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Fusco v. Grondolsky

United States District Court, D. Massachusetts

August 27, 2018

EMILIO FUSCO, Petitioner,
JEFFREY GRONDOLSKY, Warden, FMC Devens, Respondent.


          David H. Hennessy United States Magistrate Judge.

         Petitioner 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.

         Respondent 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 opposing dismissal).

         For the reasons set forth below, Respondent's motion to dismiss is GRANTED, and the instant petition is DENIED.

         I. BACKGROUND

         Petitioner 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.

         Respondent has submitted a declaration of BOP Management Analyst Deborah Colston that recites Petitioner's criminal history relevant to this motion.[1] 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.

         Approximately 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.

         While 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.[2] See id. at 4-7.

         On April 24, 2017, Petitioner filed the instant petition.[3] 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. Id.

         In lieu 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. at 3-8.

         On 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.


         A. Motion to Dismiss Standard ...

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