PLUMMER v. LONGLEY, Civil Action No. 10-171 Erie

• Decision Date: 28 March 2011
• Docket Number: Civil Action No. 10-171 Erie
• Parties: ROBERT CALVIN PLUMMER, Petitioner, v. ARCHIE B. LONGLEY, Respondent.
• Court: U.S. District Court — Western District of Pennsylvania

ROBERT CALVIN PLUMMER, Petitioner,

v.ARCHIE B. LONGLEY, Respondent.

Civil Action No. 10-171 Erie

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

Dated: March 28, 2011

OPINION AND ORDER¹

Magistrate Judge Susan Paradise Baxter

I. Introduction

Petitioner Robert Calvin Plummer is a federal inmate serving a 30-month term of imprisonment imposed by the U.S. District Court for the Southern District of New York. Before the Court is his petition for writ of habeas corpus, which he has filed pursuant to 28 U.S.C. § 2241. In the petition, he disputes the Bureau of Prisons' (the "BOP's" or "Bureau's") computation of his federal sentence.² He claims he is entitled to additional credit against his sentence.

II. Background

On June 17, 2008, Petitioner was arrested by the New York City Police and charged with the state crime of Third Degree Assault at Criminal Docket No. 36888C-208 in the Bronx County Supreme Court. The next day, on June 18, 2008, the police notified the Bureau of Immigration and Customs Enforcement ("ICE") that Petitioner was in their custody. [ECF No. 16-2, Ex. 2, Declaration of Bryan Erickson, at ¶¶ 4(c)-(g)]. That same day, the ICE lodged a detainer with the New York Police Department against Petitioner. The detainer explained that an investigation had been initiated to determine whether Petitioner was subject to removal from the United States and advised that the ICE would assume custody of Petitioner within 48 hours of his release from state custody. [ECF No. 16-2, Ex. 2a, Immigration Detainer].

On November 19, 2008, Petitioner pleaded guilty to Third Degree Assault in the Bronx County Supreme Court. On December 17, 2008, the court sentenced him to an eight month term of imprisonment. [ECF No. 16-2, Ex. 2, Erickson Decl. at ¶ 4(f)]. The state sentence computation information provided by the New York City Department of Corrections to the BOP establishes that all of the time that Petitioner served from June 18, 2008, through November 26, 2008, was credited against his state sentence. [ECF No. 16-2, Ex 2b, email message from the New York City Department of Corrections].

On December 19, 2008, Petitioner was released from the New York City Department of Corrections to the ICE detainer. [ECF No. 16-2, Ex. 2, Erickson Decl. at ¶ 4(e)]. The ICE determined that he was the same person who was convicted in 1990 of Attempted Criminal Sale of a Controlled Substance in the Third Degree, in violation of New York Penal Law, and that he had been removed from the United States in 2004. Thus, on December 30, 2008, a Criminal Complaint was filed in the U.S. District Court for the Southern District of New York charging Petitioner with Illegal Re-Entry of a Deported Alien, in violation of 8 U.S.C. §§ 1326(a) and (b)(2). Petitioner was arrested on that date. He was removed from ICE custody and placed in the custody of the United States Marshals Services ("USMS") pending processing of criminal charges. The ICE lodged a detainer with the USMS against Petitioner for purposes of deportation or removal from the United States. [ECF No. 16-2, Ex. 2, Erickson Decl. at ¶¶ 4(i)-(m)].

On February 3, 2009, Petitioner pleaded guilty in the U.S. District Court for the Southern District of New York. The court sentenced him on May 20, 2009, to 30 months of imprisonment, with a two year term of supervised release to follow. [ECF No. 16-2, Ex. 2, Erickson Decl. at ¶¶ 4(n)-(p)].

A federal prisoner's sentence calculation is governed by 18 U.S.C. § 3585, Calculation of a term of imprisonment. Paragraph (a) of the statute governs the date upon which a prisoner's sentence commences, and paragraph (b) governs credit he receives for time he spent in official detention prior to the date his sentence commenced (known as "prior custody credit"). The BOP's policies regarding sentence computation are set forth in Program Statement 5880.28, Sentence Computation Manual ("PS 5880.28").³

In Petitioner's case, the BOP computed his federal sentence under § 3585(a) as having commenced on May 20, 2009, which is the date it was imposed. Petitioner does not challenge this portion of the BOP's sentence calculation.⁴ Rather, he takes issue with the BOP's calculation of his prior custody credit. The BOP determined that he is entitled to 165 days of prior custody credit pursuant to § 3585(b). [ECF No. 16-1, Ex. 1a, Inmate Data Sheet]. In his petition for habeas relief [ECF No. 5] Petitioner contends that he is entitled to additional prior custody credit. In his Response [ECF No. 16], the Warden counters that the BOP has calculated his sentence properly. Petitioner has filed his Reply [ECF No. 17], and the case now is ripe for review.

III. Discussion

A. Subject Matter Jurisdiction

A challenge to a federal sentence as imposed must be made under 28 U.S.C. § 2255 and filed with the federal district court that convicted and sentenced the petitioner. In cases such as this, where the petitioner is challenging the BOP's execution of his federal sentence, the habeas petition is properly brought in the district of confinement under 28 U.S.C. § 2241. See, e.g., Barden v. Keohane, 921 F.2d 476, 478-79 (3d Cir. 1990). At the time this petition was filed, Petitioner was incarcerated within the Western District of Pennsylvania.

B. Legal Analysis

A federal habeas court may only extend a writ of habeas corpus to a federal inmate if he demonstrates that "[h]e is in custody in violation of the Constitution or laws or treaties of the United States[.]" 28 U.S.C. § 2241(c)(3). Petitioner contends that he is in custody in violation of the federal sentencing statute because the BOP has calculated his sentence incorrectly. His arguments are without merit.

Section 3585(b), which governs prior custody credit determinations, provides (b) Credit for prior custody.--A defendant shall be given credit toward the service of a term of imprisonment for any time he has spent in official detention prior to the date the sentence commences—

(1) as a result of the offense for which the sentence was imposed; or

(2) as a result of any other charge for which the defendant was arrested after the commission of the offense for which the sentence was imposed;

that has not been credited against another sentence.

18 U.S.C. § 3585(b) (emphasis added). The intent of the last clause of § 3585(b) is to prohibit double sentencing credit situations. Wilson, 503 U.S. at 337 (explaining that with the enactment of § 3585(b), "Congress made it clear that a defendant could not receive a double credit for his detention time."). Thus, the BOP may not grant prior custody credit under § 3585(b) for time that has been credited against another sentence. Rios v. Wiley, 201 F.3d 257, 272 (3d Cir. 2001);⁵ United States v. Vega, 493 F.3d 310, 314 (3d Cir. 2007).

In calculating Petitioner's prior custody credit, the BOP determined that the criminal conduct connected with his federal offense concluded upon his arrest by New York City Police on June 17, 2008. [ECF No. 16-2, Ex. 2, Erickson Decl. at ¶¶ 4(c) and 4(f)]. Thus, in accordance with § 3585(b), the time Petitioner served in official detention between June 17, 2008 (the date the federal offense conduct concluded) and May 19, 2009 (the day before his federal sentence commenced), that was served either as a result of the offense for which his federal sentence was imposed, or as a result of any other criminal charge for which he was arrested after the commission of the conduct resulting in his federal sentence, may be considered for treatment as federal prior custody credit, as long as this time was not credited against any other sentence. 18 U.S.C. § 3585(b).

The record in this case shows that all of the time that Petitioner served from June 18, 2008, through November 26, 2008, was applied against his state sentence. [ECF No. 16-2, Ex. 2b]. Therefore, the BOP may not give Petitioner prior custody credit for time served on those dates. The BOP however, properly has given him prior custody credit for the time he spent in official detention on: (1) June 17, 2008; (2) November 27, 2008 through December 19, 2008; and, (3) December 30, 2008 through May 19, 2009. Because the state did not give him credit for the time he spent in official detention on those dates, that time qualifies at prior custody credit under § 3585(b). [ECF No. 16-1, Ex. 1a, Inmate Data Sheet].

The BOP also determined that Petitioner is not entitled to prior custody credit for the 10-day period spanning December 20, 2008 (the date that he was released by state officials to the ICE detainer), through December 29, 2008 (the day before he was arrested for his federal offense), for the time served in ICE detention pending deportation proceedings. That is because § 3585(b) directs that prior custody credit is limited to time served in official detention prior to the commencement of the federal sentence either "as a result of the offense for which the sentence was imposed" or "as a result of any other charge for which the defendant was arrested" after the commission of the offense, and an ICE deportation proceeding is neither as it is civil in nature. See INS v. Lopez-Mendoza, 468 U.S. 1032, 1038 (1984) ("A deportation proceeding is a purely civil action to determine eligibility to remain in this country, not to punish an unlawful entry, though entering or remaining unlawfully in this country is itself a crime.") Thus, the BOP has concluded, "official detention" under § 3585(b) does not include time spent in ICE "civil custody" pending a final determination of deportability. PS 5880.28, Chapt. 1, at Page 15A. There is no basis for this Court to disturb the BOP's determination in this regard. It has reasonably determined that, since deportation proceedings are civil in nature, time spend in ICE custody does not qualify as federal prior custody credit under § 3585(b).

Finally, Petitioner argues that he is entitled to prior custody credit for time served in state...