U.S. v. Peters, No. CR-98-22-B-W.
| Decision Date | 02 June 2004 |
| Docket Number | No. CR-98-22-B-W. |
| Citation | 324 F.Supp.2d 136 |
| Parties | UNITED STATES of America v. Edward G. PETERS, Defendant. |
| Court | U.S. District Court — District of Maine |
Timothy M. Harrington, Shaheen & Gordon, Concord, NH, for Edward G Peters (1), Defendants.
James L. McCarthy, Office of the U.S. Attorney, District of Maine, Bangor, ME, for USA, Plaintiff.
ORDER DENYING DEFENDANT'S RULE 36 MOTION TO CORRECT
CLERICAL ERROR1
On February 23, 1999, the late Judge Morton A. Brody of this Court sentenced Defendant Edward G. Peters to 98 months in prison. On October 17, 2003, Mr. Peters moved to clarify and/or amend sentence in accordance with U.S.S.G. § 5G1.3(b), which he contends requires his federal sentence to run concurrently with state sentences he is serving in New Hampshire State Prison. The Government objects. This Court denies the Defendant's Motion on the ground that he has failed to demonstrate any error within the limited purview of Federal Rule of Civil Procedure 36.
Edward F. Peters is no stranger to the criminal justice system. His most recent criminal history is relevant to this Court's decision.2 For purposes of this opinion, the story begins on August 16, 1995, when he was sentenced to 12 months in prison and 5 years probation by the New Hampshire Superior Court for an August 8, 1994, attempted burglary. Mr. Peters was released from prison in April, 1996 and began serving the 5 year term of probation.
In the fall of 1997 and the early winter of 1998, Mr. Peters decided to go on something of a crime spree.3 On October 14, 1997, Mr. Peters committed a burglary. On November 16, 1997, November 17, 1997, and November 18, 1997, Mr. Peters committed a forgery, a criminal trespass, and two more forgeries in quick succession. After committing these crimes in New Hampshire, Mr. Peters came to Maine. On December 15, 1997, the Holiday Inn in Waterville reported a guest had used a stolen credit card to rent a room and had fled when the hotel realized the card had been stolen. The Waterville Police searched his hotel room pursuant to a search warrant and found a loaded .45 caliber Ruger handgun. It later turned out that Mr. Peters had stolen the handgun during another burglary and had stolen the credit card during yet another burglary. While the Maine incidents were under investigation, Mr. Peters returned to New Hampshire and promptly committed two more crimes. On February 1, 1998, he committed a theft of services and on February 10, 1998, a theft by unauthorized taking.
The wheels of justice began to grind. Mr. Peters pleaded guilty to the February, 1998, thefts on February 13, 1998, and received a 6 month jail term by the Plymouth New Hampshire District Court.4 On November 6, 1997, the state of New Hampshire filed a petition to revoke his probation on the ground that he had not been living at his last known address and had failed to report. Mr. Peters had initially been bailed on the revocation, but once he pleaded guilty to the thefts, his bail was revoked on February 23, 1998.
Things came to a head in the spring of 1998. On April 16, 1998, he was sentenced for violating probation to 2½ to 5 years in prison. On May 27, 1998, Mr. Peters was indicted by a Strafford County New Hampshire Grand Jury for theft of a handgun, being a felon in possession of a firearm, and two counts of burglary. On June 9, 1998, Mr. Peters was indicted by a federal grand jury in Maine on eight separate counts. On June 23, 1998, he was sentenced in New Hampshire Superior Court for the October 17, 1997 burglary to 2½ to 5 years in New Hampshire State Prison. This term was concurrent with the term imposed on the revocation of probation from the 1994 attempted burglary.
When it sentenced him on June 23, 1998 for the October, 1997 burglary, the New Hampshire Superior Court also sentenced him to a variety of prison terms for the remaining state crimes. He received 2½ to 5 years on the three November, 1997 forgeries, the prison terms for which ran consecutive to the prison term on the October, 1997 burglary. He also received 6 months on the November, 1997 criminal trespass, the term of which ran concurrently with the state prison term on the October, 1997 burglary.
Following the federal indictment on June 9, 1998, United States Magistrate Judge Beaulieu issued an Application for Writ of Habeas Corpus on July 9, 1998, ordering the United States Marshal to produce Mr. Peters from New Hampshire State Prison for federal arraignment on August 10, 1998. The arraignment was actually held on August 20, 1998 and after Mr. Peters entered a not guilty plea, Judge Beaulieu ordered Mr. Peters detained pending trial. Mr. Peters changed his plea to guilty on October 8, 1998 and the matter was set forward for the imposition of sentence.
When he appeared before Judge Brody on February 23, 1999 for imposition of sentence on the federal charges, Mr. Peters' status was as follows:
1) His 5 year probation had been revoked on the 1994 attempted burglary and he was serving a 2½ to 5 year term on the revocation;
2) He had completed the six month sentences imposed by the Plymouth New Hampshire District Court for the February, 1998 thefts of services;
3) He was serving 2½ to 5 years on the October, 1997 burglary, a sentence running concurrently with the probation revocation;
4) He had not yet begun to serve the 2½ to 5 years consecutive sentence on the November, 1997 forgeries; and,
5) He had completed the 6 month prison term on the November, 1997 criminal trespass.
As if this were not enough, Mr. Peters had a host of additional charges pending in New Hampshire Superior Court at the time of his February 23, 1999 federal sentencing. There were arrest warrants outstanding in New Hampshire for four burglary charges all taking place in Rochester New Hampshire, for two additional forgery charges, and a theft of firearm and felon in possession of a firearm charges.5
On February 23, 1999, Mr. Peters came for sentencing before Judge Brody, having pleaded guilty to four counts: (1) a felon in possession of firearm; (2) an interstate transportation of stolen firearm; and, (3) two counts of use of a stolen credit card.6 The Judgment In A Criminal Case signed by Judge Brody states as follows:
The defendant is hereby committed to the custody of the United States Bureau of Prisons to be imprisoned for a term of 98 months on Counts One, Three, Five and Seven, to be served concurrently.
The following additional statement appears in bold in the sentencing judgment: "The Court intends that the Defendant receive credit for any time he or she has spent in presentence detention."
After the imposition of the federal sentence, Mr. Peters returned to New Hampshire State Prison to serve the remainder of his state sentence and to be sentenced on the remaining state criminal charges. On February 28, 2000, Mr. Peters was sentenced by the state of New Hampshire Superior Court to eight concurrent sentences of not less than 2½ years or more than 5 years on the following pending state charges:
(3) Theft of a Handgun, No. 98-S-389-F;
(4) Felon In Possession of a Firearm, No. 98-S-390-F;
(7) Burglary, No. 98-S-393-F; and,
On October 21, 2000, Mr. Peters was paroled by the state of New Hampshire and transferred to the custody of federal officials to commence his federal prison term. The United States Bureau of Prisons computer records indicate that it calculated Mr. Peters' period of incarceration to commence on October 21, 2000 with a projected release date of December 2, 2007. The computer printout indicates that the Bureau of Prisons has not applied any credit for time served to Mr. Peters' federal sentence.
On October 17, 2003, the Defendant moved this Court to issue an Order clarifying that Mr. Peters' federal sentence should run concurrently with his entire New Hampshire state criminal sentence. Mr. Peters contends Judge Brody took into account the New Hampshire state charges when he sentenced him and, therefore, U.S.S.G. § 5G1.3 requires the federal and state sentences to run concurrently. Noting that he had entered pretrial confinement on March 16, 1998 for the New Hampshire crimes for which he was sentenced on February 28, 2000, Mr. Peters argues that this Court should correct its sentencing judgment, specifying his federal sentence began March 16, 1998.
Title 18 U.S.C. § 3585(b)8 controls the calculation of credit for time served in official detention prior to the date the sentence commences. The United States Supreme Court has ruled that the Attorney General, not the sentencing court, is responsible for this calculation. United States v. Wilson, 503 U.S. 329, 112 S.Ct. 1351, 117 L.Ed.2d 593 (1992); see also United States v. Martin, 363 F.3d 25, 39 (1st Cir.2004) (). In Rogers v. United States, 180 F.3d 349, 357-58 (1st Cir.1999), the First Circuit made it clear that a request for credit for prior custody under 18 U.S.C. § 3585(b)(2) must be made, in the first instance, to the Attorney General through the Bureau of Prisons upon imprisonment after sentencing. Once administrative remedies are exhausted, prisoners may then seek judicial review of any jail-time credit determination by filing a habeas petition under 28 U.S.C. § 2241. Id.
Mr. Peters makes no assertion that he attempted to exhaust his administrative remedies, as required by Rogers, nor does the instant action purport to be a habeas petition. Following the Government's response, Mr. Peters agreed 18 U.S.C. § 3585(b) would be inapplicable to his current claim; he is proceeding instead under 18 U.S.C. § 3584(b).9
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