United States District Court, S.D. New York
OPINION AND ORDER
Vincent L. Briccetti United States District Judge
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
reasons set forth below, the petition is DENIED.
Court has subject matter jurisdiction under 28 U.S.C. §
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.
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
his arrest, petitioner remained in detention.
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.
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.
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.
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. 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
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 ...