Bayard v . Warden FCI Schuylkill 10-CV-442-SM 10/22/10 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Serge Eric Bayard, Petitioner

v. Civil N o . 10-cv-442-SM Opinion N o .

H.L. Hufford, Warden FCI Schuylkill, Respondent

O R D E R

Following a jury trial, Serge Bayard was convicted of the

unauthorized use of an access device and aggravated identity

theft. He was sentenced to serve 36 months in prison. Invoking

the provisions of

, Bayard now seeks habeas

corpus relief, asserting that the respondent has improperly

calculated his projected release date from prison by failing to

properly credit Bayard with all of the time that he spent in

pretrial detention. For the reasons set forth below, Bayard’s

petition is denied.

Background

According to Bayard’s petition, in January of 2009, he was

arrested and charged in state court with criminal trespass. He

was detained pending trial. Three months later, on April 1 0 ,

2009, he was charged with various federal crimes involving

identity theft. A federal detainer was lodged against him. While he was held in state custody Bayard was eventually

convicted of the state trespass charge and, on August 5 , 2009, he

was sentenced to “time served” (which included his state pretrial

detention time). The following day, he was arraigned on the

federal charges and, again, he was detained pending trial.

Following his conviction on the federal charges, the 36 month

federal sentence was imposed.

Bayard contends that the Bureau of Prisons (“BOP”) has not

properly calculated his federal release date. According to

Bayard, he is entitled to credit for all the time he spent in

pretrial detention - that i s , from the date on which he was

originally detained on state charges (January 1 0 , 2009) through

the date on which he was arraigned on the federal charges (August

6, 2009). But, he says, the BOP informed him that he is not

entitled to credit for those seven months because that time was

credited against his state sentence. See generally

(b) (“A defendant shall be given credit toward the service

of a term of imprisonment for any time he has spent in official

detention prior to the date the sentence commences . . . that has

not been credited against another sentence.”).

As Bayard recognizes, for him to obtain credit for all (or

at least some) of the time he spent in pre-trial detention before

2 August 6, 2009, his state conviction for criminal trespass must

first be vacated. Not surprisingly, then, he asserts that his

underlying state conviction was constitutionally flawed. But,

because he likely also recognizes that he would have difficulty

establishing the “in custody” requirement necessary to federal

habeas relief (

) from his state court conviction

(he has fully served that sentence and it does not appear that he

is on either parole or probation), he brings this action under

, asserting that his federal sentence is not

being properly calculated by the BOP.

Discussion

Because there are several claims contained within Bayard’s

petition, it is difficult to determine whether it is properly

viewed as a section 2255 petition (challenging his federal

sentence), a section 2254 petition (challenging his underlying

state conviction), o r , as he claims, a section 2241 petition

(challenging the calculation of his federal sentence). But, this

much is reasonably well established by the record: the BOP has

properly calculated Bayard’s federal sentence and his probable

release date, given Bayard’s underlying state conviction. To

obtain the relief he seeks (credit against his federal sentence

for time already credited against his state sentence), Bayard

must first obtain vacation of that state conviction. Then, he

3 could request BOP to recalculate his probable release date and

properly credit him with some of the pretrial detention time no

longer credited against a state sentence. See, e.g., Rogers v .

United States,

(1st Cir. 1999) (noting that

before an inmate can bring a federal action challenging the BOP’s

calculation of a federal sentence, the inmate must first exhaust

available BOP administrative remedies). Finally, if the BOP

failed to properly credit his time in pretrial detention, Bayard

could return to this court to seek relief under

.

See

at 358 n.16.

I. Habeas Corpus and the “Custody” Requirement.

Turning to the first of those three steps - Bayard’s

challenge to his underlying state court conviction - it is clear

that, whether it is properly viewed as a section 2241 petition or

a section 2254 petition, Bayard is not entitled to the relief he

seeks. As a preliminary matter, there is no suggestion that

Bayard is “in custody” with regard to his state conviction. See

generally

(c)(1)-(3) and 2254(a). See also

Maleng v . Cook,

(1989) (“The federal habeas

statute gives the United States district courts jurisdiction to

entertain petitions for habeas relief only from persons who are

‘in custody in violation of the Constitution or laws or treaties

of the United States.’”) (quoting

(c)(3))

4 (emphasis in original). As noted above, upon his conviction,

Bayard was sentenced by the state court to “time served.” And,

there is no indication in the record that he is currently on any

type of state parole or supervised release related to that

conviction. That state sentence has, then, “fully expired.”

Maleng,

. Moreover, Bayard has not even alleged

that he meets the “custody” requirement with respect to the

underlying state court conviction and sentence.

Nevertheless, Bayard says the court should consider his

petition because “invalidation of the state conviction would also

shorten Petitioner’s federal sentence [because] Petitioner’s

criminal history points would be reduced by 2 which would place

him in a criminal history points category I I , which, in turn,

would shorten his maximum imposed consecutive sentence on

§ 1029(a)(2) count from 12 months to 10 months.” Habeas petition

at 3 n.1. The fact that Bayard’s state conviction (as to which

the sentence has “fully expired”) may have served to augment his

subsequent federal sentence is not sufficient to meet the “in

custody” requirement of habeas corpus law, nor does it otherwise

vest this court with jurisdiction to address the merits of his

habeas petition. As the Supreme Court has held:

The question presented by this case is whether a habeas petitioner remains “in custody” under a conviction after the sentence imposed for it has fully expired,

5 merely because of the possibility that the prior conviction will be used to enhance the sentences imposed for any subsequent crimes of which he is convicted. We hold that he does not. While we have very liberally construed the “in custody” requirement for purposes of federal habeas, we have never extended it to the situation where a habeas petitioner suffers no present restraint from a conviction. Since almost all States have habitual offender statutes, and many States provide as Washington does for specific enhancement of subsequent sentences on the basis of prior convictions, a contrary ruling would mean that a petitioner whose sentence has completely expired could nonetheless challenge the conviction for which it was imposed at any time on federal habeas. This would read the “in custody” requirement out of the statute and be contrary to the clear implication of the opinion in Carafas v . LaVallee [

(1968)].

In this case, of course, the possibility of a sentence upon a subsequent conviction being enhanced because of the prior conviction actually materialized, but we do not think that requires any different conclusion. When the second sentence is imposed, it is pursuant to the second conviction that the petitioner is incarcerated and is therefore “in custody.”

Maleng v . Cook,

(1989) (emphasis supplied).

See also Lackawanna County Dist. Attorney v . Coss,

(2001).

II. Procedural Default.

Moreover, even if Bayard could satisfy the “in custody”

requirement (and assuming he properly exhausted his claims before

the state court), he still would not be entitled to the relief he

seeks. Bayard’s challenges to his state court conviction were

procedurally defaulted. All but one of those challenges were

6 deemed waived, because they were not briefed in Bayard’s appeal

to the state supreme court. See Exhibit 1 to habeas petition

(document n o . 1 - 1 ) , State v . Bayard, N o . 2009-0631 (N.H. Sept.

1 4 , 2010) (“The issues raised in the defendant’s notice of appeal

but not addressed in his brief are deemed waived.”) (citing In re

Estate of King,

(2003)). Similarly, the one

substantive claim actually addressed in Bayard’s brief to the New

Hampshire Supreme Court was also resolved on state procedural

grounds.

The record does not demonstrate that the defendant raised this issue with the trial court after the close of the State’s case. It is a long-standing rule that parties may not have judicial review of matters not raised in the trial court.

(citation omitted).

The procedural default doctrine provides that a federal

court will not consider a claim for habeas relief that was

rejected by a state court for failure to comply with that court’s

procedural requirements, Coleman v . Thompson,

(1991), provided those procedural requirements amount to “a

firmly established and regularly followed state practice,” Ford

v . Georgia,

(1991) (internal quotation marks

omitted). As the court of appeals has observed, a claim for

7 habeas relief is procedurally defaulted in either of two

situations.

First, a claim is procedurally defaulted if the state court has denied relief on that claim on independent and adequate state procedural grounds. Second, a claim is procedurally defaulted if it was not presented to the state courts and it is clear that those courts would have held the claim procedurally barred.

Pike v . Guarino,

1 , 73 (1st Cir. 2007) (citations

omitted). The doctrine applies whether the procedural default

occurred at trial, on direct appeal, or in the context of a

collateral proceeding, and is “grounded in concerns of comity and

federalism.” Edwards v . Carpenter,

(2000)

(citation omitted). Because a petitioner who has failed to meet

a state’s procedural requirements for presenting his federal

claims has deprived the state court of an opportunity to address

those claims in the first instance, a federal court will consider

them only if the petitioner demonstrates cause for his state-

court default and prejudice resulting therefrom.

And, even

assuming Bayard could satisfy the “cause and prejudice” standard,

none of the claims advanced in his petition is meritorious.

As an aside, the court notes that Bayard suggests (but

certainly does not develop any supportive argument) that his

appellate counsel was ineffective for having failed to fully

brief all the issues Bayard raised in his notice of appeal to the

8 state supreme court. Plainly, however, that claim has not been

exhausted before the state court and until it i s , Bayard cannot

advance it in this forum in a habeas petition. See

(b)(1)(A). Moreover, as noted above, Bayard has not shown

that he meets the “custody” requirement with respect to that

state court conviction. Thus, it would seem that Bayard is

precluded from collaterally challenging his state court

conviction in this court.

But, all is not lost for Bayard. He is not yet time-barred

from pursuing such a claim in the state court. See N.H. Rev.

Stat. Ann. 526:4 (“A new trial shall not be granted unless the

petition is filed within three years after the rendition of the

judgment complained o f , or the failure of the suit.”). See also

State v . Looney,

(2007) (“In the context of a

criminal case, a judgment is ‘rendered’ when the sentence has

been imposed by the trial court.”). S o , while he may not

collaterally attack his “fully expired” state sentence or

conviction in this court, he may well be able to do so in the

state system.

Conclusion

As of August 5 , 2009, Bayard had fully served his state

court sentence for misdemeanor criminal trespass. Consequently,

9 he is no longer “in custody” for federal habeas corpus purposes.

He cannot, then, collaterally attack that state court conviction

(or sentence) in this court. But, even if he could, he would not

be entitled to the relief he seeks, as he has not shown cause

for, and prejudice from, his state procedural defaults and, more

fundamentally, none of the claims he advances has merit.

The petition for habeas corpus relief (document n o . 1 ) is

denied. The Clerk of Court shall enter judgment in accordance

with this order and close the case.

SO ORDERED.

October 2 2 , 2010

cc: Serge E . Bayard, pro se

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