CLYDE MICHAEL MORGAN, PETITIONER V. UNITED STATES OF AMERICA No. 89-7513 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Fourth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. E1-E4) is unreported. JURISDICTION The judgment of the court of appeals was entered on March 16, 1990. A petition for rehearing was denied on April 17, 1990. The petition for a writ of certiorari was filed on May 14, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether petitioner is entitled to credit toward his term of imprisonment for time he spent on bail pending trial and pending the disposition of his appeal. STATEMENT Following a jury trial in the United States District Court for the Western District of North Carolina, petitioner was convicted on one count of voluntary manslaughter, in violation of 18 U.S.C. 1111(a). He was sentenced to a 10-year term of imprisonment. 1. The evidence at petitioner's trial, which is not in dispute, showed that on September 13, 1983, petitioner killed David Anthony Harvey in the Pisgah National Forest in North Carolina, because petitioner knew or suspected that Harvey and petitioner's girlfriend had spent the night together at a motel. The court of appeals affirmed the conviction. United States v. Morgan, No. 84-5322 (4th Cir. Nov. 12, 1985) (unpublished). 2. On October 26, 1989, petitioner filed a motion in the district court under 28 U.S.C. 2255 seeking credit on his federal sentence for 22 days he spent in state custody, 11 days he spent in federal custody prior to obtaining release on bail before trial and pending appeal, and 573 days he spent on bail prior to trial and pending appeal. Pet. App. A1-A11. /1/ He contended that those periods of time constituted time "spent in custody in connection with the offense or acts for which sentence was imposed" within the meaning of 18 U.S.C. 3568 (1982 ed.). The district court denied the motion. Pet. App. B1-B2. The court held that it lacked authority to credit time spent in state custody against a federal sentence and that time spent free on bail did not constitute time in custody within the meaning of 18 U.S.C. 3568 (1982). 3. In an unpublished per curiam opinion, the court of appeals affirmed in part, reversed in part, and remanded the case to the district court. Pet. App. E1-E4. The court of appeals held that a prisoner is not in custody for purposes of 18 U.S.C. 3568 (1982) when he is free on bail and that a prisoner is not entitled to credit against his federal sentence for time spent in state prison on state charges. The court remanded the case to the district court for a determination whether petitioner was in federal custody before his release on bail and, if so, whether he was denied credit for that period of custody. /2/ ARGUMENT Petitioner contends (Pet. 2-3) that he should be given credit toward service of his term of imprisonment for the periods he spent on bail pending trial and pending appeal. The district court and the court of appeals correctly held that petitioner was not entitled to credit for those periods. /3/ Under 18 U.S.C. 3568 (1982), which applies to persons convicted of offenses committed before November 1, 1987, a convicted felon is entitled to "credit toward service of his sentence for any days spent in custody in connection with the offense or acts for which sentence was imposed." /4/ The courts of appeals have consistently held that conditional release on bail does not constitute time "in custody," at least in the absence of a condition requiring periodic confinement in a halfway house. See, e.g., United States v. Figueroa, 828 F.2d 70 (1st Cir. 1987) ("'custody' means 'imprisonment' or some comparable institutional 'confinement'"); Villaume v. United States Department of Justice, 804 F.2d 498, 499 (8th Cir. 1986) ("the 'custody' contemplated by (18 U.S.C.) Section 3568 relates to actual custodial incarceration"), cert. denied, 481 U.S. 1022 (1987); United States v. Robles, 563 F.2d 1208, 1309 (9th Cir. 1977) ("the time spent on bail or on bond pending appeal is not time served in custody"), cert. denied, 435 U.S. 925 (1978); Ortega v. United States, 510 F.2d 412, 413 (10th Cir. 1975) ("custody does not include the time a criminal defendant is free on bond, either before or after conviction"); United States v. Peterson, 507 F.2d 1191, 1192 (D.C. Cir. 1974) ("'in custody', as used in the statute, means detention or imprisonment in a place of confinement and does not refer to the stipulations imposed when a defendant is at large on conditional release"); Polakoff v. United States, 489 F.2d 727, 730 (5th Cir. 1974) ("(t)he 'custody' contemplated by Section 3568 is that characterized by incarceration"). That interpretation is consistent with the legislative history of the statute. Before 1960, a convicted defendant was given credit only for the time he served after he was "received at the penitentiary, reformatory, or jail for service of said sentence." 18 U.S.C. 3568 (1958). In 1960, Congress added a provision granting credit "for any days spent in custody prior to the imposition of sentence by the sentencing court for want of bail set for the offense under which sentencing was imposed where the statute requires the imposition of a minimum mandatory sentence." Act of Sept. 2, 1960, Pub. L. No. 86-691, Section 1(a), 74 Stat. 738. That version of the statute ensured that a defendant would be given credit against his sentence for any period that he was detained because he could not make bail. In 1966, Congress amended the statute again and adopted the language that governs petitioner's claim. Congress amended the provision governing credit by omitting the language that granted credit for time spent "in custody * * * for want of bail" and replaced it with language granting credit "for any days spent in custody in connection with the offense or acts for which sentence was imposed." See Bail Reform Act of 1966, Pub. L. No. 89-465, Section 4, 80 Stat. 217. The accompanying Senate Report explained that Congress did not intend to change the meaning of the phrase "in custody," but simply wanted to ensure that anyone in pretrial detention would receive credit toward his sentence, even though he was being held by order of the court, and not "for want of bail." The Senate Report explained: It was pointed out that persons charged with a nonbailable offense or not released for some reason other than lack of bail should also receive credit for such time against service of any sentence eventually imposed. Accordingly, S. 1357 guarantees credit for "any days spent in custody in connection with the offense for which sentence was imposed." S. Rep. No. 750, 89th Cong., 1st Sess. 21-22 (1965). This passage clearly indicates that the drafters of the 1966 amendment to Section 3568 understood that a person who is in "custody" is one who is "not released." Petitioner does not fit within that class of pretrial detainees and is therefore not entitled for credit on his sentence for the time he spent on pretrial and post-trial release. In its most recent amendment to the pertinent legislation, Congress has retained the distinction between custody and release. The new statute, 18 U.S.C. 3585(b), which applies to offenses committed after November 1, 1987, provides: A defendant shall be given credit toward the service of a term of imprisonment for any time he has spent in official detention prior to the date the sentence commences -- (1) as a result of the offense for which sentence was imposed * * *. The Senate Report accompanying the new statute explained that "official detention" refers to "time (the defendant) spent in official custody prior to the date the sentence was imposed." S. Rep. No. 225, 98th Cong., 2d Sess. 128-129 (1984). That amendment did not change existing law; it simply conformed the statute to the language used in the Bail Reform Act of 1984, which distinguishes between pretrial "detention" and "release." See 18 U.S.C. 3141-3156. Thus, under the new statute, as well as the old, petitioner would not be entitled to credit for time served while on pretrial and post-trial conditional release. See United States v. Woods, 888 F.2d 653, 654-655 (10th Cir. 1989), cert. denied, 110 S. Ct. 1301 (1990). Petitioner relies on the decision of the Ninth Circuit in Brown v. Rison, 895 F.2d 533 (1990). In that case, the court held that a defendant who was confined to a community treatment facility from 7 p.m. to 5 a.m. without outside contact was "in custody" within the meaning of 18 U.S.C. 3568 and hence was entitled to credit toward service of his prison sentence. That case is inapposite here because petitioner was not subject to any form of confinement as a condition of bail. Similarly, Johnson v. Smith, 696 F.2d 1334 (11th Cir. 1984), is distinguishable because it involved credit for time spent in a community treatment center pending imposition of sentence. We have filed a petition for rehearing in Brown v. Rison, in which we have argued that the decision in that case is inconsistent with the language and legislative history of the statute, with the law of other circuits (see Ramsey v. Brennan, 878 F.2d 995, 996 (7th Cir. 1989); United States v. Smith, 869 F.2d 835 (5th Cir. 1989)), and with the reasoning in other Ninth Circuit opinions (United States v. Robles, 563 F.2d 1308, 1309 (9th Cir. 1977), cert. denied, 435 U.S. 925 (1978); Sica v. United States, 454 F.2d 281, 282 (9th Cir. 1971)). /5/ Whatever the disposition of our petition for rehearing, the present case does not present a conflict with the Ninth Circuit's decision in Brown that requires this Court's intervention. Brown is factually distinguishable from this case, and no court of appeals has held that a defendant on bail release, like petitioner, is entitled to credit against his federal sentence. /6/ CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General EDWARD S.G. DENNIS, JR. Assistant Attorney General KAREN SKRIVSETH Attorney JULY 1990 /1/ Some pages of petitioner's appendices are unnumbered. We have cited the appendices as though each appendix began with page 1. /2/ On remand, the district court denied petitioner's motion for credit for his time in custody before obtaining release on bail. The court determined that petitioner had already been credited with that time. Morgan v. United States, No. A-C-84-132, Order, at 2 (W.D.N.C. filed June 1, 1990). /3/ Although petitioner filed his action under 28 U.S.C. 2255 in the Western District of North Carolina, the district of conviction, it should have been brought under 28 U.S.C. 2241 in the Eastern District of North Carolina, the district in which he is in custody. An action challenging the Attorney General's decision not to grant credit against a sentence under 18 U.S.C. 3568 (1982) is not a challenge to the lawfulness of the conviction or the sentence imposed by the court, but a challenge to the computation of the release date by the Attorney General. Accordingly, it must be brought as a habeas corpus action in the court having jurisdiction over the prisoner's custodian. See United States v. Brown, 753 F.2d 455, 456 (5th Cir. 1985); United States v. Giddings, 740 F.2d 770, 771-772 (9th Cir. 1984); Soyka v. Alldredge, 481 F.2d 303, 304-306 (3d Cir. 1973). /4/ The pertinent language of Section 3568 is as follows: The sentence of imprisonment of any person convicted of an offense shall commence to run from the date on which such person is received at the penitentiary, reformatory, or jail for service of such sentence. The Attorney General shall give any such person credit toward service of his sentence for any days spent in custody in connection with the offense or acts for which sentence was imposed. Section 3568 was repealed and replaced by 18 U.S.C. 3585 as part of the Sentencing Reform Act of 1984, Pub. L. No. 98-473, II, Section 212(a)(2), 98 Stat. 2001. Section 3585, which applies to offenses committed after November 1, 1987, provides that "(a) defendant shall be given credit toward the service of a term of imprisonment for any time he has spent in official detention prior to the date the sentence commences." /5/ In addition, the Bureau of Prisons has issued a Policy Statement, No. 5880.24, that interprets the term "in custody" to mean "physical incarceration in a jail-type institution or facility." As the Seventh Circuit explained in Ramsey v. Brennan, supra, the Bureau of Prisons is well suited to the task of determining whether confinement in a halfway house is sufficiently like prison to warrant the same credit toward sentence as pretrial detention, and the Bureau of Prisons' Policy Statement is "a reasonable opinion by officials having greater knowledge of federal penal policy than * * * judges have." 878 F.2d at 996. /6/ The other cases on which petitioner relies are inapposite. Most of them construe the term "custody" for the very different purpose of determining whether a particular court has jurisdiction to entertain a petition for a writ of habeas corpus. See, e.g., Hensley v. Municipal Court, 411 U.S. 345 (1973); Strait v. Laird, 406 U.S. 341 (1972); Jones v. Cunningham, 371 U.S. 236 (1963); Ahrens v. Clark, 335 U.S. 188 (1948). As the court explained in Marrera v. Edwards, 812 F.2d 1517 (6th Cir. 1987), the meaning of "custody" for purposes of Section 3568 must be determined based on the language and purposes of that provision, not the statutes and case law governing habeas corpus. Accord Villaume v. United States Department of Justice, 804 F.2d at 499.