The opinion of the court was delivered by: Hurley, District Judge.
Petitioner moves, pursuant to 28 U.S.C. § 2255, for an order
correcting the purported illegal sentence imposed by this Court
on October 1, 1993. On that date, he was sentenced, following his
plea of guilty to being a felon in unlawful possession of a
firearm in violation of 18 U.S.C. § 922(g), to, inter alia, a
term of imprisonment of 21 months.
By indictment dated July 10, 1992, petitioner was charged with
a series of federal crimes related to the possession of, and
conspiracy to deal in, firearms. While released on bail, he was
taken into state custody on charges wholly unrelated to the
federal counts. He then sought to have his bail here exonerated,
and to be held under a permanent order of detention "to enable
[him] to get credit for the time he was in state custody"
(Pet'r's Mem. in Support at [unnumbered page] 2),*fn1 presumably
referring to a federal credit against whatever sentence might
thereafter be imposed. On consent, such an order was entered on
March 31, 1993.*fn2
On July 21, 1993, petitioner pled guilty to violating
18 U.S.C. § 922(g), with sentence being imposed, as previously noted, on
October 1, 1993.
Following the imposition of sentence, petitioner was returned
to state custody to face the pending state charges. Ten months
thereafter, he was sentenced in the state — upon his convictions
for robbery in the second degree, (Indictment # 3868-93) and
attempted manslaughter (Indictment # 1277-93) — to a period of 4½
to 9 years, to be served concurrently with each other and with
his federal sentence of 21 months. (Pet'r's Mem. in Support at
[unnumbered page] 3.)
In his petition, which pre-dates the expiration of his state
sentence, he identifies the ultimate relief requested as being
the entry of an order by this Court directing "that at the
conclusion of his state sentence, [he] be released from custody."
(Id.) In seeking such an order pursuant to Section 2255,
petitioner claims that this Court's sentence of October 1, 1993,
was fatally flawed in the following particulars:
1. the Court failed to indicate whether petitioner's sentence
should be served concurrently or consecutively with whatever
sentence might thereafter be imposed in the state; and
2. commencement of the federal sentence was illegally delayed
(a) "the court . . . did not take into consideration
that because Mr. Delima's presence at his federal
sentencing hearing was pursuant to a Writ of
Habeas Corpus at Prosecquendum, Mr. Delima would
not be committed to the custody of the United
States Bureau of Prisons to begin serving his
federal sentence as ordered by the court, but
would instead be returned to the custody of the
state pending the determination of the state
court on the matters under indictment numbers
1277-93 and 3868-93 pending in Kings County"
(id. at 3); and
(b) the marshal improperly returned petitioner to
state custody following imposition of the federal
These claims will be addressed ...