Jereis v. Warden

Filing 12

MEMORANDUM re Petition for Writ of Habeas Corpus 1 (Order to follow as separate docket entry) Signed by Honorable Sylvia H. Rambo on 3/2/17. (ma)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ZEHY JEREIS,
Petitioner
vs.
WARDEN LEWISBURG
SATELLITE CAMP
Respondent

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CIVIL NO. 1:15-CV-02158

(Judge Rambo)

MEMORANDUM
Background
On November 9, 2015, Petitioner Zehy Jereis, a
federal prisoner confined at the minimum security
satellite camp of the United States Penitentiary,
Lewisburg, Pennsylvania, filed a petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2241. Doc. 1.
Jereis claimed that he was not given credits for time
served after entering a plea of guilty to a criminal
charge but prior to the sentence being imposed and that
good conduct time was improperly omitted from his
sentence calculation.

Jereis paid the $5.00 filing fee.

The petition was given preliminary screening
pursuant to Rule 4 of the Rules Governing § 2254 Cases,
28 U.S.C. foll. § 2254, as made applicable to § 2241

cases by Rule 1 thereof,1 and because it did not plainly
appear from the petition that Jereis was not entitled to
relief the court on November 30, 2015, directed that it
be served on Respondent.

A response to the petition was

filed on December 21, 2015.
on January 4, 2016.

Petitioner filed a traverse

The court on January 12, 2016,

authorized the filing of sur-reply brief and on that
date one was filed.

The petition is ripe for

disposition and for the reasons set forth below it will
be denied.
Discussion
On May 17, 2011, an eleven-count, superseding
Indictment was filed in the United States District Court
for the Southern District of New York against Jereis and
one other individuals, charging them with several
offenses, including conspiracy to accept corrupt

Rule 4 states in pertinent part that “[t]he clerk
must promptly forward the petition to a judge under the
court’s assignment procedure, and the judge must
promptly examine it. If it plainly appears from the
petition and any attached exhibits that the petitioner
is not entitled to relief in the district court, the
judge must dismiss the petition . . . .”
1.

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payments.

United States v. Jereis, 1:10-cr-00007-CM-2

(S.D.N.Y. May 17, 2010), ECF No. 94 (PACER).2
A jury trial occurred in February and March,
2012, and on March 29, 2012, Jereis was found guilty of
conspiracy to make corrupt payments and the four other
counts of which he was charged. ECF Nos. 163, 199 and
220.

On November 19, 2012, Jereis was sentenced to a

term of 48 months on each of the counts to be served
concurrently and he was ordered to surrender for service
of the sentence at the institution designated by the
Federal Bureau of Prisons before 2 p.m. on March 4,
2013. ECF No. 220.
During the interval between the date the
sentence was imposed and the date of surrender, Jereis
was investigated for Aiding and Assisting the
Preparation of False Payroll Tax Returns and on March 4,
2013, waived indictment by a grand jury and pled guilty
to an Information charging him with that offense. United

The court docket for this case was accessed using
the Public Access to Court Electronic Records (PACER)
which is an electronic database of United States
federal court documents.
2.

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States v. Jereis, 1:13-cr-00146-ER-1 (S.D.N.Y. March 4,
2013), ECF Nos. 1, 2, 5 and 22.

Jereis after pleading

guilty was released on his own recognizance in order to
surrender to the Lewisburg Satellite Prison Camp to
commence serving the 48-month sentence. ECF No. 3.

A

presentence investigation was ordered and sentencing
deferred with respect to the offense of Aiding and
Assisting the Preparation of False Payroll Tax Returns
pending the completion of the presentence investigation.
Unnumbered ECF docket annotation (March 4, 2013).
On March 21, 2013, the Federal Bureau of Prisons
with respect to the 48-month sentence set Jereis’ home
detention eligibility at April 3, 2016, and his release
date as August 26, 2016. Doc. 1-2, Exhibit B attached to
Jereis’ Habeas Petition.
On October 2, 2015, Jereis was sentenced by
Judge Ramos on the payroll tax charge to 15 months
imprisonment, five months to be served concurrently with
his previous sentence of 48 months and 10 months
consecutive. United States v. Jereis, 1:13-cr-00146-ER-1
(S.D.N.Y.) ECF Nos. 23 and 25.

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A review of the transcript of the sentencing
reveals that the following exchanges occurred between
Judge Ramos, counsel for Jereis and the assistant United
States attorney:
The court: . . . Does counsel know of any
legal reason, other than what was already argued
that the sentence should not be imposed as
stated?
Ms. Schwartz Frome [counsel for Jereis]: Your
Honor, Mr. Jereis served seven months of the
sentence. He surrendered on March 4, and your
Honor had his bail status remanded so that he
was obtaining credit for the sentence during the
time that he was serving. So I don’t know
whether that effects –
Mr. Halperin [AUSA]: He served seven months on
the crimes for which he was convicted before
Judge McMahon. March 4 was his surrender date.
If the Court remembers, the Court took the plea
in the morning, Mr. Jereis drove himself to
Pennsylvania and surrendered, which was
scheduled before the plea even happened.
I don’t see what relevance that has to the
calculation that counsel raised with the Court.
Ms. Schwartz Frome: Because your Honor then had
his bail changed from ROR to remanded, so once
he was remanded he commenced to serve this
sentence, I believe.
The Court: How does that effect the calculation,
the ten-month consecutive to the 48 month?
Ms. Schwartz Frome: If he served seven months,
you sentence him to 15 month, there is only
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eight months left.
Mr. Halperin: Judge, that clearly undermines the
goal of what this Court is trying to do at
sentence. That was the sentence that he was
going to be serving starting on March 4, 2013,
no matter what happened here at all. That was
the surrender date that Judge McMahon had
ordered. So counsel is trying to do an end-run
around this Court’s order that he should serve
ten months consecutively to the end of the 48
months, which is what I think the Court is
trying to do. Counsel is trying to argue
that somehow he already served seven of the
15 months, so it should only be eight months
consecutive, which frankly is insulting to
the Court.
The Court: It is the Court’s intention that he
serve ten months consecutively to the 48 months.
We can do it that way – I don’t think it’s
necessary to do it that way. What we can do,
if he’s served seven months –
Mr. Halperin: Then the Court can impose a
sentence of 17 months.
The Court: Correct.
Ms. Schwartz Frome: Your Honor, I think that
your Honor just said that 15 months is an
appropriate sentence. If he served seven
months I would request that the Court say eight
months.
The Court: But if you’re bringing to my
attention an arithmetic mistake, which effects
the actual sentence that he will serve, then it
is the Court’s intention that he serve ten
months in addition to the 48 months. So I can
sentence him to 17 months incarceration, and
five months consecutive for a total of 22
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months.

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I was going to sentence him to five months
concurrent and ten months consecutive. So I can
do it that way.
Ms. Schwartz Frome: Your Honor, it would have to
be 17, I would think.
The Court: Seventeen what?
Ms. Schwartz Frome: Seventeen months with ten
months consecutive. He served seven.
Mr. Halperin: I think that is right, your Honor.
He served seven. And just the question is, I’m
not even sure if the Court’s – withdrawn.
I think what we need to do is consult with
BOP, see if there are, how they would calculate
it. My understanding is that the seven months
for which he served applies to Judge McMahon’s
sentence that was previously imposed. I don’t
think he gets credit for both sentences.
The Court: I think consecutive means
consecutive; and consecutive does not mean
concurrent. So if he’s serving the seven
months on this sentence, per your argument, then
he gets the 48 months when that’s done. I don’t
know that there is any reason to change the way
that I –
Ms. Schwartz Frome: I’m not sure, your Honor. I
don’t want the Court to make an error. I felt I
had to bring it to your attention.
Mr. Halperin: I think as long as the J&C
reflects the Court’s intention, which is that
the BOP run five months of this Court’s sentence
concurrent with the 48-month term that Judge
McMahon imposed, that the BOP then run ten
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months consecutive, added to the end of the
48-month imprisonment. I don’t think the BOP
will be confused with that.
The Court: I think that’s right.
Ms. Schwartz Frome: Okay.
The Court: Let the record reflect, it is the
Court’s intention that he serve ten months
consecutive, a total of 58 months incarceration
on this charge and on the underlying charge,
the underlying corruption charge.
Anything
further?
Ms. Schwartz Frome: No, your Honor.
The Court: Okay. It is the judgment of this
Court that Mr. Jereis be sentenced to the
Custody of the Bureau of Prisons for 15 months
on count of conviction, five months of which
will be served concurrently to his undischarged
term of imprisonment, and ten months to be
served consecutively to his undischarged term.
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ECF No. 23, at 28-32.

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After the 15-month sentence was

imposed the Federal Bureau of Prisons recalculated
Jereis’ home detention eligibility date to November 26,
2016, and his release date to May 20, 2017. Doc. 1-2,
Exhibit C attached to Jereis’ Habeas Petition.
Jereis in the present petition is contending
that the Federal Bureau of Prisons did not give him
credit for the 7 months he allegedly served in
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“presentence incarceration” on the payroll tax charge.
In a declaration accompany the habeas petition, attorney
Frome states: “He was sentenced on October 2, 2013,
after having been remanded for 7 months on that
sentence.

This time has not been acknowledged by the

Bureau of Prisons. Rather, they added the entire
consecutive 10 months to his sentence.” Doc. 2, ¶ 19.
In addition to the above argument counsel for
Jereis makes the following two arguments:
21. Moreover, the “concurrent” portion of the
sentence could not commence until Mr. Jereis
was actually sentenced. Therefore, the Bureau
of Prisons should have deducted the 5 months
concurrent time from the eight months
remaining in his sentence.
22. Therefore, the addition to Mr. Jereis’
remaining sentence should have been three
months, less any credit for good time.
23. Moreover, the good time credit was not
correctly calculated. Mr. Jereis’s
presumptive release date went from August
26, 2016, to May 20, 2017, and
increase of 9 months. However, because Mr.
Jereis’ sentence was 15 months, his good
time credits should be at least 54 days.
18 U.S.C. § 3624. Therefore, his good
time credits should be increased, and
his release date adjusted accordingly.

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Doc. 2.

The court finds no merit in Jereis’ position.

Jereis is attempting to circumvent the intent of the
sentencing judge.
18 U.S.C. § 3585(a) and BOP Program Statement
5880.28 provide that a sentence cannot begin to run
prior to the date on which it is imposed.

This rule for

the commencement of a sentence, as it pertains to
concurrent sentence situation, precludes a subsequent
sentence from beginning prior to being imposed.
Section 3584(c) also requires multiple terms of
imprisonment to be “treated for administrative purposes
as a single, aggregate term of imprisonment.”
The BOP prepared a sentence computation for
Jereis which aggregated the preexisting 48-month term
with the consecutive 10-month portion of the 15-month
sentence. The 5-month concurrent portion was absorbed by
the 48-month term.

Consequently, Jereis’ total

aggregate sentence was a term of 4 years and 10 months
or 58 months and it was computed to commence on March 4,
2013 which was the day Jereis voluntarily surrendered
with credit in the amount of 1 day for time spent in
custody on January 6, 2010.

Jereis contends that he
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should have received 261 days of presumptive Good
Conduct Time (GCT). This argument lacks merit.
Pursuant to 18 U.S.C. § 3524(b)(1) an inmate is
entitled to 54 days GCT for each year of incarceration.
The BOP calculated that Jereis would accumulate 227 days
of GCT and set his projected release date based on that
GCT as May 20, 2017.

BOP Program Statement 5884.03

provides that GCT is “prorated when the time served by
the inmate for the sentence during the year is less than
a full year.”

The BOP correctly calculated that from

March 3, 2013, to March 2, 2014, he would receive 54
days; from March 3, 2014, to March 2, 2015, he would
receive 54 days; from March 3, 2015, to March 2, 2016,
he would receive 54 days; from March 3, 2016, to March
2, 2017, he would receive 54 days; and from March 3,
2017, to May 2017, he would receive 11 days. (See doc.
10-1, at 5.)3

This calculation resulted in a total GCT

The Respondent submitted a declaration under penalty
of perjury from Darla Henderson, who has been employed
by the BOP since 1988. Ms. Henderson has worked in the
area of sentence computation since September, 1990.
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(continued...)
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of 227 days. (Id.) In light of the controlling statutes
and BOP Program Statements and the evidence in the
record, Jereis’ habeas petition is without merit.
Finally, because Jereis is not detained because
of process issued by a state court and the petition is
not brought pursuant to 28 U.S.C. § 2255, no
action by this court with respect to a certificate of
appealability is necessary.
An appropriate order will be entered.

s/Sylvia H. Rambo
SYLVIA H. RAMBO
United States District Judge

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(...continued)

Since May 2014 she has been employed as a Management
Analyst at the Designation and Sentence Computation
Center. (See Doc. 10-1.)
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