Curtis v. Billingsey

Filing 28

ORDER for 21 Report and Recommendations. For the reasons stated above, the R&R is adopted in its entirety and the Petition is denied. The Clerk of Court is directed to close this case. (Signed by Judge Paul G. Gardephe on 3/21/2020) (rro)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
MELVIN CURTIS,
Petitioner,
ORDER
-v16 Civ. 2558 (PGG) (JLC)
TERRY BILLINGSLEY,
Respondent.

PAUL G. GARDEPHE, U.S.D.J.:
Pro se Petitioner Melvin Curtis has filed a petition for writ of habeas corpus,
pursuant to 28 U.S.C. § 2241. (Pet. (Dkt. No. 1)) Magistrate Judge James L. Cott submitted a
Report and Recommendation (“R&R”) recommending that this Court deny the petition. (R&R
(Dkt. No. 21) at 17) 1 For the reasons stated below, this Court will adopt the R&R in its entirety
and deny the petition.
BACKGROUND
I.

THE HABEAS PETITION
Petitioner pled guilty on February 9, 2007, in the United States District Court for

the Eastern District of New York to conspiracy to distribute and to possess with intent to
distribute cocaine base, in violation of 21 U.S.C. §§ 841, 846. (Mar. 31, 2016 Order (Dkt. No. 9)
(“E.D.N.Y. Order”) at 2) Curtis was sentenced by Judge Irizarry to 235 months’ imprisonment,
followed by three years’ supervised release. Judge Irizarry recommended that Petitioner’s
federal sentence run concurrently with a state court sentence that he was then serving. (Id. at 2)

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The page numbers of documents referenced in this Order correspond to the page numbers
designated by this District’s Electronic Case Files (“ECF”) system.

Curtis’s petition raises two claims: (1) his guilty plea was not knowing and
voluntary, because he received ineffective assistance of counsel; and (2) he was improperly
denied credit against his federal sentence for time spent in federal detention after he was
transferred from New York state custody to federal custody. (Pet. (Dkt. No. 1) at 3-6; E.D.N.Y.
Order (Dkt. No. 9) at 1)
Curtis was transferred from New York state custody and brought into federal
custody on August 9, 2006 – pursuant to a writ of habeas corpus ad prosequendum – to face
charges in United States v. Melvin Curtis, No. 06 Cr. 413 (DLI) (E.D.N.Y.). (R&R (Dkt. No.
21) at 5)
Curtis was then serving time in New York state custody for a parole violation.
(E.D.N.Y. Order (Dkt. No. 9) at 2) Curtis had entered a residential drug treatment program on
April 25, 2006, which he was scheduled to complete on August 1, 2006. (Resp. Opp. (Dkt. No.
8), Ex. G at 9) However, pursuant to the federal writ – which was issued on July 20, 2006 –
Curtis left the residential drug treatment program on July 25, 2006, and entered federal custody
on August 9, 2006. (United States v. Melvin Curtis, No. 06 Cr. 413 (DLI) (E.D.N.Y.) (Dkt. No.
58))
Curtis pled guilty to a federal drug conspiracy charge on February 9, 2007, and
on April 23, 2008, he was sentenced on his federal case. (E.D.N.Y. Order (Dkt. No. 9) at 2)
Curtis was returned to state custody on May 15, 2008, where he was sentenced to an additional
two months’ imprisonment for a parole violation based on the conduct underlying his federal
conviction. (Id. at 3)
On August 15, 2008, Curtis was released to parole on his state case and
transferred to federal custody to begin serving his federal sentence. (Id.) The Bureau of Prisons

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credited Curtis for the time he served in state custody after he received his April 23, 2008 federal
sentence, but did not give him credit towards his federal sentence for the period between August
9, 2006 and April 22, 2008, when he was in federal custody pursuant to the federal writ, since he
had already received credit for this time against his state sentence. (R&R (Dkt. No. 21) at 7; see
also Pet. (Dkt. No. 1) at 16)
II.

PROCEDURAL HISTORY
The Petition was filed on September 28, 2012. (Pet. (Dkt. No. 1)) On March 31,

2016, Judge Irizarry dismissed Curtis’s challenge to the voluntariness of his 2007 guilty plea,
finding that it was improperly brought under 28 U.S.C. § 2241 rather than 28 U.S.C. § 2255, and
was untimely. (E.D.N.Y. Order (Dkt. No. 9) at 5-6)
As to Curtis’s complaint regarding the calculation of his sentence, Judge Irizarry
noted that a “‘petition for a writ of habeas corpus under 28 U.S.C. § 2241 should be addressed to
the district court in the district where the petitioner is confined and his custodian is located.’”
(Id. at 6 (quoting United States v. Maldonado, 138 F. Supp. 2d 328, 332 (E.D.N.Y. 2001)))
Curtis was then in custody at the Federal Correctional Institution in Otisville, New York. (Id. at
6-7; Pet. (Dkt. No. 1) at 1-2) Because Otisville is in the Southern District of New York, Judge
Irizarry concluded that she lacked jurisdiction over what remained of the petition, and transferred
the case to this District. (E.D.N.Y. Order (Dkt. No. 9) at 6-7).
Curtis subsequently notified this Court that he had been transferred to the Federal
Correctional Institution in Glenville, West Virginia. (Apr. 26, 2016 Notice (Dkt. No. 14))
On November 4, 2016, this Court referred this habeas action to Judge Cott for an
R&R. Judge Cott issued his R&R on March 24, 2017, recommending that the Petition be denied.
Curtis filed objections to the R&R on May 31, 2017. (R&R (Dkt. No. 21); Pet. Obj. (Dkt. No.
24))
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On November 22, 2017, Judge Irizarry reduced Petitioner’s sentence from 235
months’ imprisonment to 140 months’ imprisonment upon his motion for a sentence reduction
pursuant to 18 U.S.C. § 3582(c)(2). (Nov. 22, 2017 Order, United States v. Melvin Curtis, No.
06 Cr. 413 (E.D.N.Y.) (Dkt. No. 917)) Curtis was released from federal custody on October 26,
2018. However, he is still serving his three-year term of supervised release. Accordingly, his
petition is not moot. See Lopez v. Terrell, 654 F.3d 176, 180 n.2 (2d Cir. 2011) (“[Petitioner] is
still ‘in custody’ for purposes of 28 U.S.C. § 2241 because he remains subject to the conditions
of his supervised release. . . .”).
III.

JUDGE COTT’S R&R
Judge Cott issued a thorough and well-reasoned 18-page R&R. (R&R (Dkt. No.

21)) As an initial matter, Judge Cott found that this Court has jurisdiction, despite Petitioner’s
transfer to West Virginia, “[b]ecause this case should have been commenced here in the first
instance and has since been transferred here . . . .” (Id. at 8) Next, Judge Cott found that
Petitioner’s federal sentence did not commence until his April 23, 2008 federal sentencing,
because “‘under 18 U.S.C. § 3585(a), a federal sentence cannot commence prior to the date on
which it is imposed.’” (Id. at 12 (quoting Lopez v. Terrell, 654 F.3d 176, 185 (2d Cir. 2011)))
Finally, Judge Cott found that Petitioner was not eligible to receive credit for the time he spent in
federal custody prior to his April 23, 2008 federal sentencing, because he “has not established
that ‘absent the federal action,’ he ‘would have been released under available state procedures.’”
(Id. at 17 (quoting Rosemond v. Menifee, 137 F. Supp. 2d 270, 275 (S.D.N.Y. 2000)))
IV.

PETITIONER’S OBJECTIONS
Curtis first contends that the Bureau of Prisons “can designate, retroactively the

state facility where a prisoner served a state sentence following a federal sentence as the place of
his federal imprisonment. . . . Here, the Petitioner is eligible for a retroactive designation of the
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state facility as the place of his federal incarceration, especially since he was actually at a BOP
[f]acility.” (Pet. Obj. (Dkt. No. 24) at 1-2) This objection is unintelligible. To the extent that
Curtis is seeking credit for the three months he served on the parole violation when he was
returned to state custody, BOP credited him for that time. (Pet. (Dkt. No. 1) at 16) To the extent
that Curtis is contending that he should have received credit against his federal sentence for the
two years he was in federal custody on a writ, that argument is addressed below.
As to Curtis’s argument that he should receive credit against his federal sentence
for the time he spent in federal custody on the federal writ prior to his federal sentencing, his
theory is as follows: “he was satisfactorily progressing toward his projected graduation date of
August 1, 2006 from the State’s residential drug treatment facility,” and but for the federal writ
and his transfer into federal custody in 2006, his “release [from state custody, after serving the
additional three months for his parole violation] was assured.” (Pet. Obj. (Dkt. No. 24) at 2-3)
DISCUSSION
I.

STANDARD OF REVIEW
A district court reviewing a magistrate judge’s report and recommendation “may

accept, reject, or modify, in whole or in part, the findings or recommendations made by the
magistrate judge.” 28 U.S.C. § 636(b)(1)(C). When a timely objection has been made to a
magistrate judge’s recommendation, the district court judge “shall make a de novo determination
of those portions of the report or specified proposed findings or recommendations to which
objection is made.” Id. However, “[o]bjections that are ‘merely perfunctory responses argued in
an attempt to engage the district court in a rehashing of the same arguments set forth in the
original [papers] will not suffice to invoke de novo review.’” Phillips v. Reed Grp., Ltd., 955 F.
Supp. 2d 201, 211 (S.D.N.Y. 2013) (quoting Vega v. Artuz, 2002 WL 31174466, at *1
(S.D.N.Y. Sept. 30, 2002)) (alteration in Phillips). “To the extent . . . that the party . . . simply
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reiterates the original arguments, [courts] will review the Report strictly for clear error.”
Indymac Bank, F.S.B. v. Nat’l Settlement Agency, Inc., 07 Civ. 6865 (LTS), 2008 WL 4810043,
at *1 (S.D.N.Y. Nov. 3, 2008) (citing Pearson-Fraser v. Bell Atl., No. 01 Civ. 2343(WK), 2003
WL 43367, at *1 (S.D.N.Y. Jan. 6, 2003); Camardo v. Gen. Motors Hourly-Rate Employees
Pension Plan, 806 F.Supp. 380, 382 (W.D.N.Y.1992)); see also Ortiz v. Barkley, 558 F. Supp. 2d
444, 451 (S.D.N.Y. 2008) (“Reviewing courts should review a report and recommendation for
clear error where objections are ‘merely perfunctory responses,’ . . . ‘rehashing . . . the same
arguments set forth in the original petition.’”) (citing Vega, 2002 WL 31174466, at *1; Greene v.
WCI Holdings, 956 F.Supp. 509, 513 (S.D.N.Y. 1997)).
For portions of the R&R to which no timely objection is made, this Court’s
review is limited to a consideration of whether there is any “‘clear error on the face of the
record’” that precludes acceptance of the recommendations. Wingate v. Bloomberg, 2011 WL
5106009, at *1 (S.D.N.Y. Oct. 27, 2011) (quoting Fed. R. Civ. P. 72(b) advisory committee note;
citing Nelson v. Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y. 1985) (“To accept the report and
recommendation of a magistrate, to which no timely objection has been made, a district court
need only satisfy itself that there is no clear error on the face of the record.”)).
II.

ANALYSIS
A.

When Petitioner’s Federal Sentence Commenced
In his R&R, Judge Cott notes that “‘[w]here a defendant faces both federal and

state convictions, the federal district court has the authority to order that its sentence be served
concurrent with, or consecutive to, the defendant's state sentence.’” (R&R (Dkt. No. 21) at 10
(citing Cruz v. Bureau of Prisons, No. 10 Civ. 5460, 2013 WL 12177171, at *4 (S.D.N.Y. Mar.
22, 2013))) “Under 18 U.S.C. § 3621(b), the BOP ‘may designate any available penal or
correctional facility . . . whether maintained by the Federal Government or otherwise’ as the
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‘place of the prisoner's imprisonment.’” (R&R (Dkt. No. 21) at 10-11 (citing 18 U.S.C. §
3621(b)))
Judge Cott also recognized, however, that “‘a defendant's federal sentence does
not generally commence while the defendant is held in a federal detention facility if he was
produced pursuant to a writ of habeas corpus ad prosequendum.’” (R&R (Dkt. No. 21) at 12
(citing United States v. Heredia, No. 99 Cr. 367, 2011 WL 2693336, at *1 (S.D.N.Y. July 1,
2011) (citing United States v. Fermin, 252 F.3d 102, 108 n. 10 (2d Cir. 2001)))) And Judge Cott
also acknowledged that “‘under 18 U.S.C. § 3585(a), a federal sentence cannot commence prior
to the date on which it is imposed.’” (Id. (citing Lopez v. Terrell, 654 F.3d 176, 185 (2d Cir.
2011) (citing United States v. Labeille-Soto, 163 F.3d 93, 98 (2d Cir. 1998))))
Petitioner cites no contrary authority, and this Court is aware of none.
Accordingly, Curtis cannot receive credit against his federal sentence for the time he spent in
federal custody on a federal writ prior to his federal sentencing.
B.

Whether Petitioner’s Release from State Custody “Was Assured”
Curtis argues, however, that he should be credited for the time spent in federal

custody prior to his federal sentencing because – but for his transfer into federal custody on
August 9, 2006 – his “release [from state prison on November 1, 2006] was assured,” following
his projected successful completion of a residential drug treatment program on August 1, 2006,
and completion of a three-month sentence for his new parole violation. (Pet. Obj. (Dkt. No. 24)
at 2-3)
In his R&R, Judge Cott found that “the possibility that Curtis’s incarceration was
prolonged because of his transfer to federal detention pursuant to a writ of habeas corpus ad
prosequendum is not a basis to disregard 18 U.S.C.§ 3585(b)’s prohibition of double counting.”

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(R&R (Dkt. No. 21) at 14 (citing Fermin, 252 F.3d at 108 n. 10)) In this regard, Judge Cott
discusses in detail Rosemond v. Menifee, 137 F. Supp. 2d 270, 272 (S.D.N.Y. 2000), which
finds “an exception to § 3585’s prohibition on double counting.” (R&R (Dkt. No. 21) at 15
(citing Rosemond, 137 F. Supp. 2d at 274-75))
The exception articulated in Rosemond is that, “[i]f absent the federal action –
here a writ of habeas corpus ad prosequendum – the petitioner would have been released under
available state procedures, then credit toward his federal sentence must be given.” Rosemond,
137 F. Supp. 2d at 275.
Judge Cott identifies two concerns in applying Rosemond to Petitioner’s sentence.
First, “the Second Circuit has not confronted the issue, [and] other district courts in this Circuit
have expressed skepticism as to Rosemond’s consistency with § 3585(b).” (R&R (Dkt. No. 21)
at 16 (citing Sarro v. Billingsley, No. 11 Civ. 9395, 2013 WL 120817, at *5 (S.D.N.Y. Jan. 10,
2013); Mitchell v. Killian, No. 08 Civ. 2373, 2011 WL 710612, at *2 (S.D.N.Y. Feb. 25, 2011)))
Second, even under Rosemond, Petitioner has not satisfied his burden. Although Petitioner “had
only a week remaining in his state drug-treatment program when he left to face the federal
charges, [he] has not demonstrated that he was performing satisfactorily in the program, much
less that he was on the verge of being released into the community when he became subject to
the writ.” (R&R (Dkt. No. 21) at 16-17)
This Court agrees with both concerns expressed by Judge Cott. Rosemond’s
exception is not reconcilable with Section 3585(b)’s prohibition of double counting, and
Petitioner has not shown that he would have been released but for the federal writ. Indeed, upon
his return to state custody in May 2008, Curtis was “detained by the state for three months – two

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of which [he] owed [due] to his parole-violation sentence for the conduct underlying his federal
conviction.” (Id. at 17)
Accordingly, this Court agrees with Judge Cott’s conclusion that Petitioner is
“ineligible for a credit for the time that he spent in federal custody before his sentencing.” (Id. at
12)
CONCLUSION
For the reasons stated above, the R&R is adopted in its entirety and the Petition is
denied. The Clerk of Court is directed to close this case.
Dated: New York, New York
March 21, 2020

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