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Roque U. Garcia, Inmate #49905-079 v. James Cross

July 31, 2012

ROQUE U. GARCIA, INMATE #49905-079, PETITIONER,
v.
JAMES CROSS, RESPONDENT.



The opinion of the court was delivered by: Herndon, Chief Judge:

MEMORANDUM AND ORDER

Petitioner, currently incarcerated in the Federal Correctional Institution at Greenville, Illinois, brings this habeas corpus action pursuant to 28 U.S.C. § 2241 to challenge the execution of his sentence, imposed on August 30, 1990, after a jury trial in the Southern District of Texas (See United States v. Zamora, No. 4:89-cr-00232-3). He asserts that, although he was convicted of seventeen drug-related offenses, three of these counts were later vacated, and he should not be serving time on those three counts or have those counts used for custody determinations. Petitioner also requests a refund from the Bureau of Prisons for the special assessments paid on the three vacated counts. This case is now before the Court for preliminary review pursuant to Rules 1(b) and 4 of the Rules Governing Section 2254 Cases in the United States District Courts.

I. Procedural History

On June 15, 1990, a jury convicted petitioner of three drug-related conspiracy charges (counts 1-3), amongst others,1 in the Southern District of Texas, No. 4:89-cr-00232-3 (Doc. 1-1, p. 1). On August 30, 1990, Judge David Hittner sentenced petitioner to the following term of imprisonment: 600 months on counts 1, 3, 31, 39, and 40; 480 months on counts 2, 26, and 27; 60 months on count 16; and 48 months on counts 13-15, 19, 23-25, 28, and 38, all to run concurrently (Doc. 1-1, p. 2). The Court also imposed a special assessment on each count and various terms of supervised release (Doc. 1-1, p. 4; see Doc. 692 in criminal case).

On October 12, 1993, petitioner's conviction was affirmed on direct appeal by the Fifth Circuit (Doc. 1068 in criminal case). On April 24, 1997, petitioner filed a motion to vacate under 28 U.S.C. § 2255 with the Southern District of Texas (Doc. 1246 in criminal case). On June 30, 1998, the court granted petitioner's § 2255 motion in part, vacating the three conspiracy counts out of his seventeen original convictions (Doc. 1355 in criminal case). Since then, petitioner has filed numerous unrelated motions and petitions with the Fifth Circuit and the Southern District of Texas, with no favorable results. See, e.g., United States v. Garcia, 344 F. App'x 935 (5th Cir. 2009). Petitioner filed the instant action on November 16, 2011.

II. Analysis

1Possession of cocaine with intent to distribute (count 26), distribution of cocaine (count 27), distribution of marijuana (count 16), importation of cocaine (count 31), use of the telephone to facilitate drug trafficking (counts 13--15, 23--25, 28, 38), possession with intent to distribute cocaine (count 39), and continuing criminal enterprise (count 40).

Petitioner argues that, although the three conspiracy convictions have been vacated, he is still experiencing three facets of the sentences for those vacated convictions: (a) time incarcerated, (b) special assessments, and (c) custody determinations. The Court shall address these claims separately for purposes of threshold review.

A. Serving Time for Vacated Convictions

Petitioner argues that despite the July 6, 1998, decision of the Southern District of Texas, he is still serving the sentences for the three conspiracy convictions. However, under 18 U.S.C. § 3584(c): "multiple terms of imprisonment ordered to run consecutively or concurrently shall be treated for administrative purposes as a single, aggregate term of imprisonment." Id. Thus, as long as petitioner's convictions under counts 31, 39, and 40, of the indictment are still valid, petitioner will have to serve his 600-month term of imprisonment. Therefore, petitioner's challenge to the execution of his sentence regarding length of incarceration shall be dismissed with prejudice.

B. Special Assessment Refund

Petitioner asserts that the Bureau of Prisons must refund him for the special assessments he has paid out on the three vacated convictions. In vacating the three conspiracy counts, the Southern District of Texas specifically noted, "[Garcia's] sentence, however, is not modified" (Doc. 1-2, pp. 11-12). Leaving a sentence unmodified despite the vacation of some convictions commonly occurs in the Seventh Circuit as well. See United States v. Soy, 413 F.3d 594, 608 (7th Cir. 2005). Presumably, the language used in the June 30, 1998, order means that Petitioner's special assessments were similarly not modified by the Southern District of Texas. If petitioner wished for his sentence to be modified due to the vacated sentences, he could have raised this issue on appeal, but he did not (See Doc. 1425 in criminal case).

The Seventh Circuit and its sister circuits have held that special assessments and criminal fines "are analogous to time served and are not refundable." United States v. Zizzo, 120 F.2d 1338, 1347 (7th Cir. 1997); see also United States v. Schumann, 861 F.2d 1234, 1236 (11th Cir. 1988); United States v. Asset, 990 F.2d 208, 214 (5th Cir. 1993). However, it bears noting that these cases all concerned defendants who died during their appeals process.

Furthermore, petitioner's claim for a refund of his special assessments cannot proceed against the named respondent, Warden Cross. Although the Bureau of Prisons may have assisted the Southern District of Texas in the collection of petitioner's special assessment, in an action to refund fines paid in a criminal conviction, the United States is the proper party. See United States v. Zizzo, 120 F.3d 1338 (7th Cir. 1997). Thus, even if it were properly ...


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