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United States v. Humphrey

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


September 30, 2009

UNITED STATES OF AMERICA, PLAINTIFF,
v.
VINCENT HUMPHREY, DEFENDANT/MOVANT.

The opinion of the court was delivered by: Judge Hon. Garland E. Burrell Jr.

MOTION TO CORRECT SENTENCE; ORDER

Defendant, VINCENT HUMPHREY, by and through his attorney, RACHELLE BARBOUR of the Office of the Federal Defender, hereby moves for the following relief.

1. Pursuant to 28 U.S.C. §2241, this court is empowered to vacate, set aside, amend, or correct a federal sentence.

2. Defendant moves under 28 U.S.C. § 2241 for correction of the defendant's sentence. Defense counsel, government counsel, and the probation office all believed Mr. Humphrey to be in federal primary jurisdiction at the time of sentencing in this case. It was the intention of the parties that Mr. Humphrey begin his federal sentence immediately in federal prison.

3. However, the Bureau of Prisons has resisted his designation and refused to consider him a federal inmate. The parties have taken steps to address this matter directly with the Bureau of Prisons. At the suggestion of the Bureau of Prisons, the parties obtained an order indicating that it was the Court's intention in sentencing Mr. Humphrey for his sentence to commence upon imposition. The parties believed that this would resolve the situation with the Bureau of Prisons and that Mr. Humphrey would be designated and transported to a federal prison to commence his sentence.

4. Despite the Court's order, the Bureau of Prisons has refused to consider Mr. Humphrey a federal inmate or acknowledge the state court's power to release Mr. Humphrey from state custody. Mr. Humphrey is now considered a state prisoner for all purposes, and the Bureau of Prisons has indicated that it will consider his federal sentence only after service of his state sentence. In counsel's experience, this means that it is likely that the two sentences (which were meant to be concurrent sentences) will be run consecutively.

5. Defense counsel and the government ask that this Court grant the relief set forth below. They ask that the Court modify the revocation judgment in this case to add the following sentence:

It is the Court's intent that this federal sentence run concurrently with the state sentence Mr. Humphrey is currently serving in Sacramento County case number 09F01308. It is likewise the Court's recommendation that the Bureau of Prisons designate the California state prison system, run by the California Department of Corrections and Rehabilitation, as the site for Mr. Humphrey's service of his federal sentence.

Accordingly, Mr. Humphrey requests the Court enter the lodged order attached hereto and that the order be served on the United States Marshals Office and the Bureau of Prisons.

Dated: September 30, 2009

Respectfully submitted,

DANIEL BRODERICK Federal Defender By: RACHELLE BARBOUR Staff Attorney Attorney for VINCENT HUMPHREY

LAWRENCE G. BROWN Acting United States Attorney TODD LERAS Assistant United States Attorney

ORDER

After reviewing the motion and the file in this matter, and good cause appearing therefore, the court hereby ORDERS that the June 19, 2009 sentence of VINCENT HUMPHREY in Case Number Cr. S. 92-0397-GEB, is hereby CORRECTED to read as follows:

The defendant is hereby committed to the custody of the United States Bureau of Prisons to be imprisoned for a total term of 36 months. It is the Court's intent that this sentence commence upon imposition. It is the Court's intent that this federal sentence run concurrently with the state sentence Mr. Humphrey is currently serving in Sacramento County case number 09F01308. It is likewise the Court's recommendation that the Bureau of Prisons designate the California state prison system, run by the California Department of Corrections and Rehabilitation, as the site for Mr. Humphrey's service of his federal sentence.

IT IS SO ORDERED.

GARLAND E. BURRELL, JR. United States District Judge

20090930

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