Sancinella v. Henderson, Civ. A. No. 19140.

• Decision Date: 17 May 1974
• Docket Number: Civ. A. No. 19140.
• Citation: 380 F. Supp. 1393
• Parties: Rocco SANCINELLA v. J. D. HENDERSON, Warden.
• Court: U.S. District Court — Northern District of Georgia

380 F. Supp. 1393

Rocco SANCINELLA v. J. D. HENDERSON, Warden.

Civ. A. No. 19140.

United States District Court, N. D. Georgia, Atlanta Division.

May 17, 1974.

Rocco Sancinella, pro se.

Anthony Arnold, Asst. U. S. Atty., Atlanta, Ga., for respondent.

ORDER

RICHARD C. FREEMAN, District Judge.

This is a habeas corpus action, seeking jail time credit, brought by a federal prisoner presently incarcerated at the Atlanta Federal Penitentiary. Petitioner seeks credit for 487 days spent in custody in 1960, 1962, 1963 and 1964, in connection with a twelve-year sentence imposed by the United States District Court for the Southern District of New York on January 20, 1964. On December 11, 1973, this court ordered respondent to show cause why relief should not be granted. Sancinella v. Henderson, Civil Action No. 19140 (N.D.Ga., Dec. 11, 1973). The response to that order asserted that petitioner's present sentence is in no way connected to an earlier sentence, in connection with which the petitioner spent the alleged 487 days in custody. Respondent contended that since the sentences were not related, time spent in custody in connection with the prior sentence should not be credited to the subsequent sentence. As respondent relied upon a portion of an unverified presentence report to show that the offenses and, thus, the sentences were not related, the court ordered him to file copies of the indictments in the criminal actions. Sancinella v. Henderson, Civil Action No. 19140 (N.D.Ga., March 21, 1974). Copies of the indictments have now been filed with the court.

The documents filed in this action establish the following sequence of events as to the offenses of which petitioner was charged and the sentences he was required to serve: On August 15, 1962, the Grand Jury for the Southern District of New York indicted petitioner and others in connection with an alleged conspiracy to violate §§ 173 and 174 of Title 21 of the United States Code. The indictment alleged that the conspiracy continued from in or about January, 1950 to and including the date of the filing of the indictment. After pleading not guilty and a trial by jury, petitioner was found guilty and sentenced, on January 20, 1964, to twelve years imprisonment. United States v. Sancinella, Crim. Action No. 62 CR. 790 (S.D.N.Y., Jan. 20, 1964) (hereinafter "the 1964 sentence" or "62 CR. 790"). This conviction and sentence was apparently vacated by the Court of Appeals for the Second Circuit in August, 1964.¹ On December 31, 1964, the Grand Jury for the Southern District of New York indicted petitioner and others in connection with another alleged conspiracy to violate §§ 173 and 174 of Title 21 of the United States Code. The indictment alleged that the conspiracy continued from on or about June 1, 1963, to and including the date of the filing of the indictment. Thus, it is clear that the conspiracy alleged in that indictment did not overlap with the conspiracy charged in 62 CR. 790 and, hence, relates to a different violation of the United States Code.² After a trial by jury and a verdict of guilty, petitioner was sentenced on August 22, 1967, to thirteen years imprisonment, that is, to five years on one count and eight years on a second count, to be served consecutively. United States v. Sancinella, Crim. Action No. 64 Cr. 1148 (S.D. N.Y., Aug. 22, 1967) (hereinafter "the 1967 sentence" or "64 Cr. 1148").

Petitioner is seeking to have 487 days spent in custody in connection with the 1964 sentence credited to his 1967 sentence, which he is presently serving. He relies on Bureau of Prisons Policy Statement No. 7600.55 (Feb. 2, 1973).

18 U.S.C. § 3568 provides, in pertinent part:

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.

It is clear that days spent in custody on account of the charges in 62 CR. 790 or pursuant to the 1964 sentence, which was later vacated, were not spent "in connection with" the offenses for which the 1967 sentence was imposed. The sentences were imposed on account of alleged violations of the United States Code occurring at different times and the 1967 sentence was not imposed until well after the 1964 sentence had been vacated and the petitioner had been released.

However, even if the offenses are technically unrelated, credit is allowed on a subsequent sentence for time served on invalid sentence when service of that previous term delayed commencement of the subsequent sentence. Johnson v. Henderson, 455 F.2d 983 (5th Cir. 1972); Meadows v. Blackwell, 443 F.2d 1298 (5th Cir. 1970); Davis v. Attorney General, 432 F.2d 777 (5th Cir. 1970);³ Watson v. Henderson, 350 F.Supp. 249 (N.D.Ga., 1972). Further, where a person is detained in connection with State charges for which bail is set, and service of a federal sentence is delayed due to the financial inability to post bail, credit will be given on the federal sentence if no credit is received toward the State offense. United States v. Gaines, 449 F.2d 143 (2d Cir. 1971).

As petitioner's 1967 sentence was not imposed until well after the 1964 sentence was vacated, service of the 1967 sentence was in no way delayed due to the invalid 1964 sentence; and, no credit should be accorded to the 1967 sentence on account of service of time in connection with the 1964 sentence.

Petitioner's reliance on Bureau of Prisons Policy Statement No. 7600.55 (Feb. 2, 1973) is misfounded. This document sets forth rules for the crediting of time spent in state custody (which was not credited toward a state or federal sentence), after a federal detainer was lodged against the state prisoner. It has no relevance to the instant case. Not only is there no state custody involved in this case, but also petitioner herein was not even charged with the offenses which resulted in the conviction and sentence he is presently serving until after the prior conviction and sentence were vacated. Hence, while serving the 1964 sentence no detainer in connection with 64 Cr. 1148 was lodged against the petitioner.

Petitioner states that Policy Statement 7600.55 "cancels and supercedes" Policy Statement 7600.51 (Oct. 10, 1969), "which forms the basis for the petition."⁴ As Policy Statement 7600.55 clearly states that it amplifies, but does not supercede Policy Statement 7600.51, the court will consider the relevancy of the Policy Statement to the petition sub judice. Subsection 4(a)(2) thereof provides:

A further complicating factor may be a situation where a person is arrested on certain charges. Some time later additional and unconnected charges are brought, and it is on these later charges that the defendant is convicted, the charges on the original arrest being dropped. In this situation, credit is not given from the point of the original arrest,

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