Ranalli v. Baltazar

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

AUGUST RANALLI, :

Petitioner, : 1:17-cv-1782

:

v. : Hon. John E. Jones III

:

WARDEN BALTAZADR :

Respondent. :

MEMORANDUM

April 28, 2020

Petitioner August Ranalli (“Ranalli”), a federal inmate in the custody of the

Federal Bureau of Prisons (“BOP”) currently serving a sentence of 144 months

imprisonment for Conspiracy to Distribute 280 Grams of Cocaine Base, Cocaine

and Heroin, and Distribution of 280 Grams of Cocaine Base, Cocaine and Heroin,

imposed on March 16, 2016, in United States District Court for the Middle District

of Pennsylvania Criminal Case 1:12-CR-310-01, files the instant petition for writ

of habeas corpus pursuant to 28 U.S.C. § 2241, challenging the BOP’s prior

custody computation pursuant to Program Statement 5880.28 and 18 U.S.C. §

3585(b) and seeking a nunc pro tunc designation so that he may receive federal

credit while in “pre-trial detention.” (Doc. 1; Doc. 1-1; Doc. 9-1, pp. 13-22).

I. PROCEDURAL BACKGROUND

On March 29, 2019, the Court issued a Memorandum and Order denying

Ranalli’s petition with respect to the request for credit pursuant to program

statement 5880.28 and 18 USC § 3585(b) on the merits, and denied without

prejudice his request for a nunc pro tunc designation pursuant to 18 U.S.C. §

3621(b) based on his failure to exhaust his administrative remedies. (Docs. 12,

13). Ranalli sought reconsideration. (Doc. 14).

On March 11, 2020, the Court granted Ranalli’s motion for reconsideration

based on the BOP’s representation that Petitioner had, in fact, exhausted his

administrative remedies concerning the nunc pro tunc designation pursuant to 18

U.S.C. § 3621(b) prior to commencing this action. (Doc. 20, p. 1). The Court also

afforded Ranalli the opportunity to reply to Respondents’ declaration of a

Correctional Program Specialist at the Designation and Sentence Computation

Center (“DSCC”) indicating that, on January 22, 2020, he undertook review and

audit of Petitioner’s sentence. (Doc. 20-1, p. 1, ¶¶ 1, 4). (Doc. 21). Ranalli filed

his reply on April 13, 2020. (Doc. 24).

For the reasons that follow, the Court will vacate the prior Memorandum and

Order in its entirety and deny the petition.

I. BACKGROUND

On July 11, 2011, Pennsylvania state officials paroled Ranalli from his three

to six-year sentence of imprisonment for Drug, Manufacture/Sale/Deliver or

Possess With Intent, imposed on August 6, 2007, in Court of Common Pleas of

2

York County Case Number CR-1997-2007. (Doc. 20-1, Declaration of Forest

Kelly, Correctional Programs Specialist employed by the BOP at the Designation

and Sentence Computation Center, ¶ 6; pp. 1, 2). On November 28, 2012, while on

parole, he was arrested by the Pennsylvania State Police. (Id.). He faced both state

and federal charges. (Id.). On November 29, 2012, the Pennsylvania Board of

Probation and Parole (“PBPP”) issued a warrant to commit and detain him for

violating his parole. (Id.; Doc. 20-1, p. 12).

He was indicted in the United States District Court for the Middle District of

Pennsylvania on December 12, 2012, of intentionally and knowingly possessing

with intent to distribute and distribute 280 Grams of Cocaine Base in violation of

21 U.S.C. § 841(a)(1), which was followed by a superseding indictment. See

electronic docket, 1:12-CR-310-01, https://ecf.pamd.circ3.dcn. At some point in

2013, the Commonwealth of Pennsylvania charged him with Manufacture,

Delivery, or Possession with Intent to Manufacture or Deliver in Court of Common

Pleas of York County Case Number CP-67-CR-0004728-2013. (Doc. 9-1, p. 9).

On January 4, 2013, the PBPP recorded a “Notice of Board Decision”

indicating that a decision was made to “Detain Pending Disposition of Criminal

Charges. (Arrested 11/28/2012 by PA State Police).” (Doc. 20-1, p. 12). A

Pennsylvania Department of Corrections Sentence Status Summary generated on

3

March 29, 2013, contains the remarks “Issued to report PVP status and USMS

detainer. Held as state parole violator pending PBPP action, as per PBPP-141

Warrant # 610820120146, dated 11-29-2012. USMS detainer lodged on federal

charge as indicated in section 5. No other change to previously-certified

computation for PA-DOC sentence, except for PVP status.” (Id. at 15).

Ultimately, on May 7, 2015, the state charges in Court of Common Pleas of

York County Case Number CP-67-CR-0004728-2013, were nol prossed in favor of

the federal prosecution. (Doc. 20-1, p. 2, n.1; Doc. 9-1, p. 10). Therefore, on May

24, 2013, the date on which the maximum sentence date applicable to the sentence

imposed in Court of Common Pleas of York County Case Number CR-1997-2007

expired, state officials released him to federal custody pursuant to the federal

detainer. (Doc. 9-1, p. 2, ¶¶ 6, 7, pp. 6, 13, 14; Doc. 20-1, ¶ 7; p. 1).

Following a bench trial, on April 20, 2015, Ranalli was found guilty of the

federal charges. See electronic docket, 1:12-CR-310-01, https://ecf.pamd.circ3.dcn.

On March 16, 2016, the Honorable Yvette Kane sentenced him to a term of 144

months of imprisonment, to be served concurrently to any parole revocation

sentence imposed in Court of Common Pleas of York County Case Number CR-

1997-2007. (Id. at p. 2, ¶ 8, pp. 16-21). The following exchange took place at the

sentencing:

4

THE COURT: Okay. I have a question for you, Mr. Lord, before I turn

to Mr. Consiglio on this. I want to be updated on the status of the parole

revocation in York County. Is that still pending, and what is Mr.

Ranalli’s exposure there?

MR. LORD: I talked to Ben Kimmel. And I don't know how to spell

his name. He and I spoke on the telephone, and I told him what Mr.

Ranalli was looking at. And he said there were two things possibly. He

could get up to 18 months, or it may end up that because he gets so

much time, they're going to close the case out. He's inclined to think

they'll close the case out if he gets the significant amount of time that

we’re talking about here, but he couldn't guarantee me anything. He

said, I have to go to my superiors and make a decision. So at this point

his green sheet, as they get from the SCI, says he’s looking at 18

months. Will he get that? We don’t know.

THE COURT: So some of the time that he has already served would be

credited to York County, wouldn't it?

MR. LORD: No.

THE COURT: To the parole rev? No.

MR. LORD: Well, what happened was, he got arrested November 28

of 2012 on the York County charges.

THE COURT: Right.

MR. LORD: Then the federal government became the primary

custodian after the state charges were nolle prossed. The state parole

detainer wasn’t filed until after Mr. Ranalli was convicted. It was filed

in June of 2015. So the primary custodian is the federal government,

number one, U.S. Marshal, Attorney General, but, number two, even

though he’s been in jail since November 28 of 2012, in that the York

County case was dismissed, I don't know if he’s going to get any credit.

THE COURT: Let us turn to the experts.

5

MR. LORD: Crystal Bard is the expert. Maybe she can –

PROBATION OFFICER: Your Honor, my thoughts would be that’s all

federal time. He’s a federal prisoner. He was incarcerated on a related

charge for a federal offense.

THE COURT: Okay.

PROBATION OFFICER: He has a detainer pending from state parole.

They're holding him delinquent for control because his case did expire.

So he would be a federal prisoner, and then depending on the outcome

of everything else, he would eventually go to that detainer. But he

should get credit from the time he’s been in custody with us.

THE COURT: So I should anticipate that the Bureau of Prisons would

give him credit from November 29th, 2012?

PROBATION OFFICER: That is my understanding based on how

things have worked, yes. And he is our prisoner now, so this would all

be federal time.

MR. LORD: The original indictment was December 12th, so from

November 28 to December 12, I don't know what the Bureau of Prisons

is going to do about that.

PROBATION OFFICER: The Bureau of Prisons will give him credit

for the federal sentence, unless it’s credited towards something else.

But seeing that he’ll be a federal prisoner first, they have first dibs at

all credit time.

THE COURT: So the parole revocation would be stayed pending the

sentence, or would there be an adjudication with a number to be served

at the back end of the federal sentence?

MR. LORD: My understanding is that once he’s sentenced here, they're

going to make a decision.

THE COURT: Okay.

6

MR. LORD: The conviction is the driving force behind the revocation.

So they’re going to make a decision about what to give him, up to 18

months, or if they’re going to impose it at all.

THE COURT: All right.

MR. LORD: So, I'm sorry, Your Honor, we don't know what’s going to

happen. He may not get anything, he may get 18 months, he may get

something in between.

THE COURT: Okay. Well, normally the guidelines suggest that the

sentence should be consecutive, so that’s why I’m interested in what’s

out there.

(Doc. 20-1, pp. 82-85). Judge Kane then imposed the following sentence:

THE COURT: Counsel, having considered all of the 3553(a) factors,

pursuant to the Sentencing Reform Act of 1984, it’s the judgment of the

court that the defendant, August Ranalli, is hereby committed to the

custody of the Bureau of Prisons to be imprisoned for a term of 144

months. This sentence consists of a sentence of 144 months on each of

Counts 1 and 2 to run concurrently with each other and concurrently to

any state parole revocation sentence that’s imposed in York County,

Docket Number CR-1997-2007.

(Id. at pp. 92, 93).

The PBPP issued a “Notice of Board Decision” on June 6, 2016, referencing

Ranalli’s federal sentence and a decision to “Take No Further Action” on the

convicted parole violator warrant. (Id. at 13).

In computing Ranalli’s sentence, the BOP credited him with a prior custody

credit of 1026 days which encompassed the date on which he was taken into

7

federal custody pursuant to the federal detainer, May 25, 2013, to the day prior to

the federal court sentencing date, March 15, 2016. (Id. at p. 2, ¶ 7).

II. DISCUSSION

A federal habeas court may only extend a writ of habeas corpus to a federal

inmate if he demonstrates that “[h]e is in custody in violation of the Constitution or

laws or treaties of the United States[.]” 28 U.S.C. § 2241(c)(3).

Ranalli states that he “was informed by the judge and the federal probation

officer that [his] federal sentence would begin from November 29th 2012, the date

of [his] arrest. On March 16, 2016 [he] was sentenced to a 144 month

imprisonment, however the B.O.P. did not fully credit [him] for the time [he]

served prior to the imposition of [his] sentence.” (Doc. 1-1, p. 1). He does not

agree with the BOP’s position that he could not receive credit for this time

pursuant to program statement 5880.28 and 18 USC § 3585(b). (Id.). He seeks

credit pursuant to 18 U.S.C. § 3621, and BOP Policy Statement 5160.05,

“Designation of state institution for service of federal service,” which allow the

BOP to designate the state institution as a place of confinement to serve his federal

sentence. (Id.).

A. 18 U.S.C. § 3585

Section 3585, which governs prior custody credit, provides:

8

(a) Commencement of sentence.– A sentence to a term of imprisonment

commences on the date the defendant is received in custody awaiting

transportation to, or arrives voluntarily to commence service of

sentence at, the official detention facility at which the sentence is to be

served.

(b) Credit for prior custody.– A defendant shall be given credit toward

the service of a term of imprisonment for any time he has spent in

official detention prior to the date the sentence commences—

(1) as a result of the offense for which the sentence was imposed;

or

(2) as a result of any other charge for which the defendant was

arrested after the commission of the offense for which the

sentence was imposed;

that has not been credited against another sentence.

18 U.S.C. § 3585.

The record indicates that the conclusion reached by Ranalli’s attorney and

the United States Probation Office during the federal sentencing proceeding, that

there was no parole detainer in place from the date of arrest until the date on which

Ranalli’s state sentence in Court of Common Pleas of York County Case Number

CR-1997-2007 expired, is in error.

In cases where a parolee is charged with new charges for violation of the

laws of the Commonwealth of Pennsylvania, the new charges constitute a 15–day

automatic detainer on the parolee. 61 Pa. C.S. § 6138(b)(1)–(2). Once the 15–day

period lapses, however, the automatic detainer dissolves and the decision of

9

whether to maintain or lift a detainer on the parolee is within the discretion of the

Board. 61 Pa. C.S. § 6138(b)(2); 37 Pa. Code § 63.3 (“If the parolee violates the

conditions of parole, at a time during his period on parole, the Board may cause his

detention or return to a correctional institution.”); Martin v. Pennsylvania Board of

Probation and Parole, 840 A.2d 299, 303 (Pa. 2003) (“where a parolee is arrested

while on parole, the Board is permitted, at its discretion, to place a detainer against

the parolee that will ‘prevent the parolee from making bail pending the disposition

of the new charges or other action of the court.’ ”); Moss v. Pennsylvania Bd. of

Prob. & Parole, No. 356 M.D. 2017, 2018 WL 1936639, at *3 (Pa. Commw. Ct.

Apr. 25, 2018). The record clearly indicates that Ranalli was held as a state parole

violator pending PBPP action, as per PBPP-141 Warrant # 610820120146, dated

11-29-2012. ( Doc. 20-1, p. 15). Hence, from the date of arrest until the date his

2007 state court sentence expired, May 24, 2013, the state was the primary

custodian pursuant to the PBPP detainer. The record further reflects that the

United States Marshal’s Service did not lodge its federal detainer until January 15,

2013.

It is also obvious from the chronology that the PBPP detainer referred to at

sentencing would have been the convicted parole violator warrant, a warrant that

could not have been lodged until after his federal conviction.

10

Based on the foregoing, the Court concludes that the BOP properly granted

him 1026 days of prior custody credit between May 25, 2013, the date he was

transferred to federal custody, and March 15, 2016, the last day before the

imposition of his federal sentence. See 18 U.S.C. § 3585(b). Ranalli has been

afforded all credit due pursuant to 18 U.S.C. § 3585; no relief is warranted. The

petition will be denied to the extent that Ranalli seeks relief pursuant to 18 U.S.C.

§ 3585.

B. 18 U.S.C. § 3621

If the inmate is in the primary custody of the state and the federal

sentencing court orders that he serve his federal sentence concurrently with any

state sentence, the BOP will return custody of the inmate to the state, commence

the federal sentence, and designate the state facility as the place of service of the

federal sentence pursuant to its authority under 18 U.S.C. § 3621(b). Under that

provision, the BOP has discretion to retroactively designate a state prison to be the

place of commencement of a federal sentence. See also BOP Program Statement

5160.05, Designation of State Institution for Service of Federal Sentence.

Specifically, the BOP designates the state correctional institution (the primary

custodian) for service of the federal sentence. Such retroactive designation allows a

federal sentence to run concurrently with a state sentence as of the date a prisoner

11

is sentenced by the federal court. In making this determination, the BOP is

required to consider the following factors under 18 U.S.C. § 3621(b): (1) resources

of the facility contemplated; (2) nature and circumstances of the offense; (3)

history and characteristics of the prisoner; (4) any statement by the court that

imposed the sentence; and (5) any pertinent policy statement issued by the

Sentencing Commission. Barden v. Keohane, 921 F.2d 476, 478 (3d Cir. 1990);

Harris v. Zickefoose, 511 F. App’x 135, 137 (3d Cir. 2013). The BOP is afforded

“wide discretion” in consideration of such an application. Barden, 921 F. 2d at

482-83).

Significantly, 18 U.S.C. § 3621(b) does not apply unless an inmate is in the

primary custody of the state at the time of federal sentencing. When sentenced in

federal court, Ranalli was in the primary custody of the BOP as his state court

sentence had fully expired. Hence, the BOP did not abuse its discretion in denying

his request for a nunc pro tunc designation.

III. CONCLUSION

For the reasons set forth above, the Court’s March 29, 2019 Memorandum

and Order (Docs. 12, 13) will be vacated in their entirety and the petition for writ

of habeas corpus pursuant to 28 U.S.C. § 2241 will be denied.

A separate Order will enter.