Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
6-17-2005
USA v. Dent
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-1098
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005
Recommended Citation
"USA v. Dent" (2005). 2005 Decisions. Paper 995.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/995
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 2005 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
APS-249 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 05-1098
________________
UNITED STATES OF AMERICA
v.
MICHAEL DENT,
Appellant
____________________________________
On Appeal From the United States District Court
For the Eastern District of Pennsylvania
(D.C. Crim. No. 92-cr-00223-03)
District Judge: Honorable Robert F. Kelly
_______________________________________
Submitted On Motion For Summary Affirmance
Under Third Circuit LAR 27.4 and I.O.P. 10.6
May 26, 2005
Before: SLOVITER, NYGAARD AND FUENTES, CIRCUIT JUDGES
(Filed June 17, 2005)
_______________________
OPINION
_______________________
PER CURIAM
In 1997, appellant Michael Dent was convicted in the United States District Court
for the Eastern District of Pennsylvania of conspiracy to possess and distribute in excess
of five kilograms of cocaine base, in violation of 21 U.S.C. § 846; he was sentenced to
ninety-two months imprisonment followed by five years of supervised release. We
affirmed the convictions in 1998. Dent filed a motion under 28 U.S.C. § 2255 to vacate
his sentence in June 1999, contending, among other things, that he rejected a government
plea offer based on erroneous advice of counsel. The District Court denied the motion on
the merits in September 1999. In August 2002, we vacated the District Court’s order only
as to the aforementioned ineffective counsel claim, and remanded for an evidentiary
hearing. By order entered November 22, 2002, the District Court denied § 2255 relief,
and, on recommendation of the parties, modified Dent’s Judgment and Commitment order
by: (1) reducing the supervised release term from five years to three as Dent had already
been released from prison on the challenged sentence, and (2) permitting Dent to apply
for early termination of supervised release after eighteen months if he complied with the
terms of his release. The case was transferred to the U.S. Probation Office for the
Southern District of New York.
Dent violated the terms of supervised release, and in September 2004, he was
sentenced to thirty (30) months imprisonment by the District Court for the Southern
District of New York. His appeal of the thirty month sentence is currently pending in the
United States Court of Appeals for the Second Circuit.
Shortly after he appealed the New York sentence, Dent lodged virtually
2
simultaneous collateral attacks on his term of imprisonment. He filed a § 2241 petition in
the Eastern District of New York, claiming that he was entitled to credit for the ninety-
two months of “excess prison time” that he served after he rejected the government’s plea
offer based on erroneous advice of counsel.
Meanwhile, in the Eastern District of Pennsylvania, Dent filed a petition for a writ
of coram nobis seeking to modify that court’s 2002 order reducing his term of supervised
release. He alleged that the District Court violated U.S. v. Johnson, 529 U.S. 53 (2000)
by reducing the period of supervised release to make up for the excess time Dent had
already served in prison; he also claimed that the District Court wrongfully imposed a
three year probationary term for a “B” felony. He asserts that because of the District
Court’s error, the New York federal court erroneously treated him as a “B” felon and
imposed a stiffer penalty. The District Court denied this petition for lack of jurisdiction
in December 2004, holding that, to the extent that Dent challenged the legality of the
thirty-month sentence imposed in New York, his only avenue of collateral relief was by
means of a § 2255 motion, and that he was precluded from seeking § 2255 relief because
his direct appeal was still pending in the Second Circuit Court of Appeals. To the extent
Dent challenged the BOP’s failure to give him credit for excess prison time under 18
U.S.C. § 3585(b), the District Court ruled that he failed to exhaust the administrative
3
remedies available through the BOP prior to seeking relief in the District Court.1 Dent
filed a timely appeal.2
The Government has moved to summarily affirm the order of the District Court;
Dent has filed a response and his own motion for summary action. We will affirm the
District Court because no substantial question is presented by this appeal. See Third
Circuit LAR 27.4 and I.O.P. 10.6.
Dent claims that the coram nobis petition challenged the modified sentence
imposed by the Eastern District of Pennsylvania Court in 2002, not the thirty-month
sentence imposed in New York. Dent contends that the modified three year probationary
period imposed in 2002 was illegal because he was originally sentenced under 21 U.S.C.
§ 841(B)(1)(B), which requires a minimum of four years supervised release. According
to Dent, the District Court should have modified the judgment and commitment to reflect
that he was being sentenced pursuant to § 841(B)(1)(C), because that provision allows for
a minimum three year term of supervised release. Dent asserts that had the District Court
modified his sentence accordingly, the New York Court would not have treated him as a
“B” felon or imposed the thirty-month sentence it did.
1
Barely a week later, Dent’s New York § 2241 petition was dismissed without
prejudice for failure to exhaust his administrative remedies. See Dent v. Bureau of
Prisons, Civ. A. No. 04-04479-NG (E.D.N.Y. January 6, 2005). It appears that Dent did
not appeal the order.
2
No certificate of appealability is necessary to appeal the denial of a petition for a
writ of coram nobis. United States v. Baptiste, 223 F.3d 188 (3d Cir. 2000).
4
Dent’s petition fails no matter which sentence he is challenging. To the extent that
Dent’s coram nobis petition attacks the thirty-month sentence imposed by the New York
federal court, we conclude that the District Court properly denied the petition
substantially for the same reasons set forth in its opinion. As for Dent’s challenge to the
2002 order modifying the term of supervised release, he must seek relief pursuant to 28
U.S.C. § 2255. Coram nobis relief is an extraordinary remedy traditionally used to attack
convictions with continuing consequences when the petitioner is no longer “in custody”
for § 2255 purposes. Baptiste, 223 F.3d at 189. Because Dent is still on supervised
release pursuant to the modified sentence, he is still “in custody” and thus, coram nobis
relief is not available to him.
Accordingly, we will summarily affirm the order of the District Court. The
appellees’ motion for summary affirmance is granted. Dent’s motions for summary
action, for expedited consideration, for appointment of counsel, and to proceed on the
original record are denied.