Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-31-2006

Allan v. Johns
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2726




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006

Recommended Citation
"Allan v. Johns" (2006). 2006 Decisions. Paper 268.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/268


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2006 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
DLD-19                                                          NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 06-2726


                                    YASER ALLAN,
                                              Appellant

                                            v.

                                TRACY JOHNS, Warden


                    On Appeal From the United States District Court
                       For the Western District of Pennsylvania
                              (D.C. Civ. No. 05-cv-00194)
                       District Judge: Honorable Kim R. Gibson

                           _________________________
 Submitted For Possible Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                 October 19, 2006

             Before: BARRY, AMBRO AND FISHER, CIRCUIT JUDGES

                                (Filed: October 31, 2006)


                                        OPINION




PER CURIAM

      Yaser Allan appeals the order of the United States District Court for the Western

District of Pennsylvania denying his habeas petition filed pursuant to 28 U.S.C. § 2241.

We will affirm.
       Allan is incarcerated at the Federal Correctional Institution-Loretto in

Pennsylvania. In February 1996, Allan was found guilty of attempted murder and other

offenses in the State of New Jersey. He was taken into state custody. On April 1, 1996,

he was transferred to federal custody pending trial on federal charges. In May 1996,

Allan was found guilty of the charges relating to copyright infringement, trafficking in

counterfeit labels, and money laundering. The following year, on May 21, 1997, the

federal sentencing court imposed a 132-month prison term. The sentencing order did not

contain any reference to the New Jersey sentence. Allan was then returned to state

custody for state court sentencing. In July 1997, the state court imposed an eight-to-

sixteen year prison sentence, to run concurrent to his federal sentence, with credit for the

period spent in custody since his New Jersey conviction in February 1996, plus the day he

spent in custody at the time of his arrest.

       Allan then sought clarification from the federal sentencing court regarding whether

the federal sentence would run concurrently with the New Jersey sentence. On February

12, 1998, the federal sentencing court issued an order, noting that the state court had

ordered that the state sentence would run concurrent to the federal sentence, and ordering

that the federal sentence “shall run concurrent to his New Jersey sentence, with any time

remaining under this sentence thereafter to be consecutive thereto.” Allan served time in

state prison, until he was paroled from his New Jersey sentence to serve his federal

sentence; he arrived at F.C.I.-Loretto on June 17, 2004. The federal Bureau of Prisons

has computed Allan’s sentence as beginning on the date on which it was imposed, May

                                              2
21, 1997. Allan received six days of prior custody credit, including time spent in custody

after his arrest on federal charges.

       After unsuccessfully pursuing administrative remedies, Allan, through counsel,

filed his section 2241 habeas petition, challenging the calculation of his federal sentence

and seeking immediate release. His challenge was two-fold. First, relying on Kayfez v.

Gasele, 

(7th Cir. 1993), Allan argued that he is entitled to receive prior

custody credit for the period during which he physically was in federal custody before

sentencing, even though that period already had been credited against his New Jersey

sentence. Second, Allan argued that, under the terms of his federal sentencing order and

application of section 5G1.3(c) of the United States Sentencing Guidelines, he is entitled

to prior custody credit for all of the time served under his state sentence before his federal

sentence commenced. The government respondent filed a response to the habeas petition,

to which Allan filed a reply.

       The Magistrate Judge issued a report and recommendation to grant the writ.

Addressing Allan’s first argument, the Magistrate Judge cited 18 U.S.C. § 3585(b), which

provides that credit be given for official custody before the federal sentence commences

when that period has not been credited against another sentence. The Magistrate Judge

also noted that the Kayfez v. Gasele rationale for allowing “double credit” did not apply

in Allan’s case.1 Nevertheless, the Magistrate Judge recommended granting habeas relief


   1
    The government argued in its response to the habeas petition that Allan failed to
exhaust his administrative remedies regarding his Kayfez claim, and that Allan in fact

                                              3
based on the application of U.S.S.G. § 5G1.3(c), which permits the sentencing court to

impose a sentence to run concurrently, partially concurrently, or consecutively to a prior

undischarged term of imprisonment. The Magistrate Judge concluded that the February

12, 1998 federal sentencing order imposing a “concurrent” sentence cannot mean

“consecutive,” and because it does not specify a “partially concurrent” sentence, it must

be interpreted to mean that the sentence should run concurrently with the then-

undischarged New Jersey sentence.

       The government filed objections to the Magistrate Judge’s report and

recommendation. The government argued that the application of Section 5G1.3(c) is not

mandatory, that there was no indicia of intent to adjust Allan’s sentence under section

5G1.3(c) in the February 12, 1998 sentencing order or sentencing transcript, and that

Allan failed to show any other record evidence to support his position. The District Court

rejected the Magistrate Judge’s recommendation and denied the habeas petition.

Discussing Ruggiano v. Reich, 

(3d Cir. 2002), the District Court noted that

the federal sentencing court has authority under Section 5G1.3(c) to grant an adjustment

for time served on a pre-existing sentence, but the question in Allan’s case was whether

the sentencing court actually exercised that authority.2 The District Court distinguished


expressly disavowed any reliance on Kayfez.
   2
     As noted by the District Court, Application Note 3E to U.S.S.G. § 5G1.3 now states
that subsection (c) does not authorize an “adjustment” of the sentence for a period of
imprisonment already served on the undischarged prison term. However, in an
extraordinary case, a sentencing court may apply credit for time served on the

                                             4
the language used in Allan’s sentencing order with the facts in Ruggiano. In Ruggiano,

the sentencing court’s oral and written sentence indicated that the defendant would

receive credit for time served on his state sentence, and Section 5G application was

specifically requested by the defendant. See 

131. Here, the District Court

concluded that the use of the term “concurrent” in Allan’s February 12, 1998 sentencing

order conveyed only an intent that the federal and state sentences were to run

concurrently from the date of the federal sentencing, as there was no additional language

or evidence that the sentencing judge intended to grant any adjustment of sentence for

time served on Allan’s state sentence. Thus, the District Court concurred with the Bureau

of Prison’s calculation of sentence.

       Allan filed a timely motion for reconsideration, asserting that the February 12,

1998 order that the federal sentence “shall run concurrent” to his state sentence

constituted an express denial of any intent for the federal sentence run only “partially

concurrent” with his state sentence. The District Court denied Allan’s motion for

reconsideration, finding nothing in the sentencing order that indicates such an express

denial. Allan appeals pro se.

       The sentencing court’s February 12, 1998 order states in its entirety:

              1. Mr. Allen [sic] was sentenced by Judge Steven H. Womac, a New
       Jersey Superior Court Judge, to 8-16 years in custody for attempted murder
       and related charges (“New Jersey sentence”).


undischarged sentence by way of a downward departure. This application note was added
in the 2003 edition of the Sentencing Guidelines Manual.

                                             5
              2. Judge Womac in the sentencing transcript as well as the Order for
       Commitment ordered that the New Jersey sentence run concurrent to the
       sentence imposed by this court.

             3. It is ORDERED that the sentence imposed by this court shall run
       concurrent to his New Jersey sentence, with any time remaining under this
       sentence thereafter to be consecutive thereto.

(Section 2241 Habeas Petition, Exhibit B.) Upon review of the record, and for

substantially the same reasons provided by the District Court, we conclude that the

February 12, 1998 order language does not indicate any intent that the federal sentence

was to run retroactively concurrent with the state sentence and that Allan’s sentence was

thereby adjusted for the time served on the state sentence. Allan pointed to nothing in the

record that adequately supports his position in his habeas petition.

       Because this appeal presents “no substantial question,” we will summarily affirm

the District Court’s order. 3d Cir. LAR 27.4 and I.O.P. 10.6.




                                             6