United States District Court, D. Massachusetts
H. Hennessy United States Magistrate Judge.
Emilio Fusco has filed a petition for writ of habeas corpus
(the “petition”) under 28 U.S.C. § 2241, in
which he challenges the execution of his federal prison
sentence. Petitioner contends that the Bureau of Prisons (the
“BOP”) improperly calculated his sentence by not
awarding him credit for time he served in federal prison on a
prior sentence. Specifically, Petitioner claims he is
entitled to prior custody credit of 900 days served as part
of a sentence imposed in a case separate from the case on
which he is now serving a 300-month sentence. The parties
have consented to my jurisdiction. Docket #15, #16.
Jeffrey Grondolsky, former warden of Federal Medical Center,
Devens, where Petitioner is incarcerated, has filed a motion
to dismiss, docket #17, arguing that imprisonment Petitioner
served toward a prior sentence cannot be credited toward a
subsequent prison sentence because double credit is
prohibited under 18 U.S.C. § 3585(b) and U.S.S.G. §
5G1.3. The motion has been fully briefed and is ripe for
adjudication. See docket #18 (Respondent's brief
supporting dismissal); docket #21 (Petitioner's brief
reasons set forth below, Respondent's motion to dismiss
is GRANTED, and the instant petition is DENIED.
was a “made member” of the Genovese Organized
Crime Family of La Cosa Nostra. Docket #18-4 at 2; docket
#21-1 at 8. Members and associates of the Genovese Organized
Crime Family “have engaged in numerous crimes including
murder; assault; extortion; operating illegal gambling
businesses; financing, making, and collecting extortionate
extensions of credit (known as loansharking); and narcotics
trafficking.” Docket #18-4 at 2.
has submitted a declaration of BOP Management Analyst Deborah
Colston that recites Petitioner's criminal history
relevant to this motion. Docket #18-1. According to the
declaration and supporting exhibits, Petitioner was
prosecuted in the U.S. District Court for the District of
Massachusetts in United States v. Fusco, No.
00-cr-30036-MAP (D. Mass.) (“Fusco I”).
In that case, the Federal Bureau of Investigation arrested
Petitioner on December 15, 2000. Id. ¶ 5. On
December 20, 2000, Petitioner was released on bond.
Id. Petitioner ultimately pleaded guilty to
Racketeering Conspiracy and Conspiracy to Launder Money, and
was sentenced to 33 months in prison. Id.;
see docket #18-3 at 2-3. Petitioner was ordered to
voluntarily surrender to BOP for service of his sentence on
November 14, 2003. Docket #18-1 ¶ 5. He surrendered on
November 28, 2003. Id. On May 9, 2006, Petitioner
reached his 33-month sentence Good Conduct Time Release Date
and was released from BOP custody to serve a three-year term
of supervised release. Id. ¶ 6. Based on
Respondent's submission, it appears that Petitioner
served 900 days in prison on Fusco I-from his arrest
date of December 15, 2000 through December 20, 2000, when he
was released on bond (6 days); and from his voluntary
surrender date of November 28, 2003 through his release date
of May 9, 2006 (894 days). Id. ¶ 11.
four years later, on July 20, 2010, Petitioner was charged in
the U.S. District Court for the Southern District of New York
with Racketeering Conspiracy, Extortion, and Interstate
Travel in Aid of Racketeering, in United States v.
Fusco, No. 09-cr-01239-9 (PKC) (S.D.N.Y.)
(“Fusco II”). See id. ¶ 7.
Petitioner was arrested in Italy on July 29, 2010; on May 13,
2011, he was extradited from Italy to the United States.
Id. On October 17, 2012, Petitioner was convicted of
Racketeering Conspiracy, Extortion Conspiracy, and Interstate
Travel in Aid of Racketeering. Id. ¶ 8;
see docket #18-6 at 2-3. During the trial of
Fusco II, the Government presented evidence
concerning Petitioner's conviction from Fusco I,
including the fact of Petitioner's guilty plea to
Racketeering Conspiracy. See docket #21-1 at 27.
Attached to Petitioner's opposition to the instant motion
are copies of portions of relevant indictments, judgments,
and transcripts from hearings and trials in Fusco I
and Fusco II. Id. at 27-43. On October 11,
2012, Petitioner was sentenced in Fusco II to 300
months' imprisonment. Docket #18-1 ¶ 8. Assuming he
receives maximum credit for good conduct, his projected
release date is June 1, 2032. Id. ¶ 9.
incarcerated on Fusco II, Petitioner sought an
administrative remedy through the BOP concerning the
calculation of his sentence. Docket #1 at 2; see
docket #18-8 at 2-7. He claimed that his two Racketeering
Conspiracy sentences “are the same, ” and that
under U.S.S.G. § 5G1.3, he is entitled to custody credit
in his Fusco II sentence for time he spent in
custody on Fusco I. Docket #1 at 7. The BOP's
Designation and Sentence Computation Center (the
“DSSC”) denied Petitioner's request because
the credit he sought for his sentence in Fusco II
already had been applied to his sentence in Fusco I.
Docket #18-8 at 3. The DSSC concluded that the credit
Petitioner sought could not be applied twice. See
id. Petitioner exhausted administrative remedies by
appealing within the BOP the DSSC's
decision. See id. at 4-7.
April 24, 2017, Petitioner filed the instant
petition. Docket #1. Proceeding pro se, Petitioner
again seeks custody credit toward his Fusco II
sentence for the time he spent in prison serving his
Fusco I sentence. Petitioner claims that the conduct
for which he was convicted in Fusco II “was
the same relevant conduct from the 2003 [Fusco I]
conviction [sic], ” docket #21 at 6, noting that he was
charged in both prosecutions with being a member of the
Genovese Organized Crime Family who engaged in “the
same predicate acts of collecting extensions of credit by
extortionate means and conspiracy, illegal gambling activity,
and loansharking, ” id. at 8. Petitioner
further argues that the conspiracy of which he was convicted
in Fusco II “is nothing more than” the
conspiracy of which he was convicted in Fusco I.
of a return, Respondent filed the instant motion to dismiss
for failure to state a claim. Docket #17. Petitioner opposes
dismissal. Docket #21. In his opposition to the motion to
dismiss, Petitioner raised for the first time a claim that
his sentence in Fusco II violates the
Constitution's Double Jeopardy Clause. See id.
March 22, 2018, Petitioner moved to consolidate the instant
case and a second habeas corpus action he filed in this
Court, Fusco v. Spaulding, No. 18-cv-40035-DHH (D.
Mass.). Docket #22. That motion to consolidate has been
granted. Docket #23. This opinion addresses only the petition
filed in Petitioner's 2017 action.
STANDARD OF REVIEW
Motion to Dismiss Standard ...