CLYDE MICHAEL MORGAN, PETITIONER V. UNITED STATES OF AMERICA

   No. 89-7513

   In The Supreme Court Of The United States

   October Term, 1990

   On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Fourth Circuit

   Brief For The United States In Opposition

                             OPINION BELOW

   The opinion of the court of appeals (Pet. App. E1-E4) is
   unreported.

                             JURISDICTION

   The judgment of the court of appeals was entered on March 16, 1990.
 A petition for rehearing was denied on April 17, 1990.  The petition
for a writ of certiorari was filed on May 14, 1990.  The jurisdiction
of this Court is invoked under 28 U.S.C. 1254(1).

                          QUESTION PRESENTED

   Whether petitioner is entitled to credit toward his term of
imprisonment for time he spent on bail pending trial and pending the
disposition of his appeal.

                               STATEMENT

   Following a jury trial in the United States District Court for the
Western District of North Carolina, petitioner was convicted on one
count of voluntary manslaughter, in violation of 18 U.S.C. 1111(a).
He was sentenced to a 10-year term of imprisonment.

   1. The evidence at petitioner's trial, which is not in dispute,
showed that on September 13, 1983, petitioner killed David Anthony
Harvey in the Pisgah National Forest in North Carolina, because
petitioner knew or suspected that Harvey and petitioner's girlfriend
had spent the night together at a motel.  The court of appeals
affirmed the conviction.  United States v. Morgan, No. 84-5322 (4th
Cir. Nov. 12, 1985) (unpublished).

   2. On October 26, 1989, petitioner filed a motion in the district
court under 28 U.S.C. 2255 seeking credit on his federal sentence for
22 days he spent in state custody, 11 days he spent in federal custody
prior to obtaining release on bail before trial and pending appeal,
and 573 days he spent on bail prior to trial and pending appeal.  Pet.
App. A1-A11.  /1/ He contended that those periods of time constituted
time "spent in custody in connection with the offense or acts for
which sentence was imposed" within the meaning of 18 U.S.C. 3568 (1982
ed.).

   The district court denied the motion.  Pet. App. B1-B2.  The court
held that it lacked authority to credit time spent in state custody
against a federal sentence and that time spent free on bail did not
constitute time in custody within the meaning of 18 U.S.C. 3568
(1982).

   3. In an unpublished per curiam opinion, the court of appeals
affirmed in part, reversed in part, and remanded the case to the
district court.  Pet. App. E1-E4.  The court of appeals held that a
prisoner is not in custody for purposes of 18 U.S.C. 3568 (1982) when
he is free on bail and that a prisoner is not entitled to credit
against his federal sentence for time spent in state prison on state
charges.  The court remanded the case to the district court for a
determination whether petitioner was in federal custody before his
release on bail and, if so, whether he was denied credit for that
period of custody.  /2/

                               ARGUMENT

   Petitioner contends (Pet. 2-3) that he should be given credit
toward service of his term of imprisonment for the periods he spent on
bail pending trial and pending appeal.  The district court and the
court of appeals correctly held that petitioner was not entitled to
credit for those periods.  /3/

   Under 18 U.S.C. 3568 (1982), which applies to persons convicted of
offenses committed before November 1, 1987, a convicted felon is
entitled to "credit toward service of his sentence for any days spent
in custody in connection with the offense or acts for which sentence
was imposed." /4/ The courts of appeals have consistently held that
conditional release on bail does not constitute time "in custody," at
least in the absence of a condition requiring periodic confinement in
a halfway house.  See, e.g., United States v. Figueroa, 828 F.2d 70
(1st Cir. 1987) ("'custody' means 'imprisonment' or some comparable
institutional 'confinement'");  Villaume v. United States Department
of Justice, 804 F.2d 498, 499 (8th Cir. 1986) ("the 'custody'
contemplated by (18 U.S.C.) Section 3568 relates to actual custodial
incarceration"), cert. denied, 481 U.S. 1022 (1987);  United States v.
Robles, 563 F.2d 1208, 1309 (9th Cir. 1977) ("the time spent on bail
or on bond pending appeal is not time served in custody"), cert.
denied, 435 U.S. 925 (1978);  Ortega v. United States, 510 F.2d 412,
413 (10th Cir. 1975) ("custody does not include the time a criminal
defendant is free on bond, either before or after conviction");
United States v. Peterson, 507 F.2d 1191, 1192 (D.C. Cir. 1974) ("'in
custody', as used in the statute, means detention or imprisonment in a
place of confinement and does not refer to the stipulations imposed
when a defendant is at large on conditional release");  Polakoff v.
United States, 489 F.2d 727, 730 (5th Cir. 1974) ("(t)he 'custody'
contemplated by Section 3568 is that characterized by incarceration").

   That interpretation is consistent with the legislative history of
the statute.  Before 1960, a convicted defendant was given credit only
for the time he served after he was "received at the penitentiary,
reformatory, or jail for service of said sentence." 18 U.S.C. 3568
(1958).  In 1960, Congress added a provision granting credit "for any
days spent in custody prior to the imposition of sentence by the
sentencing court for want of bail set for the offense under which
sentencing was imposed where the statute requires the imposition of a
minimum mandatory sentence." Act of Sept. 2, 1960, Pub. L. No. 86-691,
Section 1(a), 74 Stat. 738.  That version of the statute ensured that
a defendant would be given credit against his sentence for any period
that he was detained because he could not make bail.

   In 1966, Congress amended the statute again and adopted the
language that governs petitioner's claim.  Congress amended the
provision governing credit by omitting the language that granted
credit for time spent "in custody * * * for want of bail" and replaced
it with language granting credit "for any days spent in custody in
connection with the offense or acts for which sentence was imposed."
See Bail Reform Act of 1966, Pub. L. No. 89-465, Section 4, 80 Stat.
217.  The accompanying Senate Report explained that Congress did not
intend to change the meaning of the phrase "in custody," but simply
wanted to ensure that anyone in pretrial detention would receive
credit toward his sentence, even though he was being held by order of
the court, and not "for want of bail." The Senate Report explained:

      It was pointed out that persons charged with a nonbailable
      offense or not released for some reason other than lack of bail
      should also receive credit for such time against service of any
      sentence eventually imposed.  Accordingly, S. 1357 guarantees
      credit for "any days spent in custody in connection with the
      offense for which sentence was imposed."

S. Rep. No. 750, 89th Cong., 1st Sess. 21-22 (1965).  This passage
clearly indicates that the drafters of the 1966 amendment to Section
3568 understood that a person who is in "custody" is one who is "not
released." Petitioner does not fit within that class of pretrial
detainees and is therefore not entitled for credit on his sentence for
the time he spent on pretrial and post-trial release.

   In its most recent amendment to the pertinent legislation, Congress
has retained the distinction between custody and release.  The new
statute, 18 U.S.C. 3585(b), which applies to offenses committed after
November 1, 1987, provides:

         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 --

         (1) as a result of the offense for which sentence was imposed
      * * *.

The Senate Report accompanying the new statute explained that
"official detention" refers to "time (the defendant) spent in official
custody prior to the date the sentence was imposed." S. Rep. No. 225,
98th Cong., 2d Sess. 128-129 (1984).  That amendment did not change
existing law;  it simply conformed the statute to the language used in
the Bail Reform Act of 1984, which distinguishes between pretrial
"detention" and "release." See 18 U.S.C. 3141-3156.  Thus, under the
new statute, as well as the old, petitioner would not be entitled to
credit for time served while on pretrial and post-trial conditional
release.  See United States v. Woods, 888 F.2d 653, 654-655 (10th Cir.
1989), cert. denied, 110 S. Ct. 1301 (1990).

   Petitioner relies on the decision of the Ninth Circuit in Brown v.
Rison, 895 F.2d 533 (1990).  In that case, the court held that a
defendant who was confined to a community treatment facility from 7
p.m. to 5 a.m. without outside contact was "in custody" within the
meaning of 18 U.S.C. 3568 and hence was entitled to credit toward
service of his prison sentence.  That case is inapposite here because
petitioner was not subject to any form of confinement as a condition
of bail.  Similarly, Johnson v. Smith, 696 F.2d 1334 (11th Cir. 1984),
is distinguishable because it involved credit for time spent in a
community treatment center pending imposition of sentence.

   We have filed a petition for rehearing in Brown v. Rison, in which
we have argued that the decision in that case is inconsistent with the
language and legislative history of the statute, with the law of other
circuits (see Ramsey v. Brennan, 878 F.2d 995, 996 (7th Cir. 1989);
United States v. Smith, 869 F.2d 835 (5th Cir. 1989)), and with the
reasoning in other Ninth Circuit opinions (United States v. Robles,
563 F.2d 1308, 1309 (9th Cir. 1977), cert. denied, 435 U.S. 925
(1978);  Sica v. United States, 454 F.2d 281, 282 (9th Cir. 1971)).
/5/

   Whatever the disposition of our petition for rehearing, the present
case does not present a conflict with the Ninth Circuit's decision in
Brown that requires this Court's intervention.  Brown is factually
distinguishable from this case, and no court of appeals has held that
a defendant on bail release, like petitioner, is entitled to credit
against his federal sentence.  /6/

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   EDWARD S.G. DENNIS, JR.

      Assistant Attorney General

   KAREN SKRIVSETH

      Attorney

   JULY 1990

   /1/ Some pages of petitioner's appendices are unnumbered.  We have
cited the appendices as though each appendix began with page 1.

   /2/ On remand, the district court denied petitioner's motion for
credit for his time in custody before obtaining release on bail.  The
court determined that petitioner had already been credited with that
time.  Morgan v. United States, No. A-C-84-132, Order, at 2 (W.D.N.C.
filed June 1, 1990).

   /3/ Although petitioner filed his action under 28 U.S.C. 2255 in
the Western District of North Carolina, the district of conviction, it
should have been brought under 28 U.S.C. 2241 in the Eastern District
of North Carolina, the district in which he is in custody.  An action
challenging the Attorney General's decision not to grant credit
against a sentence under 18 U.S.C. 3568 (1982) is not a challenge to
the lawfulness of the conviction or the sentence imposed by the court,
but a challenge to the computation of the release date by the Attorney
General.  Accordingly, it must be brought as a habeas corpus action in
the court having jurisdiction over the prisoner's custodian.  See
United States v. Brown, 753 F.2d 455, 456 (5th Cir. 1985);  United
States v. Giddings, 740 F.2d 770, 771-772 (9th Cir. 1984);  Soyka v.
Alldredge, 481 F.2d 303, 304-306 (3d Cir. 1973).

   /4/ The pertinent language of Section 3568 is as follows:

      The sentence of imprisonment of any person convicted of an
      offense shall commence to run from the date on which such person
      is received at the penitentiary, reformatory, or jail for
      service of such sentence.  The Attorney General shall give any
      such person credit toward service of his sentence for any days
      spent in custody in connection with the offense or acts for
      which sentence was imposed.

Section 3568 was repealed and replaced by 18 U.S.C. 3585 as part of
the Sentencing Reform Act of 1984, Pub. L. No. 98-473, II, Section
212(a)(2), 98 Stat. 2001.  Section 3585, which applies to offenses
committed after November 1, 1987, provides that "(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."

   /5/ In addition, the Bureau of Prisons has issued a Policy
Statement, No. 5880.24, that interprets the term "in custody" to mean
"physical incarceration in a jail-type institution or facility." As
the Seventh Circuit explained in Ramsey v. Brennan, supra, the Bureau
of Prisons is well suited to the task of determining whether
confinement in a halfway house is sufficiently like prison to warrant
the same credit toward sentence as pretrial detention, and the Bureau
of Prisons' Policy Statement is "a reasonable opinion by officials
having greater knowledge of federal penal policy than * * * judges
have." 878 F.2d at 996.

   /6/ The other cases on which petitioner relies are inapposite.
Most of them construe the term "custody" for the very different
purpose of determining whether a particular court has jurisdiction to
entertain a petition for a writ of habeas corpus.  See, e.g., Hensley
v. Municipal Court, 411 U.S. 345 (1973);  Strait v. Laird, 406 U.S.
341 (1972);  Jones v. Cunningham, 371 U.S. 236 (1963);  Ahrens v.
Clark, 335 U.S. 188 (1948).  As the court explained in Marrera v.
Edwards, 812 F.2d 1517 (6th Cir. 1987), the meaning of "custody" for
purposes of Section 3568 must be determined based on the language and
purposes of that provision, not the statutes and case law governing
habeas corpus.  Accord Villaume v. United States Department of
Justice, 804 F.2d at 499.