2014 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-2-2014

Arthur D'Amario, III v. Warden Fairton FCI

Precedential or Non-Precedential: Non-Precedential

Docket No. 14-1736

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2014

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2014 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"Arthur D'Amario, III v. Warden Fairton FCI" (2014). 2014 Decisions. Paper 1030.

http://digitalcommons.law.villanova.edu/thirdcircuit_2014/1030
DLD-366 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 14-1736

___________

ARTHUR D’AMARIO, III,

Appellant

v.

WARDEN FAIRTON FCI

____________________________________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. Civil No. 13-cv-04314)

District Judge: Honorable Robert B. Kugler

____________________________________

Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)

or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6

September 18, 2014

Before: SMITH, HARDIMAN and KRAUSE, Circuit Judges

(Opinion filed: October 2, 2014)

_________

OPINION

_________

PER CURIAM 

Arthur D’Amario, III, 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. 
2

In June 2012, D’Amario was released from federal prison, and began serving a 

three-year term of supervised release. On March 2, 2013, D’Amario was detained by 

Canadian authorities for immigration purposes when he attempted to enter that country. 

Shortly thereafter, a warrant for D’Amario’s arrest was issued in the United States 

District Court for the District of New Jersey based on a violation of his supervised 

release. Canadian authorities deported D’Amario on March 28, 2013, and he was 

immediately arrested by the United States Marshals Service. On May 23, 2013, 

D’Amario was sentenced to 24 months of imprisonment for violating the terms of his 

supervised release. He received prior custody credit from the date of his arrest on March 

28, 2013, until the day before his sentence commenced, May 22, 2013.

D’Amario filed a petition pursuant to 28 U.S.C. § 2241, alleging that he is entitled 

to additional prior custody credit for the period that he spent in detention in Canada. He 

also sought a transfer from FCI Fairton to a prison closer to where his mother lives, 

claimed that he was improperly denied approximately one year of jail time credit related 

to a sentence imposed in a federal court in Rhode Island in 2000, and asserted that he 

suffers from severe headaches from chronic insomnia because FCI Fairton is 

overcrowded. The District Court denied the petition, concluding, inter alia, that 

D’Amario’s request for credit for time spent in Canadian immigration custody was 

unexhausted and meritless, that his request for a prison transfer was not cognizable in a 

habeas proceeding, that he could not challenge his completed Rhode Island sentence, and 

that his complaints about the conditions of his confinement should be brought in a Bivens
3

action. D’Amario appealed.1 

We have jurisdiction over the appeal pursuant to 28 U.S.C. § 1291. We “exercise 

plenary review over the District Court’s legal conclusions and apply a clearly erroneous 

standard to its findings of fact.” O’Donald v. Johns, 402 F.3d 172, 173 n.1 (3d Cir. 

2005). We may summarily affirm if the appeal presents no substantial question. See 3d 

Cir. LAR 27.4; I.O.P. 10.6. 

The District Court properly held that D’Amario failed to exhaust his claim that his 

probation violation sentence should be credited with the 27 days that he spent in 

Canadian immigration custody. Although D’Amario raised this claim with the warden, 

he did not file a timely appeal with the BOP regional office. See 28 C.F.R. §§ 542.13-15 

(describing the levels of the BOP’s administrative remedy process). D’Amario’s claim is 

therefore procedurally defaulted. See Moscato v. Fed. Bureau of Prisons, 98 F.3d 757, 

760 (3d Cir. 1996). In an effort to excuse that default, D’Amario argues that he mailed 

the intermediate appeal on time but that the Regional Office “chang[ed] the date they 

received it.” Even if this bare allegation somehow established cause for the default, 

D’Amario is unable to show prejudice. See id. at 760 (stating that a procedurally 

 

1 D’Amario asserts that he is appealing only two claims: (1) the denial of credit for his 

detention in Canada, and (2) the rejection of his argument that he was improperly denied 

jail credit in connection with the Rhode Island conviction. Even if D’Amario had 

challenged his remaining prison transfer and conditions of confinement claims, we would 

deny relief primarily for the reasons provided by the District Court. See Woodall v. Fed. 

Bureau of Prisons, 432 F.3d 235, 243-44 (3d Cir. 2005); McGee v. Martinez, 627 F.3d 

933, 935-36 (3d Cir. 2010). 
4

defaulted claim is “barred unless [the habeas petitioner] can demonstrate cause and 

prejudice.”). 

In relevant part, 18 U.S.C. § 3585(b) 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 . . . .” The definition of “official 

detention” appears in the Bureau of Prisons’ (BOP) internal agency guidelines, which 

state that “[a]n inmate being held by [the Immigration and Naturalization Service] 

pending a civil deportation determination is not being held in ‘official detention’ pending 

criminal charges.” Program Statement 5880.28, p. 1-15A (1997); see also United States 

v. Lopez, 650 F.3d 952, 965-66 (3d Cir. 2011) (affirming District Court’s refusal to 

afford § 3585(b) credit for time appellant was in immigration detention where the record 

did not indicate that a definitive decision regarding criminal prosecution was made). 

Here, the record contains a letter from Canadian authorities, stating that D’Amario “was 

incarcerated with the Ministry of Community Safety and Corrections for immigration 

purposes . . . .” Because D’Amario was detained in Canada solely for immigration

purposes, and because such detention is civil in nature,2 we conclude that the 27 days that 

D’Amario spent in Canadian custody does not constitute “official detention” within the 

 

2 See Citizenship and Immigration Canada, ENF 3, Admissibility, Hearings and 

Detention Review Proceedings, § 6.3, 

http://www.cic.gc.ca/english/resources/manuals/enf/enf03-eng.pdf (“The courts have 

determined that immigration proceedings are civil, not criminal, in that the purpose of the 

admissibility hearing is not to determine whether the person concerned is guilty or 

innocent, but rather to determine the person’s status in Canada.”).
5

meaning of § 3585(b). 

D’Amario also argued that he was improperly denied jail credit in connection with 

a 2000 conviction in the United States District Court for the District of Rhode Island. In 

particular, D’Amario asserted that he was denied approximately one year of credit on the 

Rhode Island sentence for time that he spent in custody serving a state sentence. The 

District Court denied this claim, holding that it lacked jurisdiction because D’Amario was 

not “in custody” on the Rhode Island conviction when he filed his § 2241 petition. 

Carafas v. LaVallee, 391 U.S. 234, 238 (1968) (holding that custody is measured at the 

time that a habeas petition is filed). We agree. D’Amario does not dispute that he 

finished serving the Rhode Island sentence in May 2001, and satisfied consecutive 

sentences in February 2006. See D’Amario v. Bailey, 2010 WL 1931132, at *1-2 (D.N.J. 

2010) (not precedential); cf. Garlotte v. Fordice, 515 U.S. 39, 45-46 (1995) (holding that 

a prisoner serving consecutive sentences imposed on the same day by the same court is 

“in custody” under any one of them for purposes of seeking habeas relief even though he 

has completed serving the particular sentence challenged in the habeas petition). 

Therefore, D’Amario is “in custody” solely pursuant to the parole violator sentence, and 

his challenge to the calculation of his Rhode Island sentence is unavailing. Indeed, any 

entitlement to credit against the Rhode Island sentence does not entitle D’Amario to 

credit against his parole violator sentence. See Maleng v. Cook, 490 U.S. 488, 490-92 

(1989) (holding that once a sentence has been served, the petitioner is not “in custody” 

for purposes of attacking that conviction in a habeas petition). 
6

For the foregoing reasons, we will summarily affirm the District Court’s order.3

 

3 D’Amario’s motion for immediate release is denied.