FARMER v. KIRBY
Filing
6
OPINION. Signed by Judge Renee Marie Bumb on 1/31/2018. (dmr)
NOT FOR PUBLICATION
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
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JOSEPH W. FARMER,
Petitioner,
v.
MARK A. KIRBY,
Respondent.
Civil Action No. 16-8657(RMB)
OPINION
This matter comes before the Court on Petitioner Joseph W.
Farmer’s (“Farmer”) Petition For Writ of Habeas Corpus under 28
U.S.C. § 2241. (Pet., ECF No. 1.) Farmer is an inmate incarcerated
in the Federal Correctional Institution in Fairton, New Jersey
(“FCI Fairton”) who challenges the calculation of his jail credit
upon
parole
revocation
and
seeks
immediate
release.
(Id.)
Respondent filed an Answer, opposing habeas relief. (Answer, ECF
No. 4.) Petitioner filed a reply. (Reply, ECF No. 5.) For the
reasons discussed below, the Court orders supplemental briefing
and defers final ruling.
I.
BACKGROUND
On March 31, 1977, Farmer was convicted by a general court-
martial of rape in violation of Article 120, Uniform Code of
Military Justice, 10 U.S.C. § 920, and sentenced to thirteen years
1
confinement. (Decl. of Adam Escobedo (“Escobedo Decl.”), ECF No.
4-1, ¶9.a; General Court-Martial Order Number 14, Ex. D.) Farmer
began serving his sentence at the United States Disciplinary
Barracks (USDB) at Fort Leavenworth, Kansas. (Parole Certificate
and Agreement, Escobedo Decl., Ex. F.) Farmer was granted parole
and released from confinement on August 14, 1980. (Id.) At that
time, he had an unexpired term of confinement of 3,344 days.
(Escobedo Decl. ¶9.b.)
While he was on parole, on December 11, 1981, Farmer was
arrested
by
allegations
Philadelphia
of
attempted
County,
murder,
Pennsylvania
rape,
Police
aggravated
for
assault,
unlawful restraint, recklessly endangering another person, and
simple assault. (Dec. 22, 1981 Letter, Escobedo Decl., Ex. G.)
Therefore, Farmer’s parole was suspended on December 15, 1981.
(Id.) The Army placed a detainer on Farmer so he would be returned
to
military
control
to
serve
the
remainder
of
his
military
sentence. (Military Detainer, Escobedo Decl., Ex. I.)
On May 10, 1982, Farmer was convicted in the Philadelphia
County Court of Common Pleas of simple assault, aggravated assault,
unlawful restraint and rape. (Jan. 27, 1983 Letter, Escobedo Decl.,
Ex. J.) On January 24, 1983, he was sentenced to 13.5-35 years in
confinement. (Id.) The Army revoked Farmer’s parole on March 14,
1985. (Letter, Escobedo Decl., Ex. H.) The Army’s detainer remained
2
in place pending completion of Farmer’s civilian sentence in
Pennsylvania. (Escobedo Decl., ¶9.d.)
Farmer was released from civilian confinement on December 16,
2013, and taken into military control. (Escobedo Decl., ¶9.e.) He
was designated to serve the remainder of his sentence as a military
parole violator at a federal correctional institution in the
custody
of
the
Bureau
of
Prisons.
(Escobedo
Decl.,
¶9.e;
Declaration of Robert C. Jennings (“Jennings Decl.”) ECF No. 44.,
1
¶4.)
In
accordance
with
BOP
Program
Statement
5110.16,1
BOP Program Statement 5110.16 (2), (3) and (4) provides:
2. ACCEPTANCE AND DESIGNATION
Referrals of military inmates for acceptance
into
Bureau
custody
are
made
to
the
Designation and Computation Center (DSCC) Team
responsible
for
the
Military
Court
of
Jurisdiction (COJ)
3. TREATMENT AND DISCIPLINE
Military inmates transferred to Bureau custody
are subject to the same treatment and
discipline as other Bureau inmates (Title 10
U.S.C. 858).
4. SENTENCE COMPUTATION
Military sentence computations are provided by
the Records Office, U.S. Army Disciplinary
Barracks, Fort Leavenworth, Kansas. The DSCC
must accept the sentence computation provided
by military authorities, and refer suspected
errors,
or
challenges
to
the
sentence
computation by the inmate, to the Military
Records Office for resolution.
3
Farmer’s sentence computation was provided by the Records Office,
U.S. Army Disciplinary Barracks, in Fort Leavenworth, Kansas.
(Jennings Decl., ¶5.)
Before his return to military control, Farmer’s remaining
military sentence was recalculated pursuant to Army Regulation
633-30. (Nov. 14, 2013 ACIS Sentence Computation Report, Escobedo
Decl., Ex. B.) Farmer’s sentence has been recalculated annually
since his return to military control. (Escobedo Decl., ¶8.) Based
on the most recent calculation, Farmer’s maximum release date is
on February 10, 2023, and his minimum release date is on August
21, 2019. (Nov. 30, 2016 ACIS Sentence Computation Report, Escobedo
Decl., Ex. C.)
II.
THE PARTIES’ ARGUMENTS
Farmer
raises
two
grounds
for
relief
from
unlawful
confinement by the Department of the Army and the Bureau of
Prisons. (Pet., ECF No. 1, ¶13.) First, he contends Respondent’s
“nonacceptance that the parole revocation process reinstated the
remainder of the petitioner’s military sentence, which expired
prior to the completion of his state sentence, violates” the
Constitution. (Id., Ground One.)
Second, Farmer asserts he was not given jail credit, “for all
the time in confinement towards service of his ‘Old Law’ sentence”
in violation of the Constitution. (Id., Ground Two.) For relief,
he seeks immediate release from custody. (Pet., ECF No. 1, ¶15.)
4
Respondent
opposes
habeas
relief.
(Answer,
ECF
No.
4.)
Respondent contends Farmer’s Pennsylvania conviction and sentence
“interrupted” his military sentence, and his military sentence did
not begin to run again until he was returned to military control
for the purpose of completing his military sentence. (Id. at 56.) Respondent asserts that “[w]hat Petitioner mistakes for his
time spent in confinement prior to his parole is actually credit
for time spent in confinement prior to his court-martial.” (Answer,
ECF No. 4 at 7, n. 2, citing United States v. Allen, 17 M.J. 126
(C.M.A. 1984)).
Further, Respondent contends Farmer’s sentence was correctly
calculated, noting that “the maximum release date on a military
sentence to confinement is ‘[t]he day preceding the date determined
by adding the full term of the sentence to the beginning date of
the sentence.’” (Id. at 7, quoting AR 633-30, ¶2c.) The unexpired
term of the sentence to be served by the parole violator is “the
actual number of days difference between the date of release on
parole and the maximum expiration date of his sentence.” (Id.,
citing AR 633-20, ¶2h.)
Additionally, Respondent asserts “[p]arole violators will
not be credited with good conduct time or extra good time which
was earned prior to the date of their release on parole,” and
furthermore, “abatement time reduces the maximum release date,”
5
and “inoperative time extends the maximum release date on an actual
day basis.”
(Id. at 7, quoting AR 633-30, ¶¶ 2h(2), 14a, 5b.))
In reply, Farmer contends that a 1969 presidential executive
order
“that
promulgates
the
MCM
[Manual
for
Courts-Martial]
concerning Execution of Courts-Martial Sentences (confinement and
effective date of confinement) supersedes AR 633-30.” (Reply, ECF
No. 5 at 6.) According to Farmer, the MCM, 1969, para. 97c provides
that his court-martial sentence “runs continuous until the period
of confinement expires,” and none of the exceptions in the MCM
applies to his sentence. (Id.)
Farmer also argues that his “court-martial sentence while
confined in the state had force/effect and was operative, because
service of his sentence was continuous on an annual basis for
clemency consideration . . .” (Id. at 8-9.) Furthermore, if the
Petitioner's sentence was interrupted by "inoperative time," there
shouldn't have been any contact between the Army and Petitioner
concerning
clemency
consideration
while
serving
his
state
sentence.” (Id. at 9.)
Next, Farmer contends that his parole was revoked when the
Board
made
a
parole
revocation
determination
concerning
the
detainer. (Id. at 10.) Thus, “if parole was revoked at that stage,
the remainder of the parolee’s original … sentence, reinstated by
the parole revocation would run concurrently with the subsequent
6
sentence from the time of execution of the warrant.” (Id., quoting
Moody v. Daggett, 429 U.S. 78, 83-84 (1976)).
Even
if
the
Board
had
not
made
a
parole
revocation
determination at that stage “the original sentence [would] remain
in the status it occupied at the time of the asserted parole
violation.” (Id. at 11, quoting Moody, 429 U.S. at 84.)
Finally, Farmer contends he must be awarded credit for his
time in custody under the “Old Law.” (Id. at 13.) He bases this
claim on DoD Instruction 1325.4 (October 7, 1968), cited in United
States v. Allen, 17 M.J. 126, 127 (1984)). (Id. at 12-13.) Farmer
also quotes United States v. Tardif. 55 M.J. 670, 671 (2001), which
states:
In interpreting the DoD directive [1325.4
(October 7, 1968))] with this portion of 18
U.S.C. § 3568, the Court of Military Appeals
in Allen decided that, although Congress
exempted
the
military
from
sentence
computation provisions in 18 U.S.C. § 3568,
the Secretary of Defense in the DoD directive
had voluntarily adopted those provisions.
Thus, our higher Court determined that
military prisoners must be allowed credit
toward the service of their sentence for any
“days spent in custody in connection with
offense or acts for which sentence was
imposed.”
(Reply, at 13.)
Farmer further argues that “military prisoners who have been
transferred into federal custody are subject to all of the federal
laws
and
regulations
governing
7
any
other
prisoner,
including
federal parole provisions.” (Id. at 13, citing Artis v. United
States, 166 F.Supp.2d 126 (D.N.J. 2001) (citing Hirsch v. Secretary
of the Army, 172 F.3d 878 (10th Cir. 1999) (unpublished)). Farmer
argues that the Army and the BOP “did not adhere to the Department
of Justice’s computation procedures.” (Id.)
III. DISCUSSION
A.
Imprisonment for Crime Committed while on Parole
“Unless a parole violator can be required to serve some time
in prison in addition to that imposed for an offence committed
while on parole, he not only escapes punishment for the unexpired
portion of his original sentence, but the disciplinary power of
the [Parole] Board will be practically nullified.” Zerbst v.
Kidwell, 304 U.S. 359, 363 (1938). Thus, the Supreme Court held:
When respondent committed a federal crime
while on parole, for which he was arrested,
convicted, sentenced, and imprisoned, not only
was his parole violated, but service of his
original
sentence
was
interrupted
and
suspended. Thereafter, his imprisonment was
attributable to his second sentence only, and
his rights and status as to his first sentence
were ‘analogous to those of an escaped
convict.' Not only had he-by his own conductforfeited the privileges granted him by
parole, but, since he was no longer in either
actual or constructive custody under his first
sentence, service under the second sentence
cannot be credited to the first without doing
violence to the plain intent and purpose of
the statutes providing for a parole system.
Id. at 361.
8
The respondents in Zerbst were not military parole violators,
however, the same reasoning applies in the context of a military
parole violator subsequently serving a civilian sentence. Thus, AR
633.30, ¶5b provides:2
Inoperative. Inoperative time consists of any
period during which a prisoner is not credited
with serving his sentence. Inoperative time
will include the period … While absent from
confinement on a parole which proper authority
has suspended and later revoked …
Additionally, 633.30, ¶4b provides in pertinent part:
A sentence to confinement adjudged by a courtmartial will not be served concurrently with
any other sentence to confinement adjudged by
a court-martial or a civil court.
Farmer was paroled on August 15, 1980. (Escobedo Decl., ¶9.b.)
He was arrested by civilian authorities on December 15, 1981, and
his parole was suspended. (Jan. 27, 1983 Letter, Escobedo Decl.,
Ex. J.) He was sentenced in civilian court on January 24, 1983,
and released from state custody on December 16, 2013. Thus,
pursuant to AR 633.30, ¶¶4, 5, Farmer did not start serving his
military sentence again until he was returned, in December 2013,
to the control of military authorities to serve his military
sentence. (Escobedo Decl., ¶9e.)
2
Citations are to the army regulations in effect when Farmer was
court-martialed in 1977, AR 633-30 (effective Nov. 6, 1964),
attached as Exhibit A to the Declaration of Adam Escobedo. (ECF
No. 4-2 at 4-64.)
9
Farmer contends the MCM, 1969, para. 97c indicates that his
court-martial
sentence
“runs
continuous
until
the
period
of
confinement expires,” and none of the exceptions in the MCM applies
to his sentence. (Id.) Farmer is wrong. Paragraph 97c of the 1969
MCM provides, in pertinent part:
c. Interruptions of execution of a sentence.
A sentence to confinement, hard labor without
confinement,
restriction
to
limits,
or
deprivation of privileges is continuous until
the term expires, with certain exceptions.
These exceptions include the following:
When delivery under Article 14 is made to any
civil authority of a person undergoing
sentence of a court martial, the delivery, if
followed by conviction in a civil tribunal,
interrupts the execution of the sentence of
the court-martial, and the offender after
having answered to the civil authorities for
his offense shall, upon the request of
competent military authority, be returned to
military custody for the completion of his
sentence (Art. 14(b)).
. . .
Periods during which a sentence to confinement
is suspended or deferred shall be excluded in
computing the service of the term of
confinement (Art. 57(b)).
Manual
for
courts
martial
1969
available
at
https://www.loc.gov/rr/frd/Military_Law/CM-manuals.html
Next, Farmer contends that because he was considered for
clemency under military law while serving his state sentence, he
was serving his military sentence concurrently. For authority, he
10
cites AR 190-47 and Department of Defense Instruction 1325.4
(“DoD”) [effective 1968], noting that clemency consideration is
authorized within eight months after the sentence began to run and
annually
thereafter.
The
fact
that
clemency
consideration
is
authorized within a prescribed time after the military sentence
begins to run does not dictate when Farmer’s sentence was operative
for purposes of sentence calculation. Although Farmer contends
clemency consideration is inconsistent with “inoperative” time,
inoperative has a special definition in the Army Regulations.
Specifically, “inoperative time consists of any period during
which a prisoner is not credited with serving his sentence.
Inoperative time will include the period … while absent from
confinement on a parole which proper authority has suspended and
later
revoked
…
[and]
while
absent
after
delivery
to
civil
authorities, if subsequently convicted by a civil tribunal…” AR
633-30, ¶5b. Thus, according to Army Regulation, Farmer’s military
sentence
was
inoperative
while
he
was
on
parole,
which
was
subsequently suspended and revoked upon his arrest and conviction
by civil authorities.
Finally, Farmer contends that when the Army Board made a
parole
revocation
determination
and
issued
the
detainer,
his
military sentence began to run concurrently with his civilian
sentence. Farmer quotes Moody v. Daggett, “[i]f parole was revoked
at that stage, the remainder of the parolee's original sentence,
11
reinstated by the parole revocation, would run concurrently with
the subsequent sentence from the time of execution of the warrant."
429 U.S. 78, 83-84 (1976).
The Supreme Court in Moody held that a federal parolee
imprisoned
for
a
crime
committed
while
on
parole
was
not
constitutionally entitled to a prompt parole revocation hearing at
the time a parole violator warrant was issued and lodged with the
institution of his confinement. 429 U.S. at 89. The Court described
three options the U.S. Parole Board had “for disposing of its
parole violator warrant,” and the option cited by Farmer, which
would cause the sentences to run concurrently, was to “execute the
warrant immediately and take the parolee into custody.” This did
not happen in Farmer’s case, instead, the Army revoked his parole
and placed a detainer on Farmer without taking him into Army
custody until his civilian sentence was completed. For all of the
reasons discussed above, Farmer served his military and civilian
sentences consecutively, consistent with federal law and military
law.
B.
Sentencing Credit
Farmer contends that federal law governs computation of his
sentence because he is incarcerated in a federal prison. He relies
on cases holding that Congress, in enacting 10 U.S.C. § 858(a),
intended that “military prisoners who have been transferred into
federal
custody
are
subject
to
12
all
of
the
federal
laws
and
regulations governing any other prisoner, including federal parole
provisions.”
Artis
v.
United
States,
166
F.Supp.2d
126,
130
(quoting Hirsch v. Secretary of Army, 1999 WL 110549 (10th Cir.
1999)); United States v. Allen, 17 M.J. 126 (1984) (quoting DoD
Instruction 1325.4 (October 7, 1968)); United States v. Tardif, 55
M.J. 670, 671 (2001) (discussing history of DoD Directive 1325.4);
O'Callahan v. Attorney General, 230 F.Supp. 766, 767 (D. Mass.
1964), aff'd 338 F.2d 989 (1st Cir. 1964) (holding that pursuant
to 10 U.S.C. 858(a), military prisoner in federal penal institution
is subject to the federal parole system.)
10 U.S.C. § 858(a) (effective 1956 to January 5, 2006)
provides:
(a) Under such instructions as the Secretary
concerned may prescribe, a sentence of
confinement adjudged by a court-martial or
other military tribunal, whether or not the
sentence includes discharge or dismissal, and
whether or not the discharge or dismissal has
been executed, may be carried into execution
by confinement in any place of confinement
under the control of any of the armed forces
or in any penal or correctional institution
under the control of the United States, or
which the United States may be allowed to use.
Persons so confined in a penal or correctional
institution not under the control of one of
the armed forces are subject to the same
discipline and treatment as persons confined
or committed by the courts of the United
States or of the State, Territory, District of
Columbia, or place in which the institution is
situated.
13
Thus, Farmer contends the Army miscalculated his sentence by using
Army
regulations.
sentence
Farmer
calculation
did
would
not,
differ
however,
under
describe
federal
how
his
statutes
and
regulations.
Respondent calculated Farmer’s sentence under AR 633-30, and
did not address Farmer’s contention that federal law rather than
military law governed calculation of his sentence. Before ruling
on this issue, the Court will seek supplemental briefing from
Respondent. Respondent should address whether the phrase “same
discipline and treatment” in 10 U.S.C. 858(a) means that federal
law governs the calculation of Farmer’s sentence after he was
transferred to FCI Fairton.
IV. CONCLUSION
While the Court rejects Farmer’s contention that his military
sentence and civilian sentence ran concurrently, Farmer has cited
legal authority in his reply brief for the proposition that federal
law rather than military law governs calculation of his sentence
after he was designated to a federal correctional institution to
serve his military sentence. Therefore, in the accompanying order
filed herewith, the Court will administratively terminate this
action for thirty days for Respondent to file a supplemental
14
brief.3 Upon the expiration of the 30-day period, the Court will
reopen this proceeding and address the issue of whether Farmer’s
sentence
calculation
must
be
guided
by
federal
statutes
and
regulations rather than military law.
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
Dated: January 31, 2018
3
If Respondent relies on former versions of Army regulations or
Department of Defense Directives in its supplemental brief,
Respondent shall attach copies of such as exhibits to the brief.
15
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