Allen v . United States 06-CV-277-SM 02/23/07 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Howard Allen, Petitioner
v. Civil N o . 06-cv-277-SM Opinion N o . 2007 DNH 023 United States of America, Government
O R D E R
Petitioner, Howard Allen, seeks relief under 28 U.S.C.
§ 2255, in the form of a “correct[ed] sentence.” Initially, he
filed a letter raising essentially the same issue. The
government and trial defense counsel were asked to respond to the
letter, the court being concerned about the propriety of deeming
it to be a petition under § 2255 (thereby perhaps precluding
other issues from being raised in a “second or successive”
petition). And, if the parties agreed that a different (lesser)
sentence was expected, some form of relief by consent may have
been available. Counsel for the government and counsel for
defendant responded, and after considering their submissions, the
court determined that petitioner’s letter should not be
considered a § 2255 petition. Order, May 3 0 , 2006 (document n o .
75). Petitioner then filed a timely and proper motion under
§ 2255 raising two discrete issues. First, he suggests that his
binding plea agreement for a stipulated federal sentence to 30
months in prison was breached. Second, petitioner says his
counsel provided ineffective assistance in that counsel “had
[him] believe” that his stipulated 30 month sentence would
require him to serve only 18 months, because his federal sentence
and a state sentence were to run concurrently under the plea
agreement’s terms. In other words, petitioner claims he “was led
to believe,” and he thought that “concurrent” meant he would get
credit against both his federal and state sentences for time he
served in state pretrial detention.
Having considered the government’s and defense counsel’s
earlier responses, and having reviewed the record, including
transcripts of the plea colloquy and sentencing hearing, as well
as exhibits and pleadings filed by petitioner, it is plain that
petitioner is not entitled to the relief he seeks. It also
appears that if petitioner were able to demonstrate entitlement
to relief, it would be of a type that might prove detrimental to
his interests.
2 Background
On August 1 1 , 2004, petitioner was arrested by state
authorities, pursuant to a warrant, for selling cocaine on July
1 5 , and 1 9 , 2004. He resisted that arrest and, in the process,
assaulted a police officer — offenses for which he was also
charged by state authorities. The state referred the drug
charges for federal prosecution, but retained jurisdiction over
the unrelated charges of resisting arrest and assaulting a police
officer.
Petitioner was arraigned in federal court on the drug
charges on October 1 , 2004, and then returned to state custody.
He was detained by the state pending trial on its charges. His
federal prosecution went forward, but was interrupted by a number
of delays related to difficulties he had with appointed counsel,
as well as the need to complete a psychiatric evaluation.
On August 2 5 , 2005, petitioner executed a written plea
agreement in this case, and, on September 6, 2005, he pled guilty
in this court to three counts in an indictment, two charging him
with distributing cocaine and one charging him with possessing
cocaine with the intent to distribute i t . The plea agreement
contained a “binding” stipulation under Fed. R. C r . P.
11(c)(1)(C) providing that:
3 a. The defendant shall be sentenced to a term of imprisonment of thirty (30) months, with three (3) years supervised release to follow.
b. In the event the defendant is sentenced upon his pending State cases (State of New Hampshire v . Howard Allen, Concord District Court) prior to his sentencing in the instant case, the sentence in the instant case shall be ordered to run concurrent with his State sentence(s).1 1 The government has agreed that, in the event the defendant is sentenced on the instant case prior to his State cases, the government will request that the State prosecutor recommend that the State sentences be imposed concurrently to the instant sentence. The defendant understands that neither this Court nor the State prosecutor is bound by the government’s agreement in this regard.
Plea Agreement, dated August 2 6 , 2005, (document n o . 5 1 ) .
Shortly thereafter, on September 2 3 , 2005, petitioner pled
guilty in state court to the unrelated charges of resisting
arrest and assault on a police officer. He was sentenced the
same day to twelve months of imprisonment (which sentence had
already been served, as of August 1 2 , 2006, because he had been
detained while awaiting his trial in state court). In sentencing
petitioner, the state trial judge approved an agreement providing
that his state sentence “is to run concurrent to the federal
charges 1:04cr197 (04-197-01-M) scheduled for sentencing on 12-2-
05.” State v . Howard Allen, Agreement, dated September 2 3 , 2005,
Approved by Boyle, J. But, the state court cannot make a later
4 imposed federal sentence run concurrently with a state sentence.
And, the state court cannot, in effect, afford federal pretrial
confinement credit for time served in state custody. See 18
U.S.C. § 3585(b).
On December 2 , 2005, petitioner was sentenced in this court
on the federal drug charges. Although the stipulated sentence to
30 months was below the applicable Guidelines Sentencing Range,
the court nevertheless approved the plea agreement and imposed
it. Defense counsel made clear at the sentencing hearing that
petitioner was not seeking either a downward departure under
Guidelines Section 5K2.23 (departure based upon discharged term
of imprisonment) or an adjustment under Section 5G1.3 (imposition
of sentence on defendant subject to an undischarged term of
imprisonment). Counsel’s reasoning was apparent — neither
provision would apply in a manner that could benefit defendant.
First, defendant’s state sentence was already fully
discharged by the time he was sentenced in federal court — the
state court sentenced him to less time than he had already been
held in state pretrial confinement before he was sentenced in
federal court. (The time defendant spent in state pretrial
detention in excess of that imposed as a state sentence was duly
credited toward his federal sentence.) S o , section 5G1.3 did not
5 apply, because it addresses persons subject to an undischarged
term of imprisonment.
Second, section 5K2.23 did not apply, because that section
provides for a departure, if otherwise appropriate, when a
defendant has completed serving a term of imprisonment and
section 5G1.3(b) would have provided for a downward adjustment
had the term been undischarged at the time of sentencing. But,
subsection (b) of section 5G1.3 did not provide a basis for a
downward departure in petitioner’s case. Although petitioner’s
state sentence was discharged, it had not been imposed for an
offense that constituted relevant conduct with respect to the
federal charges, and had not served as a basis for increasing the
Guidelines offense level applicable to the federal drug crimes at
issue.
The plea agreement was executed before the state sentence
was imposed and, while § 5G1.3(c) contemplates imposition of a
concurrent sentence “in any other case” where a defendant is
serving an undischarged term of imprisonment, at the time
petitioner’s federal sentence was imposed he faced no
undischarged term of imprisonment. Accordingly, the court
imposed the stipulated 30 month term, but without noting that it
was to be served “concurrently,” there being no undischarged
6 state sentence with which it could be served concurrently.
Neither defense counsel nor defendant objected, nor did either
move to withdraw petitioner’s guilty pleas due to the imposition
of a sentence more severe than that stipulated to in the plea
agreement.
Discussion
Breach of Plea Agreement
Petitioner seeks relief in the form of a sentence reduction
from 30 to 18 months. That i s , he wants credit against his
federal sentence for all the time he served in state pretrial
detention, time that was fully credited toward his state
sentence, with the balance already credited to his federal
sentence. He urges two grounds in support of that request for
relief. He claims, initially, that the terms of his binding plea
agreement entitled him to the credit he seeks. Next he says his
trial defense counsel provided ineffective assistance, in that
counsel “had [petitioner] believe” that “12 months of the state
sentence should be ran [sic] into my 30 months of my federal
sentence, which would leave me with only 18 months based on my
binding plea agreement, which means ran [sic] concurrently, not
consecutive.”
7 Regarding the first ground, the plea agreement’s stipulation
was fully met. Petitioner was sentenced to the stipulated 30
months in prison. The judgment did not provide for concurrent
service with the state sentence because that sentence had already
been completely served by the time the federal sentence was
imposed — there was simply no state sentence with which it could
be served concurrently. Credit against a federal sentence for
time previously served in state custody on unrelated state
charges is quite a different matter than “concurrent” service of
two sentences. To the extent petitioner suggests he thought
state pretrial confinement credit and concurrent service of two
sentences were the same thing, the record contradicts his claim.
Petitioner acknowledged during the plea colloquy that he
understood that he was stipulating to a 30 month sentence on the
federal drug charges and that it would run concurrently with any
state sentence imposed, if the state sentence was imposed before
he was sentenced federally. If the court were to impose a
harsher sentence, petitioner understood that he would be allowed
to withdraw his guilty pleas. He also acknowledged that he
reviewed each term of the written plea agreement with counsel and
was satisfied with counsel’s advice and representation.
Petitioner did not assert any objection or even comment at
sentencing when his counsel put on the record that no adjustment
8 or departure was sought based upon petitioner’s completed service
of the state sentence imposed three months earlier.
The plea agreement is neither unclear nor subject to
reasonable differing interpretations regarding the sentence to be
imposed: 30 months to be served concurrently with the state
sentence, if the state sentence was imposed first, and 30 months
with a promise by the government to request the state prosecutor
to recommend that the state sentence be made to run concurrently
with the federal sentence, if the state sentence was imposed
after the federal sentence. That the length of the state
sentence imposed made the concurrent service provision moot did
not entitle petitioner to credit for all the time previously
served in state custody against his federal sentence. He was
only entitled to serve his federal and state sentences at the
same time (concurrently) to the extent they occupied the same
period, as opposed to serving them consecutively, that i s ,
serving one sentence after the other was completed. Petitioner’s
first asserted ground for relief — that his plea agreement was
breached — is without merit.
Credit for pretrial detention time against a federal
sentence is not a matter over which district courts have
authority. The Attorney General is responsible for computing, in
9 accordance with applicable statutes, the amount of pretrial
credit a defendant is entitled t o , and that computation is made
after a defendant begins serving his sentence. See United States
v . Wilson, 503 U.S. 329 (1992). 1 Defendant’s avenue of relief in
that regard i s , initially, administrative in nature. If
defendant is dissatisfied with the Bureau of Prisons’
administrative determination of credit, he may seek judicial
review pursuant to 28 U.S.C. § 2241. Wilson, 503 U.S. at 335;
Rogers v . United States, 180 F.3d 349, 357-58 (1st Cir. 1999).
Ineffective Assistance
Next petitioner alleges that defense counsel provided
constitutionally defective representation. But, he provides very
little beyond restating his incorrect view that concurrent
service of unrelated sentences means that pretrial detention
credited against one sentence also must be credited against the
1 The suggestion in United States v . Benefield, 942 F.2d 6 0 , 66-67 (1st Cir. 1991), that a district court may, under some circumstances, give credit for pretrial confinement already credited against a state sentence, in the form of a reduced federal sentence, was probably overruled by Wilson, supra, and is at odds with the provisions of 18 U.S.C. § 3585(b). However, since the Guidelines have been deemed “advisory,” in large part, a reduced sentence to reflect pretrial credit, even though credited against another sentence, and even though not consistent with the Guidelines, is now a possibility. But, as explained infra, that would not likely have occurred in this case.
10 other, and adding that defense counsel “had me believe” that was
the case.
The ineffective assistance of counsel test described in
Strickland v . Washington, 466 U.S. 668 (1984), applies to the
guilty-plea process. Hill v . Lockhart, 474 U.S. 5 2 , 56 (1985).
For petitioner to prevail on his claim, he must show that
counsel’s representation fell below the range of competence
expected of counsel in criminal cases and that he suffered
prejudice as a result of counsel’s failures. Prejudice, in the
context of a guilty plea proceeding, means “a reasonable
probability that, but for counsel’s errors, [petitioner] would
not have pleaded guilty and would have insisted on going to
trial.” Id. at 5 9 .
The petition fails both parts of the Strickland test. There
is little or no hint as to what defense counsel allegedly said
with regard to the stipulated sentence that may have amounted to
representation falling outside the range of competence expected
of counsel in criminal cases. The general and unsupported claim
that counsel “had [petitioner] believe” that he would get credit
against his federal sentence for pretrial detention related to
his state sentence is entirely insufficient to describe
ineffective representation.
11 But, even if petitioner’s vague and generalized assertion is
accepted as poorly stated but, nevertheless, sufficient to
describe ineffective representation, still, petitioner has not
described any facts that could support a finding of prejudice in
this context. Petitioner does not say that, but for his claimed
misunderstanding, he would not have pleaded guilty and, instead,
would have insisted on going to trial. And, he does not seek the
only relief that would be available to him in this case if he had
made the necessary showing of either a breach of his plea
agreement or ineffective assistance: withdrawal of his guilty
pleas and a trial. Rather, he seeks a reduced sentence.
It is unlikely that the court would have imposed a reduced
sentence in this case under the circumstances described by
petitioner. Had his binding plea agreement called for credit
against his federal sentence for time served in state pretrial
detention, as he claims now, that plea agreement likely would
have been rejected, even if the government supported that result
(which is also unlikely). The state charges were entirely
separate from and unrelated to the federal charges and, normally,
a consecutive sentence would be imposed, at least in substantial
part. Here, petitioner was sentenced below the applicable
Guidelines range as it was, the court acceding to the plea
agreement’s negotiated terms. The court would have imposed a
12 concurrent sentence, as provided for in the agreement, with
respect to any undischarged time left on a previously imposed
state sentence, given that the plea negotiations were no doubt
difficult and that result was not unreasonable. But, affording
state pretrial confinement credit against an already reduced
federal sentence, in addition to imposing concurrent service of
both sentences, was not a realistic likelihood. As noted, had
the “binding” plea agreement so provided, the court probably
would not have accepted it in this case.
In short, petitioner has not alleged any cognizable
prejudice, even assuming he has adequately alleged counsel’s
failure to provide acceptable legal representation. He was not
entitled under his plea agreement to anything but concurrent
service of his 30 month federal sentence with any undischarged
time on his earlier-imposed state sentence. The plea agreement
did not entitle him to credit for state pretrial detention
against his federal sentence. Moreover, even if defense counsel
negligently misled petitioner into thinking that was the case
(which is highly unlikely given the plea colloquy and sentencing
hearing, at which counsel expressly acknowledged that no
adjustment under §§ 5G1.3 or departure under 5K2.23 was being
sought, and petitioner raised no issue regarding the claimed
deviation between the stipulation and actual sentence imposed),
13 petitioner still has not shown even the possibility of prejudice,
since he does not claim that but for counsel’s misrepresentations
he would not have pleaded guilty and would have insisted on going
to trial. Finally, in any event, it is unlikely the court would
have accepted a plea agreement in this case as petitioner
describes his current understanding of i t , and probably would not
have imposed a sentence less than the 30 months concurrent with
the state sentence, as bargained for by petitioner.
Petitioner’s Implicit Claims
Recognizing that petitioner is acting pro s e , and does not
fully appreciate the legal complexities associated with his
request for relief, the court will dismiss this petition, without
prejudice. The court will allow petitioner to amend his
petition, however, within thirty days of the date of this order,
to better develop the ineffective assistance claim he asserts, if
after considering the matter carefully, he wishes to do s o .
Petitioner is urged, however, to consider the matter carefully,
as he could be exposing himself to an even longer sentence if he
were to “succeed” in obtaining § 2255 relief — that i s , if he is
permitted to withdraw his guilty pleas.
A brief explanation is in order. Petitioner has not
described the advice given him by defense counsel that “led him
14 to believe” that he would get state pretrial detention credit
against his 30 month federal sentence. He must do s o , and his
allegations must, if true, constitute ineffective representation.
Second, petitioner has not alleged cognizable “prejudice” under
Strickland. That i s , he has not claimed that, but for counsel’s
failures, as described, he would not have pleaded guilty and,
instead, would have insisted on proceeding to trial.
Petitioner must also carefully consider the fact that if he
were able to establish ineffective assistance by defense counsel,
the remedy would not be a reduced sentence. If he prevails on
any amended petition under § 2255, petitioner will not be given
credit against his federal sentence for the pretrial confinement
already credited against his state sentence (that is not what
“concurrent” means). Rather, if he were able to demonstrate
entitlement to relief, it would take the form of permitting him
to withdraw his pleas of guilty and proceed to trial (or, if
possible, negotiate a more favorable disposition with the
prosecutor — one that the court would accept).
Petitioner is fully aware that the government takes the
position that the stipulated 30 month sentence, which was below
the applicable Guidelines range, was intended to be without
credit for state pretrial confinement. It i s , therefore, at
15 least doubtful that the prosecution will renegotiate a better
disposition. And, were plaintiff to succeed in withdrawing his
guilty pleas, go to trial, and be convicted, he would face a
Guidelines sentence substantially higher than the 30 months
previously imposed (the Guidelines range would be higher than 30
months to begin with and, of course, petitioner would not, under
those circumstances, receive the downward adjustment for
acceptance of responsibility that he obtained based upon his
guilty pleas, and other adjustments may be applicable). These
possibilities require careful thought.
Because the petition implies that petitioner based his
guilty pleas on an expectation that the stipulated sentence to 30
months imprisonment meant he would only serve 18 months on his
federal sentence, measured from the date he completed his state
sentence, and because he implies that his misunderstanding is
directly attributable to constitutionally deficient advice given
him by defense counsel, and because petitioner is pro se and
unschooled in the legal requirements necessary to advance such
claims, the court will permit him an opportunity to amend his
petition i f , after careful thought, he chooses to do s o .
Petitioner should understand, however, that he may not succeed at
all (defense counsel will no doubt testify as to what was said
and how petitioner manifested his understanding). And, even if
16 he were to succeed, the remedy available will not include
reducing his sentence. Instead, if petitioner were to succeed,
the court would allow him to withdraw his pleas, which in turn
would lead to a trial and, if he is convicted, a sentence that
would in all likelihood be longer than the 30 months he is now
serving.
Conclusion
The petition is dismissed, without prejudice, to
petitioner’s filing, within 30 days of the date of this order, an
amended petition consistent with the requirements outlined,
developing his implicit ineffective assistance of counsel claim.
In so doing, petitioner shall assert both the specific nature of
the advice given him and upon which he claims to have relied, and
the prejudice, if any, he claims to have suffered. Should an
amended petition be filed, the court will consider it and, if
necessary, hold a hearing. Should petitioner succeed, he will be
permitted to withdraw his guilty pleas and proceed to trial.
SO ORDERED.
Steven J . McAuliffe Chief Judge
February 23, 2007
17 cc: Howard Allen, pro se Aixa Maldonado-Quinones, Esq.