US v. Hodge, CR83-183A.

• Citation: 674 F. Supp. 585
• Decision Date: 07 December 1987
• Docket Number: No. CR83-183A.,CR83-183A.
• Parties: UNITED STATES of America, Plaintiff, v. Amos E. HODGE, Defendant.
• Court: U.S. District Court — Northern District of Ohio

674 F. Supp. 585

UNITED STATES of America, Plaintiff, v. Amos E. HODGE, Defendant.

No. CR83-183A.

United States District Court, N.D. Ohio, E.D.

December 7, 1987.

Ralph Cascarilla, Christian H. Stickan, Asst. U.S. Attys., Cleveland, Ohio, for plaintiff.

Alexander E. Teodosio, Akron, Ohio, William T. Doyle, Cleveland, Ohio, for defendant.

ORDER DENYING MOTION FOR JAIL TIME CREDIT AND MOTION TO CORRECT SENTENCE

KRENZLER, District Judge.

On July 19, 1983, pursuant to a plea agreement that was reduced to writing and filed with the Court, defendant, Amos E. Hodge, entered a plea of guilty to an information charging him with two counts of mail fraud in violation of 18 U.S.C. § 1341, and two counts of wire fraud in violation of 18 U.S.C. § 1343. He was thereupon sentenced to pay a fine of $1,000.00 and to serve five (5) years in the custody of the Attorney General on each count, said sentences to be served consecutively.

Presently pending before the Court are two motions. The first of these is a motion filed by the defendant pro se seeking jail time credit for time he alleges he spent in custody prior to sentencing. The second motion is a motion pursuant to Fed.R. Crim.P. 35(a) to correct an illegal sentence. This motion has been filed on defendant's behalf by retained counsel. The Court will address each of these motions separately.

THE MOTION FOR JAIL TIME CREDIT

In his pro se motion for jail time credit, defendant asks this Court to order that he be given credit for 85 days he alleges he spent in presentence custody between April 27, 1983 and July 20, 1983. This motion constitutes defendant's second request for the same relief. On October 17, 1983, defendant filed a similar motion, styled: "Motion to Correct/Reduce Sentence," in which, inter alia, he sought jail time credit for the same 85 days. That motion was denied by marginal entry, dated December 17, 1983, on the ground that the Court did not have jurisdiction to grant the relief sought. For the reasons that follow, the Court still does not have jurisdiction to grant the relief defendant seeks and, therefore, defendant's second motion must be denied, both because the Court lacks jurisdiction and because the defendant is barred under the doctrine of res judicata from attempting to relitigate the jurisdictional issue.¹

The crediting of jail time to a prisoner's sentence is a matter governed entirely by statute. At the time defendant was sentenced, such matters were governed by 18 U.S.C. § 3568. Basically, § 3568 provided that a prisoner's sentence "commences to run from the date the prisoner is received at the penitentiary ... for service of his sentence." Id. Section 3568 also contained the important proviso that "the Attorney General shall give the prisoner credit toward service of his sentence for any days spent in custody in connection with the offense or acts for which sentence was imposed."

Effective November 1, 1986, § 3568 was repealed and replaced by 18 U.S.C. § 3585. Although § 3585 does prescribe a slightly different method for determining the commencement date of a sentence and computing jail time, the new statute is similar to its predecessor in requiring that these computations be performed by the Department of Justice in the first instance. As stated in United States v. Clayton, 588 F.2d 1288 (9th Cir.1979), "it is the administrative responsibility of the Attorney General, the Department of Justice, and the Bureau of Prisons to compute sentences and apply credit where it is due. It is not the province of the sentencing court." Id. at 1292.

This does not mean that district courts never have jurisdiction over such matters. To the contrary, if the Department of Justice improperly refuses to give jail time credit where it is due, its refusal may be reviewed by habeas corpus, see, e.g., Soyka v. Alldredge, 481 F.2d 303, 304-05 (3d Cir. 1973), or by mandamus, see Davis v. Attorney General, 425 F.2d 238 (5th Cir.1970). However, there are limitations upon a court's jurisdiction to exercise such review.

First, the prisoner must exhaust his administrative remedies. Pursuant to 28 C.F. R. §§ 542.10-542.16, "the Bureau of Prisons has established an Administrative Remedy procedure through which an inmate may seek formal review of a complaint which relates to any aspect of his imprisonment. ..." Id., § 542.10. This procedure permits the prisoner to formally petition the warden of the institution where he is incarcerated for redress, and if dissatisfied with the warden's response, to appeal the warden's decision to the Regional Director of the Bureau of Prisons, and ultimately to the Office of General Counsel. See 28 C.F.R. §§ 542.13(b), 542.15. "It is only when a prisoner has exhausted these administrative remedies that he becomes entitled to litigate the matter in district court." Chau Han Mow v. United States, 730 F.2d 1308, 1313 (9th Cir.1984); accord, United States v. Mathis, 689 F.2d 1364, 1365 (11th Cir.1982).

The exhaustion requirement is far from an empty ritual, and serves several important functions. As stated in Ruviwat v. Smith, 701 F.2d 844 (9th Cir.1983):

The requirement of exhaustion of remedies ... aids judicial review by allowing the appropriate development of a factual record in an expert forum; conserves the court's time because of the possibility that the relief applied for may be granted at the administrative level; and allows the administrative agency an opportunity to correct errors occurring in the course of administrative proceedings.

Id. at 845. See also Cua Han Mow, 730 F.2d at 1313.

Assuming that the prisoner has exhausted his administrative remedies, is still dissatisfied, and wishes to seek judicial review, he may do so. However, he must invoke the proper remedy. Although some courts have suggested that a prisoner may seek a writ of mandamus pursuant to 28 U.S.C. § 1361 to compel the Attorney General to give appropriate credit for jail time, see, e.g., Davis v. Attorney General, 425 F.2d at 240, most courts have held that habeas corpus pursuant to 28 U.S.C. § 2241(c)(1), is the proper remedy. United States v. Giddings, 740 F.2d 770, 772 (9th Cir.1984); United States v. Brown, 753 F.2d 455 (5th Cir.1985); Soyka v. Alldredge, 481 F.2d 303 (3d Cir.1973); Commulada v. Pickett, 455 F.2d 230, 232 (7th Cir.1972); United States v. Lynch, 647 F.Supp. 1293 (D.S.C.1986); United States v. Crawford, 477 F.Supp. 266 (M.D.Tenn. 1979). In any event, because a request for sentence credit is directed toward the execution of the sentence, rather than its validity, neither Rule 35 of the Federal Rules of Criminal Procedure, nor 28 U.S.C. § 2255, may be utilized. United States v. Giddings, 740 F.2d at 771-72; Soyka v. Alldredge, 481 F.2d at 304-06; Lee v. United States, 400 F.2d 185, 188 (9th Cir.1968); United States v. Brown, 753 F.2d at 756.

All of this has significance because the remedy will dictate the forum in which to file. For example, if Rule 35 or § 2255 could be used to present jail time claims, the prisoner would be required to file in the sentencing forum since the sentencing court is the only court with jurisdiction to hear motions under Rule 35 or § 2255. However, since neither Rule 35 nor § 2255 is an appropriate remedy, an entirely different result is indicated. Thus, if the prisoner selects mandamus as the vehicle for presenting his jail time claim, he will have to file in a forum where he can satisfy the venue requirements of 28 U.S.C. § 1391, and can also perfect service of process over the named defendant. See Fed.R.Civ.P. 4. Likewise, if he selects habeas corpus as the vehicle for presenting his claim, he will have to file in a district having personal jurisdiction over the warden of the institution where he is incarcerated, since habeas, by its very nature, is a writ that is directed toward, and spends its force against, the prisoner's custodian. Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 494-95, 93 S.Ct. 1123, 1129-30, 35 L.Ed.2d 443 (1973).

In the instant case, there is no evidence that the defendant has exhausted his administrative remedies pursuant to 28 C.F. R. §§ 542.10-542.16 and, thus, his claim is premature. Moreover, even if defendant had exhausted his administrative remedies, this would not be the proper court to hear defendant's claim since it appears that neither the venue nor the jurisdictional requirements of either mandamus or habeas corpus could be satisfied in this district.

For these reasons, defendant's request for jail time credit must be dismissed. Since this is a dismissal for lack of jurisdiction, rather than on the merits, defendant is, of course, free to present his claim for jail time credit to the Bureau of Prisons and, if dissatisfied with the result obtained there, he may seek review by way of mandamus or habeas corpus in an appropriate forum.

THE MOTION TO CORRECT SENTENCE

In his motion to correct sentence, defendant raises four separate claims. He claims that (1) his consecutive sentences violate the double jeopardy provision of the Constitution, (2) his sentence violates equal protection, (3) the acts underlying Counts III and IV of the information were "too remote" from the scheme to defraud to support his convictions for mail fraud and wire fraud, respectively, and (4) allegations in the information to the effect that the scheme to defraud generated "approximately $500,000.00" are incorrect. For the reasons that follow, none of these claims has merit.

1. The Double Jeopardy Claim

Defendant contends that it was impermissible for the Court to impose consecutive sentences on each of the four counts of the information. He argues that the information alleged only one scheme to defraud, and that the separate mailings and wire communications which formed the basis of the information's four individual counts were "an integral part of the woven fabric of the singular fraud." As a result, he argues, there was only one crime, and that "to ... cause the...