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DELIMA v. U.S.

March 8, 1999

VINCENT DELIMA, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Hurley, District Judge.

MEMORANDUM AND ORDER

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.

BACKGROUND

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 because:

  (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
      sentence.

These claims will be addressed ...


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