Opinion
CIVIL ACTION NO. RWT-07-2967 CRIMINAL NO. RWT-04-0174.
January 16, 2008
MEMORANDUM OPINION
Petitioner entered guilty pleas to one count of possession of a stolen firearm and one count of possession of PCP, for which he was sentenced to concurrent terms of twenty-one months in the U.S. Bureau of Prisons, accompanied by concurrent periods of thirty-six and twelve months of supervised release, and ordered to pay a cumulative $125.00 special assessment. Judgment was entered September 13, 2005. See United States v. Bolds, Crim. No. RWT-04-0174 (D. Md.). No appeal was filed. On April 10, 2007, the undersigned issued a bench warrant for Petitioner's arrest in response to the U.S. Department of Parole and Probation's request. Id. Paper Nos. 30-31. Petitioner appeared before this Court on November 2, 2007, on charges that he violated the terms of his supervised release. Id. Paper No. 33.
On October 30, 2007, this Court received for filing Petitioner's 28 U.S.C. § 2241 action, raising a direct attack on his sentences. The matter was construed as a 28 U.S.C. § 2255 motion to vacate. Id. Paper No. 32. Petitioner seemingly claims that in sentencing him to thirty-six months of supervised release, the Court impermissibly imposed a "new sentence and that is [in] violation of my constitutional rights." Id. He asks that the sentence be vacated.
Petitioner makes reference to an August 30, 2005 sentencing. The court has no record of a proceeding on that date.
The filing was accompanied by a motion to proceed in forma pauperis. Because there is no civil fee for the filing of a § 2255 motion, the indigency application shall be denied as moot.
Petitioner is wrong on the law and the facts and his Motion shall be dismissed on the merits. He received only one sentence as to each count, comprised of a custodial period followed by a period of supervised release. "[S]upervised release, although imposed in addition to the period of incarceration, is `a part of the sentence.' . . . Thus, the entire sentence, including the period of supervised release, is the punishment for the original crime. . . ." United States v. Soto-Olivas, 44 F.3d 788, 790 (9th Cir. 1995) (quoting 18 U.S.C. § 3583(a)) (other citation omitted). Further, the Court is statutorily authorized to use its discretion to impose a post-custodial period of supervised release. See 18 U.S.C. § 3583(a). Supervised release, as part of the sentence, "is expressly authorized by § 3583 whether or not it is mandated by a statute of conviction or otherwise." See Huerta-Pimental, 445 F.3d 1220, 1222 (9th Cir. 2006).
Section 3583(a) provides, in pertinent part: "The court, in imposing a sentence to a term of imprisonment for a felony or a misdemeanor, may include as a part of the sentence a requirement that the defendant be placed on a term of supervised release after imprisonment. . . ." (Emphasis added.) The plain language of the statute accords the Court discretion to impose a post-custodial period of supervised release.
For the aforementioned reasons, the Motion to Vacate shall be dismissed. A separate Order follows.
The Court observes that the Motion was filed over two years after criminal judgment became final. It therefore appears that the action is statutorily untimely under the one-year limitation period set out under 28 U.S.C. § 2255(1).