United States District Court, D. Massachusetts
H. HENNESSY UNITED STATES MAGISTRATE JUDGE.
Emilio Fusco has filed his second petition for habeas corpus
(“Petition II”) pursuant to 28 U.S.C. §
2241, challenging the execution of his federal prison
sentence. (Docket # 1). Fusco claims that he is entitled to
good-time credit for “time spent on supervised release
and home confinement for a prior conviction that was relevant
conduct in this matter.” (Id.). Fusco contends
that the failure to credit him with good time from his prior
sentence towards the sentence he is currently serving
violates the Double Jeopardy Clause of the Fifth Amendment to
the United States Constitution. (Id.). The parties
have consented to my jurisdiction. (Docket # 8).
Stephen Spaulding, Warden of the Federal Medical Center at
Devens, Massachusetts where Fusco is incarcerated, has moved
the Court to dismiss Petition II 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. Sentencing
Guidelines Manual § 5G1.3 (U.S. Sentencing Comm'n
2018) (“U.S.S.G. § 5G1.3 “). (Docket # 17).
For the reasons set forth below, Respondent's motion to
dismiss is granted, and Petition II is denied.
filed a habeas corpus petition with this Court in 2017
(“Petition I”). (Fusco v. Grondolsky,
No. 17-cv-10771 (D. Mass.), docket #1). The challenges set
out in Petition I overlap with those set out in Petition II.
The two cases have been consolidated. (Fusco v.
Grondolsky, No. 17-cv-10771 (D. Mass.), docket #23).
Respondent has sought dismissal of each petition, both times
submitting the declaration of Federal Bureau of Prisons
(“BOP”) Management Analyst Deborah Colston.
(Docket # 18-1). In its order dismissing Petition I, the
Court reviewed Fusco's criminal history as recited in
Colston's declaration. (Emilio Fusco v. Jeffrey
Grondolsky, No. 17-cv-10771 (D. Mass.), Docket # 18-1).
The Court recited the facts as follows.
to the declaration and supporting exhibits, the 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, Petitioner pleaded guilty to Racketeering
Conspiracy and Conspiracy to Launder Money, and was sentenced
to 33 months in prison. (Docket #18-1, ¶ 5). On May 9,
2006, Petitioner reached his Good Conduct Time Release Date
and was released from BOP custody to serve a three-year term
of supervised release. (Id. ¶ 6). As the Court
noted in its order dismissing Petition I, it appears that
Petitioner served 900 days in prison on Fusco I-
from his arrest on 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. ¶
20, 2010, four years after his release, Petitioner was
charged in the U.S. District Court for the Southern District
of New York with Racketeering Conspiracy, Extortion
Conspiracy, 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). On October 11, 2012, Petitioner was
convicted of all charges and sentenced in Fusco II
to 300 months' imprisonment. (Id. ¶ 8;
see docket ## 18-6, 18-1 ¶ 8). If he were to
receive the maximum credit for good conduct, his projected
release date would be June 1, 2032. Id.
incarcerated on Fusco II, Petitioner sought an
administrative remedy through BOP concerning the calculation
of his sentence. (Docket #1 at 2; see docket #18-8
at 2-7). He claimed that the Racketeering Conspiracies of
which he was convicted in Fusco I and Fusco
II “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. 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 within BOP by appealing the
DSSC's decision. (See id. at 4-7).
April 24, 2017, Petitioner filed Petition I after seeking
administrative relief through BOP. (Fusco v.
Grondolsky, No. 17-cv-10771 (D. Mass.), docket #1).
Proceeding pro se, Petitioner claimed that the two
Racketeering Conspiracies of which he was convicted in
Fusco I and Fusco II “are the same,
” and that under U.S.S.G. § 5G1.3, he was entitled
to custody credit in his Fusco II sentence for time
he spent in custody on Fusco I. (Id.).
Petitioner claimed that the conduct for which he was
convicted in Fusco II “was the same relevant
conduct from the 2003 [Fusco I] conviction [sic],
” (Fusco v. Grondolsky, No. 17-cv-10771 (D.
Mass.), 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
argued that the conspiracy of which he was convicted in
Fusco II “is nothing more than” the
conspiracy for which he was convicted in Fusco I.
filed the instant petition, Petition II, on March 22, 2018,
along with a motion to consolidate the case with the Petition
I case. (Docket ## 1, 4; Fusco v. Grondolsky, No.
17-cv-10771 (D. Mass.), docket # 22). Petitioner moved the
Court on July 16, 2018 to grant a default judgment on
Petition II based upon Respondent's failure to file an
answer. (Docket # 12). On July 19, 2018, the Court ordered
respondent to show cause why the motions for default judgment
and consolidation should not be granted. (Docket # 13). In
lieu of answering Petition II, Respondent filed a response on
July 26, 2018, agreeing to the motion to consolidate, and
arguing that good cause existed for the default judgment not
to enter. (Docket # 16). The motion to consolidate was
granted. (Fusco v. Grondolsky, No. 17-cv-10771 (D.
Mass.), docket # 23). Respondent filed a motion to dismiss
Petition II on July 27, 2018. (Docket ## 17, 18). On August
28, 2018, the Court dismissed Petition I for insufficiency.
(Fusco v. Grondolsky, No. 17-cv-10771 (D. Mass.),
docket # 25). The Court now considers Respondent's motion
to dismiss Petition II.
survive a motion to dismiss, a plaintiff must “state a
claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). That is, “[f]actual allegations must be enough
to raise a right to relief above the speculative level, on
the assumption that all the allegations in the complaint are
true (even if doubtful in fact).” Id. at 555
(citations and footnote omitted). “The plausibility
standard is not akin to a ‘probability
requirement,' but it asks for more than a sheer
possibility that a defendant has acted unlawfully.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S. at 556). The complaint must
“allege a factual predicate concrete enough to warrant
further proceedings.” DM Research, Inc. v. Coll. of
Am. Pathologists, 170 F.3d 53, 55 (1st Cir. 1999)
“A pleading that offers ‘labels and
conclusions' or ‘a formulaic recitation of the
elements of a cause of action will not do.'”
Iqbal, 556 U.S. at 678 (quoting Twombly,
550 U.S. at 555). Dismissal is appropriate if a
plaintiff's well-pleaded facts do not “possess
enough heft to show that [the] plaintiff is entitled to
relief.” Ruiz Rivera v. Pfizer Pharms., LLC,
521 F.3d 76, 84 (1st Cir. 2008) (quotation and original
se litigant's filings are to be “liberally
construed.” Estelle v. Gamble, 429 U.S. 97,
106 (1976). Thus, a pro se complaint, “however
inartfully pleaded, ” must be held to a “less
stringent standard than formal pleadings drafted by
lawyers.” Id. (quoting Haines v.
Kerner, 404 U.S. 519, 520-21 (1972)). However,
“[t]his is not to say that pro se plaintiffs are not
required to plead basic facts sufficient to state a
claim.” Ferranti v. Moran, 618 F.2d 888, 890
(1st Cir. 1980) (citation and footnote omitted).
motion to dismiss under Federal Rule of Civil Procedure
12(b)(6), the court “must assume the truth of all
well-plead[ed] facts and give the plaintiff the benefit of
all reasonable inferences therefrom.” Ruiz v. Bally
Total Fitness Holding Corp., 496 F.3d 1, 5 (1st Cir.
2007) (citation omitted). “Under Rule 12(b)(6), the
district court may properly consider only facts and documents
that are part of or incorporated into the complaint; if
matters outside the pleadings are considered, the motion must
be decided under the more stringent standards applicable to a
Rule 56 motion for summary judgment.” Rivera v.
Centro Medico de Turabo, Inc., 575 F.3d 10, 15 (1st Cir.
2009) (quoting Trans-Spec Truck Serv., Inc. v.
Caterpillar, Inc., 524 F.3d 315, 321 (1st Cir. 2008))
(citing Fed.R.Civ.P. 12(d)). There lies an exception to this
rule “for documents the authenticity of which [is] not
disputed by the parties; for ...