UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Howard Allen,

Petitioner

v. Civil No. 06-cv-277-SM

Opinion No. 2007 DNH 023

United States of America,

Government

O R D E R

Petitioner, Howard Allen, seeks relief under 28 U.S.C.

§ 2255, in the form of a “correct[ed] sentence.” Initially, he

filed a letter raising essentially the same issue. The

government and trial defense counsel were asked to respond to the

letter, the court being concerned about the propriety of deeming

it to be a petition under § 2255 (thereby perhaps precluding

other issues from being raised in a “second or successive”

petition). And, if the parties agreed that a different (lesser)

sentence was expected, some form of relief by consent may have

been available. Counsel for the government and counsel for

defendant responded, and after considering their submissions, the

court determined that petitioner’s letter should not be

considered a § 2255 petition. Order, May 30, 2006 (document no.

75).

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Petitioner then filed a timely and proper motion under

§ 2255 raising two discrete issues. First, he suggests that his

binding plea agreement for a stipulated federal sentence to 30

months in prison was breached. Second, petitioner says his

counsel provided ineffective assistance in that counsel “had

[him] believe” that his stipulated 30 month sentence would

require him to serve only 18 months, because his federal sentence

and a state sentence were to run concurrently under the plea

agreement’s terms. In other words, petitioner claims he “was led

to believe,” and he thought that “concurrent” meant he would get

credit against both his federal and state sentences for time he

served in state pretrial detention.

Having considered the government’s and defense counsel’s

earlier responses, and having reviewed the record, including

transcripts of the plea colloquy and sentencing hearing, as well

as exhibits and pleadings filed by petitioner, it is plain that

petitioner is not entitled to the relief he seeks. It also

appears that if petitioner were able to demonstrate entitlement

to relief, it would be of a type that might prove detrimental to

his interests.

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Background

On August 11, 2004, petitioner was arrested by state

authorities, pursuant to a warrant, for selling cocaine on July

15, and 19, 2004. He resisted that arrest and, in the process,

assaulted a police officer — offenses for which he was also

charged by state authorities. The state referred the drug

charges for federal prosecution, but retained jurisdiction over

the unrelated charges of resisting arrest and assaulting a police

officer.

Petitioner was arraigned in federal court on the drug

charges on October 1, 2004, and then returned to state custody. 

He was detained by the state pending trial on its charges. His

federal prosecution went forward, but was interrupted by a number

of delays related to difficulties he had with appointed counsel,

as well as the need to complete a psychiatric evaluation.

On August 25, 2005, petitioner executed a written plea

agreement in this case, and, on September 6, 2005, he pled guilty

in this court to three counts in an indictment, two charging him

with distributing cocaine and one charging him with possessing

cocaine with the intent to distribute it. The plea agreement

contained a “binding” stipulation under Fed. R. Cr. P.

11(c)(1)(C) providing that:

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a. The defendant shall be sentenced to a term of

imprisonment of thirty (30) months, with three (3)

years supervised release to follow.

b. In the event the defendant is sentenced upon

his pending State cases (State of New Hampshire v.

Howard Allen, Concord District Court) prior to his

sentencing in the instant case, the sentence in the

instant case shall be ordered to run concurrent with

his State sentence(s).1

____________________

1 The government has agreed that, in the event the

defendant is sentenced on the instant case prior to his

State cases, the government will request that the State

prosecutor recommend that the State sentences be

imposed concurrently to the instant sentence. The

defendant understands that neither this Court nor the

State prosecutor is bound by the government’s agreement

in this regard.

Plea Agreement, dated August 26, 2005, (document no. 51).

Shortly thereafter, on September 23, 2005, petitioner pled

guilty in state court to the unrelated charges of resisting

arrest and assault on a police officer. He was sentenced the

same day to twelve months of imprisonment (which sentence had

already been served, as of August 12, 2006, because he had been

detained while awaiting his trial in state court). In sentencing

petitioner, the state trial judge approved an agreement providing

that his state sentence “is to run concurrent to the federal

charges 1:04cr197 (04-197-01-M) scheduled for sentencing on 12-2-

05.” State v. Howard Allen, Agreement, dated September 23, 2005,

Approved by Boyle, J. But, the state court cannot make a later

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imposed federal sentence run concurrently with a state sentence. 

And, the state court cannot, in effect, afford federal pretrial

confinement credit for time served in state custody. See 18

U.S.C. § 3585(b).

On December 2, 2005, petitioner was sentenced in this court

on the federal drug charges. Although the stipulated sentence to

30 months was below the applicable Guidelines Sentencing Range,

the court nevertheless approved the plea agreement and imposed

it. Defense counsel made clear at the sentencing hearing that

petitioner was not seeking either a downward departure under

Guidelines Section 5K2.23 (departure based upon discharged term

of imprisonment) or an adjustment under Section 5G1.3 (imposition

of sentence on defendant subject to an undischarged term of

imprisonment). Counsel’s reasoning was apparent — neither

provision would apply in a manner that could benefit defendant.

First, defendant’s state sentence was already fully

discharged by the time he was sentenced in federal court — the

state court sentenced him to less time than he had already been

held in state pretrial confinement before he was sentenced in

federal court. (The time defendant spent in state pretrial

detention in excess of that imposed as a state sentence was duly

credited toward his federal sentence.) So, section 5G1.3 did not

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apply, because it addresses persons subject to an undischarged

term of imprisonment.

Second, section 5K2.23 did not apply, because that section

provides for a departure, if otherwise appropriate, when a

defendant has completed serving a term of imprisonment and

section 5G1.3(b) would have provided for a downward adjustment

had the term been undischarged at the time of sentencing. But,

subsection (b) of section 5G1.3 did not provide a basis for a

downward departure in petitioner’s case. Although petitioner’s

state sentence was discharged, it had not been imposed for an

offense that constituted relevant conduct with respect to the

federal charges, and had not served as a basis for increasing the

Guidelines offense level applicable to the federal drug crimes at

issue.

The plea agreement was executed before the state sentence

was imposed and, while § 5G1.3(c) contemplates imposition of a

concurrent sentence “in any other case” where a defendant is

serving an undischarged term of imprisonment, at the time

petitioner’s federal sentence was imposed he faced no

undischarged term of imprisonment. Accordingly, the court

imposed the stipulated 30 month term, but without noting that it

was to be served “concurrently,” there being no undischarged

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state sentence with which it could be served concurrently. 

Neither defense counsel nor defendant objected, nor did either

move to withdraw petitioner’s guilty pleas due to the imposition

of a sentence more severe than that stipulated to in the plea

agreement.

Discussion

Breach of Plea Agreement

Petitioner seeks relief in the form of a sentence reduction

from 30 to 18 months. That is, he wants credit against his

federal sentence for all the time he served in state pretrial

detention, time that was fully credited toward his state

sentence, with the balance already credited to his federal

sentence. He urges two grounds in support of that request for

relief. He claims, initially, that the terms of his binding plea

agreement entitled him to the credit he seeks. Next he says his

trial defense counsel provided ineffective assistance, in that

counsel “had [petitioner] believe” that “12 months of the state

sentence should be ran [sic] into my 30 months of my federal

sentence, which would leave me with only 18 months based on my

binding plea agreement, which means ran [sic] concurrently, not

consecutive.”

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Regarding the first ground, the plea agreement’s stipulation

was fully met. Petitioner was sentenced to the stipulated 30

months in prison. The judgment did not provide for concurrent

service with the state sentence because that sentence had already

been completely served by the time the federal sentence was

imposed — there was simply no state sentence with which it could

be served concurrently. Credit against a federal sentence for

time previously served in state custody on unrelated state

charges is quite a different matter than “concurrent” service of

two sentences. To the extent petitioner suggests he thought

state pretrial confinement credit and concurrent service of two

sentences were the same thing, the record contradicts his claim.

Petitioner acknowledged during the plea colloquy that he

understood that he was stipulating to a 30 month sentence on the

federal drug charges and that it would run concurrently with any

state sentence imposed, if the state sentence was imposed before

he was sentenced federally. If the court were to impose a

harsher sentence, petitioner understood that he would be allowed

to withdraw his guilty pleas. He also acknowledged that he

reviewed each term of the written plea agreement with counsel and

was satisfied with counsel’s advice and representation. 

Petitioner did not assert any objection or even comment at

sentencing when his counsel put on the record that no adjustment

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or departure was sought based upon petitioner’s completed service

of the state sentence imposed three months earlier.

The plea agreement is neither unclear nor subject to

reasonable differing interpretations regarding the sentence to be

imposed: 30 months to be served concurrently with the state

sentence, if the state sentence was imposed first, and 30 months

with a promise by the government to request the state prosecutor

to recommend that the state sentence be made to run concurrently

with the federal sentence, if the state sentence was imposed

after the federal sentence. That the length of the state

sentence imposed made the concurrent service provision moot did

not entitle petitioner to credit for all the time previously

served in state custody against his federal sentence. He was

only entitled to serve his federal and state sentences at the

same time (concurrently) to the extent they occupied the same

period, as opposed to serving them consecutively, that is,

serving one sentence after the other was completed. Petitioner’s

first asserted ground for relief — that his plea agreement was

breached — is without merit.

Credit for pretrial detention time against a federal

sentence is not a matter over which district courts have

authority. The Attorney General is responsible for computing, in

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1 The suggestion in United States v. Benefield, 942 F.2d

60, 66-67 (1st Cir. 1991), that a district court may, under some

circumstances, give credit for pretrial confinement already

credited against a state sentence, in the form of a reduced

federal sentence, was probably overruled by Wilson, supra, and is

at odds with the provisions of 18 U.S.C. § 3585(b). However,

since the Guidelines have been deemed “advisory,” in large part,

a reduced sentence to reflect pretrial credit, even though

credited against another sentence, and even though not consistent

with the Guidelines, is now a possibility. But, as explained

infra, that would not likely have occurred in this case.

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accordance with applicable statutes, the amount of pretrial

credit a defendant is entitled to, and that computation is made

after a defendant begins serving his sentence. See United States

v. Wilson, 503 U.S. 329 (1992).1 Defendant’s avenue of relief in

that regard is, initially, administrative in nature. If

defendant is dissatisfied with the Bureau of Prisons’

administrative determination of credit, he may seek judicial

review pursuant to 28 U.S.C. § 2241. Wilson, 503 U.S. at 335;

Rogers v. United States, 180 F.3d 349, 357-58 (1st Cir. 1999).

Ineffective Assistance

Next petitioner alleges that defense counsel provided

constitutionally defective representation. But, he provides very

little beyond restating his incorrect view that concurrent

service of unrelated sentences means that pretrial detention

credited against one sentence also must be credited against the

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other, and adding that defense counsel “had me believe” that was

the case.

The ineffective assistance of counsel test described in

Strickland v. Washington, 466 U.S. 668 (1984), applies to the

guilty-plea process. Hill v. Lockhart, 474 U.S. 52, 56 (1985). 

For petitioner to prevail on his claim, he must show that

counsel’s representation fell below the range of competence

expected of counsel in criminal cases and that he suffered

prejudice as a result of counsel’s failures. Prejudice, in the

context of a guilty plea proceeding, means “a reasonable

probability that, but for counsel’s errors, [petitioner] would

not have pleaded guilty and would have insisted on going to

trial.” Id. at 59.

The petition fails both parts of the Strickland test. There

is little or no hint as to what defense counsel allegedly said

with regard to the stipulated sentence that may have amounted to

representation falling outside the range of competence expected

of counsel in criminal cases. The general and unsupported claim

that counsel “had [petitioner] believe” that he would get credit

against his federal sentence for pretrial detention related to

his state sentence is entirely insufficient to describe

ineffective representation.

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But, even if petitioner’s vague and generalized assertion is

accepted as poorly stated but, nevertheless, sufficient to

describe ineffective representation, still, petitioner has not

described any facts that could support a finding of prejudice in

this context. Petitioner does not say that, but for his claimed

misunderstanding, he would not have pleaded guilty and, instead,

would have insisted on going to trial. And, he does not seek the

only relief that would be available to him in this case if he had

made the necessary showing of either a breach of his plea

agreement or ineffective assistance: withdrawal of his guilty

pleas and a trial. Rather, he seeks a reduced sentence.

It is unlikely that the court would have imposed a reduced

sentence in this case under the circumstances described by

petitioner. Had his binding plea agreement called for credit

against his federal sentence for time served in state pretrial

detention, as he claims now, that plea agreement likely would

have been rejected, even if the government supported that result

(which is also unlikely). The state charges were entirely

separate from and unrelated to the federal charges and, normally,

a consecutive sentence would be imposed, at least in substantial

part. Here, petitioner was sentenced below the applicable

Guidelines range as it was, the court acceding to the plea

agreement’s negotiated terms. The court would have imposed a

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concurrent sentence, as provided for in the agreement, with

respect to any undischarged time left on a previously imposed

state sentence, given that the plea negotiations were no doubt

difficult and that result was not unreasonable. But, affording

state pretrial confinement credit against an already reduced

federal sentence, in addition to imposing concurrent service of

both sentences, was not a realistic likelihood. As noted, had

the “binding” plea agreement so provided, the court probably

would not have accepted it in this case.

In short, petitioner has not alleged any cognizable

prejudice, even assuming he has adequately alleged counsel’s

failure to provide acceptable legal representation. He was not

entitled under his plea agreement to anything but concurrent

service of his 30 month federal sentence with any undischarged

time on his earlier-imposed state sentence. The plea agreement

did not entitle him to credit for state pretrial detention

against his federal sentence. Moreover, even if defense counsel

negligently misled petitioner into thinking that was the case

(which is highly unlikely given the plea colloquy and sentencing

hearing, at which counsel expressly acknowledged that no

adjustment under §§ 5G1.3 or departure under 5K2.23 was being

sought, and petitioner raised no issue regarding the claimed

deviation between the stipulation and actual sentence imposed),

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petitioner still has not shown even the possibility of prejudice,

since he does not claim that but for counsel’s misrepresentations

he would not have pleaded guilty and would have insisted on going

to trial. Finally, in any event, it is unlikely the court would

have accepted a plea agreement in this case as petitioner

describes his current understanding of it, and probably would not

have imposed a sentence less than the 30 months concurrent with

the state sentence, as bargained for by petitioner.

Petitioner’s Implicit Claims

Recognizing that petitioner is acting pro se, and does not

fully appreciate the legal complexities associated with his

request for relief, the court will dismiss this petition, without

prejudice. The court will allow petitioner to amend his

petition, however, within thirty days of the date of this order,

to better develop the ineffective assistance claim he asserts, if

after considering the matter carefully, he wishes to do so. 

Petitioner is urged, however, to consider the matter carefully,

as he could be exposing himself to an even longer sentence if he

were to “succeed” in obtaining § 2255 relief — that is, if he is

permitted to withdraw his guilty pleas.

A brief explanation is in order. Petitioner has not

described the advice given him by defense counsel that “led him

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to believe” that he would get state pretrial detention credit

against his 30 month federal sentence. He must do so, and his

allegations must, if true, constitute ineffective representation. 

Second, petitioner has not alleged cognizable “prejudice” under

Strickland. That is, he has not claimed that, but for counsel’s

failures, as described, he would not have pleaded guilty and,

instead, would have insisted on proceeding to trial.

Petitioner must also carefully consider the fact that if he

were able to establish ineffective assistance by defense counsel,

the remedy would not be a reduced sentence. If he prevails on

any amended petition under § 2255, petitioner will not be given

credit against his federal sentence for the pretrial confinement

already credited against his state sentence (that is not what

“concurrent” means). Rather, if he were able to demonstrate

entitlement to relief, it would take the form of permitting him

to withdraw his pleas of guilty and proceed to trial (or, if

possible, negotiate a more favorable disposition with the

prosecutor — one that the court would accept).

Petitioner is fully aware that the government takes the

position that the stipulated 30 month sentence, which was below

the applicable Guidelines range, was intended to be without

credit for state pretrial confinement. It is, therefore, at

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least doubtful that the prosecution will renegotiate a better

disposition. And, were plaintiff to succeed in withdrawing his

guilty pleas, go to trial, and be convicted, he would face a

Guidelines sentence substantially higher than the 30 months

previously imposed (the Guidelines range would be higher than 30

months to begin with and, of course, petitioner would not, under

those circumstances, receive the downward adjustment for

acceptance of responsibility that he obtained based upon his

guilty pleas, and other adjustments may be applicable). These

possibilities require careful thought.

Because the petition implies that petitioner based his

guilty pleas on an expectation that the stipulated sentence to 30

months imprisonment meant he would only serve 18 months on his

federal sentence, measured from the date he completed his state

sentence, and because he implies that his misunderstanding is

directly attributable to constitutionally deficient advice given

him by defense counsel, and because petitioner is pro se and

unschooled in the legal requirements necessary to advance such

claims, the court will permit him an opportunity to amend his

petition if, after careful thought, he chooses to do so. 

Petitioner should understand, however, that he may not succeed at

all (defense counsel will no doubt testify as to what was said

and how petitioner manifested his understanding). And, even if

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he were to succeed, the remedy available will not include

reducing his sentence. Instead, if petitioner were to succeed,

the court would allow him to withdraw his pleas, which in turn

would lead to a trial and, if he is convicted, a sentence that

would in all likelihood be longer than the 30 months he is now

serving.

Conclusion

The petition is dismissed, without prejudice, to

petitioner’s filing, within 30 days of the date of this order, an

amended petition consistent with the requirements outlined,

developing his implicit ineffective assistance of counsel claim. 

In so doing, petitioner shall assert both the specific nature of

the advice given him and upon which he claims to have relied, and

the prejudice, if any, he claims to have suffered. Should an

amended petition be filed, the court will consider it and, if

necessary, hold a hearing. Should petitioner succeed, he will be

permitted to withdraw his guilty pleas and proceed to trial.

SO ORDERED.

_________________________

Steven J. McAuliffe

Chief Judge

February 23, 2007

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cc: Howard Allen, pro se

Aixa Maldonado-Quinones, Esq.

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