United States District Court, S.D. New York
December 2, 2014
CARLOS A. BENITEZ, Petitioner,
UNITED STATES OF AMERICA, Respondent
Carlos A Benitez, Petitioner, Pro se, Malone, N.Y. USA.
MEMORANDUM AND ORDER
Deborah A. Batts, United States District Judge.
Petitioner Carlos A. Benitez (" Petitioner") petitions to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 (" Section 2255"). His Petition asserts that his 57-month sentence was excessive and requests to: (1) be re-sentenced similarly to his co-defendant who received a 30-month term of imprisonment; and (2) have his federal sentence run concurrently with his current state sentence. For the reasons stated below, the Petition is DENIED.
On July 2, 2012, Petitioner pleaded guilty to conspiracy to distribute heroin in violation of 21 U.S.C. § 841(b)(1)(C), an offense that carries a maximum sentence of 20 years. During his plea proceeding, Petitioner allocuted to conspiring to sell 10 grams of heroin. The plea agreement included a stipulated Guideline Range of 57-71 months, which was calculated using an Offense Level of 23, attributing 100 to 400 grams of heroin to Petitioner, and a Criminal History Category of III. The Pre-Sentence Report prepared by the Department of Probation recommended a sentence of 70 months, based on a Guideline Range calculated using an Offense Level of 26 and a Criminal History Category of IV. On April 9, 2013, at sentencing, this Court adopted the stipulated Base Offense Level and Criminal History Category of III. The Court sentenced Petitioner to a term of 57 months imprisonment. Petitioner did not file an appeal, nor did he challenge in any way the sufficiency of his plea or the effectiveness of his trial counsel before or during his guilty plea.
On June 15, 2012, Petitioner's co-defendant, Hector Coste (" Coste"), pleaded guilty to conspiracy to distribute at least 100 grams to 400 grams of heroin, but under 18 U.S.C. § 371, which carries a maximum sentence of 5 years. On April 9, 2013, this Court sentenced Coste to a term of 30 months imprisonment.
Following Petitioner's federal sentencing hearing, he was remitted to state custody to answer unrelated state charges. On May 2, 2013, Petitioner pleaded guilty to Robbery in the 3rd Degree, a Class D Felony, in violation of New York Penal Law § 160.05 and was sentenced to a term of two to four years. The sentence in this Court did not specify whether the federal sentence was to be served concurrently or consecutively with any future state sentences not yet imposed. However, the subsequent state court directed that Petitioner's state sentence should run concurrently with his federal sentence.
On February 24, 2014, Petitioner filed this Petition seeking to vacate, set aside, or correct his sentence pursuant to Section 2255. On July 18, 2014, Petitioner completed his sentence and was transferred to federal custody to commence his federal sentence. On, November 17, 2014, this Court received a letter from the Bureau of Prisons Designation and Sentence Computation Center [" BOP" ] indicating that Petitioner had requested nunc pro tunc designation of the state prison as the place of service of his federal sentence, and requesting the Court's position with respect to Petitioner's request. See Letter from Bureau of Prisons Designation and Sentence Computation Center (Nov. 10, 2014) [" BOP Letter" ].
A. Procedural Default
Petitioner first claims that he should be re-sentenced with a sentence similar to Coste. Petitioner alleges that he was only in possession of 10 grams of narcotics, whereas Coste possessed 100 grams of narcotics. This claim is procedurally barred because he failed to raise it on direct review. " A motion under [Section] 2255 is not a substitute for an appeal." Zhang v. United States, 506 F.3d 162, 166 (2d Cir.2007) (internal quotation marks omitted). Excepting claims of ineffective assistance of counsel, see Massaro v. United States, 538 U.S. 500, 505-06, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003), " [i]n general, a claim may not be presented in a habeas petition where the petitioner failed to properly raise the claim on direct review." Zhang, 506 F.3d at 166 (citing Reed v. Farley, 512 U.S. 339, 354, 114 S.Ct. 2291, 129 L.Ed.2d 277 (1994)). " Where a defendant has procedurally defaulted a claim by failing to raise it on direct review, the claim may be raised in habeas only if the defendant can first demonstrate either cause and actual prejudice, or that he is actually innocent." Bousley v. United States, 523 U.S. 614, 622, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998) (internal citations and quotation marks omitted); see also Harrington v. United States, 689 F.3d 124, 129 (2d Cir.2012) (" [W]e will not afford collateral review to claims that a petitioner failed properly to raise on direct review unless the petitioner shows (1) good cause to excuse the default and ensuing prejudice, or (2) actual innocence.").
A request for a sentence reduction because of a dispute about drug quantity is precisely the type of issue that should be raised on appeal. Petitioner was notified of his right to appeal at his sentencing hearing. Accordingly, Petitioner may only raise his claims in a Section 2255 Petition if he can demonstrate cause for the procedural default and actual prejudice, or actual innocence. He has failed to demonstrate either.
Furthermore, Petitioner waived his right to appeal his sentence by entering into the plea agreement in this case. In the plea agreement, Petitioner agreed that he would " not ... file a direct appeal; nor bring a collateral challenge, including but not limited to an application under Title 28, United States Code, Section 2255 and/or Section 2241. . ." Because Petitioner does not contend that the plea agreement is invalid, the appeal waiver in the plea agreement also bars him from requesting his sentence be reduced. Garcia-Santos v. United States, 273 F.3d 506, 508 (2d Cir. 2001) (holding that a defendant who knowingly and voluntarily waived his right to collaterally attack his sentence may not subsequently file a Section 2255 motion attacking that sentence).
B. Nunc Pro Tunc Designation Claim
Second, Petitioner asserts that the state court directed that his state and federal sentences run concurrently, and asks this Court to amend its judgment to account for that recommendation. The state court recommendation " is not binding on federal authorities." Abdul-Malik v. Hawk-Sawyer, 403 F.3d 72, 75 (2d Cir. 2005) (citing McCarthy v. Doe, 146 F.3d 118, 120-21 (2d Cir. 1998)). " If a [Petitioner] starts in state custody... it will always be the Federal Government--whether the district court or the Bureau of Prisons--that decides whether he will receive credit for the time served in state custody." Setser v. United States, 132 S.Ct. 1463, 1471, 182 L.Ed.2d 455 (2012).
In Setser, the U.S. Supreme Court resolved a Circuit split about whether the federal sentencing judge or the Bureau of Prisons has the authority to make a determination about whether a federal sentence should be served concurrently or consecutively with a yet-to-be-imposed state court sentence, holding that authority lies with federal sentencing judges. Id. at 1471-72; Abdul-Malik, 403 F.3d at 74-75. However, the Supreme Court did not have before it, and did not address, the question of how determinations should be made about retroactive designations that have the effect of making federal and state sentences run concurrently when the federal sentencing judge was originally silent on the issue.
Here, Petitioner seeks to have his federal sentence amended retroactively to deem it concurrent to his later-imposed state sentence, which instructed that his sentences run concurrently. Prior to Setser, the Second Circuit was clear, albeit with reservations, that the decision about whether to designate retroactively state prison as a prisoner's place of federal confinement, thus effectively making sentences run concurrently, was within BOP discretion.
Abdul-Malik, 403 F.3d at 76. Since Setser, the Second Circuit has had limited opportunity to consider the issue, but has cited Setser, stating that " when a defendant serves an initial state sentence and a subsequent federal sentence, the federal district court 'decides whether he will receive credit for the time served in state custody.'" U.S. v. McIntosh, 753 F.3d 388, 395 (2d Cir. 2014)(internal citation omitted). The BOP Program Statement on the topic, the BOP Letter, and the Government's submission in this case all suggest that it is the BOP's policy to ascertain the position of the sentencing judge in its determination of nunc pro tunc designation requests. BOP Letter; Gov't Opp. At 6; BOP Program Statement 5160.05(9)(b)(1)(2003). Although it is unclear in light of Setser whether petitioners can go directly to the federal sentencing judge in the first instance or must apply through the BOP, Petitioner has done both, and his request is now before this Court.
For the reasons stated below, it is the position of this Court that Petitioner's state and federal sentences should not be served concurrently, and thus his request for retroactive designation should be denied. At the original federal sentencing, the Court declined to make a recommendation as to concurrent-versus-consecutive sentencing because the Petitioner had not yet been adjudicated guilty of the state charges against him, and thus the Court had no basis upon which to consider any future sentence that might be imposed by the state in relation to the pending charges. Furthermore, the conduct that was the subject of the pending state charges was wholly unrelated to the conduct for which Petitioner was sentenced in federal court. Additionally, at the time of his original federal sentencing, Petitioner received the benefit of a stipulated Criminal History Category of III, rather than IV, which lowered his Sentencing Guideline Range. Finally, as the Court noted at sentencing, " the [Petitioner] has a long history of drug crimes and crimes of violence, interrupted only by his prison terms. When released from his 90-month imprisonment, he was committing crimes a little over two months later, up to the time he was arrested on this instant charge." (Sent. Trans. at 8:18-22, April 9, 2013.) Although it was the intention of the state court that Petitioner's state sentence be served concurrently to his federal sentence, this Court is not bound by that recommendation, and declines to amend its judgment to account for it.
For the reasons stated in this Memorandum and Order, Petitioner's Motion pursuant to Section 2255 is hereby DENIED.
As the Petition makes no substantial showing of a denial of a constitutional right, a certificate of appealability will not issue. 28 U.S.C. § 2253(c). Therefore, pursuant to 28 U.S.C. § 1915(a)(3), in forma pauperis status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962).