Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.


United States District Court, S.D. New York

January 10, 2005.


The opinion of the court was delivered by: GABRIEL GORENSTEIN, Magistrate Judge


On May 24, 2004, Jose Gabin ("Gabin"), proceeding pro se, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2255. See Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 ("Petition"), filed May 24, 2004.*fn1 Gabin has since disclaimed any effort to seek relief under section 2255 and has instead sought to bring his application as a motion to "clarify" that his federal sentence is to run concurrently with his state sentence. Gabin is currently an inmate at a federal correctional facility in El Paso, Texas. For the reasons stated below, Gabin's application should be denied.


  A. Gabin's Criminal Two Sentences

  On or about June 16, 1998, Gabin was arrested for possession of cocaine. Petition at 1. He was subsequently indicted in the New York State Supreme Court and released on bail. Id. at 1-2; The Government's Opposition to Jose Gabin's Petition for a Writ of Habeas Corpus and His Subsequently Filed Motion to "Clarify" His Sentence, dated August 31, 2004 ("Gov't Br."), at 2. While free on bail, he was arrested on unrelated federal drug charges. Id.

  Gabin pleaded guilty to conspiracy to distribute cocaine in the federal criminal case (99 Cr. 1238) on June 29, 2000. See Plea Transcript (reproduced as Ex. A to Gov't Br.). Following the plea to the federal charges, he pleaded guilty (but was not sentenced) in state court on July 19, 2000. Gov't Br. at 2-3. Gabin was returned to federal court for sentencing and, pursuant to his plea agreement, was sentenced to 87 months imprisonment followed by four years of supervised release on December 7, 2000. Judgment (reproduced as Ex. D to Gov't Br.), at 2-3. No mention was made either during the allocution or in the judgment of conviction with respect to whether the federal sentence should run concurrently or consecutively to any future prison sentence the state court might impose. Id. at 2; Allocution Transcript (reproduced as Ex. C. to Gov't Br.). The district court's sole recommendation to the Bureau of Prisons ("BOP") was that Gabin should be incarcerated in a facility in the New York area. Id.*fn2

  Following his sentence in federal court, Gabin was returned to state court for sentencing. See Petition at 2. The State Supreme Court sentenced Gabin to a term of five years to life for his state offense on January 25, 2001. See Detainer Letter (reproduced as Ex. B to Motion to Recharacterize the Motion to Vacate as Motion to Clarify Sentence, filed August 30, 2004 (Docket #96) ("Motion to Clarify")). The New York State detainer lodged with the BOP explicitly stated that the state sentence was to run concurrently with the federal sentence. Id. B. The Instant Motion

  In Gabin's original petition, he asserted that his two sentences were running consecutively in spite of the New York Supreme Court's direction that they should run concurrently. Petition at 2. Gabin argued that his federal sentence should have been imposed concurrently, id. at 2-3, and he raised an ineffective assistance of counsel claim on the ground that his attorney failed to ensure that his federal sentence would be imposed concurrently with whatever state sentence he was due to receive, id. at 3-5.

  Before any response from the Government had been submitted, Gabin submitted new papers in which he sought to "recharacterize" his initial motion. See Motion to Clarify at 1-6. In his new papers, Gabin asked that his application under 28 U.S.C. § 2255 be recharacterized as a motion under Fed.R.Crim.P. 47 to "clarify" that his federal sentence should run concurrently or, in the alternative, that his § 2255 motion be clarified to reflect his new request for relief. Id. at 1. Gabin's specific complaint was that, having completed a drug treatment program in the federal prison system, he would normally be eligible for a sentence reduction of one year and placement in a halfway house. Id. at 4. Gabin asserts, however, that the BOP will not give him the advantage of the sentence reduction or the halfway-house placement because of the New York State detainer. Id. at 5. Gabin also contends that he is not yet eligible for "parole" in the New York system because he is not in the physical custody of New York State. Id.

  Gabin makes two requests in his Motion to Clarify. First, he asks the Court to make a nunc pro tunc designation providing that his federal sentence must run concurrently with his state sentence. Id. at 5-6. Second, he requests that the Court order the BOP to allow him to serve his federal sentence in a New York State correctional facility, thus permitting him to obtain parole under the New York state system and subsequently serve the remainder of his federal sentence in a halfway house. See id. He cites no particular rule or statute that permits either form of relief, other than Fed.R.Crim.P. 47, the rule governing motion practice generally.

  In response, the Government argues that Gabin's petitions cannot be brought under either 28 U.S.C. § 2255 or Rule 47. Gov't Br. at 6-7. It also argues that Gabin has failed to exhaust his administrative remedies with the BOP with respect to the relief he seeks. Id. at 8-9. Once Gabin has exhausted his administrative remedies, the Government argues, any claim regarding the execution of his sentence falls within 28 U.S.C. § 2241 and must be brought in Texas where Gabin is incarcerated. Id. at 9-10.

  In Gabin's reply, he makes clear that he is no longer seeking relief under 28 U.S.C. § 2255. See Defendant's Reply to the Governments [sic] Opposition to the Defendant's Motion to Recharacterize His Petition for Writ of Habeas Corpus as a Motion to "Clarify" Sentence and Nunc Pro Tunc Judgment, filed Sept. 14, 2004 (Docket #97) ("Reply"), at 2-3. He contends that the BOP has no authority to give him the relief he seeks, id. at 4, but otherwise makes no additional arguments. Gabin thereafter filed a "Motion to Expedite Disposition of Motion to Clarify Sentence," filed December 16, 2004 (Docket #101), which also makes no additional arguments.


  Gabin seeks essentially two forms of relief from this Court. Each is discussed separately.

  A. Request for Nunc Pro Tunc Order

  As noted, Gabin asks the Court to issue a nunc pro tunc order providing that his federal sentence shall run concurrently with his state sentence. Motion to Clarify at 5-6; Reply at 6. The Government's brief does not speak to whether the Court has the power to issue such an order and Gabin has provided several examples of such orders issued by other courts. See Reply, Ex. A-D. Nonetheless, the Second Circuit in United States v. Pineyro, 112 F.3d 43 (2d Cir. 1997) (per curiam), squarely barred the issuance of such an order.

  In Pineyro, defendant Pineyro had received a federal sentence and a subsequent state sentence. Id. at 44. Unlike Gabin, Pineyro remained in state custody to serve his state sentence and was then transferred to federal custody. Id. While in state custody, Pineyro sought to obtain from the federal district judge who sentenced him a recommendation to the BOP that his sentences should run concurrently. Id. The district judge declined to make such a recommendation because the state court had not directed that the sentences should run concurrently. Id.

  On appeal, the Second Circuit noted that "Pineyro argues that he is entitled to an order from the district court stating that his federal sentence was to run concurrently with his later-imposed state sentence, despite the fact that his federal sentencing order did not so state." Id. at 45. The court rejected this contention, however, holding that "the district court did not have the authority to modify the original sentence." Id. The court cited, inter alia, Fed.R. Crim. P. 35(c), noting that it contains a seven-day time limitation on correcting a sentence once it has been imposed. Id.

  Pineyro thus bars this Court from issuing the nunc pro tunc order that Gabin seeks. At least one other case has also recognized that a district court lacks authority to issue such an order. See, e.g., United States v. Wallace, 1998 WL 328633, at *1 (S.D.N.Y. June 22, 1998). B. Request for Order to the BOP

  Gabin also requests that the Court order the BOP to allow him to serve the remainder of his federal sentence in a New York State correctional facility. See Motion to Clarify at 5-6; Reply 6. The question of where a federal sentence should be served, however, is a matter entirely within the purview of the BOP, not the sentencing court. This issue was also addressed in Pineyro, which held that "[i]t . . . falls to the BOP to determine a defendant's place of confinement. . . . While BOP may consider the recommendation of the sentencing judge in determining the place of a confinement, the district judge's views are not controlling." 112 F.3d at 45 (citing 18 U.S.C. §§ 3621(b) and 3621(b)(4)). Accordingly, the Court cannot comply with Gabin's alternative request either as it is solely within the jurisdiction of the BOP.*fn3


  For the foregoing reasons, Gabin's application should be denied and the case closed.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.