United States v. Pena

1

UNITED STATES OF AMERICA v. ANTHONY PENA

Crim. No. 3:18-cr-0198 (JBA)

United States District Court, D. Connecticut

June 29, 2023

RULING ON MOTION FOR CLARIFICATION

JANET BOND ARTERTON, U.S.D.J.

Defendant Anthony Pena moves for clarification as to whether he is entitled to credit against his federal sentence for the time spent in state custody after his federal sentence was imposed, but before being transferred to federal custody. [Doc. # 96]. The Government's position is that whether he should be awarded any such credits by the Federal Bureau of Prisons (“BOP”) is a determination that may only be made by the Middle District of Pennsylvania, where Defendant is incarcerated. However, the Government acknowledges that this Court did not specify at sentencing whether the sentence imposed was to be consecutive or concurrent to any state sentence and has agreed to communicate any clarification from this Court to the BOP for its consideration. [Doc. # 98]. Defendant's position is that state special parole is a “status” and thus cannot be made consecutive to a federal term of imprisonment contrary to the BOP's interpretation of the Court's intent. (Def.'s Reply [Doc. # 100].) For the reasons set forth below, the Court agrees and the motion for clarification is GRANTED.

I. Background

Defendant was convicted in state court of first-degree robbery in 2012 and was sentenced to a period of state incarceration followed by 3 years of probation (Presentence Report [Doc. # 72] at 8.) He violated his probation in 2013, and on May 1, 2014, he was sentenced in state court to three years imprisonment followed by five years of special parole for the probation violation. (Gov't's Response at 1-2.) It appears that he began serving his term of special parole on October 3, 2016. (Gov't's Supp'l Response [Doc. # 99] Exh. B.) After serving 20 months on special parole, he was returned to state custody based on his firearms and narcotics arrest on June 24, 2018, (id.), and a special parole detainer prevented him from being released on bond. (Def.'s Reply at 2.) On August 29, 2018, a federal detainer was lodged against him for the same underlying conduct and Defendant was indicted on September 11, 2018^[1]. (Def.'s Mot. at 2; Def.'s Reply at 2.) On July 17, 2019, Defendant pled guilty and was sentenced on March 11, 2020, to 71 months in prison and 3 years supervised release; the Court noted that he was on special parole, but made no statement as to whether he would receive any credit for state time served or whether his sentence was to run consecutive or concurrent with any state sentence. (Def.'s Mot. at 2.; Sentencing Tr. [Doc. # 93] at 45, 47.) Neither Defendant's counsel nor the Government raised the issue.

Defendant moved on October 7, 2020, for a modification of the May 1, 2014 state sentence. In his motion, Defendant explained that he had been continuously held at Hartford Correctional since June 24, 2018 on the original state weapons charges arising out of the same conduct as his federal case until the state charge was nolled on July 10, 2020 following his federal conviction. (Gov't's Supp'l Response Exh. A at 4-5.) However, even after the state charges were dismissed, Defendant contends that he was “not transferred into the custody of the Federal Bureau of Prisons to begin serving his Federal sentence due to the existing special parole hold in Docket number HHD-CR11-0653457-T.” (Gov't's Exh. A at 5.) His movement records reflect that on July 10, 2020-the same day the state charges were nolled-there was a “discharge and hold for special parole.” There were no other pending state charges at the time and the state facility had not been designated as the location at which he was to serve his federal sentence, allowing the Court to infer that consistent with Defendant's representations, from July 10, 2020 onwards, he was being held solely pending adjudication of his special parole violation triggered by the June 24, 2018 arrest. (Def.'s Reply at 2.) Defendant's motion for sentence modification was granted on December 9, 2020, and his original sentence was modified to 3 years plus 2 years special parole; the revised mittimus shows a total effective sentence of 3 years. (Gov't's Supp'l Response Exh. A at 3.)

On the same day, his state movement history reflects a “discg & hold for fed auth [sic]” and on January 27, 2021, a “discharge to federal authorities.” Defendant represents that he was transferred into federal custody on December 10, 2020, the day after his special parole hold was lifted and his sentence was modified, rather than on December 9, 2020, but that otherwise the movement history record is largely correct. (Gov't's Supp'l Response Exh. B. at 2; Def.'s Reply at 2.)^[2]

Defendant alleges that he was initially given his “jail time” credit and was given an “out date” of July 2023 by the BOP, but that the BOP subsequently recalculated his time and “refused to credit his jail time spent in custody;” he further explains in his reply that while he was initially going to be given credit towards the sentence for the underlying state court charge, none of the credit that accrued from the state court case was applied after the state charge was nolled on July 10, 2020. (Def.'s Mot. at 2.) The Government represents that based on its communication with a BOP attorney, counsel has learned that BOP treated the federal sentence “as consecutive to the state sentence,” which is why the period between March 11, 2020 and December 10, 2020 was not credited towards Pena's federal sentence. (See Gov't's Response.)

II. Discussion

“When a defendant was in primary state custody at the time his or her federal sentence was imposed, the BOP must determine whether the district court intended the federal sentence to run concurrently with, or consecutively to, the state sentence.” Thomas v. Warden FCI Ray Brook, No. 918CV00430MADTWD, 2021 WL 4086139, at *4 (N.D.N.Y. June 28, 2021), report and recommendation adopted, No. 918CV00430MADTWD, 2021 WL 4084306 (N.D.N.Y. Sept. 8, 2021). While Defendant's question is whether any part of the period from March 11, 2020 (the date he federally was sentenced) to December 10, 2020 (when he was transferred to federal custody) during which time he was incarcerated in a state facility should be credited towards his federal sentence, the narrower question for this Court to answer is whether his federal sentence was intended to run concurrently or consecutively with his state sentence.^[3]When the Court sentenced Defendant on March 11, 2020, the state court had not yet dismissed his state charges, and so there was a possibility of a future state sentence; however, the only definite state sentence at the time was his special parole. It is thus worth devoting a moment to discussing the particularities of Connecticut's special parole system.

“Special parole is a period of supervision that follows the completion of a fully-served term of incarceration. Conn. Gen. Stat. § 54-125e. It is imposed by the sentencing court at the time of sentencing, Conn. Gen. Stat. §§ 54-125a” and violations of special parole “are reviewed by the Connecticut Board of Pardons and Paroles.” Bowden v. United States, No. 3:04-CR-140 (CFD), 2008 WL 4755844, at *2, n1 (D. Conn. Oct. 29, 2008). Connecticut courts have held that special parole “cannot be served while one is incarcerated” by the state, Pentland v. Comm'r of Correction, 200 Conn.App. 296, 306 (2020). As explained by one state court, “[a] person sentenced to a term or terms of incarceration followed by special parole cannot, consequently, simultaneously be incarcerated serving a sentence and released from incarceration to special parole.” Trimmer v. Warden, No. CV040004529S, 2005 WL 2739908, at *5 (Conn. Super. Ct. Sept. 29, 2005). Special parole is instead considered by Connecticut courts to be a “status” rather than “as a definite sentence” separate from the period of incarceration it was issued with, State v. Omar, No. CR090380462, 2020 WL 3790726, at *1 (Conn. Super. Ct. June 9, 2020), affd, 209 Conn.App. 283 (2021); the status is construed as a form of “supervised release” that can be imposed only in conjunction with “a term of incarceration.” State v. Jones, No. TTDCR130103988T, 2020 WL 1172292, at *4 (Conn. Super. Ct. Jan. 31, 2020).

From the perspective of the federal court, special parole is “custody” for purposes of habeas relief and constitutes part of a defendant's state sentence. Gould v. Barone, No. 3:21-CV-1237 (SVN), 2022 WL 1462227, at *1, n1, n2 (D. Conn. May 9, 2022).^[4]Connecticut state parole is rarely addressed by federal courts. Although one federal court has expressed the view that special parole may be served concurrently with a federal sentence, it is unclear whether that view is consistent with the position of Connecticut state courts that special parole is fundamentally inconsistent with a period of incarceration. See Bowden v. United States, No. 3:04-CR-140 (CFD), 2008 WL 4755844, at *1 (D. Conn. Oct. 29, 2008) (“[a]lthough as of August 24, 2006 the federal sentence commenced because the original state sentence (and ‘regular' parole) had been satisfied, [Defendant] also began his term of state ‘special' parole on that date, even though he was incarcerated.”) One Connecticut state court case suggests based on the way that sentencing was sequenced that even if a state sentence is intended to run consecutively with a federal sentence, the defendant is not required to complete any term of special parole before beginning his federal sentence. See, e.g., Cornelius v. Comm'r of Correction, 167 Conn.App. 550, 553 (2016) (defendant was sentenced to 10 years, 6 months incarceration and ten years special parole on a state case, to be served consecutively with a...