                                                                                                                           Opinions of the United
1994 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-2-1994

Graham v. Lanfong, et al.
Precedential or Non-Precedential:

Docket 93-7676




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http://digitalcommons.law.villanova.edu/thirdcircuit_1994/34


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                  UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT
                           ____________

                           No. 93-7676
                           ____________

                         ORLANZO GRAHAM,
                                           Appellee
                                v.

                VICKY LANFONG, Warden; BUREAU OF CORRECTIONS;
                GOVERNMENT OF THE VIRGIN ISLANDS,

                              Vicky Lanfong, Warden;
                              Bureau of Corrections;
                              Government of the Virgin Isands;
                              James Aiken,
                                      Appellants

                           ____________

      APPEAL FROM THE DISTRICT COURT OF THE VIRGIN ISLANDS
               DIVISION OF ST. THOMAS and ST. JOHN
                     (D.C. Civ. No. 93-00096)
                           ____________

                      Argued April 18, 1994

      Before:   STAPLETON, ALITO, and WEIS, Circuit Judges

                    Filed June 2, 1994
                           ____________


Pamela Lynn Wood, Esquire (ARGUED)
Assistant Attorney General
Rosalie Simmonds Ballentine, Esquire
Attorney General
Paul L. Gimenez, Esquire
Solicitor General
Darlene C. Grant, Esquire
Assistant Attorney General
Department of Justice
48B-50C Kronprindsens Gade,
GERS Complex, 2nd Floor
Charlotte Amalie, St. Thomas
United States Virgin Islands 00802

Attorneys for Appellant, Government of the Virgin Islands


                                1
Stephen A. Brusch, Esquire (ARGUED)
Assistant Federal Public Defender
Thurston T. McKelvin, Esquire
Federal Public Defender
P.O. Box 1327
Charlotte Amalie, St. Thomas
United States Virgin Islands 00804-1327

Attorneys for Appellee, Orlanzo Graham

                           ____________

                    OPINION OF THE COURT
                           ____________



WEIS, Circuit Judge.

          In this appeal, we hold that a prisoner serving a

Virgin Islands sentence in a federal prison is entitled to the

good-time credits provided by federal law rather than those

applicable under a territorial statute.    Because the Virgin

Islands Bureau of Corrections failed to reduce the petitioner's

sentence by the amount of federal credits earned, he was entitled

to habeas corpus relief.   We will affirm the order of the

district court ordering his immediate release.

          On April 8, 1987, the District Court of the Virgin

Islands sentenced petitioner Graham to a five-year term of

imprisonment for violating a federal statute.    The federal

sentence was to be served concurrently with an eight-year

sentence for a territorial offense that was imposed a month later

by another judge of the court.

          In June 1987, petitioner began serving the concurrent

sentences in a federal prison.   He qualified for federal good-


                                 2
time credits and was released from the federal institution after

three years of actual confinement.    The Virgin Islands Bureau of

Corrections then took custody of petitioner in June 1990 to serve

the remaining portion of his territorial sentence.

          While in the Virgin Islands institution, petitioner

asked that he be given credit against the eight-year territorial

sentence for the five-year sentence completed in the federal

prison.   The Virgin Islands Attorney General's Office responded

that petitioner would be given credit only for the three years

actually spent in the federal penitentiary and that he would earn

good-time credit under Virgin Islands law only for the period in

which he was incarcerated in the Virgin Islands institution.

          The net result of the Attorney General's ruling was

that petitioner would earn good-time credits under Virgin Islands

law only after June 1990 when he was returned to the Virgin

Islands and became an inmate there.    According to the Bureau of

Corrections, petitioner would, therefore, not complete his

sentence until May 29, 1994, assuming that he earned good-time

credits at the Virgin Islands facility.

          Petitioner then sought a writ of habeas corpus.    The

district court concluded that petitioner had been in

"constructive custody" of the Bureau of Corrections while serving

the concurrent territorial sentence in the federal prison.    The

court thus found that petitioner was entitled to good-time

credits under Virgin Islands law against the territorial sentence

for the time spent in the federal prison, as well as for the

period served in the Virgin Islands institution.   On that basis,


                                3
the court observed that the petitioner's sentence had already

expired and on September 1, 1993, ordered the immediate release

of petitioner.   The Government of the Virgin Islands has

appealed, asserting that the district court erred in releasing

petitioner prematurely.

          18 U.S.C. § 5003(a) authorizes the Director of the

United States Bureau of Prisons to contract with appropriate

state and territorial officials for the custody of persons

convicted in state or territorial courts.    Section 5003(c) of

that statute provides that "[u]nless otherwise specifically

provided in the contract, [such persons] shall be subject to all

the provisions of law and regulations applicable to persons

committed for violations of laws of the United States not

inconsistent with the sentence imposed."    Id. § 5003(c).

          Acting pursuant to authority granted by 18 U.S.C.

§ 5003 and by the corresponding Virgin Islands statute, V.I. Code

title 5, § 4503, the Government of the Virgin Islands entered

into a contract with the United States Bureau of Prisons, which

specified that prisoners in the custody of the federal government

would be subject to federal rules and regulations.    Therefore, by

virtue of 18 U.S.C. § 5003 and the contract, Virgin Islands

prisoners confined in federal prisons, whether convicted of

federal or territorial offenses, are subject to the statutes

applicable to federal prisoners and regulations of the federal

Bureau of Prisons.

          18 U.S.C. § 5003 does not exclude awards of good-time

credits from its scope, and consequently, they would be

                                4
applicable to prisoners serving territorial as well as federal

sentences.   To make a distinction depending on the jurisdiction

that imposed the term of incarceration would create an

undesirable disparity among the inmates, which would in turn lead

to disciplinary problems for prison administrators.   Moreover,

allowing federal good-time credits toward a federal sentence, but

not doing so for a concurrent territorial term, would reduce the

incentives for a prisoner to qualify for those benefits and would

thus frustrate the aims of the federal program.

          At the time of the petitioner's offense, the federal

good-time credit statute, 18 U.S.C. § 4161 (1982) (repealed

1986), provided that a prisoner convicted of a federal offense

was entitled to an allowance of eight days per month for a

sentence of between five and ten years.1   Because petitioner was

subject to federal rules and regulations while serving time in

the federal prison, he was entitled to receive good-time credit

under 18 U.S.C. § 4161 not only for the federal sentence, but for

the territorial sentence as well.   For example, if petitioner had

been sentenced to concurrent five-year sentences for both the

federal and territorial crimes, he would have been entitled to be

released after his completion of the federal sentence.




1
This statute was replaced by 18 U.S.C. § 3624(b), which limits
good-time credits for federal offenses to 54 days per year.
Section 3624(b) does not apply to petitioner because his offense
occurred prior to the effective date of the repealer. See
Sentencing Reform Act of 1984, Pub. L. No. 98-473, ch. II,
§235(a)(1), 98 Stat. 1987, 2031 (repeal of 18 U.S.C. § 4161
effective Nov. 1, 1986).


                                5
           The Bureau of Corrections, therefore, erred in deciding

that the period of time served in the federal institution should

be treated differently for the territorial and federal sentences.

If federal good-time credit had been properly applied to his

concurrent territorial sentence for that period, petitioner would

have had only three remaining years to serve in a Virgin Islands

correctional institution following his transfer from the federal

prison.2

           Although we conclude that the Bureau of Corrections

erred in its calculation of the petitioner's release date by

failing to apply federal good-time credit to the territorial

sentence, we must also reject the petitioner's contention that he

was entitled to good-time credit under Virgin Islands law for

that same period.

           The Virgin Islands good-time provision is codified at

V.I. Code tit. 5, § 4571 and reads in pertinent part:   "Each

prisoner confined in a prison or jail in the Virgin Islands for a

definite term . . . shall be entitled to a deduction from the

term of his sentence . . . as follows:    Six days for each month

of time served."

           The Government of the Virgin Islands argues correctly,

we believe, that this statutory language limits credits to time

served in a Virgin Islands institution.   The language refers to


2
This good-time credit calculation would be the same as that
provided for his federal sentence. The record is unclear as to
how the federal authorities arrived at this calculation.
Nevertheless, we base the petitioner's good-time credit allowance
on the same figure.


                                6
the place of confinement and does not use the term "custody" or

any such relationship in determining eligibility for the credits.

Consequently, the petitioner's reliance on cases discussing

"constructive custody" such as Ali v. Gibson, 572 F.2d 971 (3d

Cir. 1978), is misplaced.

          In Fields v. Keohane, 954 F.2d 945, 948 (3d Cir. 1992),

the petitioners complained that because their District of

Columbia sentences were being served in a federal penitentiary,

they were only being given federal system good-time credits,

rather than the more favorable benefits available to those

confined in District of Columbia facilities.   We rejected their

contention that they had a "liberty interest" in being confined

to a District of Columbia institution and recognized the right of

the District of Columbia authorities to limit local good-time

benefits to their own institutions.   Id. at 950-51; see also Moss

v. Clark, 886 F.2d 686, 691 (4th Cir. 1989); cf. Jackson v.

Thornburgh, 907 F.2d 194, 197-200 (D.C. Cir. 1990) (rejecting the

argument that not allowing women prisoners who were housed in

federal prison to receive more favorable good-time credit under

District of Columbia law violated Equal Protection Clause).

          Accordingly, we dismiss the petitioner's contention

that during the period of his confinement in the federal

institution, he was entitled to accumulate Virgin Islands good-

time credits.   The language of the Virgin Islands Code specifying

the location at which credits may be earned bars such a result.

In any event, our conclusion that petitioner is entitled to



                                7
federal good-time credits against the territorial sentence leads

to the result he intended when seeking relief.

          In sum, petitioner was entitled to full credit for a

five-year term served in the federal institution, and upon his

relocation to the Virgin Islands prison, he was eligible for

Virgin Islands good-time credits for the duration of his stay

there.   Specifically, because petitioner was to be considered as

having served five of the eight-year term on his territorial

sentence while in the federal institution, he had a maximum of

three years remaining on his Virgin Islands sentence.   He was

then entitled to Virgin Islands good-time credits during those

remaining three years.

          According to our calculations, petitioner had completed

both sentences before the date he was released.   Therefore, we

will affirm the order of the district court, although we have

followed a different route in coming to that conclusion.

          The judgment of the district court will be affirmed.




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