Allan v. Johns , 205 F. App'x 934 ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
10-31-2006
Allan v. Johns
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-2726
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"Allan v. Johns" (2006). 2006 Decisions. Paper 268.
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DLD-19 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-2726
YASER ALLAN,
Appellant
v.
TRACY JOHNS, Warden
On Appeal From the United States District Court
For the Western District of Pennsylvania
(D.C. Civ. No. 05-cv-00194)
District Judge: Honorable Kim R. Gibson
_________________________
Submitted For Possible Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
October 19, 2006
Before: BARRY, AMBRO AND FISHER, CIRCUIT JUDGES
(Filed: October 31, 2006)
OPINION
PER CURIAM
Yaser Allan appeals the order of the United States District Court for the Western
District of Pennsylvania denying his habeas petition filed pursuant to 28 U.S.C. § 2241.
We will affirm.
Allan is incarcerated at the Federal Correctional Institution-Loretto in
Pennsylvania. In February 1996, Allan was found guilty of attempted murder and other
offenses in the State of New Jersey. He was taken into state custody. On April 1, 1996,
he was transferred to federal custody pending trial on federal charges. In May 1996,
Allan was found guilty of the charges relating to copyright infringement, trafficking in
counterfeit labels, and money laundering. The following year, on May 21, 1997, the
federal sentencing court imposed a 132-month prison term. The sentencing order did not
contain any reference to the New Jersey sentence. Allan was then returned to state
custody for state court sentencing. In July 1997, the state court imposed an eight-to-
sixteen year prison sentence, to run concurrent to his federal sentence, with credit for the
period spent in custody since his New Jersey conviction in February 1996, plus the day he
spent in custody at the time of his arrest.
Allan then sought clarification from the federal sentencing court regarding whether
the federal sentence would run concurrently with the New Jersey sentence. On February
12, 1998, the federal sentencing court issued an order, noting that the state court had
ordered that the state sentence would run concurrent to the federal sentence, and ordering
that the federal sentence “shall run concurrent to his New Jersey sentence, with any time
remaining under this sentence thereafter to be consecutive thereto.” Allan served time in
state prison, until he was paroled from his New Jersey sentence to serve his federal
sentence; he arrived at F.C.I.-Loretto on June 17, 2004. The federal Bureau of Prisons
has computed Allan’s sentence as beginning on the date on which it was imposed, May
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21, 1997. Allan received six days of prior custody credit, including time spent in custody
after his arrest on federal charges.
After unsuccessfully pursuing administrative remedies, Allan, through counsel,
filed his section 2241 habeas petition, challenging the calculation of his federal sentence
and seeking immediate release. His challenge was two-fold. First, relying on Kayfez v.
Gasele, 993 F.2d 1288 (7th Cir. 1993), Allan argued that he is entitled to receive prior
custody credit for the period during which he physically was in federal custody before
sentencing, even though that period already had been credited against his New Jersey
sentence. Second, Allan argued that, under the terms of his federal sentencing order and
application of section 5G1.3(c) of the United States Sentencing Guidelines, he is entitled
to prior custody credit for all of the time served under his state sentence before his federal
sentence commenced. The government respondent filed a response to the habeas petition,
to which Allan filed a reply.
The Magistrate Judge issued a report and recommendation to grant the writ.
Addressing Allan’s first argument, the Magistrate Judge cited 18 U.S.C. § 3585(b), which
provides that credit be given for official custody before the federal sentence commences
when that period has not been credited against another sentence. The Magistrate Judge
also noted that the Kayfez v. Gasele rationale for allowing “double credit” did not apply
in Allan’s case.1 Nevertheless, the Magistrate Judge recommended granting habeas relief
1
The government argued in its response to the habeas petition that Allan failed to
exhaust his administrative remedies regarding his Kayfez claim, and that Allan in fact
3
based on the application of U.S.S.G. § 5G1.3(c), which permits the sentencing court to
impose a sentence to run concurrently, partially concurrently, or consecutively to a prior
undischarged term of imprisonment. The Magistrate Judge concluded that the February
12, 1998 federal sentencing order imposing a “concurrent” sentence cannot mean
“consecutive,” and because it does not specify a “partially concurrent” sentence, it must
be interpreted to mean that the sentence should run concurrently with the then-
undischarged New Jersey sentence.
The government filed objections to the Magistrate Judge’s report and
recommendation. The government argued that the application of Section 5G1.3(c) is not
mandatory, that there was no indicia of intent to adjust Allan’s sentence under section
5G1.3(c) in the February 12, 1998 sentencing order or sentencing transcript, and that
Allan failed to show any other record evidence to support his position. The District Court
rejected the Magistrate Judge’s recommendation and denied the habeas petition.
Discussing Ruggiano v. Reich, 307 F.3d 121 (3d Cir. 2002), the District Court noted that
the federal sentencing court has authority under Section 5G1.3(c) to grant an adjustment
for time served on a pre-existing sentence, but the question in Allan’s case was whether
the sentencing court actually exercised that authority.2 The District Court distinguished
expressly disavowed any reliance on Kayfez.
2
As noted by the District Court, Application Note 3E to U.S.S.G. § 5G1.3 now states
that subsection (c) does not authorize an “adjustment” of the sentence for a period of
imprisonment already served on the undischarged prison term. However, in an
extraordinary case, a sentencing court may apply credit for time served on the
4
the language used in Allan’s sentencing order with the facts in Ruggiano. In Ruggiano,
the sentencing court’s oral and written sentence indicated that the defendant would
receive credit for time served on his state sentence, and Section 5G application was
specifically requested by the defendant. See id. at 124, 131. Here, the District Court
concluded that the use of the term “concurrent” in Allan’s February 12, 1998 sentencing
order conveyed only an intent that the federal and state sentences were to run
concurrently from the date of the federal sentencing, as there was no additional language
or evidence that the sentencing judge intended to grant any adjustment of sentence for
time served on Allan’s state sentence. Thus, the District Court concurred with the Bureau
of Prison’s calculation of sentence.
Allan filed a timely motion for reconsideration, asserting that the February 12,
1998 order that the federal sentence “shall run concurrent” to his state sentence
constituted an express denial of any intent for the federal sentence run only “partially
concurrent” with his state sentence. The District Court denied Allan’s motion for
reconsideration, finding nothing in the sentencing order that indicates such an express
denial. Allan appeals pro se.
The sentencing court’s February 12, 1998 order states in its entirety:
1. Mr. Allen [sic] was sentenced by Judge Steven H. Womac, a New
Jersey Superior Court Judge, to 8-16 years in custody for attempted murder
and related charges (“New Jersey sentence”).
undischarged sentence by way of a downward departure. This application note was added
in the 2003 edition of the Sentencing Guidelines Manual.
5
2. Judge Womac in the sentencing transcript as well as the Order for
Commitment ordered that the New Jersey sentence run concurrent to the
sentence imposed by this court.
3. It is ORDERED that the sentence imposed by this court shall run
concurrent to his New Jersey sentence, with any time remaining under this
sentence thereafter to be consecutive thereto.
(Section 2241 Habeas Petition, Exhibit B.) Upon review of the record, and for
substantially the same reasons provided by the District Court, we conclude that the
February 12, 1998 order language does not indicate any intent that the federal sentence
was to run retroactively concurrent with the state sentence and that Allan’s sentence was
thereby adjusted for the time served on the state sentence. Allan pointed to nothing in the
record that adequately supports his position in his habeas petition.
Because this appeal presents “no substantial question,” we will summarily affirm
the District Court’s order. 3d Cir. LAR 27.4 and I.O.P. 10.6.
6