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ROSARIO v. U.S.

March 8, 2004.

FRANCISCO ROSARIO, Petitioner, -against- UNITED STATES OF AMERICA, Respondent


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.

OPINION & ORDER

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.

I. BACKGROUND

  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).

  II. DISCUSSION

  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, ...


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