United States District Court, D. Maryland
W. Grimm United States District Judge.
a crime spree on February 11, 1998 that started in New
Hampshire and ended in Massachusetts, Petitioner Chad Austin
was indicted, convicted, and sentenced first in Massachusetts
state court and then in federal court in New Hampshire of
crimes arising out of his conduct that day. His federal
sentence was, in part, concurrent to and, in part,
consecutive to his state sentence. His state sentence was
vacated in part on October 25, 2006, and he was resentenced
on all counts in state court. In Austin's view, in light
of the state court order vacating his state court sentence,
his consecutive federal sentences began to run at soon as his
concurrent federal sentences concluded, such that he should
be released immediately. He has filed a Petition for Writ of
Habeas Corpus pursuant to 28 U.S.C. § 2241 on that
basis. ECF No. 1. Respondent, the Warden of FCI-Cumberland,
where Austin is confined, has filed a Motion to Dismiss or,
Alternatively, for Summary Judgment, ECF No. 4. Because the state
court never relinquished jurisdiction when it resentenced
him, Austin's consecutive federal sentence did not begin
until October 28, 2016, when he completed his state sentence
and the State of Massachusetts released him to Federal Bureau
of Prisons (“BOP”) custody. Accordingly, I will
grant Respondent's Motion, construed as a motion for
summary judgment, and deny Austin's Petition.
February 11, 1998, Austin stole a car in New Hampshire and
robbed a New Hampshire bank at gunpoint. United States v.
Austin, 239 F.3d 1, 2 (1st Cir. 2001). He fled by car
into Massachusetts with two pillowcases full of cash, firing
at the New Hampshire police officer and then Massachusetts
police officers who pursued him in a high-speed chase.
Id. at 2- 3. After crashing the car, he continued to
flee on foot, eventually entering a house by force and
holding the two 4-year-old boys in the home and their father
hostage for hours before the Massachusetts police
successfully took him into custody. Id. at 3.
was sentenced in Massachusetts state court on November 4,
1998 to a 30-40 year term of imprisonment for each of three
counts of armed home invasion, and received concurrent,
shorter sentences for other state crimes stemming from this
course of events. Id.; Commonwealth v.
Austin, No. 98-403, slip op. at 1-2 (Mass. Sup. Ct. Oct.
25, 2006), ECF No. 1-8. He was brought into federal custody
on November 17, 1998 pursuant to a writ of habeas corpus
ad prosequendum while he was in state custody.
Giddings Decl. ¶ 4, ECF No. 4-2. In the United States
District Court for the District of New Hampshire, he was
convicted of bank robbery, use of a firearm during a crime of
violence, possession of a firearm by a prohibited person, and
interstate transportation of stolen property and a stolen
motor vehicle. Id. ¶ 5; Austin, 239
F.3d at 3. On November 12, 1999, the New Hampshire federal
court sentenced him to 175 months of imprisonment for those
crimes. Jmt., ECF No. 4-2, at 24-27; Austin, 239
F.3d at 4.
sentencing, the New Hampshire federal court stated that it
was “the Court's intent to impose a sentence that
will effectively require the defendant to serve an additional
ten years of imprisonment consecutive to the term imposed by
Massachusetts, which is a 30-year to 40-year sentence.”
Hr'g Tr. Part 3, at 51:8-13, ECF No. 1-4. The court
The Court intends to impose sentence as follows: Pursuant to
the Sentencing Reform Act of 1984, it is the judgment of this
Court that the defendant, Chad E. Austin, is hereby committed
to the custody of the Bureau of Prisons to be imprisoned for
a term of 175 months on Count 1, 60 months to be
served consecutively and 115 months to be served
concurrently, and a term of 120 months on each of Counts 3,
4, and 5, all such terms as to Counts 3, 4, and 5 to be
served concurrently with each other and effective this date
with the Massachusetts state sentence now being served.
It is further ordered that the defendant is hereby committed
to the Bureau of Prisons to be imprisoned for a term of
60 months on Count 2, said sentence to be served
consecutively to the instant federal sentence and any other
sentence being served by this defendant, particularly the
Massachusetts sentence he's now currently
Hr'g Tr. Part 2, at 46:20-47:13, ECF No. 1-3 (emphasis
added). It reiterated that the sentence “would be
ten years consecutive, the rest concurrent with each
other and with the other federal sentences on the different
counts and with the state sentence.” Hr'g Tr. Part
3, at 52:8-11 (emphasis added). The court then
“impose[d] the sentence as announced.”
Id. at 52:15; see also Jmt., ECF No. 4-2,
at 24-27. Thus, 60 months of the sentence imposed for Count 1
were to be consecutive to the state sentence, and 60 months
of the sentence imposed for Count 2 were to be consecutive to
the federal sentence on the other counts, as well as
consecutive to the state sentence, for a total of 120 months
(ten years) to be served consecutive to the federal sentence.
Hr'g Tr. Part 2, at 46:20-47:13; Jmt. Five days after his
federal sentencing, on November 17, 1999, Austin returned to
state custody to serve the remainder of his state sentence.
Giddings Decl. ¶ 6.
appealed his federal sentence, and the First Circuit affirmed
in part, concluding that the enhancements to Count One (which
Austin challenged as duplicative) were appropriate.
Id. at 4-5. It also concluded that “the
district court did not err in applying U.S.S.G. §
5G1.3(c), ” which allowed the court to impose a
partially-consecutive sentence, unlike U.S.S.G. §
5G1.3(b), which would have required a sentence that ran
“concurrently with his undischarged state term”
if the “federal sentence fully took into account
conduct that formed the basis of his Massachusetts
sentence.” Id. at 4-5, 7. The First Circuit
also vacated in part and remanded for resentencing, holding
that the sentencing court erred in aggregating the value of
the stolen car and the stolen cash pursuant to U.S.S.G.
§ 2B3.1(b)(7) and applying a one-level enhancement.
Id. at 8.
Hampshire federal court resentenced Austin and, on April 2,
2001, it issued an Amended Judgment, modifying the total
months of imprisonment to 222. Am. Jmt., ECF No. 4-2, at
35-38. The Amended Judgment stated that, “[o]n Count 1,
102 months, ” as opposed to the 115 months originally
imposed, “shall be served concurrently with” the
state sentence; it did not modify any other terms.
Id. Thus, even as amended, 60 months of the sentence
imposed for Count 1 were to be consecutive to the state
sentence, and 60 months of the sentence imposed for Count 2
were to be consecutive to the federal sentence on the other
counts, as well as consecutive to the state sentence, for a
total of 120 months (ten years) to be served consecutive to
the federal sentence. Id.
also challenged his state court sentence, and the state court
ruled on October 25, 2006 that the relevant state statute
pertaining to armed home invasion, in effect at the time
Austin was convicted and sentenced, provided for a minimum of
10 and a maximum of 20 years of imprisonment, whereas Austin
was sentenced to 30-40 years of imprisonment on each of the
three armed home invasion counts, under an outdated
provision. Austin, No. 98-403, slip op. at 1-2, 4.
The court stated that, with regard to the home invasion
counts, Austin's “sentences must be vacated and he
must be re-sentenced, ” and that it would “not
limit Austin's re-sentencing to the armed home invasion
convictions” because “[t]he governing sentences
imposed for these lead charges influenced this court's
decision as to both the length and the concurrent nature of
the sentences imposed on the other convictions.”
Id. at 4. The state court resentenced Austin on
December 27, 2006 to a total of 19 to 20 years of
imprisonment on one of the home invasion counts and to
shorter, concurrent sentences on each of the other counts,
with credit for 3, 241 days served. Id. Nos. 159-67.
Austin filed an unsuccessful motion to correct illegal
sentence in the New Hampshire federal court, seeking a
reduction in his federal sentence based on the reduction in
his state court sentence. Order (D.N.H. Apr. 29, 2013), ECF
No. 4-2, at 45. He also filed a letter, seeking an
explanation of how his federal sentence was calculated, and
the Deputy Chief Probation Officer, at the court's
request, provided a response. Apr. 4, 2014 Mem., ECF No. 4-2,
at 50. He stated that “the Court intended that the
defendant serve a period of 10 years incarceration in federal
prison that was consecutive to the sentence the defendant
received in the Commonwealth of Massachusetts.”
Id. (citing Am. Jmt.; Hr'g Tr. 52). He also
explained that “the reduction of the defendant's
sentence in the Commonwealth of Massachusetts does not alter
his federal sentence; he will commence service of his federal
term of imprisonment upon completion of his state sentence.
completed his state sentence on October 28, 2016, and the
State of Massachusetts released him to Federal BOP custody to
serve the 120 months of his federal sentence that were to run
consecutive to his state sentence. Giddings Decl. ¶ 14.