Appeal from a judgment of the United States District Court for the Southern District of New York, Louis L. Stanton, Judge, dismissing petition pursuant to 28 U.S.C. § 2241 for credit on current federal prison sentences for time previously spent in state custody on unrelated, subsequently vacated state conviction.
Lumbard, Oakes, and Kearse, Circuit Judges. Oakes, Circuit Judge dissents in a separate opinion.
Petitioner Peter J. Pinaud, a federal prisoner, appeals from a final judgment of the United States District Court for the Southern District of New York, Louis L. Stanton, Judge, dismissing his petition pursuant to 28 U.S.C. § 2241 (1982) to require federal prison officials to grant him credit for time he served on a state sentence which was subsequently vacated. The district court denied the petition on the ground that 18 U.S.C. § 3568 (1982) (repealed effective Nov. 1, 1987, by Pub. L. No. 98-473, tit. II, §§ 212(a)(2), 235(a)(1), 98 Stat. 1987, 2031 (1984), as amended by Pub. L. No. 99-217, § 4, 99 Stat. 1728 (1985) and Pub. L. No. 100-182, § 2, 101 Stat. 1266 (1987); amended, and reenacted in part as 18 U.S.C. § 3585 effective Nov. 1, 1987, by the same legislation), provided that the date on which a federal sentence begins to run is the date on which the defendant is delivered to federal prison authorities. On appeal, Pinaud contends principally that the denial of credit violates his rights under § 3568 and the Due Process Clause of the Constitution. For the reasons below, we disagree.
As set forth in greater detail below, Pinaud's claim has its origin in a state-court conviction pursuant to a plea agreement in which the state court promised that Pinaud's state sentence would be served concurrently with an expected federal sentence. The state court sentenced Pinaud prior to imposition of the federal sentence, however, and the latter was not made concurrent with the state sentence. Because the state plea bargain had not been fulfilled, a state appellate court eventually vacated the state conviction. By that time, however, Pinaud had already served his state sentence, and he therefore asks the federal court to reduce the length of his federal sentence by the length of time he served on the state court sentence.
A. The Sequence of Sentences
In 1983, Pinaud, a former Internal Revenue Service revenue agent, was indicted in state court on charges of possession of stolen property. At that time, he was expecting to be indicted in the Eastern District of New York on unrelated federal charges of tax fraud. Pursuant to a state-court plea agreement entered into in May 1984, Pinaud pleaded guilty to the stolen property charges; the state court promised that Pinaud would not be sentenced earlier than November 7, 1984, and that Pinaud's state sentence would be made concurrent with his anticipated federal sentence.
The scripted sequence did not occur, however, in part because, in the words of Pinaud's counsel, "unfortunately, [Pinaud] committed another crime in the northern district during that summer." Thus, Pinaud was arrested in October 1984 in the Northern District of New York on federal charges of filing fraudulent tax refund claims in June 1984. In addition, having failed to appear in June and July for scheduled state-court hearings relating to his anticipated sentencing, Pinaud was arrested on state charges of jumping bail. The state court promptly revoked Pinaud's bail, and on October 17, 1984, it sentenced him to serve 2-1/3 to 7 years in prison on the stolen property charges. Pinaud was remanded to begin serving this sentence immediately.
On October 31, 1984, Pinaud was indicted in the Northern District on four counts arising out of his June 1984 filing of false claims for income tax refunds, in violation of 18 U.S.C. § 287 (1982). He pleaded guilty to two counts in January 1985. In March 1985, District Judge Neal P. McCurn sentenced him to two concurrent 44-month terms of imprisonment, to be served consecutively to his state sentence.
In February 1985, the long-anticipated Eastern District indictment was handed down. Pinaud was indicted on 16 counts charging conspiracy to defraud the United States in violation of 18 U.S.C. § 371 (1982), willfully subscribing to false returns in violation of 26 U.S.C. § 7206(1) (1982), and willfully attempting to evade taxes in violation of 26 U.S.C. § 7201 (1982). He pleaded guilty to two counts in May 1985. In July 1985, then-District Judge Frank X. Altimari sentenced him to two concurrent three-year terms of imprisonment, to be served consecutively to the Northern District sentence.
In March 1986, Pinaud moved in state court to vacate his state conviction on the ground that the plea agreement had been breached. His motion was denied, but the denial was reversed on appeal to the Appellate Division, see People v. Pinaud, 132 A.D.2d 580, 517 N.Y.S.2d 560 (2d Dep't), appeal denied, 70 N.Y.2d 802, 522 N.Y.S.2d 120, 516 N.E.2d 1233 (1987). Thus, Pinaud's state conviction was vacated in July 1987. Pinaud had completed serving his state sentence in February 1987.
B. Pinaud's Attempts To Have His Federal Sentences Reduced
Pinaud was delivered to the Federal Correctional Institute in Otisville, New York ("Otisville"), to begin serving his Northern District sentence on February 6, 1987. In August 1987, he asked respondent J.R. James, warden at Otisville, to grant him credit for the 828 days that he had spent serving his subsequently vacated state sentence, on the ground that that time had delayed the commencement of his federal sentences.
Initially, the warden granted Pinaud the requested credit, and the United States Parole Commission recomputed his presumptive parole date to February 28, 1988. Thereafter, the Bureau of Prisons, having been informed by state prosecutors that the state had requested leave to appeal the vacation of Pinaud's conviction and having otherwise reviewed the matter, determined that credit should not have been ...