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Spencer v. Blanckensee

United States District Court, S.D. New York

February 26, 2018

BARRY SPENCER, II, Petitioner,
v.
B. VON BLANCKENSEE, Respondent.

          OPINION AND ORDER

          Vincent L. Briccetti United States District Judge

         Petitioner Barry Spencer, II, proceeding pro se and in forma pauperis, brings this petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2241, alleging the Federal Bureau of Prisons (“BOP”) erroneously calculated presentence custody time credited to his federal sentence.

         For the reasons set forth below, the petition is DENIED.

         The Court has subject matter jurisdiction under 28 U.S.C. § 1331.

         BACKGROUND

         I. Factual Background

         On May 17, 2013, a complaint was filed against petitioner in the United States District Court for the District of Massachusetts (the “District of Massachusetts”) for distribution of cocaine and aiding and abetting that distribution (the “federal charges”). A warrant was issued for petitioner's arrest.

         On May 26, 2013, petitioner was arrested by the Boston Police Department for distribution of Class B drugs within 1, 000 feet of a school zone. The arrest was unrelated to the pending federal charges, and petitioner used the alias “David Jones.”

         Following his arrest, petitioner remained in detention.

         Petitioner entered secondary federal custody on June 26, 2013, pursuant to a writ of habeas corpus ad prosequendum, but he was returned to state custody the same day.

         After a July 2015 jury trial, petitioner was convicted on the federal charges. United States v. Barry Spencer, 13 CR 10196 (D. Mass) (“United States v. Barry Spencer”), Docs. ##266, 267, 268.

         On January 20, 2016, petitioner was sentenced to a five-year term of imprisonment (the “federal sentence”). The court ordered that (i) petitioner “shall receive credit for such time served in state custody awaiting disposition of this indictment as may appropriately be counted, ” and (ii) petitioner “shall serve his sentence concurrent . . . with any state sentence to be imposed in the pending state case, Docket #1184SUCR10040.” United States v. Barry Spencer, Doc. #283 at 2.

         First, although the court referenced a single pending state case, Docket #1184SUCR10040, petitioner served two state sentences between his May 26, 2013, arrest and his October 3, 2017, release from federal custody.[1] Petitioner's first state sentence was imposed and deemed served by the Suffolk Superior Court on November 14, 2014. Accordingly, BOP gave petitioner 431 days of credit for time spent in state custody awaiting disposition of the federal charges between the November 14, 2014, conclusion of his first state sentence, and the January 20, 2016, commencement of his federal sentence.

         Second, petitioner did not plead guilty to the charges in Docket #1184SUCR10040 until after the commencement of his federal sentence. On March 27, 2017, the Suffolk Superior Court imposed a ...


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