GULLINESE v. ZICKEFOOSE
Filing
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MEMORANDUM OPINION and ORDER Clerk shall reopen this matter. ORDERED Petitioner's IFP is GRANTED. ORDERED Petitioner's application for habeas relief is DENIED. ORDERED Clerk shall close the file and serve a copy of the Memorandum, Opinion and Order upon Petitioner. Signed by Judge Renee Marie Bumb on 9/27/2012. (nz, )n.m.
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
MICHAEL T. GULLINESE,
Petitioner,
v.
DONNA ZICKEFOOSE,
Respondent.
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Civil No. 11-7565 (RMB)
MEMORANDUM OPINION
AND ORDER
Bumb, United States District Judge:
IT APPEARING THAT:
1.
Petitioner Michael T. Gullinese (“Petitioner”), a federal
prisoner currently confined at the Federal Correctional
Institution at Fort Dix, New Jersey, has submitted a
petition for a writ of habeas corpus (“Petition”), pursuant
to 28 U.S.C. § 2241.
2.
See Docket Entry No. 1.
The Petition arrived unaccompanied by Petitioner’s filing
fee or by his in forma pauperis application.
See id.
Correspondingly, this Court denied Petitioner in forma
pauperis status without prejudice.
3.
See Docket Entry No. 2.
In response, Petitioner duly submitted his in forma pauperis
application.
See Docket Entry No. 3.
The Court, therefore,
will allow Petitioner to proceed in this matter without
prepayment of filing fee.
4.
Substantively, Petitioner’s challenges could be reduced to
the statement that Petitioner sought – but was denied by the
Bureau of Prisons (“BOP”) – credit for the pretrial period
Petitioner spent on bond and in home confinement (i.e., for
the period from December 1, 2009, to November 10, 2010).1
See Docket Entry No. 1.
Petitioner’s argument in support of
getting the aforesaid credit consists, essentially, of his
belief that the conditions of his home confinement have to
be qualified by this Court as “official detention” within
the meaning of 18 U.S.C. § 3585(b) simply because Petitioner
believes that those conditions were effectively equal to
being in prison.
See id. at 5.
Specifically, Petitioner
maintains that he was under 24/7 electronic surveillance,
“had to report daily to the court,” “regularly report[ed] to
a probation officer” and had to take a few “urine analysis
tests.”2
Id.
That being said, Petitioner admits that “he
1
It appears that Petitioner was arrested on November 30,
2009, and made bond the next day. See USA v. Gullinese, Crim.
Action No. 09-0635 (NAM) (N.D.N.Y.), Docket Entries Nos. 3 and 4.
On November 30, 2010, Judge Norman A. Mordue (“Judge Mordue”),
who presided over Petitioner’s federal criminal proceedings,
directed Petitioner’s surrender to the BOP custody by December 1,
2010. See id., Docket Entry No. 30. Petitioner was sentenced by
Judge Mordue to 60 months imprisonment, with life-time supervised
released under standard and additional special conditions; that
sentence was entered upon Petitioner’s conviction on the charges
of receipt and possession of child pornography. See id., Docket
Entries Nos. 1 and 29.
2
This Court: (a) makes no finding as to the veracity of
Petitioner’s factual assertions, since such finding is not
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was allowed to be employed [during the entirety of his morethan-eleven-months home confinement and, in addition] had
four hours [each] week for personal time [which hours
Petitioner, allegedly, utilized] to obtain the necessities
of life.”
5.
Id.
Petitioner duly exhausted his administrative remedies.
id. at 9.
See
Addressing Petitioner’s appeal (as to the denial
of the requested credit by his warden and by the Regional
BOP Office), the Central Office of the BOP pointed out that
Petitioner’s request was facially barred by the BOP Program
Statement 5880.28 (“P.S. 5880.28”) and by the Supreme Court
decision in Reno v. Koray, 515 U.S. 50 (1995).3
See Docket
Entry No. 1, at 9.
6.
As he did during his administrative proceedings, Petitioner
now argues that the BOP erred in its reading of Reno v.
Koray as applicable to Petitioner’s circumstances because
required for the purposes of the analysis at hand; and, thus (b)
presumes that all Petitioner’s factual allegations were true.
The Court, however, notes that it is not entirely clear as to how
and to whom Petitioner could have reported “on a daily basis.”
3
For the purposes of this Court’s analysis, a detailed
examination of P.S. 5880.28 is not required, and it shall merely
suffice to state that the BOP’s interpretation of Section 3585(b)
enabling mandate, as manifested in the language of P.S. 5880.28
and as applied to Petitioner’s circumstances, was a permissible
construction free from administrative abuse of the Agency’s
discretion and, as such, it warrants this Court’s deference under
the holding of Chevron U.S.A. Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837, 842-43 (1984).
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“Petitioner[’s] . . . confinement was sufficiently
restrictive.”
Id. at 6 -7 (relying on United States v.
Londono-Cardona, 759 F. Supp. 60 (D.P.R. 1991)).4
7.
Petitioner’s position is without merit, since he errs in
both his reading of Koray and his belief as to the validity
of the Londono-Cardona ruling.5
a.
While Petitioner invites this Court to examine his home
confinement, Koray outright bars the Court from such an
exercise.
See United States v. Rome, 384 F. App’x 135,
139 (3d Cir. 2010).
In Rome, addressing an inmate’s
challenges substantively indistinguishable from those
at bar, the Court of Appeals pointed out that the
holding of Koray was a blanket rule that derived from
4
Since Petitioner did not elaborate on the meaning of his
“sufficiently restrictive” phrase, this Court presumes that
Petitioner’s somewhat puzzling statements was meant to assert
that his home confinement conditions were so much more
restrictive than those examined in Koray that the very holding of
Koray is facially inapposite to Petitioner’s challenge.
5
The holding of Koray, being a Supreme Court precedent, is
necessarily binding on this Court. The holding of
Londono-Cardona, being a decision issued by a trial-level court
which is neither this Court nor even a court within this
District, could have – at most – a persuasive value with no
binding effect. See Animal Sci. Prods. v. China Nat'l Metals &
Minerals Imp. & Exp. Corp., 702 F. Supp. 2d 320, 402-08 (D.N.J.
2010) (providing a detail discussion of the doctrine of stare
decisis in its two applications, vertical and horizontal).
However, being mindful of Petitioner’s pro se litigant status and
the confusion Petitioner might experience allocating value to the
Londono-Cardona decision, this Court finds it warranted to
address Petitioner’s position based on Londono-Cardona.
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the policies examined by the Supreme Court and
expressly invalidated a district court’s resort to the
case-by-case approach.
[I]n Reno v. Koray, the Supreme Court held
that a defendant is not entitled under 18
U.S.C. § 3585(b) to credit against his
sentence for time that he spent in pretrial
release at a community treatment center [or
home confinement] because a community
treatment center [or one’s private home] is
not “official detention,” as § 3585(b)
requires. [See] 515 U.S. [at] 56. The
Supreme Court overturned [the Third Circuit]
decision in the [underlying] case, [see]
Koray v. Sizer, 21 F.3d 558, 567 (3d Cir.
1994) ([where the Third Circuit held:] “we
conclude that ‘official detention’ for
purposes of credit under 18 U.S.C. § 3585
includes time spent under conditions of
jail-type confinement”). In reversing that
[underlying] decision, the Supreme Court
stated, among other concerns, that
determining whether each defendant had been
in “‘jail-type confinement’ would require a
fact-intensive inquiry into the circumstances
of confinement, an inquiry based on
information in the hands of private entities
not available to the Bureau as a matter of
right.” Koray, 515 U.S. at 64. [Here,
Petitioner] asks us to examine his personal
situation and the specific facts of his time
in community confinement, but the Government
aptly argues that he thus offers a prime
example of the Supreme Court's concern in
Koray. . . . [Petitioner’s position is
without merit because] imprisonment is a
sentencing sanction [qualitatively] distinct
from community confinement [or from home
confinement]. For all of these reasons, we
reject [Petitioner]’s . . . argument.
Rome, 384 F. App’x at 139-40.
Therefore, Petitioner’s
position that the BOP incorrectly applied Koray to
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Petitioner’s request for credit on the basis of his
pretrial home detention is wholly without merit.
b.
Petitioner’s reliance on Londono-Cardona only
highlights the shortcomings of Petitioner’s position.
Londono-Cardona (a decision issued by the District of
Puerto Rico in 1991, that is, four years prior to the
Supreme Court’s ruling in Koray) was immediately and
expressly disavowed by the United States Court of
Appeals for the First Circuit, i.e., the circuit court
having appellate jurisdiction over the District of
Puerto Rico.
See United States v. Zackular, 945 F.2d
423, 425 n.2 (1st Cir. 1991) (“[One] district court in
this circuit has held, with respect to a pretrial
detainee, that time spent under house arrest, wearing
an electronic bracelet, counts as official detention
under section 3585.
See United States v.
Londono-Cardona, 759 F. Supp. 60, 63 (D.P.R. 1991).
think the case was wrongly decided”).
We
Therefore,
Londono-Cardona is not good law and has not been good
law since 1991.
Petitioner’s reliance on the holding
expressly invalidated as erroneous only highlights the
invalidity of Petitioner’s position.
8.
In light of the foregoing, Petitioner’s position (that the
BOP erred in denying him credit for the pretrial period he
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had spent in home confinement) is facially deficient.
Habeas Rule 4 requires a judge to sua sponte dismiss a
petition without ordering a responsive pleading “[i]f it
plainly appears from the petition and any attached exhibits
that the petitioner is not entitled to relief in the
district court.”
28 U.S.C. § 2254 Rule 4, applicable
through Rule 1(b).
Thus, “[f]ederal courts are authorized
to dismiss summarily any habeas
petition that appears
legally insufficient on its face.”
McFarland v. Scott, 512
U.S. 849, 856 (1994); see also Siers v. Ryan, 773 F.2d 37,
45 (3d Cir. 1985) ((dismissal without the filing of an
answer is warranted when “it appears on the face of the
petition that petitioner is not entitled to [habeas]
relief”), cert. denied, 490 U.S. 1025 (1989); accord United
States v. Thomas, 221 F.3d 430, 437 (3d Cir. 2000) (habeas
petition may be dismissed where “none of the grounds alleged
in the petition would entitle [petitioner] to [habeas]
relief”).
Here, the invalidity of Petitioner’s claim is
evident from the face of his Petition.
This Court,
therefore, finds no basis for directing responsive pleadings
and will dismiss Petitioner’s challenges summarily.
IT IS on this 27th day of September 2012, hereby:
ORDERED that, in light of Petitioner’s submission of his in
forma pauperis application, the Clerk shall reopen this matter by
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making a new and separate entry on the docket reading, “CIVIL
CASE REOPENED”; and it is further
ORDERED that Petitioner’s application to proceed in this
matter in forma pauperis, Docket Entry No. 3, is granted; and it
is further
ORDERED that Petitioner’s application for habeas relief,
Docket Entry No. 1, is denied for failure to assert a violation
of Petitioner’s federal rights; and it is further
ORDERED that the Clerk shall close the file on this matter
by making a new and separate entry on the docket reading, “CIVIL
CASE CLOSED”; and it is finally
ORDERED that the Clerk shall serve this Memorandum Opinion
and Order upon Petitioner by regular U.S. mail.
s/Renée Marie Bumb
RENEE MARIE BUMB
United States District Judge
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