing credit (as distinct from GCT) for the time already served in either state or federal custody, given that the state and federal convictions concerned the same conduct. The Court ultimately decided Lopez was entitled to an adjustment for all the time previously served pursuant to U.S.S.G. § 5G1.3(b), which instructs courts to reduce a federal sentence by any period of imprisonment already served on an undischarged sentence for the same offense conduct. See United States v. Fermin, 252 F.3d 102, 107 (2d Cir.2001).² Accordingly, the Court imposed the following sentence at the sentencing hearing:

It is the judgment of this court that the defendant Frank Lopez is hereby committed to the custody of the United States Bureau of Prisons, to be imprisoned for a term of 132 months concurrent with the undischarged term of imprisonment on his state narcotics convictions and with a credit for time served in state and federal custody from August 11, 2000.

(Sentencing Tr., Hasan Decl. Ex. E at 17:10-15.)³

Since the federal sentencing, Lopez has spent time in three different institutions. First, he briefly returned to state custody, where he completed his state sentence on or about December 31, 2008. (Return ¶ 10.) Pursuant to the Court's order that the federal sentence run concurrently with the state sentence, this period in state custody counted against both sentences, and pursuant to BOP policy—which does not condition GCT eligibility upon custody in a federal institution—Lopez accrued GCT during this six-month period. (Kelly Decl. Ex. 7.) Next, the BOP resumed custody of Lopez and assigned him to a maximum security prison in Beaumont, Texas to serve the remainder of his federal sentence. Despite this assignment, however, Lopez has spent much of his time since returning to federal custody at Metropolitan Correctional Center ("MCC") in Manhattan, where he was incarcerated at the time he filed his § 2241 petition and where he remains now. (Pet. at 1; Resp. Br. at 1.)

The disputed issue is whether, under the GCT statute, Lopez may receive GCT for good behavior during time served in either state or federal custody before the federal sentence date. The statute reads, in pertinent part,

A prisoner who is serving a term of imprisonment of more than 1 year ... may receive credit toward the service of the prisoner's sentence, beyond the time served, of up to 54 days at the end of each year of the prisoner's term of imprisonment, beginning at the end of the first year of the term, subject to determination by the Bureau of Prisons that, during that year, the prisoner has displayed exemplary compliance with institutional disciplinary regulations....

18 U.S.C. § 3624(b) (emphasis added). Lopez argues that his eight years of presentence time⁴ qualify for GCT because that time comprised part of a 132-month "term of imprisonment" imposed by the plain language of the Court's sentencing order. (See Hasan Decl. Ex. E at 17 ("Frank Lopez is ... to be imprisoned for a term of 132 months ... with a credit for time served in state and federal custody from August 11, 2000.").) Put differently, Lopez interprets the statutory phrase "term of imprisonment" to encompass all of the time he has served for the federal offense. According to the sentencing order, he argues, that period includes the presentence time. The BOP disagrees for three primary reasons. First, it argues that temporal language in the statute hinting at an annualized review process— phrases like "54 days at the end of each year"—restricts the scope of GCT eligibility to time served after a sentence is imposed. (Resp. Br. at 18 ("The plain language of the GCT statute contemplates a `real time' analysis of GCT, one year at a time, providing for both a temporal limitation and a scope limitation on GCT calculation.").) Second, the BOP argues that "term of imprisonment" is synonymous with "sentence," and that GCT is thus only available for time served on a federal sentence itself. (Resp. Br. at 13.) Although Lopez received an adjustment for the eight years of presentence time, the BOP contends that time did not form part of his actual "sentence," as defined by federal statute and § 5G1.3(b). Finally, the BOP argues that a different statute, 18 U.S.C. § 3585(b), bars it from awarding GCT for Lopez's presentence time, because that time was also credited against his state sentence. (Resp. Br. at 10; see United States v. Labeille-Soto, 163 F.3d 93, 99 (2d Cir.1998) (citing 18 U.S.C. § 3585(b))).

The disagreement carries large potential consequences. If Lopez is correct that all of his presentence time is eligible for GCT, he could be released as early as March 24, 2010 (depending on his disciplinary record). On the other hand, if the BOP is correct, Lopez will remain in federal custody for at least another year, until March 22, 2011.

It is important to note that the issue in this case concerns only the range of time for which Lopez is eligible for GCT under the statute. Whatever the correct time range, it falls to the BOP to evaluate Lopez's conduct to determine the amount of GCT he has actually earned. 18 U.S.C. § 3624(b); see Sash v. Zenk, 428 F.3d 132, 135 (2d Cir.2005). Thus, though Lopez's conduct will affect his ultimate release date, it is not relevant to this petition, which raises a question of pure statutory interpretation. Only one entry in Lopez's disciplinary record bears upon the issues here, and not because of anything it reflects about Lopez, but because it is relevant to the BOP's argument: in 2005, three years before it contends Lopez even became eligible for GCT, the BOP disciplined him for an altercation with another inmate in federal detention by declaring that it would debit him 21 days of GCT, a disciplinary measure the BOP now argues it did not have the power to impose since (in its view) no GCT was accruing.⁵

Administrative Remedy...