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concluding that petitioner's revocation sentence was separate from his original sentence “for the purpose of calculating good-time credit”
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C/A No.: 1:19-3162-MGL-SVH
11-12-2019
John Charles Barkley, Jr., #09802-058, Petitioner, v. Bryan K. Dobbs, Respondent.
REPORT AND RECOMMENDATION
John Charles Barkley, Jr. ("Petitioner"), proceeding pro se and in forma pauperis, filed this action pursuant to 28 U.S.C. § 2241, challenging the calculation of his sentence and seeking habeas corpus relief. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civ. Rule 73.02(B)(2)(e) (D.S.C.), the undersigned is authorized to review such petitions for relief and submit findings and recommendations to the district judge. For the following reasons, the undersigned recommends the district judge dismiss the petition without prejudice and without requiring Respondent to file a return. I. Factual and Procedural Background
Petitioner is a federal inmate incarcerated at the Federal Correctional Institution in Williamsburg, South Carolina. [ECF No. 1 at 1]. On October 4, 2002, Petitioner pleaded guilty in the United States District Court for the Western District of North Carolina ("Western District of North Carolina") to three separate counts of bank robbery in violation of 18 U.S.C. § 2113(a). USA v. John Charles Barkley, Jr., No. 3:02-CR-195-MOC, ECF No. 31 at 2 (W.D.N.C. Jun. 10, 2009). On July 23, 2003, United States District Judge Lacy H. Thornburg ("Judge Thornburg"), sentenced Petitioner to a term of imprisonment of 166 months for each of the three counts to run concurrently, a three-year term of supervised release, and a special assessment of $300. Petitioner appealed to the United States Court of Appeals for the Fourth Circuit ("Fourth Circuit"), which affirmed his conviction and sentence. Id. at 5-6.
A court may take judicial notice of factual information located in postings on government websites. See Philips v. Pitt Cnty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir.2009) (finding that court may "properly take judicial notice of matters of public record"); see also Colonial Penn Ins. Co. v. Coil, 887 F.3d 1236, 1239 (4th Cir. 1989) ("We note that the most frequent use of judicial notice is in noticing the content of court records.").
Pursuant to 28 U.S.C. § 2255, Petitioner subsequently filed a petition for habeas corpus relief in the Western District of North Carolina. Id. at 6. Judge Thornburg denied Petitioner's § 2255 petition on June 10, 2009. Id. at 23.
Petitioner completed his custodial sentence and commenced supervised release on October 10, 2014. Id. at ECF No. 32. On December 18, 2015, United States Magistrate Judge David S. Cayer ("Judge Cayer"), ordered Petitioner be detained pending appearance for a final supervised release violation hearing. Id. at ECF No. 37. On February 2, 2016, United States District Judge Max O. Cogburn, Jr. ("Judge Cogburn"), committed Petitioner to the custody of the Bureau of Prisons ("BOP") for a term of four months and a term of supervised release of two years for violations of the terms of supervised release. Id. at ECF No. 53. On December 19, 2016, Judge Cayer again ordered Petitioner be detained pending appearance before Judge Cogburn for a final supervised release violation hearing. Id. at ECF No. 49. Petitioner pleaded guilty to supervised release violations on February 17, 2017, and Judge Cogburn sentenced him to the custody of the BOP for a term of eight months and a term of supervised release of one year. Id. at ECF No. 54.
Jurisdiction over Petitioner's supervised release was transferred to the United States District Court for the Middle District of North Carolina ("Middle District of North Carolina") on January 31, 2018. USA v. John Charles Barkley, Jr., No. 1:18-CR-35-WO-1 (M.D.N.C. Jan. 31, 2018). On April 24, 2018, Petitioner appeared before United States Magistrate Judge L. Patrick Auld ("Judge Auld"), for an initial appearance and detention hearing. Id. at ECF No. 16. Judge Auld ordered Petitioner be held in custody pending a final revocation hearing. Id. On July 17, 2018, Petitioner appeared before United States District Judge William L. Osteen, Jr. ("Judge Osteen"). Id. at ECF No. 22. Judge Osteen revoked Petitioner's supervised release and committed him to the BOP for a period of 24 months. Id.
Petitioner alleges the BOP is denying him good time credit under Section 102(b)(1) of the First Step Act. [ECF No. 1 at 2]. He requests the court order the BOP to award him 112 days of good time credit and immediately release him from custody. Id. at 8. II. Discussion
According to the BOP's inmate registry, Petitioner is scheduled to be released from custody on December 29, 2019. Federal BOP, Inmate Locator, https://www.bop.gov/inmateloc (last visited Nov. 12, 2019).
A. Standard of Review
Under established local procedure in this judicial district, this petition has been carefully reviewed pursuant to the Rules Governing Section 2244 Proceedings for the United States District Court, the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. 104-132, 110 Stat. 1214, and other habeas corpus statutes. Pro se complaints are held to a less stringent standard than those drafted by attorneys. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). A federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case. Erickson v. Pardus, 551 U.S. 89, 94 (2007). In evaluating a pro se complaint, the plaintiff's allegations are assumed to be true. Fine v. City of N.Y., 529 F.2d 70, 74 (2d Cir. 1975). The mandated liberal construction afforded to pro se pleadings means if the court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so. Nevertheless, the requirement of liberal construction does not mean the court can ignore a clear failure in the pleading to allege facts that set forth a claim currently cognizable in a federal district court. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir. 1990).
B. Analysis
1. The Court Lacks Jurisdiction Over the Matter
"[I]t is well established that defendants convicted in federal court are obliged to seek habeas relief from their convictions and sentences through § 2255." Rice v. Rivera, 617 F.3d 802, 807 (4th Cir. 2010) (citing In re Vial, 115 F.3d 1192, 1194 (4th Cir. 1997)). Challenges to the execution of a sentence are properly raised in a § 2241 petition. In re Vial, 115 F.3d 1194 n.5.
"The savings clause provides that an individual may seek relief from an illegal detention by way of a traditional 28 U.S.C. § 2241 habeas corpus petition, if he or she can demonstrate that a § 2255 motion is 'inadequate or ineffective to test the legality of his detention.'" United States v. Wheeler, 886 F.3d 415, 419 (4th Cir. 2018); see also 28 U.S.C. § 2255(e) ("An application for a writ of habeas corpus on behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention."). Pursuant to 28 U.S.C. § 2255(e), "a § 2241 petition 'shall not be entertained' if certain circumstances are present, 'unless' another condition is present." Id. at 425 (citing 28 U.S.C. § 2255(e)). The Fourth Circuit has joined the Second, Sixth, Eighth, Ninth, and Eleventh Circuits in finding the savings clause requirements are jurisdictional. Id. at 424 n.5, 425. If the savings clause requirements are not met, the court cannot entertain the petition.
Petitioner argues he should be awarded good-time credit for the 166-month prison term he served prior to his initial period of supervised release. [ECF No. 1 at 8]. Relevant to Petitioner's argument challenging the imposition of his sentence, the Fourth Circuit recently held a petitioner may demonstrate § 2255 is inadequate and ineffective to test the legality of his sentence when:
(1) at the time of sentencing, settled law of this circuit or the Supreme Court established the legality of the sentence;Wheeler, 886 F.3d at 429.
(2) subsequent to the prisoner's direct appeal and first § 2255 motion, the aforementioned settled substantive law changed and was deemed to apply retroactively on collateral review;
(3) the prisoner is unable to meet the gatekeeping provisions of § 2255(h)(2) for second or successive motions; and
(4) due to this retroactive change, the sentence now presents an error sufficiently grave to be deemed a fundamental defect.
The First Step Act amends 18 U.S.C. § 3624(b)(1) to provide as follows:
Subject to paragraph (2), a prisoner who is serving a term of imprisonment of more than 1 year other than a term of imprisonment for the duration of the prisoner's life, may receive credit toward the service of the prisoner's sentence, of up to 54 days for each year of the prisoner's sentence imposed by the court, subject to determination by the Bureau of Prisons that, during that
year, the prisoner has displayed exemplary compliance with institutional disciplinary regulations.First Step Act, Pub. L. 115-391, Title I, § 102(b)(1)(A), 132 Stat. 5194 (2018). Section 102(b)(1)(A) applies retroactively "to offenses committed before, on, or after the date of enactment of [the First Step Act], except . . . with respect to offenses committed before November 1, 1987." Id. at 5213.
Although Petitioner committed offenses prior to November 1, 1987, he is not currently serving his original custodial sentence, but a sentence for supervised release violations. Thus, the issue before the court is whether Petitioner is entitled to increased good-time credit under the First Step Act for the 166 months he served prior to these violations.
Petitioner's argument is without merit. As the United States Court of Appeals for the Second Circuit explained in United States v. Neil, 415 F.3d 273, 277 (2d Cir. 2005), "the imprisonment that ensues from revocation is partly based on new conduct, is wholly derived from a different source, and has different objectives altogether; it is therefore a different beast." Pursuant to 28 U.S.C. § 2.35(b):
Once an offender is conditionally released from imprisonment, either by parole or mandatory release, the good time earned during that period of imprisonment is of no further effect either to shorten the period of supervision or to shorten the period of imprisonment which the offender may be required to serve for violation of parole or mandatory release.
Courts considering arguments similar to Petitioner's have concluded revocation sentences are separate from original sentences for the purpose of calculating good-time credit. See Garland v. Johnson, No. 1:19-53, 2019 WL 5106274, at *1 (W.D. La. Aug. 12, 2019) ("However, even if [petitioner] had been entitled to additional good time credit toward his sentence that he did not receive, federal law provides that those credits could not be used either to shorten the period of his supervised release or to shorten the period of any future imprisonment [petitioner] may be required to serve for violating the conditions of his release."); Boling v. Langford, 2018 WL 7504410 (C.D. Cal. Nov. 30, 2018) (providing "[a]ny good time credits earned by Petitioner before February 16, 1999 did not survive Petitioner's release on parole, and Petitioner is not entitled to use them to reduce his sentence."); Crum v. United States, 672 F. Supp. 2d 1, 2 (D.D.C. 2009) ("good conduct credits evaporate once parole is granted, and begin anew from zero when a prisoner's parole is revoked"); Boniface v. Carlson, 881 F.2d 669, 671-72 (9th Cir. 1989) (stating "[t]he courts have uniformly accepted the Commission's conclusion and have held that good time, both statutory and extra or industrial good time, earned during the original incarceration does not survive a parole release and cannot be credited upon a parole violator's sentence.").
Because settled law establishes the increase in good-time credit should not be retroactively applied to the period Petitioner served prior to his supervised release violations, Petitioner cannot meet the savings clause requirement to show the substantive law changed under the First Step Act such that the sentence now presents an error sufficiently grave to be deemed a fundamental defect. Therefore, the court does not have jurisdiction to entertain the petition.
2. Motion Not Brought in Sentencing Court
A review of the docket from the Western District of North Carolina indicates Petitioner has filed no motion for a sentence reduction pursuant to the First Step Act. Accordingly, his motion is not properly filed before the court, as it has not been presented to the sentencing court for consideration. See28 U.S.C. § 2255; see also Glover v. Warden, FCI Ashland, C/A No. 6:19-1297-HMH-KFM, 2019 WL 3291016, at *4 (D.S.C. Jun. 28, 2019), adopted by 2019 WL 4274373 (D.S.C. Sept. 10, 2019); Tennille v. Terris, 2019 WL 4597480 (E.D. Mich. Sept. 23, 2019); Steven L. Ray v. Scott Finley, 2019 WL 5569616, at *4 (M.D. Penn. Oct. 29, 2019). III. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends the district judge dismiss the petition without prejudice and without requiring Respondent to file a return.
IT IS SO RECOMMENDED. November 12, 2019
Columbia, South Carolina
/s/
Shiva V. Hodges
United States Magistrate Judge
The parties are directed to note the important information in the attached
"Notice of Right to File Objections to Report and Recommendation."
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
901 Richland Street
Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).