Rios v. Wiley

• Decision Date: 04 January 2000
• Docket Number: No. 99-3297,FPC-A,99-3297
• Citation: Rios v. Wiley, 201 F.3d 257 (3rd Cir. 2000)
• Parties: (3rd Cir. 2000) FRANCISCO RIOS, v. RON WILEY, Warden,llenwood RON WILEY, Appellant
• Court: U.S. Court of Appeals — Third Circuit

Page 257

201 F.3d 257 (3rd Cir. 2000)

FRANCISCO RIOS, v. RON WILEY, Warden, FPC-Allenwood RON WILEY, Appellant

No. 99-3297

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

Argued November 1, 1999

Filed January 4, 2000

On Appeal from the United States District Court for the Middle District of Pennsylvania, (D.C. Civ. No. 98-1507) District Judge: Honorable William W. Caldwell [Copyrighted Material Omitted] Attorneys for Appellant: David M. Barasch United States Attorney Kate L. Mershimer Assistant United States Attorney United States Attorney's Office Middle District of Pennsylvania 228 Walnut Street P.O. Box 11754 Harrisburg, PA 17108-1754, Michael D. Tafelski (argued) Federal Bureau of Prisons 2nd & Chestnut Streets United States Customs House 7th Floor Philadelphia, PA 19106

Attorneys for Appellee: Donald E. Cameron (argued) Judith E. Stein 150 Nassau Street Suite 1927 New York, NY 10038

BEFORE: GREENBERG, SCIRICA, and RENDELL, Circuit Judges

OPINION FOR THE COURT

GREENBERG, Circuit Judge

I. INTRODUCTION

This matter comes before this court on an appeal from an order granting a petition for a writ of habeas corpus. Petitioner Francisco Rios filed his petition under 28 U.S.C. S 2241 against respondent Ron Wiley, the warden of the Federal Prison Camp at Allenwood, Pennsylvania ("FPC Allenwood").¹ The sole issue on appeal is whether the district court erroneously determined that Rios was entitled to credit on his federal sentence for a period of 22 months that he was in federal detention pursuant to a writ of habeas corpus ad prosequendum prior to the imposition of his federal sentence for narcotics violations. We will affirm the order of the district court granting Rios's habeas corpus petition and thus allowing him the relief he seeks, but we reach our result on different grounds than those on which the district court relied.

II. FACTS and PROCEEDINGS

State authorities arrested Rios on or about August 6, 1991, in New York and charged him with possession of cocaine. He was found guilty of the state charges and on November 7, 1991, the state court sentenced him to five to ten years imprisonment. On November 6, 1991, a federal grand jury in the Southern District of New York indicted him for narcotics offenses unrelated to the state charges.² On November 21, 1991, federal authorities, pursuant to a writ of habeas corpus ad prosequendum, took custody of Rios for one day. On March 20, 1992, the federal authorities, pursuant to a second writ of habeas corpus ad prosequendum, took custody of Rios again for a period which proved to be extended and included the 22 months at issue.

At a trial on the federal charges, the jury found Rios guilty on June 17, 1992, of conspiracy to distribute heroin and cocaine and distribution of and possession of heroin with intent to distribute. The court scheduled sentencing for September 15, 1992, but it was delayed until January 31, 1994. Prior to the sentencing hearing the government sent a letter dated January 31, 1994, to the court discussing the application of U.S.S.G. S 5G1.3(c), p.s.³ to Rios's case. We will refer to that provision simply as "section 5G1.3(c)." In its opening remarks at the sentencing hearing, the court acknowledged receipt of the letter and stated that its contents were "duly noted."

In the colloquy between counsel and the court during the sentencing hearing, Rios's attorney asked the court to consider, among other things, the fact that Rios had been in federal custody pursuant to the second writ since March 1992. Specifically, he asked the court to "sentence Rios to the minimum guideline applicable which is 84 months, and to have that run concurrent with the time he is serving on the state case." When the assistant United States attorney stated that the "state conduct was not counted in calculating the offense level in this case," Rios's attorney interjected that he did not mean to imply that it had been. Immediately thereafter, the court asked the government attorney whether Rios, if given credit for time served, would receive credit back to March 1992, the time of the execution of the second writ by the federal authorities. The government attorney answered that crediting was a technical matter, and that he could not respond to the question at that time. The court replied that the answer was not material and it proceeded to sentence Rios.

The sentencing court sentenced Rios "to a term of 90 months on both counts to run concurrently with each other and concurrently with the state sentence and that you receive credit for time served." The court, however, did not indicate what period of "time served" should be applied to the federal sentence. Moreover, the judgment entered merely recited: "Defendant to receive credit for time served." The government did not seek clarification or modification of the sentence, nor did it appeal from it.

The federal authorities returned Rios to New York state custody on February 18, 1994. Thus, it is undisputed that Rios remained in the control of the federal authorities from the time of the execution of the second writ on March 20, 1992, until February 18, 1994. It is also undisputed that he previously had been sentenced in state court on November 7, 1991, and that he was serving his state sentence while in the federal custody pursuant to the second writ.

Shortly after the federal authorities returned Rios to state custody, the Bureau of Prisons ("BOP") designated the New York State Department of Correctional Services for service of his federal sentence. It made this designation nunc pro tunc as of January 31, 1994, the date of the federal sentencing. By specifying the federal sentence to have commenced on January 31, 1994, the BOP did not credit Rios for the 22-month time period he spent under federal control pursuant to the second writ before January 31, 1994, despite the sentencing court's statement at the sentencing and its direction in the judgment of conviction and sentence that credit be awarded for "time served."

New York released Rios on parole from his state sentence on August 2, 1996, and the BOP received Rios for service of the remainder of his federal sentence. Upon his transfer to federal custody, Rios learned that the BOP had not credited the time between March 20, 1992, the date he was detained by federal authorities by virtue of the second writ, and January 31, 1994, the date of his federal sentencing. Rios filed an administrative remedy request at his place of incarceration at the time, the Federal Corrections Institution at Ray Brook, New York ("FCI Ray Brook"), challenging the BOP's failure to credit that 22-month period against his federal sentence.

Warden W.S. Keller of FCI Ray Brook denied Rios's request on November 25, 1996. Rios exhausted his administrative remedies and subsequently filed his habeas corpus petition. The petition reiterated Rios's challenge of the BOP's refusal to credit his federal sentence for time served while in federal detention pursuant to the second writ. At the time Rios filed his habeas corpus petition, applying the BOP's crediting calculations, his projected release date was August 12, 2000.⁴ Rios contended that his release date should have been September 30, 1998.

The district court granted Rios's habeas corpus petition in a memorandum and order entered December 9, 1998. See Rios v. Wiley, 29 F. Supp.2d 232 (M.D. Pa. 1998) ("Rios I"). While the district court believed that the literal language of 18 U.S.C. S 3585(b), which we will call simply "section 3585(b)," appeared to preclude granting the credit Rios sought, it nevertheless concluded that he was entitled to credit on his federal sentence for the 22-month period that he remained in federal control under the second writ to "effectuate[ ] the intent of the federal sentencing court." Rios I, 29 F. Supp.2d at 236. The district court relied on the reasoning of the Court of Appeals for the First Circuit in United States v. Benefield, 942 F.2d 60 (1st Cir. 1991), in support of its result. See Rios I, 29 F. Supp.2d at 234. Consequently, the court ordered the BOP to recalculate Rios's release date, and stated that if the new calculation entitled him to immediate release, he was to be released.

The BOP subsequently filed a motion for reconsideration, which the district court denied by memorandum and order entered February 3, 1999. See Rios v. Wiley, 34 F. Supp.2d 265 (M.D. Pa. 1999) ("Rios II"). Upon reconsideration, the court retreated from its prior position that Benefield provided the applicable rule of law in this case. Instead, the district court granted the petition based on the reasoning of the Court of Appeals for the Tenth Circuit in Brown v. Perrill ("Brown II"), 28 F.3d 1073 (10th Cir. 1994), supplementing and clarifying Brown v. Perrill ("Brown I"), 21 F.3d 1008 (10th Cir. 1994). In Brown, a case that involved facts that the district court regarded as "materially identical" to those here, see Rios II, 34 F. Supp.2d at 270, the court held that the lengthy period the prisoner spent in custody on the writ transmuted the period into federal custody. See Brown II, 28 F.3d at 1075. Because it was undisputed that if the 22-month period was applied on the federal sentence, Rios was entitled to immediate release, the court ordered his release from federal custody.

The BOP filed a timely notice of appeal. While the notice of appeal recites that it is from the February 3, 1999 order, effectively the appeal is from the order granting the habeas corpus petition as well and we are deciding the case on that basis.

III. JURISDICTION and STANDARD OF REVIEW

The district court exercised jurisdiction over this matter pursuant to 28 U.S.C. SS 1331 and 2241. We have jurisdiction over this appeal pursuant to 28 U.S.C. SS 1291 and 2253(a), as the BOP filed a timely notice of appeal from the final judgment of the district court entered February 3, 1999.⁵

In a federal habeas corpus proceeding, we exercise plenary...