GRAHAM v. ZICKEFOOSE
Filing
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OPINION. Signed by Judge Noel L. Hillman on 4/25/2013. (dmr)(n.m.)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
VINCENT K. GRAHAM,
Petitioner,
v.
DONNA ZICKEFOOSE,
Respondent.
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: Civil Action No.: 12-4887 (NLH)
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OPINION
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APPEARANCES:
VINCENT K. GRAHAM, Petitioner pro se
#46425-066
F.C.I. Fort Dix
P.O. Box 2000
Fort Dix, New Jersey 08640
IRENE E. DOWDY, AUSA
OFFICE OF THE U.S. ATTORNEY
401 Market Street, Fourth Floor
P.O. Box 2098
Camden, New Jersey 08101
HILLMAN, District Judge
Petitioner, Vincent K. Graham, a federal prisoner confined
at the Federal Correctional Institution in Fort Dix, New Jersey
(“FCI Fort Dix”), at the time he filed this action, brings this
habeas petition pursuant to 28 U.S.C. § 2241, challenging the
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decision by the Federal Bureau of Prisons (“BOP”) regarding the
computation of his federal sentence and award of presentence
custody credits.
Based on this Court’s review of the pleadings and relevant
record as provided by Respondent, this petition will be denied
for lack of merit.
I.
BACKGROUND
Petitioner states that he is presently serving an 87-month
prison sentence imposed on May 3, 2011, pursuant to his federal
conviction in the United States District Court for the Eastern
District of Pennsylvania on charges of wire fraud, aggravated
identity theft and uttering counterfeit securities.
¶¶ 1-4.)
(Petition,
On August 6, 2012, Petitioner filed this habeas action
seeking presentence custody credit towards his federal sentence.
In particular, Petitioner asks to be credited for the time he
was held at the Federal Detention Center in Philadelphia, PA
(“FDC Philadelphia”), from June 17, 2009 to July 17, 2009.
Petitioner alleges that on June 17, 2009, he had been
incarcerated at the Bucks County Correctional Facility when he
was picked up by the U.S. Marshals and transported to FDC
Philadelphia for arraignment on federal charges.
On July 17,
2009, Petitioner alleges that he was released on bail to home
confinement.
He was never returned to the Bucks County
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Correctional Facility.
Consequently, he spent 30 days, from
June 17, 2009 to July 17, 2009, in the FDC Philadelphia and was
not credited for this time.
(Petition, ¶ 7.)
On April 1, 2013, Petitioner filed another petition seeking
to add five days to his request for presentence custody or jail
credit, namely, for October 6, 2008 and from April 13, 2008
through April 16, 2008.
On February 1, 2013, Respondent answered the habeas
petition and provided a copy of the relevant record.
entry no. 11.)
(Docket
Respondent confirms that Petitioner was
sentenced on April 28, 2011, in the United States District Court
for the Eastern District of Pennsylvania, to an 87-month prison
term, with three years of supervised release, on his conviction
for wire fraud, aggravated identity theft, uttering counterfeit
checks, aiding and abetting, and conspiracy, in violation of 18
U.S.C. §§ 1343, 1349, 1028A(a)(1)&(c)(5), 513, 371, and 2.
Petitioner’s projected release date is July 10, 2017, assuming
he receives all good conduct time (“GCT”) available to him
pursuant to 18 U.S.C. § 3624(b).
(Respondent’s Answer at pg. 3,
Declaration of Rosalind Ellington, Paralegal Specialist, and
Exhibit 1 (SENTRY Public Information Inmate Data printout),
Docket entry nos. 11, 11-1, 11-2.)
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Respondent’s answer sets
forth the following relevant information regarding Petitioner’s
presentence custody history.
On December 12, 2007, Petitioner was arrested by the
Delaware State Police in New Castle County, Delaware, on charges
of shoplifting (Case No. 071203147, New Castle County Court of
Common Pleas).
date.
He posted bond and was released on that same
(See Declaration of Kellen Jean Goulet, Correctional
Programs Specialist, Designation and Sentence Computation
Center, ¶¶ 5(b), 7(a); Docket entry no. 11-3.)
On February 9, 2008, Petitioner was arrested by the
Middletown Township police in Bucks County, Pennsylvania, on
charges of Criminal Attempt, Resisting Arrest, Passing Bad
Checks and Disorderly Conduct (PA Docket No. CP-09-CR-00049192008).
He was released on bond on February 12, 2008.
(See
Goulet Decl., ¶¶ 5(b), 7(b).)
On April 13, 2008, Petitioner was arrested by local police
in Atlantic County, New Jersey, for theft by deception (Atlantic
County Superior Court Case No. 08-07-01850-1).
2008, Petitioner was released on bail.
On April 16,
(Id., ¶¶ 5(b), 7(c).)
On June 28, 2008, Petitioner was arrested by local police in
Philadelphia County, Pennsylvania, and released on bond on July
15, 2008.
That case was dismissed on September 26, 2008 (Docket
No. MC-51-CR-0032965-2008).
(Id., ¶¶ 5(c), 7(d).)
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On July 17, 2008, Petitioner again was arrested by the
Middletown Township police in Bucks County, Pennsylvania, for
being a Fugitive from Justice (Case No. MJ-07108-MD-00001252008).
He was released on bond the same day.
(Id., ¶ 7(e).)
Two days later, on July 19, 2008, Petitioner was arrested by
local police in Lower Providence, Montgomery County,
Pennsylvania, and charged with Burglary, Criminal Conspiracy,
Criminal Attempt, Criminal Trespass of a Structure, Receiving
Stolen Property, Theft by Unlawful Taking, and Conspiracy to
Commit Burglary (Docket CP-46-CR-0005425-2010).
Petitioner was
released on bond on August 14, 2008, and those charges later
were nolle prossed.
(Id., ¶¶ 5(c), 7(f), 7(g).)
On October 7, 2008, Petitioner was arrested by local police
officers in Bellmawr (Camden County), New Jersey, pursuant to a
warrant for Contempt, Forgery, and Theft charges from Atlantic
County, New Jersey (and pending a warrant issued by the District
Court for Baltimore County, Maryland).
He was detained in
Camden County, New Jersey, on October 7, 2008; on the same day
he was turned over to the Sheriff’s Department of Atlantic
County, New Jersey.
On October 9, 2008, Petitioner pled guilty
to Theft by Deception in Atlantic County Superior Court (Case
Number 08-07-01850-1).
He remained in the custody of the
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Atlantic County Department of Public Safety until the next day,
October 10, 2008, at which time he posted bond and was turned
over to local law enforcement authorities for Baltimore County,
Maryland, on charges of Theft, Issuance of a False Document
and Theft Of Over $50 (Case No. 5C00282287).
On October 12,
2008, he posted bond with law enforcement authorities in
Baltimore County, Maryland.
The criminal charges in the
Baltimore County matter (Case Number 5C00282287) were dismissed
on December 17, 2008.
(Id., ¶¶ 5(c), 7(h)-(j).)
On October 22, 2008, Petitioner entered a guilty plea (to
charges of Criminal Attempt, Resisting Arrest, Passing Bad
Checks and Disorderly Conduct) in the Pennsylvania Court of
Common Pleas, Bucks County (PA Docket No. CP-09-CR-00049192008).
(Id., ¶¶ 5(b), 7(k).)
On November 6, 2008, Petitioner pled guilty to Shoplifting
in New Castle County Court of Common Pleas (Wilmington,
Delaware)(Case No. 071203147).
(Id., ¶¶ 5(b), 7(l).)
On
February 3, 2009, the Court of Common Pleas, Bucks County,
Pennsylvania, revoked bail in Petitioner’s earlier case (Case
Number CP-09-CR-0004919-2008), where he had been charged with
criminal attempt, resisting arrest, passing bad checks and
disorderly conduct.
On February 24, 2009, Petitioner was
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sentenced in that matter to six to 23 months, with credit for
time served.
(Id., ¶¶ 5(b), 7(m)-(n).)
On June 12, 2009, Petitioner was sentenced in absentia in
Atlantic County Superior Court (Case Number 08-07-01850-1: Theft
by Deception) to 60 days incarceration with four days jail
credit.
(Id., ¶¶ 5(b), 7(o).)
On June 8, 2009, while Petitioner was serving the sentence
imposed by the Bucks County Court of Common Pleas, the United
States District Court of the Eastern District of Pennsylvania
issued a writ of habeas corpus ad prosequendum directing the
United States Marshals Service and the Warden of the Bucks
County Correctional Facility to produce Petitioner to answer
federal criminal charges.
(Id., ¶ 7(p), Ex. G.)
On June 17, 2009, Petitioner was arrested on the federal
criminal charges (Wire Fraud, Aggravated Identity Theft,
Conspiracy, Uttering Counterfeit Checking, Aiding and Abetting),
for which he is now serving his federal sentence.
On that date
Petitioner was transported by the U.S. Marshal’s Service, under
a writ of habeas corpus ad prosequendum, to the FDC
Philadelphia.
(Id., ¶ 7(q); Ex. H.)
On July 16, 2009, the
United States District Court for the Eastern District of
Pennsylvania granted Petitioner’s application for release on
bond as to the pending federal charges.
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(Id., 7(r); Ex. J.)
Effective July 17, 2009, Bucks County authorities paroled
Petitioner on his sentence in Case Number CP-09-CR-0004919-2008.
(Id., ¶¶ 5(b), 7(s); Ex. F.)
Also on July 17, 2009, Petitioner
posted bond as to the pending federal charges, and he was
released on bond on that date.
(Id., ¶ 7(t); Ex. I.)
On October 7, 2010, after a jury trial, Petitioner was
convicted in the pending federal prosecution.
release on bond was continued at that point.
Petitioner’s
(Id., ¶¶ 6, 7(u);
see United States v. Vincent Graham, U.S.D.C., E.D.Pa., Criminal
Case Number 2:09-CR-00318-LS-1, docket entry 62.)
As noted
above, on April 28, 2011, Petitioner was sentenced in the
Eastern District of Pennsylvania to an 87-month prison term.
The sentencing court ordered Petitioner to surrender on May 7,
2011, for service of his federal sentence.
Judgment and Commitment Order.)
(Id., ¶ 7(v); Ex. K,
On May 3, 2011, the sentencing
court issued an Order resetting Petitioner’s voluntary surrender
date at May 9, 2011.
(Id., ¶ 7(w); Ex. L, Amended Order to
Surrender.)
The Government, in its answer, also provided the BOP’s
computation of Petitioner’s sentence, as commencing on May 9,
2011, and the BOP’s award of a total of 53 days of prior custody
credit against his federal sentence, for the following periods
of time:
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• December 12, 2008 (one day)
Arrest for shoplifting in Delaware, release on bond on same
date, non-custodial sentence (Case Number 071203147)
• June 28, 2008 – July 15, 2008 (18 days)
Arrest/release on bond, Philadelphia County, case
subsequently dismissed (Docket Number MC-51-CR-00329652008)
• July 17, 2008 (one day)
Arrest/release on bond, Fugitive, Bucks County (Docket
Number MJ-07108-MD-0000125-2008)
• July 19, 2008 – August 14, 2008 (27 days)
Arrest/release on bond, Montgomery County, case
subsequently nolle prossed (Case Number CP-46-CR-00054252010)
• October 7, 2008 – October 12, 2008 (six days)
Arrest/release on bond, Bellmawr to Atlantic County to
Baltimore County, Baltimore County charges later dismissed
(Case Number 5C00282287)
The BOP has not awarded credit against Petitioner’s
sentence for the other periods that he was in custody before his
federal sentence was imposed (February 9-12, 2008; April 13-16,
2008; February 3, 2009 – July 17, 2009), because all of those
periods were credited against the sentences imposed by the Bucks
County Court of Common Pleas (Case Number CP-09-CR-0004919-2008)
and/or the Atlantic County Superior Court (Case Number 08-0701850-1).
(Answer at pp. 10-11; Goulet Declaration at ¶¶ 10,
12-15; Ex. M, pg. 2 - SENTRY Sentence Monitoring Computation
Data printout.)
As referenced above, Petitioner filed the instant habeas
petition under 28 U.S.C. § 2241 on or about August 6, 2012.
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The
Government filed a response to the petition, together with the
relevant administrative record, on February 1, 2013.
entry no. 11.)
(Docket
Petitioner thereafter filed a reply/traverse on
or about February 11, 2013.
(Docket entry no. 12.)
On or about
April 1, 2013, Petitioner filed a new habeas petition seeking
prior custody credit for an additional five days regarding his
current federal sentence.
This Court construed that new
application as an amendment to this action and it was docketed
as such herein, on April 11, 2013.
(Docket entry no. 14.)
The Government concedes that Petitioner has exhausted his
administrative remedies regarding prior custody credits.
(Answer, pg. 11, Docket entry no. 11.)
II.
A.
DISCUSSION
Jurisdiction
Under 28 U.S.C. § 2241(c), habeas jurisdiction “shall not
extend to a prisoner unless ... [h]e is in custody in violation
of the Constitution or laws or treaties of the United States.”
28 U.S.C. § 2241(c)(3).
A federal court has subject matter
jurisdiction under § 2241(c)(3) if two requirements are
satisfied: (1) the petitioner is “in custody” and (2) the
custody is “in violation of the Constitution or laws or treaties
of the United States.”
28 U.S.C. § 2241(c)(3); Maleng v. Cook,
490 U.S. 488, 490 (1989).
The federal habeas statute requires
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that the petitioner be in custody “under the conviction or
sentence under attack at the time his petition is filed.”
Lee
v. Stickman, 357 F.3d 338, 342 (3d Cir. 2004)(quoting Maleng,
490 U.S. at 490–91).
This Court has subject matter jurisdiction under § 2241 to
consider the instant Petition because Petitioner challenges the
computation of his federal sentence, and he was incarcerated in
New Jersey at the time he filed the Petition.
See Blood v.
Bledsoe, 648 F.3d 203 (3d Cir. 2011); Woodall v. Fed. Bureau of
Prisons, 432 F.3d 235, 242–44 (3d Cir. 2005).
B.
The Petition is Without Merit
The Attorney General is responsible for computing federal
sentences for all offenses committed on or after November 1,
1987, see United States v. Wilson, 503 U.S. 329 (1992) and 18
U.S.C. § 3585, and the Attorney General has delegated that
authority to the Director of the Bureau of Prisons, see 28
C.F.R. § 0.96 (1992).
Computation of a federal sentence is
governed by 18 U.S.C. § 3585, and is comprised of a two-step
determination of, first, the date on which the federal sentence
commences and, second, the extent to which credit is awardable
for time spent in custody prior to commencement of the sentence:
(a) Commencement of sentence.—A sentence to a term of
imprisonment commences on the date the defendant is
received in custody awaiting transportation to, or arrives
voluntarily to commence service of sentence at, the
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official detention facility at which the sentence is to be
served.
(b) Credit for prior custody.—A defendant shall be given
credit toward the service of a term of imprisonment for any
time he has spent in official detention prior to the date
the sentence commences—
(1) as a result of the offense for which the sentence was
imposed; or
(2) as a result of any other charge for which the defendant
was arrested after the commission of the offense for which
the sentence was imposed;
that has not been credited against another sentence.
18 U.S.C. § 3585(a), (b).
Thus, “[i]n calculating a federal sentence, the BOP first
determines when the sentence commenced and then determines
whether the prisoner is entitled to any credits toward his
sentence.”
Blood, 648 F.3d at 207.
As to the second part
regarding award of credit, the Supreme Court emphasized that
“the final clause of § 3585(b) allows a defendant to receive
credit only for detention time ‘that has not been credited
against another sentence.’”
Wilson, 503 U.S. at 333.
Similarly, the Third Circuit ruled that § 3585(b) does not
permit the BOP to grant credit against a federal sentence for
time that has been credited against defendant’s state sentence,
even though the defendant was writted to the control of federal
authorities while awaiting federal trial.
Rios v. Wiley, 201
F.3d 257, 272, 274 (3d Cir. 2000), abrogated in part on other
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grounds by statute (“[A]s the BOP correctly argues, the law on
this point is clear: a prisoner detained pursuant to a writ of
habeas corpus ad prosequendum remains in the primary custody of
the first jurisdiction unless and until the first sovereign
relinquishes jurisdiction over the prisoner”); see also Harris
v. Zickefoose, 2013 WL 227549, *2 (3d Cir. Jan. 22, 2013);
Ruggiano v. Reish, 307 F.3d 121, 125 n. 1 (3d Cir. 2002),
superseded on other grounds by U.S.S.G. § 5G1.3(c) cmt. n. 3(E)
(2003)(an ad prosequendum writ does not serve to transfer
custody to federal authorities); BOP Program Statement 5880.28 §
3b (1999) (emphasizing that ad prosequendum writs do not effect
a transfer to federal custody). See also, generally, United
States v. Vega, 493 F.3d 310, 314 (3d Cir. 2007).
Upon review of the record in this case, this Court finds
that Petitioner has not shown that he is entitled to habeas
relief.
The Government has shown that the BOP properly awarded
Petitioner a total of 53 days of prior custody credit under 18
U.S.C. § 3585(b), for those times that Petitioner was in
official detention and that time period was not otherwise
credited towards any other term of imprisonment.
However, Petitioner argues that he is entitled to credit
for the 31 days (June 17, 2009 through July 17, 2009) that he
was housed at the FDC Philadelphia under a writ of habeas corpus
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ad prosequendum on the assumption that this time was spent in
federal custody.
The Government counters that Petitioner is not entitled to
prior custody credit for the time Petitioner spent at the FDC
Philadelphia from June 17, 2009 through July 17, 2009, because
those 31 days were credited to his state sentence imposed by the
Bucks County Court of Common Pleas (Case No. CP-09-CR-00049192008), and it simply is not permissible for inmates to double
count their time served.
See Wilson, 503 U.S. at 337; see also
Vega, 493 F.3d at 314.
This Court must reject Petitioner’s claim for credit for
the time period from June 17, 2009 through July 17, 2009,
because Petitioner remained in the primary custody of the state
court during this time despite his confinement at the FDC in
Philadelphia on a writ of habeas corpus ad prosequendum.
As
stated plainly above, “the law on this point is clear: a
prisoner detained pursuant to a writ of habeas corpus ad
prosequendum remains in the primary custody of the first
jurisdiction unless and until the first sovereign relinquishes
jurisdiction over the prisoner.” 1
1
Rios, 201 F.3d at 274; Harris
Generally, the sovereign which first arrests an individual
acquires primary jurisdiction for purposes of trial, sentencing,
and incarceration. The arresting sovereign retains primary
jurisdiction unless it relinquishes it by (1) releasing the
prisoner on bail; (2) dismissing the charges; (3) releasing the
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v. Zickefoose, 2012 WL 4120537, *5 (D.N.J. Sept. 18, 2012).
Here, it is clear that the state had not relinquished its
primary jurisdiction over Petitioner until July 17, 2009, when
Petitioner was paroled from his state sentence (Bucks County
Court of Common Pleas, Case No. CP-09-CR-0004919-2008).
Moreover, it is clear that the time spent in federal
detention was credited against Petitioner’s state sentence.
Petitioner did not spend any time in primary federal custody
until he submitted to voluntary surrender on May 9, 2011.
Therefore, he is not entitled to the 31 days credit he now seeks
because it is impermissible double crediting under 18 U.S.C.
§3585(b).
See Wilson, 503 U.S. at 332-33; Rios, 201 F.3d at
272; Chambers, 920 F. Supp. At 623.
Petitioner also seeks credit for October 6, 2008, a date he
alleges that he was arrested.
He admits that he received credit
for October 7, 2008, while he was detained in Camden County Jail
for one day.
The record provided by Respondent shows that
Petitioner actually was arrested on October 7, 2008, not October
prisoner on parole; or (4) the expiration of the sentence.
United States v. Cole, 416 F.3d 894, 897 (8th Cir. 2005);
Chambers v. Holland, 920 F. Supp. 618, 622 (M.D.Pa.), aff’d, 100
F.3d 946 (3d Cir. 1996). A sovereign does not relinquish
authority by producing a state prisoner for sentencing in a
federal court via a writ of habeas corpus ad prosequendum. See
Cole, 416 F.3d at 896–897; Thomas v. Brewer, 923 F.2d 1361, 1365
(9th Cir. 1991); Chambers, 920 F. Supp. at 622.
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6, 2008.
Consequently, Petitioner received credit for the day
in contention and the issue is moot.
Finally, Petitioner seeks credit for four days in April
2008, namely, April 13, 2008 through April 16, 2008.
On April
13, 2008, Petitioner was arrested by local police in Atlantic
County, New Jersey on charges of theft by deception.
Petitioner
remained in custody there until April 16, 2008, when he was
released on bond.
On October 9, 2008, petitioner pled guilty to
the theft by deception charge in the Superior Court of New
Jersey, Atlantic County, Case No. 08-07-01850-1, and he remained
in the custody of the Atlantic County Department of Public
Safety until October 10, 2008, when he posted bond and was
turned over to law enforcement authorities for Baltimore County,
Maryland for other charges pending there.
On June 12, 2009,
Petitioner was sentenced in absentia in Atlantic County on the
theft by deception charge (Case No. 08-07-01850-1) to 60 days in
jail with four days of jail credit.
(See Goulet Declaration at
¶¶ 5(b), 7(o)).
Thus, the time period from April 13, 2008 through April 16,
2008 was credited against Petitioner’s state sentence imposed by
the Atlantic County Superior Court (Case No. 08-07-01850-1), see
Goulet Declaration at ¶ 14(b), and Petitioner is not entitled to
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receive credit for these same four days against his federal
sentence because it is statutorily prohibited double crediting
under 18 U.S.C. § 3585(b).
Accordingly, his habeas petition
will be denied for lack of merit.
III.
CONCLUSION
For the reasons set forth above, this Court finds that the
BOP has correctly computed Petitioner’s federal sentence and has
awarded all presentence custody credit to which Petitioner is
entitled under 18 U.S.C. § 3585(b).
Therefore, this habeas
petition will be denied with prejudice for lack of merit.
An
appropriate order follows.
April 25, 2013
s/ Noel L. Hillman
NOEL L. HILLMAN
United States District Judge
At Camden, New Jersey
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