United States District Court, S.D. New York
January 10, 2005.
JOSE GABIN, Movant,
UNITED STATES OF AMERICA, Respondent.
The opinion of the court was delivered by: GABRIEL GORENSTEIN, Magistrate Judge
REPORT AND RECOMMENDATION
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
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.
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
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.