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Joost v. Apker

January 19, 2007

ROBERT M. JOOST, PETITIONER,
v.
CRAIG APKER, WARDEN OF THE FEDERAL CORRECTIONAL INSTITUTION AT OTISVILLE, NEW YORK, RESPONDENT.



The opinion of the court was delivered by: John G. Koeltl, District Judge

OPINION AND ORDER

The petitioner, Robert M. Joost, is imprisoned as a result of convictions following two separate trials in the District of Rhode Island for possessing a firearm and ammunition as a felon in violation of 18 U.S.C. § 922(g)(1) and for violation of the Hobbs Act, 18 U.S.C. § 1951. After appealing both convictions and unsuccessfully attacking both collaterally by way of motions pursuant 28 U.S.C. § 2255, the petitioner filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 in this Court on September 21, 2005. The petition is directed against the Warden of the Federal Correctional Institution at Otisville, New York, where the petitioner is presently held. The petitioner alleges that the Judgment and Commitment ("J&C") that issued in connection with his conviction for violating the Hobbs Act, and under which he is currently imprisoned, conflicts with the sentence as it was pronounced orally at his sentencing hearing and is thus void. The Bureau of Prisons ("BOP"), the petitioner alleges, miscalculated his prison sentence based on the allegedly invalid J&C. The petitioner seeks habeas relief directing the BOP to calculate his release date accurately based on the sentence as orally pronounced by the sentencing court.

The respondent objects to the petitioner's arguments both on jurisdictional grounds and on the merits. Because the Court finds that it lacks jurisdiction to hear the petitioner's claim, the Court dismisses the petition.

I.

In 1994, the petitioner was charged in the District Court for the District of Rhode Island in two separate indictments: first, for being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1), and second, for conspiring to obstruct, delay, and affect commerce by robbery of an armored truck in violation of the Hobbs Act, 18 U.S.C. § 1951. (Pet. 1--2.) See United States v. Joost, 92 F.3d 7, 8 (1st Cir. 1996); United States v. Joost, No. 95-2031, 1996 WL 480215, at *1 & n.2 (1st Cir. Aug. 7, 1996). The indictments arose after a government investigation targeting a casino counterfeiting scheme in Connecticut led undercover police detectives to approach the petitioner under the ruse that they were petty thieves. Joost, 92 F.3d at 9. After procuring counterfeit tokens from the petitioner, the police detectives discussed a number of criminal schemes with him, and the detectives eventually asked the petitioner to procure a gun for them to use to get revenge on an adversary. Id. at 9--10. The petitioner was unable to procure one. Id. at 10. The detectives later approached the petitioner and requested that he procure a gun for them to use to rob a nightclub on Cape Cod, and taped conversations revealed that the petitioner said he could get a gun for them. Id. at 10--11. The petitioner was able to procure a gun the next day, allegedly from a government informant, and after he gave the weapon to the detectives, he was arrested. Id. at 11. The petitioner was tried separately on the two indictments in jury trials before Judge Mary M. Lisi, and in each case the jury returned a guilty verdict. See Joost, 1996 WL 480215 at *1 & n.2.

On September 8, 1995, Judge Lisi sentenced the petitioner in connection with both offenses. (See Sentencing Tr., Sept. 8, 1995, Ex. 1 to Resp.'s Mem. of Law in Opp'n to Pet.) The Hobbs Act provided for a statutory maximum of 20 years imprisonment. (Id. at 114.) Judge Lisi noted that the Guidelines provided for a term of 30 years to life (id. at 120, 145--46), and she said "that is the sentence I impose: A term of imprisonment of 30 years" (id. at 147). She also imposed a maximum term of five years of supervised release on the firearm offense, to run concurrent with a term of supervised release on the Hobbs Act offense. (Id. at 147.) Judge Lisi did not impose a fine, but she ordered the petitioner to pay a $100 special assessment. (Id. at 147.)

Counsel for the government asked Judge Lisi to clarify whether the 30-year prison term was imposed on the firearm offense to run concurrently with the 20-year maximum term on the Hobbs Act offense. (Id. at 149.) The transcript reflects that Judge Lisi paused to review the Guidelines approach to sentencing for multiple counts and to confer with a member of the Probation Department. (Id. at 149--50.) Judge Lisi then stated:

Just for clarification-and I appreciate Mr. Madden [counsel for the government] raising this and thank Mr. Jenkins from the Probation Department for his assistance-the-because the statutory maximums on [the Hobbs Act count] and [the firearm count] are different, [the Hobbs Act count] carrying a maximum statutory term of imprisonment of 20 years, [the firearm count] carrying a 15 years to life statutory maximum, and also reviewing the guideline 5G1.2 dealing with sentencing on multiple counts of conviction, the term of imprisonment in this case is imposed on [the firearm count] with the term in [the Hobbs Act count] to run concurrent. And that should satisfy any questions as to how those sentences should be imposed. (Id.)

On September 21, 1995, Judge Lisi executed written J&Cs for both the firearm and the Hobbs Act counts. (Ex. B to Pet.; Ex. C to Pet.) The judgment for the firearm conviction imposed 360 months imprisonment, to run concurrent with the Hobbs Act sentence, followed by five years of supervised release, to run concurrent with the term of supervised release on the Hobbs Act count. (Ex. B to Pet.) The judgment for the Hobbs Act conviction imposed 240 months imprisonment followed by three years of supervised release, both concurrent with the firearm sentence. (Ex. C to Pet.)

The petitioner moved for a new trial after his Hobbs Act conviction (see Sentencing Tr. 8), and the court denied the motion (id. at 26). The petitioner also moved for a judgment of acquittal and for a new trial in connection with the firearm conviction (id. at 27), and the court denied both motions (id. at 34--35). The petitioner appealed both convictions to the Court of Appeals for the First Circuit. The Court of Appeals affirmed the petitioner's Hobbs Act conviction, Joost, 1996 WL 480215 at *1, but it reversed the firearm conviction and remanded for a new trial because the trial court had erred in not including a jury instruction on entrapment. Joost, 92 F.3d at 8.

A new trial was held before Judge Ernest C. Torres on the firearm count, and a jury again returned a guilty verdict. Judge Torres then imposed a sentence of 198 months imprisonment, 126 months of which were to run concurrently with the Hobbs Act sentence and 72 months of which were to run consecutive to the Hobbs Act sentence. (See Ex. D to Pet.) The total sentence was thus 312 months-240 months on the Hobbs Act conviction followed by the 72 month consecutive term for the firearm conviction. The Court of Appeals affirmed this conviction. United States v. Joost, 133 F.3d 125, 132 (1st Cir. 1998).

In 1997, the petitioner filed a motion pursuant to 28 U.S.C. § 2255 collaterally attacking his Hobbs Act conviction. The trial court denied the motion, and the Court of Appeals denied the petitioner's appeal. See Joost v. United States, 336 F. Supp. 2d 185, 186 n.1 (D.R.I. 2004). In 2003, the petitioner filed a motion pursuant to § 2255 to vacate his sentence for his firearm conviction. The district court dismissed the motion as untimely under the one-year statute of limitations for filing § 2255 motions, because it was filed more than five years after his conviction became final. Id. at 186. The court did grant a certificate of appealability to the First Circuit Court of Appeals on one of the petitioner's claims (Ex. 8 to Resp.'s Mem. of Law in Opp'n to Pet.), and the Court of Appeals granted the petitioner's motion for an expanded certificate of appealability on December 22, 2005 (Ex. 9 to Resp.'s Mem.). At present, there has been no decision from the Court of Appeals on whether any exceptions to the one-year statute of limitations for § 2255 apply to the petitioner's motion.

On September 21, 2005, the petitioner filed the present petition seeking a writ of habeas corpus ...


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