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


5-13-2005

D'Amario v. Zenk
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-4173




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Recommended Citation
"D'Amario v. Zenk" (2005). 2005 Decisions. Paper 1194.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1194


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DPS-139                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                      NO. 04-4173
                                   ________________

                                ARTHUR D'AMARIO, III,

                                             Appellant

                                               v.

                             MICHAEL A. ZENK, Warden
                      ____________________________________

                    On Appeal From the United States District Court
                             For the District of New Jersey
                             (D.C. Civ. No. 04-cv-04684)
                      District Judge: Honorable Joseph E. Irenas
                    _______________________________________


 Submitted For Possible Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                February 17, 2005

              BEFORE: ROTH, BARRY and SMITH, CIRCUIT JUDGES

                                  (Filed: May 13, 2005)


                               _______________________

                                       OPINION
                               _______________________

PER CURIAM

       Arthur D’Amario, III, pro se, appeals from an order of the United States District

Court for the District of New Jersey denying his petition filed pursuant to 28 U.S.C. §
2241. We will affirm.

       In February 1999, state officials arrested D’Amario for violating the terms of his

state probation for a prior felony conviction by possessing a gun and ammunition.

D’Amario was detained in a state detention facility while he was awaiting disposition of

the charge of violation of probation. A federal grand jury indicted D’Amario on a charge

of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1).

       In March 1999, D’Amario was transferred to federal custody on a writ of habeas

corpus ad prosequendum. He remained in federal custody for six months and then was

returned to state custody. In December 1999, D’Amario was again transferred to federal

custody for trial on the § 922(g)(1) charge. D’Amario was found guilty of the offense

and was sentenced to eighteen months’ imprisonment. The trial judge recommended that

the Bureau of Prisons (“BOP”) give D’Amario credit toward his § 922(g)(1) sentence for

the time he had served prior to sentencing but left the decision to the BOP’s discretion.

       D’Amario was returned to the state for his violation of probation hearing. The

state judge sentenced D’Amario to three hundred eighty-six days’ imprisonment and

entered a judgment for time served, crediting D’Amario for the time he spent in prison

between February 22, 1999, and the date of judgment, March 13, 2000. D’Amario was

then released to federal custody.

       Pursuant to 18 U.S.C. § 3585(b), the BOP declined to credit any pre-sentencing

time toward D’Amario’s federal sentence because it had already been credited toward his



                                             2
state sentence. Apparently disgruntled with the BOP’s decision, D’Amario sent a letter to

his attorney in which he threatened to kill, among others, the federal judge who tried his §

922(g)(1) offense. D’Amario was found guilty of threatening to assault and murder a

federal judge in violation of 18 U.S.C. § 115(a)(1)(B) and was sentenced to twenty-seven

months’ imprisonment with three years’ supervised release. Based on a reduction of one

of D’Amario’s state sentences, his federal criminal history category decreased, and

D’Amario was resentenced to twenty-one months’ imprisonment. On appeal, this Court

vacated and remanded the initial resentencing with instructions to resentence D’Amario

anew to thirty to thirty-seven months imprisonment.

       D’Amario filed the instant § 2241 petition while he was detained at the

Metropolitan Detention Center in Brooklyn, New York. He alleged three claims for

relief: (1) that he should get credit against his federal sentence for the time he served

before he was sentenced on the § 922(g)(1) offense, (2) that the BOP improperly

calculated his good credit time in light of White v. Scibana, 314 F.Supp.2d 834 (W.D.

Wis. 2004), and (3) that he is entitled to release on bail or transfer to one of two federal

correctional institutions of his choice where he could avail himself of more resources and

privileges and pursue pending legal matters. The proceedings were transferred to the

District of New Jersey.

       The District Court denied D’Amario’s petition on several bases. As to his first

claim, the District Court concluded that D’Amario had repeatedly unsuccessfully litigated



                                              3
the issue in previous § 2241 petitions and a state action.1 The District Court also

concluded that the BOP acted properly in denying D’Amario federal credit for the time

that had already been credited toward satisfaction of his state sentence. With respect to

D’Amario’s second claim, the District Court concluded that, contrary to the decision

reached in White, the BOP’s regulation for good credit calculation was ambiguous but

entitled to deference under Chevron v. Natural Resources Defense Council, 467 U.S. 837

(1984). As to D’Amario’s final claim, the District Court concluded that D’Amario could

show no entitlement to be housed in the facility of his choice and that such a

determination was entirely within the discretion of the BOP. The District Court also

noted that D’Amario’s claim that his location at the detention center interfered with his

legal activities was undercut by the fact that he had filed meaningful legal documents

while he was incarcerated at the detention center. D’Amario timely appealed.

         We agree with the District Court’s determination of D’Amario’s claims. We note

that White has been reversed by the Court of Appeals for the Seventh Circuit. See White

v. Scibana, 390 F.3d 997 (7th Cir. 2004). We further note that because D’Amario has

been released to a half-way house, it is unclear what relief this Court could afford him

with respect to his third claim.

         Summary action is appropriate if there is no substantial question on appeal. See

Third Circuit LAR 27.4. For essentially the reasons set forth by the District Court, we



  1
      See, e.g., D.N.J. Civ. No. 00-cv-02400.

                                                4
will summarily affirm the District Court’s order denying D’Amario’s § 2241 petition.

See Third Circuit I.O.P. 10.6.
