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United States District Court, S.D. New York

March 8, 2004.


The opinion of the court was delivered by: HAROLD BAER, JR., District Judge[fn1] [fn1] Lisa Dudzinski, a spring 2004 intern in my Chambers and a second-year law student at New York Law School, provided substantial assistance in the research and drafting of this opinion.


Pro se petitioner Francisco Rosario ("petitioner" or "Rosario") filed the instant habeas corpus petition pursuant to 28 U.S.C. § 2241. In his petition, Rosario seeks to receive credit towards his federal sentence for the eighteen months he served in federal detention after he was transferred from state to federal custody on a writ of habeas corpus ad prosequendum. so that his pending federal charges could be adjudicated. In the alternative, petitioner raises what appears to be a 28 U.S.C. § 2255 claim and challenges the legality of his sentence, arguing that this Court should have sentenced him pursuant to United States Sentencing Guidelines § 5G1.3(b) and deducted the same eighteen months from his federal sentence. For the reasons set forth below, Rosario's petition is denied.


  Petitioner committed two separate drug offenses in 1990 and 1998. In 1990, Rosario was arrested by the New York City Police Department for criminal possession of a controlled substance in the second degree. The proceedings were never concluded*fn2 and the Supreme Court, New York County issued a bench warrant for Rosario's arrest. Rosario was again arrested on June 10, 1998 for criminal possession of a controlled substance in the first degree. Petitioner was returned on the bench warrant for his 1990 offense and ultimately, on June 12, 1998, was Page 2 sentenced to 3 years to life imprisonment. On July 22, 1998, Rosario began to serve this sentence at Downstate Correctional Facility.

  While Rosario was in state custody for his 1990 offense, state and federal charges were brought against him as a result of his 1998 offense. The state charges were dismissed,*fn3 and Rosario was indicted for conspiracy to distribute cocaine in violation of 21 U.S.C. § 846 (United States v. Rosario, Indictment, No. 98-CR-1038 (HB) (S.D.N.Y. Sept. 24, 1998)). While still serving his state sentence, Rosario was transferred into federal custody on October 6, 1998 on a writ of habeas corpus ad prosequendum to await trial on the federal charges. Pursuant to this writ, Rosario was detained at Otisville Federal Detention Center.

  On May 24, 1999, petitioner appeared before this Court and pleaded guilty to the 1998 conspiracy indictment. Rosario's then defense counsel, Lee Ginsberg, Esq., initially argued that Rosario was entitled to a concurrent sentence under the United States Sentencing Guidelines ("U.S.S.G.") § 5G1.3(b). However, when Mr. Ginsberg learned that petitioner's two convictions arose from separate offenses in 1990 and 1998, he acknowledged that § 5G1.3(b) no longer applied and instead requested that the Court use its discretion to sentence Rosario to concurrent sentences under § 5G1.3(c). This Court then sentenced Rosario to 120 months imprisonment, to run concurrently with Rosario's state sentence pursuant to § 5G1.3(c). This Court also imposed a period of five years supervised release and ordered petitioner to pay the mandatory special assessment.

  Subsequently, Rosario filed a pro se Notice of Appeal, which he later moved to withdraw on November 16, 2000. On November 29, 2000, the Second Circuit granted petitioner's motion. Thereafter, Rosario petitioned pro se for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 and sought to gain credit for the eighteen months spent in federal detention prior to his plea of guilty. Rosario initially filed his petition in the Eastern District of New York. Petitioner's case was transferred from the Eastern to the Southern District of New York pursuant to Rule 83.3 of Page 3 the Local Rules of the Southern and Eastern Districts> of New York, which provides that, "applications for a writ of habeas corpus made by persons under the judgment and sentence of a court of the State of New York shall be filed, heard and determined in the district court for the district within which they were convicted and sentenced." Local Civil Rule 83.3; Rosario v. United States, Transfer Order, No. 01-CV-8522 (RR), (E.D.N.Y. Jan. 10, 2002).


  Petitioner raises two objections to his sentence. First, Rosario argues that under 18 U.S.C. § 3585 he should receive credit on his federal sentence for the eighteen months spent in federal detention. Second, Rosario argues that this Court should have sentenced him under U.S.S.G. § 5G1.3(b) and therefore he is entitled to be re-sentenced. For the reasons discussed below, this Court has jurisdiction over both claims, but they nonetheless fail and, accordingly, Rosario's petition is denied.

  A. Jurisdiction

  Although Rosario titled his petition as a "Motion for Habeas Corpus Under 28 U.S.C. § 2241," in reality, he raises claims under both § 2241 and § 2255. As the Second Circuit explained in Chamber v. United States, §§ 2241 and 2255 address different types of claims. 106 F.3d 472, 474 (2d Cir. 1997) ("A petitioner seeking to challenge the legality of the imposition of a sentence by a court may therefore make a claim pursuant to Section 2255 . . . A challenge to the execution of a sentence, however, is properly filed pursuant to Section 2241/0 (emphasis in original) (citation omitted). Rosario first argues that under 18 U.S.C. § 3585 he should receive credit on his federal sentence for the eighteen months spent in federal detention, a claim properly raised in his § 2241 petition. Poindexter v. Nash, 333 F.3d 372, 377 (2d Cir. 2003) (explaining that § 2241 is the means by which a petitioner can challenge the Bureau of Prisons' calculation of credit to be give for other periods of detention). Rosario also asserts what appears to be a 28 U.S.C. § 2255 claim and argues that he is entitled to be re-sentenced because this Court should have sentenced him under U.S.S.G. § 5G1.3(b). United States v. Werber, 51 F.3d 342, 349 n.7 (2d Cir. 1995) (noting that a claims of error to the original sentence are properly raised in a § 2255 petition). Because a pro se petition must be read liberally to encompass the strongest Page 4 arguments it suggests, we address both of his claims. McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999). The Government argues that this Court does not have jurisdiction over Rosario's § 2241 claims because he is incarcerated at the Metropolitan Detention Center in Brooklyn, New York, and therefore this portion of the petition can only be heard in the Eastern District of New York. For the following reasons, I find that this Court has jurisdiction over both portions of Rosario's petition.

  Motions for habeas corpus relief pursuant to 28 U.S.C. § 2255 are properly directed toward "the court which imposed the sentence." 28 U.S.C. § 2255. 28 U.S.C. § 2241 provides, in pertinent part, that "[w]rits . . . may be granted by . . . district courts . . . within their respective jurisdictions." 28 U.S.C. § 2241 (a). Prior to the Supreme Court's decision Braden v. 30th Judicial Circuit Court of Ky., 410 U.S. 484 (1973), this language was interpreted to mean that district courts lacked subject matter jurisdiction to issue writs on behalf of prisoners not within their territorial boundaries. United States ex rel. Sero v. Preisen, 506 F.2d 1115, 1127-28 (2d Cir. 1974). In Braden, however, the Court held that "[s]o long as the custodian can be reached by service of process, the court can issue a writ `within its jurisdiction' . . . even if the prisoner himself is confined outside the court's territorial jurisdiction." Braden, 410 U.S. at 495 (ruling that a district court in Kentucky properly issued a writ ordering a new trial for an inmate incarcerated in Alabama); see also Henderson v. Immigration and Naturalization Serv., 157 F.3d 106, 122 (2d Cir. 1998). The Second Circuit interpreted Braden to mean that the jurisdictional grant in § 2241(a) is "coextensive with the scope of service of process." Preiser, 506 F.2d at 1128 (deciding that a district court had jurisdiction over a state-wide class of habeas corpus petitioners that included members detained outside the district). Under Federal Rules of Civil Procedure 4(e) and 4(k)(1)(A), the scope of this Court's service of process extends at least to parties located in the State of New York. Brooks v. Strack, No. 98-CV-6528, 1999 WL 672949, at *3 (E.D.N.Y Aug. 25, 1999) (finding that the Eastern District Court had jurisdiction where the habeas petitioner was detained in the Southern District of New York). Therefore, the fact that Rosario was incarcerated within the Eastern District of New York is of no moment and this Court, in the interests of judicial economy, can decide all issues raised in his petition. Bellomo v. United States, No. 03-GV-2627, 2003 WL 22331878, at *6 (E.D.N.Y. Oct. 8, 2003) Page 5 (determining that a the district court for the Southern District of New York could hear a § 2241 petition where the petitioner's custodian was located in the Eastern District of New York).

  B. Petitioner's 28 U.S.C § 2241 Claim

  A writ of habeas corpus pursuant to § 2241 is available to prisoners who challenge the execution their sentence. Carmona v. Bureau of Prisons, 243 F.3d 629, 633 (2d Cir. 2001) (deciding petitioner's § 2241 claim was proper because he was seeking credit for prior time spent in detention). Courts in this district have held that claims regarding sentencing credit, pursuant to 18 U.S.C. § 3585, constitute a challenge to the execution of the sentence. E.g. Kaiser v. United States, No. 00-CV-5718, 2001 WL 237382, at *3 (S.D.N.Y. Mar. 9, 2001) (ruling that § 2241 is a proper claim for which to raise sentencing credit challenges); Garrett v. Menifee, No. OO-CV-8274, 2001 WL 170678, at *1 (S.D.N.Y. Feb. 21, 2001) (same). Since Petitioner disputes a sentencing credit, his claim constitutes a challenge to the execution of the sentence and, accordingly, § 2241 is the "proper vehicle for review." United States v. Maldonado, 138 F. Supp.2d 328, 332 (E.D.N.Y. 2001).

  It is well established that the Bureau of Prisons, not the courts, decides whether the petitioner should receive credit for any prior time spent in custody. United States v. Montez-Gaviria, 163 F.3d 697, 700-1 (2d Cir. 1998) (holding that the Bureau of Prisons, not the district court, is responsible for determining sentencing credit); United States v. Casanova, No. 91-CR-312, 1995 WL 387714, at *1 (S.D.N.Y. Jun. 30, 1995) (dismissing defendant's application for credit because she failed to first seek relief through the Bureau of Prisons). Thus, because Rosario asserts a § 2241 claim, it is up to the Bureau of Prisons, not the district courts, to determine whether credit should be given for prior time spent in custody pursuant to § 3585. Nevertheless, if a defendant disputes the Bureau of Prison's determination of credit, after he `exhausts all administrative remedies, Beharry v. Reno, 329 F.3d 51, 54 (2d Cir. 2003), he may seek judicial review by of the decision by filing a habeas corpus petition pursuant to 28 U.S.C. § 2241, Rosemond v. Menifee, 137 F. Supp.2d 270, 272 (S.D.N.Y. 2000). Rosario satisfied the exhaustion requirement when he applied to the Bureau of Prisons seeking credit. His claim must nonetheless be denied because the Bureau of Prisons had already credited the eighteen months spent at Otisville Federal Detention Center towards his state sentence and he cannot receive the Page 6 same credit towards his federal sentence because the two convictions are unrelated.

  Under 18 U.S.C. § 3585, a defendant is entitled to credit toward the term of imprisonment if the defendant, prior to the commencement of the sentence, has spent time in official detention as a result of: (1) the offense for which the sentence was imposed; or (2) any other charge for which the defendant was arrested after the commission of the offense for which the sentence was imposed, so long as it has not been credited towards another sentence. 18 U.S.C. § 3585(b); United States v. Labeille-Soto, 163 F.3d 93, 99 (2d Cir. 1998) (deciding that a district court lacks authority under § 3585(b) to credit a defendant's federal sentence for time that has already been credited towards a state sentence).

  The first subsection of § 3585 on which petitioner relies is not applicable because his convictions arose from two different offenses. Rosario's arrest in 1998 resulted in two separate sentences: one for his 1990 state possession offense because he had been a fugitive since 1990 and for his 1998 federal conspiracy charge. The Government and petitioner agree that the eighteen months Rosario spent in federal detention, was already credited toward his state sentence, thus rendering the second subsection of § 3585 inapplicable as well. As the Second Circuit decided in Werber v. United States, a petitioner has "no right to credit on his federal sentence for time that has been credited against his prior state sentence," because § 3585 precludes a petitioner from receiving double credit. 149 F.3d 172, 173 (2d Cir. 1998); see also Tisdale v. Menifee, 166 F. Supp.2d 789, 792 (S.D.N.Y. 2001) (deciding that petitioner's claim for credit for time served in federal custody "must be dismissed because he has already received state credit for the time served under the federal detainer"). Thus, if time spent in detention has already been credited to a state or federal sentence, that petitioner is explicitly barred from applying that time to another sentence. Werber, 149 F.3d at 173.

  This reasoning makes sense when the purpose of Rosario's transfer to federal custody is made clear. On October 6, 1998, petitioner was transferred into federal custody pursuant to a writ of habeas corpus ad prosequendum. When a prisoner is produced for prosecution in federal court pursuant to this writ, the state retains primary jurisdiction over the prisoner. United States v. Smith, 812 F. Supp. 368, 370 (E.D.N.Y. 1993) (holding that petitioner could not receive credit toward his federal sentence for time spent in federal custody because the time spent in detention was part of his Page 7 state sentence). This rule is derived from the notion that the prisoner is on "loan" to the federal authorities; Id. at 372: see also United States v. Fermin, 252 F.3d 102, 108 n.10 (2d Cir. 2001) ("a defendant held at a federal detention facility is not-in custody' . . . when he is produced through a writ of habeas corpus ad prosequendum").

  Thus, despite the writ, Rosario remained in state custody when he came to Otisville Federal Detention Center and was still serving his state sentence. The eighteen months Rosario spent at Otisville Federal Detention Center were credited towards his state sentence because Rosario was on "loan" to the federal authorities so his federal charges could be adjudicated. As a result, Rosario is unable to receive additional credit towards his federal sentence because § 3583(b) precludes defendants from receiving "double credit" for time on both his federal and state sentences. United States v. Wilson, 503 U.S. 329, 337 (1992) (deciding that § 3585(b) restricts sentencing credits to time that has not been credited against another sentence to ensure that a defendant does not receive double credit). The Bureau of Prisons properly deducted the time Rosario spent in federal detention from his state sentence because Rosario was serving his state sentence while he was on loan to the federal authorities. As a result, petitioner's claim must be denied.

  C. Petitioner's 28 U.S.C. § 2255 Claim

  In the alternative, Rosario asserts a § 2255 claim regarding the legality of his sentence because Rosario seeks to challenge the execution of his sentence. Petitioner's § 2255 claim is both time and procedurally barred. A one-year statute of limitations applies to motions made pursuant to § 2255, which begins on the date that a petitioner's conviction becomes final. 28 U.S.C. § 2255(1). Rosario's judgment became final on November 29, 2000 — the date when the Second Circuit granted his motion to withdraw his appeal. Rosario did not file his petition until December 11, 2001. Even if Rosario's petition ware timely, he would nevertheless be procedurally barred because he failed to address the legality of the sentence on appeal, but instead chose to withdraw his appeal. United States v. Perez, 129 F.3d 255, 260 (2d Cir. 1997) (holding petitioner is procedurally barred from asserting a § 2255 claim unless he does so on direct appeal). Even if Rosario's § 2255 claim could be considered on the merits, it would nonetheless fail because there was no error in his sentence.

  Petitioner claims that he should be resentenced in accordance with U.S.S.G. § 5G1.3(b). Page 8 Under § 5G1.3(b), if convictions arise from the same course of conduct, district courts may reduce the later sentence to account for the amount of time already served, on the prior, undischarged sentence, thus enabling the sentences to run concurrently and terminate at the same time. The purpose of § 5G1.3(b) is to ensure that petitioner is properly credited for the time served for the related crime.

  Here, it would be inappropriate to apply § SG1.3(b) because Rosario's convictions arose from two completely unrelated offenses. When this Court sentenced petitioner for his 1 998 conspiracy charge, his 1 990 possession offense was only taken into consideration when determining his criminal history category. I sentenced petitioner under § 561.3(c) because Rosario's convictions arose from separate criminal conduct. This provision allows a sentencing court to use discretion when imposing sentences concurrently, to "achieve a reasonable punishment for the instant offense." U.S.S.G. § 5G1.3(c). Based on this provision, Rosario was sentenced at the lowest end of the applicable guidelines range to a term of imprisonment of 120 months, which was ordered to run concurrently with the state sentence Rosario was already serving.

  Petitioner's reliance on United States v. Gonzalez, 192 F.3d 350 (2d Cir. 1999) is misplaced. There the convictions arose from the same course of criminal conduct, whereas Rosario's convictions stemmed from unrelated criminal conduct, thus rendering § 5G1.3(b) inapposite. Accordingly, petitioner's § 2255 claim is denied.


  For the foregoing reasons, petitioner's habeas corpus petition is denied. The Clerk of the Court is instructed to close this case and remove it from my docket.


 *fn2 Rosario was apparently a fugitive from 1990 until 1998. (Gov't Mem. Opp. at 2 n.1.)

 *fn3 It is unclear why the states charges were dismissed. According to the Presentence Investigation Report ("PSR"), Rosario's 1998 state charges were "[d]ismissed due to conviction on unrelated case" on August 11, 1998. (PSR at 11.) The date of this disposition suggests that the charges were dismissed because of Rosario's conviction for his 1990 offense, given that Rosario was not indicted until September 24, 1998 and he was not sentenced until May 24, 1999. The Government, however, asserts that these charges were dismissed because of the pending federal indictment for the same conduct (Gov't Mem. Opp. at 2.)


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