                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-17-2005

USA v. Dent
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1098




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Recommended Citation
"USA v. Dent" (2005). 2005 Decisions. Paper 995.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/995


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APS-249                                               NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT

                                   NO. 05-1098
                                ________________

                         UNITED STATES OF AMERICA

                                           v.

                                 MICHAEL DENT,

                                          Appellant

                    ____________________________________

                  On Appeal From the United States District Court
                      For the Eastern District of Pennsylvania
                         (D.C. Crim. No. 92-cr-00223-03)
                     District Judge: Honorable Robert F. Kelly
                  _______________________________________

                  Submitted On Motion For Summary Affirmance
                   Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                  May 26, 2005

      Before: SLOVITER, NYGAARD AND FUENTES, CIRCUIT JUDGES

                                (Filed June 17, 2005)


                            _______________________

                                    OPINION
                            _______________________

PER CURIAM

     In 1997, appellant Michael Dent was convicted in the United States District Court
for the Eastern District of Pennsylvania of conspiracy to possess and distribute in excess

of five kilograms of cocaine base, in violation of 21 U.S.C. § 846; he was sentenced to

ninety-two months imprisonment followed by five years of supervised release. We

affirmed the convictions in 1998. Dent filed a motion under 28 U.S.C. § 2255 to vacate

his sentence in June 1999, contending, among other things, that he rejected a government

plea offer based on erroneous advice of counsel. The District Court denied the motion on

the merits in September 1999. In August 2002, we vacated the District Court’s order only

as to the aforementioned ineffective counsel claim, and remanded for an evidentiary

hearing. By order entered November 22, 2002, the District Court denied § 2255 relief,

and, on recommendation of the parties, modified Dent’s Judgment and Commitment order

by: (1) reducing the supervised release term from five years to three as Dent had already

been released from prison on the challenged sentence, and (2) permitting Dent to apply

for early termination of supervised release after eighteen months if he complied with the

terms of his release. The case was transferred to the U.S. Probation Office for the

Southern District of New York.

       Dent violated the terms of supervised release, and in September 2004, he was

sentenced to thirty (30) months imprisonment by the District Court for the Southern

District of New York. His appeal of the thirty month sentence is currently pending in the

United States Court of Appeals for the Second Circuit.

       Shortly after he appealed the New York sentence, Dent lodged virtually



                                             2
simultaneous collateral attacks on his term of imprisonment. He filed a § 2241 petition in

the Eastern District of New York, claiming that he was entitled to credit for the ninety-

two months of “excess prison time” that he served after he rejected the government’s plea

offer based on erroneous advice of counsel.

       Meanwhile, in the Eastern District of Pennsylvania, Dent filed a petition for a writ

of coram nobis seeking to modify that court’s 2002 order reducing his term of supervised

release. He alleged that the District Court violated U.S. v. Johnson, 529 U.S. 53 (2000)

by reducing the period of supervised release to make up for the excess time Dent had

already served in prison; he also claimed that the District Court wrongfully imposed a

three year probationary term for a “B” felony. He asserts that because of the District

Court’s error, the New York federal court erroneously treated him as a “B” felon and

imposed a stiffer penalty. The District Court denied this petition for lack of jurisdiction

in December 2004, holding that, to the extent that Dent challenged the legality of the

thirty-month sentence imposed in New York, his only avenue of collateral relief was by

means of a § 2255 motion, and that he was precluded from seeking § 2255 relief because

his direct appeal was still pending in the Second Circuit Court of Appeals. To the extent

Dent challenged the BOP’s failure to give him credit for excess prison time under 18

U.S.C. § 3585(b), the District Court ruled that he failed to exhaust the administrative




                                              3
remedies available through the BOP prior to seeking relief in the District Court.1 Dent

filed a timely appeal.2

       The Government has moved to summarily affirm the order of the District Court;

Dent has filed a response and his own motion for summary action. We will affirm the

District Court because no substantial question is presented by this appeal. See Third

Circuit LAR 27.4 and I.O.P. 10.6.

       Dent claims that the coram nobis petition challenged the modified sentence

imposed by the Eastern District of Pennsylvania Court in 2002, not the thirty-month

sentence imposed in New York. Dent contends that the modified three year probationary

period imposed in 2002 was illegal because he was originally sentenced under 21 U.S.C.

§ 841(B)(1)(B), which requires a minimum of four years supervised release. According

to Dent, the District Court should have modified the judgment and commitment to reflect

that he was being sentenced pursuant to § 841(B)(1)(C), because that provision allows for

a minimum three year term of supervised release. Dent asserts that had the District Court

modified his sentence accordingly, the New York Court would not have treated him as a

“B” felon or imposed the thirty-month sentence it did.



       1
         Barely a week later, Dent’s New York § 2241 petition was dismissed without
prejudice for failure to exhaust his administrative remedies. See Dent v. Bureau of
Prisons, Civ. A. No. 04-04479-NG (E.D.N.Y. January 6, 2005). It appears that Dent did
not appeal the order.
       2
         No certificate of appealability is necessary to appeal the denial of a petition for a
writ of coram nobis. United States v. Baptiste, 223 F.3d 188 (3d Cir. 2000).

                                              4
       Dent’s petition fails no matter which sentence he is challenging. To the extent that

Dent’s coram nobis petition attacks the thirty-month sentence imposed by the New York

federal court, we conclude that the District Court properly denied the petition

substantially for the same reasons set forth in its opinion. As for Dent’s challenge to the

2002 order modifying the term of supervised release, he must seek relief pursuant to 28

U.S.C. § 2255. Coram nobis relief is an extraordinary remedy traditionally used to attack

convictions with continuing consequences when the petitioner is no longer “in custody”

for § 2255 purposes. Baptiste, 223 F.3d at 189. Because Dent is still on supervised

release pursuant to the modified sentence, he is still “in custody” and thus, coram nobis

relief is not available to him.

       Accordingly, we will summarily affirm the order of the District Court. The

appellees’ motion for summary affirmance is granted. Dent’s motions for summary

action, for expedited consideration, for appointment of counsel, and to proceed on the

original record are denied.
