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Fusco v. Spaulding

United States District Court, D. Massachusetts

November 19, 2018

EMILIO FUSCO, Petitioner,
v.
STEPHEN SPAULDING, Warden, FMC Devens, Respondent.

          ORDER

          DAVID H. HENNESSY UNITED STATES MAGISTRATE JUDGE.

         Petitioner 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).

         Respondent 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.

         I. BACKGROUND

         Petitioner 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.

         According 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. ¶ 11).

         On July 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.

         While 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).

         On 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. (Id.).

         Petitioner 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.

         II. STANDARD

         To 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 alterations omitted).

         A pro 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).

         On a 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 ...


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