Oses v. US

• Decision Date: 30 July 1993
• Docket Number: Civ. A. No. 92-11562-WD.
• Citation: 833 F. Supp. 49
• Parties: Thomas OSES, Petitioner, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — District of Massachusetts

833 F. Supp. 49

Thomas OSES, Petitioner, v. UNITED STATES of America, Respondent.

Civ. A. No. 92-11562-WD.

United States District Court, D. Massachusetts.

July 30, 1993.

Anthony Mirenda, Foley, Hoag & Eliot, Boston, MA, for petitioner.

Thomas Oses, pro se.

James Lang, Timothy Q. Feeley, U.S. Attys. Office, Boston, MA, for respondent.

MEMORANDUM AND ORDER

WOODLOCK, District Judge.

Thomas Oses is a federal prisoner currently serving what remains of his four year federal sentence. He has already completed service of a previous state sentence which was modified in a plea bargain after he successfully obtained from this court a writ of habeas corpus vacating his initial state court conviction. Oses now petitions this court for a second writ of habeas corpus to secure his release from federal custody. The question raised is whether a federal prisoner is entitled to credit against his federal sentence for time served on that portion of a state sentence effectively nullified after a determination that the state conviction violated the federal constitution. I answer the question in the negative and thus deny the petition.

I. BACKGROUND

On October 7, 1991, I granted petitioner's first petition for habeas corpus, finding that his federal constitutional rights had been violated during the course of the state trial that had produced his initial conviction in 1977, for which he had received a sentence of life imprisonment. Oses v. Commonwealth of Massachusetts, 775 F.Supp. 443 (D.Mass. 1991), aff'd, 961 F.2d 985 (1st Cir.) (per curiam), cert. denied, ___ U.S. ___, 113 S.Ct. 410, 121 L.Ed.2d 334 (1992). After the habeas proceeding, the Commonwealth reinstituted the criminal case against Oses. In late February of 1993, he pled guilty to the state charges against him and was sentenced to 14-15 years in the Massachusetts Correctional Institute at Cedar Junction. By that time, however, Oses had already been in prison for nearly 16 years following his 1976 arrest on the state charges.¹ Following Oses' plea and sentence in 1993, the Commonwealth determined that Oses had fully served his new 14-15 year sentence more than seven years earlier. On April 22, 1993, the Massachusetts Commissioner of Correction executed nunc pro tunc a certificate of discharge from state custody effective June 18, 1985. (Agreed-Upon Statement of Facts hereinafter "Agreed Facts" ¶ 6 & Exh. D.)

Despite the state's retroactive characterization of his discharge from state custody, Oses was not yet a free man. During his initial period of imprisonment, he had been convicted and sentenced to four years in prison on a federal charge. The federal sentence was intended, in the words of the federal judgment and commitment order, "to run consecutive to the life sentence imposed by the Massachusetts state court on July 8, 1977...."² (Agreed Facts ¶ 2, Exh. B.)

Oses argued to the Federal Bureau of Prisons that because, in retrospect, his state sentence had lawfully expired as of June 18, 1985, he was entitled to credit against his federal sentence for the duration of his state imprisonment from that date onward. Under Oses' theory, he had completed his four-year federal sentence as of 1989.

The Bureau of Prisons disagreed. The Bureau noted that it was not until July 30, 1992, that Oses was formally received into federal custody while the state was still considering whether to pursue retrial after the grant of the first habeas petition. The Bureau did nevertheless allow Oses credit toward his federal sentence for the period of his state detention beginning October 7, 1991, the date on which this court granted the writ of habeas corpus invalidating his state conviction. According to Bureau computations, Oses is not scheduled to complete serving his federal sentence until November of 1994.

His remedies with the Federal Bureau of Prisons having been exhausted, Oses now pursues in this court the instant petition for a writ of habeas corpus to challenge the calculation of his federal sentence.³ Cf. United States v. Wilson, ___ U.S. ___, ___, 112 S.Ct. 1351, 1355, 117 L.Ed.2d 593 (1992). He argues that his continued imprisonment violates the Due Process Clause of the Fifth Amendment. The government replies that the unambiguous language of the applicable statutory provision, 18 U.S.C. § 3568, repealed,⁴ Pub.L. No. 98-473, tit. II, §§ 212(a)(2), 235(a)(1), 98 Stat. 1987, 2031 (1984), precludes Oses from receiving credit against his federal sentence for time served under the nullified portion of his state sentence, and further, that § 3568 so applied does not violate the Constitution.

II. APPLICATION OF 18 U.S.C. § 3568

Section 3568 of Title 18 provides:

The sentence of imprisonment of any person convicted of an offense shall commence to run from the date on which such person is received at the penitentiary, reformatory, or jail for service of such sentence. The Attorney General shall give any such person credit toward service of his sentence for any days spent in custody in connection with the offense or acts for which sentence was imposed. As used in this section, the term "offense" means any criminal offense ... which is in violation of an Act of Congress and is triable in any court established by Act of Congress.

. . . . .

No sentence shall prescribe any other method of computing the term.

18 U.S.C.A. § 3568 (1982). Although § 3568 was repealed in 1984,⁵ it continues to be applicable with respect to offenses — including the federal offense of which Oses was convicted — committed prior to November of 1987.

The government does not dispute that Oses has now formally been deemed to have completed serving his state sentence as of June 18, 1985. The government argues, however, that under the literal and established interpretation of § 3568, Oses is precluded from receiving any federal credit for the cancelled part of his state sentence, even though on that interpretation, his detention from 1985 to 1991 would in retrospect become "dead time" not credited to any valid sentence.

The language of the statute is without material ambiguity. A federal sentence "commences to run" when the prisoner is received at the facility where he is to serve his federal time; he may receive credit for time served prior to that point only if such time was "in connection with" the federal offense. Thus, under the established rule, a federal prisoner is not entitled under § 3568 to receive credit against a federal sentence for time served on an unrelated, nonconcurrent state sentence. See Thomas v. Whalen, 962 F.2d 358, 364 (4th Cir.1992); Bloomgren v. Belaski, 948 F.2d 688, 690 (10th Cir.1991); Meagher v. Clark, 943 F.2d 1277, 1283 (11th Cir.1991); Pinaud v. James, 851 F.2d 27, 30 (2d Cir.1988); United States v. Garcia-Gutierrez, 835 F.2d 585, 586 (5th Cir.1988); United States v. Winter, 730 F.2d 825, 826 (1st Cir.1984); Scott v. United States, 434 F.2d 11, 21 (5th Cir.1970); Green v. United States, 334 F.2d 733, 736 (1st Cir.1964), cert. denied, 380 U.S. 980, 85 S.Ct. 1345, 14 L.Ed.2d 274 (1965); Holleman v. United States, 612 F.Supp. 384, 387 (N.D.Ind.1985); Emig v. Bell, 456 F.Supp. 24, 26 (D.Conn. 1978). This principle holds true even when the federal prisoner has served time under a state sentence that was subsequently voided; the federal government has no obligation to credit a prisoner with "dead time" spent in state confinement. See Pinaud, 851 F.2d at 31; Scott, 434 F.2d at 21; Green, 334 F.2d at 736; Holleman, 612 F.Supp. at 387; Emig, 456 F.Supp. at 26; Johnson v. Henderson, 328 F.Supp. 704, 705 (E.D.La.1971), aff'd, 455 F.2d 983 (5th Cir.1972).

As the government observes, Oses' case is closely analogous to the situation confronted by the First Circuit in Green. There, the court started from the proposition that "there is no impropriety ... in imposing a federal sentence to commence upon completion of a state sentence presently being served." 334 F.2d at 736. Then, holding that the "statutory command" of 18 U.S.C. § 3568 "is absolute," the court expressly refused to allow petitioner to receive credit against his federal sentence for time he had served under a nonconcurrent state sentence that was voided on direct review by the state appellate court.⁶ See Green, 334 F.2d at 736.

Oses does not in fact challenge the traditional interpretation of § 3568 and does not appear to dispute that under a straightforward reading of the statute, he has no right to federal credit for his "dead time" in state prison. Although Oses does argue (as an alternative to his constitutional claim) that the court should create an ad hoc exception to the literal application of § 3568 that would allow for such credit, he does not contend that such an exception could be rooted in the language of the statute or in the case law interpreting it. Nor does Oses' case fit within any of the existing judicially-fashioned adjustments to the literal terms of the statute.⁷

Because Oses does not dispute that § 3568 applies to him, and because § 3568 by its unambiguous terms precludes his claim for time-served credit, this petition can succeed only if application of § 3568 to deny Oses such credit would itself be impermissible.

III. THE CONSTITUTIONAL CLAIM

A.

Oses argues that the Bureau of Prison's application of 18 U.S.C. § 3568 to deny him federal credit for the time he served in state prison from 1985 onward violates the principle of equal protection implicit in the Fifth Amendment's Due Process Clause.

The argument runs as follows. Oses first posits that where a federal prisoner is sentenced to consecutive federal prison terms, and the first sentence is vacated after its commencement, the federal prisoner is entitled to have credited against his second federal sentence the time served under the voided federal sentence. In support of this assertion Oses cites Ekberg v. United States, 167 F.2d 380 (1st Cir.1948) and Meadows v. Blackwell, 433 F.2d 1298 (5th Cir.1970). Given this premise, Oses claims...