Opinion
3:19-cr-0009-CAR-CHW
03-29-2022
JOHN BRANTLEY, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
Proceedings Under 28 U.S.C. § 2255 Before the U.S. Magistrate Judge
REPORT AND RECOMMENDATION
Charles H. Weigle, United States Magistrate Judge.
Before the Court is Petitioner John Brantley's motion to under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence. (Doc. 78). In grounds one and two, respectively, Petitioner asks this Court to amend his sentence to account for credit for time served prior to the imposition of his sentence and to find his defense counsel was ineffective for failing to ask for credit for time served at sentencing. (Id., p. 4-5). Because Petitioner's request for credit for time served is not cognizable in a Section 2255 action, it is RECOMMENDED that ground one of Petitioner's motion be DISMISSED. Because Petitioner cannot show ineffective assistance of counsel based upon the failure to ask for credit for time served, it is RECOMMENDED that Petitioner's ground two be DENIED.
Procedural History
On January 4, 2018, Petitioner was arrested following a traffic stop during which he and a co-defendant were found to be in possession of methamphetamine and a firearm. (Doc. 52, p. 78). A grand jury originally indicted Petitioner for two counts relating to the traffic stop, including possession of methamphetamine with intent to distribute and possession of a firearm in furtherance of a drug trafficking crime. (Doc. 1). Petitioner entered federal custody on August 1, 2019, and remained in custody until the resolution of his case. (Docs. 33; 74, p. 1). He was received into federal custody on a writ from Dodge State Prison, where Petitioner was serving a parole revocation on a state sentence. (Doc. 74, ¶ 7).
Pursuant to a plea agreement, Petitioner waived indictment and proceeded on a superseding information. (Docs. 49, 50). The information charged only the original possession with intent to distribute methamphetamine count, to which Petitioner pleaded guilty on January 7, 2020. (Docs. 50, 53). Pursuant to the presentence investigation report and Petitioner's specific history, Petitioner's sentencing guideline range was 188 months to 235 months. (Doc. 74, ¶ 91). On October 20, 2020, Petitioner was sentenced to serve 188 months in the custody of the Bureau of Prisons followed by three years on supervised release and pay a $100 mandatory assessment. (Doc. 76).
Petitioner now files a Section 2255 motion asking that he receive credit for time served from January 4, 2018, to September 18, 2019, and contending that his defense counsel was ineffective for not asking for credit for time served at sentencing. (Doc. 78, p. 4-5, 11). Petitioner is presently incarcerated in federal prison in Bennettsville, South Carolina. (Doc. 78-1).
Discussion
1. Petitioner's request for credit for time served in ground one is not appropriately raised in a Section 2255 motion and should be dismissed.
In ground one of his Section 2255 motion, Petitioner claims that the Bureau of Prisons (BOP) is not giving him 20 months of credit toward his sentence for time served in state custody from January 4, 2018 until September 18, 2019, the date Petitioner alleges the “Feds picked the case up.” (Doc. 78, p. 4). Petitioner further argues this time should be credited because he was never released or bonded out from custody. (Id.) Petitioner also states that his lawyer never asked the Court to consider or deduct the time he had served when imposing sentence. (Id.) Petitioner's suggested remedy for the alleged error is for his sentence to be vacated and reimposed to account for the 20 months of time served he believes he is owed. (Id., p. 11). As explained below, Petitioner's motion, to the extent it relates to the calculation or execution of his sentence, is not cognizable in a Section 2255 motion, but instead is proper in a motion pursuant to 28 U.S.C. § 2241. The Court cannot construe and consider Petitioner's ground one under Section 2241 because Petitioner has failed to meet the necessary exhaustion and jurisdictional requirements. Furthermore, it does not appear that Petitioner is entitled to credit for time served that he seeks. Therefore, Petitioner's ground one claim should be dismissed.
A motion related to the calculation or execution of a sentence is properly filed as a petition for writ of habeas corpus under 28 U.S.C. § 2241 only after the exhaustion of administrative remedies, because the granting of credit for time served is “in the first instance an administrative, not a judicial function.” United States v. Nyhuis, 211 F.3d 1340, 1345 (11th Cir. 2000) (quoting United States v. Flanagan, 868 F.2d 1544, 1546 (11th Cir. 1989)). The calculation of a term of imprisonment, including credit for time served in official detention prior to the date of sentencing, is governed by 18 U.S.C. § 3585. Such calculations are an administrative function entrusted to the BOP, which “initially possesses the exclusive authority. . . to compute sentence credit awards after sentencing.” Rodriguez v. Lamer, 60 F.3d 745, 747 (11th Cir. 1995); see also United States v. Wilson, 503 U.S. 329 (1992). This means that the sentencing court is not vested with the authority to calculate credit for time served. United States v. Alexander, 609 F.3d 1250, 1259 (11th Cir. 2010). Petitioner has failed to show his exhaustion efforts in this case. Nothing in Petitioner's motion demonstrates any attempt to address this issue with the BOP or to exhaust any administrative remedy available to him. See (Doc. 78).
Even if Petitioner could show that he has exhausted the available administrative remedies, the proper forum for a petition under Section 2241 is a court in the district where the Petitioner is confined. United States v. Pruitt, 417 Fed.Appx. 903, 904 (11th Cir. 2011) (citing Fernandez v. United States, 941 F.2d 1488 (11th Cir. 1991)). It appears from the record that Petitioner is currently confined at the Federal Correctional Institution in Bennettsville, South Carolina, located within the District of South Carolina. (Doc. 78-1). Any petition regarding the calculation or execution of his sentence should be filed in that district.
Even if the sentencing court did have jurisdiction to award Petitioner the credit he requests, it does not appear from the record that Defendant is entitled to credit for time served because the time from January 4, 2018, his arrest date, until September 18, 2019, the date Petitioner says that Respondent assumed prosecution of the case, includes time Petitioner was serving on his state sentences. See (Doc. 74, ¶ 7). Petitioner's state parole was revoked on January 16, 2018, for 2010 and 2013 state superior court cases. (Id., ¶¶ 51, 56, 59). The sentence for the 2010 case expired on September 18, 2019. (Id., ¶ 51). A period of probation on the 2013 state superior court case began the following day and will expire on September 26, 2023. (Id., ¶¶ 56, 59). Petitioner was sentenced in this case on October 20, 2020. (Doc. 76).
A term of imprisonment “commences on the date the defendant is received in custody awaiting transportation to ... the official detention facility at which the sentence is to be served.” 18 U.S.C. § 3585(a). A defendant may receive credit for time served in official detention prior to the date his sentence commences “as a result of the offense for which the sentence was imposed.” 18 U.S.C. § 3585(b)(1), but such credit is available only if the time “has not been credited against another sentence.” 18 U.S.C. § 3585(b).
Although Petitioner was in federal custody during the time between his transfer to federal custody and sentencing in this case, Petitioner continued to receive credit towards his state sentence for the time spent in detention for which he now seeks credit. Because the time between January 4, 2018, and September 18, 2019, appears credited to the state sentence he was already serving at the time, it cannot also be credited towards his federal sentence under 18 U.S.C. § 3585(b).
2. Petitioner cannot show defense counsel was ineffective by failing to request credit for time served at sentencing.
In his second ground for relief, Petitioner argues that his attorney was ineffective for not asking for credit time served at Petitioner's sentencing. (Doc. 78, p. 5). Petitioner alleges that he talked to his attorney about asking for credit for time served and argues that his attorney failed to even address it at sentencing. (Id.) Petitioner asserts that his attorney should have asked for the time “to be considered under the 5G1.3(b) sentencing guidelines” because Petitioner never bonded out and the crime for which he was arrested, charged, and sentenced was relevant conduct. (Id.) As discussed above, the 20 months that Petitioner requests is attributable to a parole revocation in his 2010 state case and that time cannot also be counted towards his federal sentence under 18 U.S.C. § 3585(b). Even under his U.S.S.C. § 5G1.3(b) theory, Petitioner cannot show that his sentence would have been different had his attorney requested credit for time served at the sentencing hearing. Petitioner's requested relief in ground two should therefore be denied.
Regarding claims of ineffective assistance of counsel, the Supreme Court's decision in Strickland v. Washington, 466 U.S. 669 (1984), requires a showing that (1) “counsel's performance was deficient, ” and that (2) “the deficient performance prejudiced the defense.” Strickland, 466 U.S. at 687. To satisfy the first prong, “the defendant must show that counsel's representation fell below an objective standard of reasonableness.” Id. at 688. This means that “the Court must apply a ‘strong presumption' that counsel's representation was within the ‘wide range' of reasonable professional assistance.” Harrington v. Richter, 562 U.S. 86, 104 (2011) (quoting Strickland, 466 U.S. at 689). To satisfy the second prejudice prong, Petitioner must establish “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. Where Petitioner has the burden of proof regarding both prongs, if Petitioner cannot prove one prong, the Court is not required to address the other. Carmichael v. United States, 966 F.3d 1250, 1258. (11th Cir. 2020).
United States Sentencing Guidelines (U.S.S.G.) § 5G1.3(b) contemplates the imposition of a sentence on a defendant subject to an undischarged term of imprisonment or anticipated state term of imprisonment. “In plain English, the guideline instructs that if the defendant is still serving time in state prison for conduct that was also part of the federal offense, the time already served on that state charge should be credited against the federal sentence.” United States v. Henry, 1 F.4th 1315, 1319 (11th Cir. 2021). Petitioner argues that because he was never released or bonded out after his arrest on January 4, 2018, that time counts as relevant conduct. (Doc. 78, p. 5). He admits that his lawyer told him that time did not count as relevant conduct. (Id.)
Petitioner's argument wrongly assumes that U.S.S.C. § 5G1.3(b) is binding at sentencing, that his federal conviction and state convictions share relevant conduct, and that the Court did not consider his state criminal history when fashioning his federal sentence. In Henry, the Eleventh Circuit reviewed the recent history of the mandatory versus discretionary nature of sentencing guidelines in general before deciding that “[c]ourts must consider the advice of §5G1.3(b)(1), of course, but they have no obligation to impose a sentence consistent with that section's directive.” Henry, 1 F.4th at 1319-1326. Petitioner is therefore not entitled to any specific relief based solely on the language of the U.S.S.G. § 51G.3(b).
Guideline section 51G.3(b) is not applicable to this case, in any event, because Petitioner's state time was not based on relevant conduct. Relevant conduct “includes all acts and omissions committed by the defendant ‘during the commission of the offense of conviction.'” United States v. Wright, 611 Fed.Appx. 558, 564 (citing U.S.S.G. §§ 1b1.3(a)(1)(A) & 5G1.3(b)). Petitioner's state conviction and sentence for which he requests credit do not include acts or omissions committed during his federal conviction. Instead, his parole was revoked on cases that occurred well before the events of January 4, 2018. Petitioner has not been convicted on the state level for events stemming from the traffic stop on January 4, 2018. In fact, the presentence report anticipated that any state charges related to his federal case would be nolle prossed once his federal sentencing was complete. (Doc 74, ¶¶ 67-68).
Petitioner is technically still serving a second sentence for a 2013 state conviction that does not expire until September 26, 2023. (Doc. 74, ¶ 59).
Even if U.S.S.G. § 5G1.3(b) were applicable to Petitioner's sentence, U.S.S.G § 5G1.3(d) also provides guidance to sentencing courts when a defendant's history presents a combination of simultaneous or overlapping state and federal sentences. U.S.S.G. § 5G1.3(d) instructs a sentencing court to consider the sentencing factors referenced in 18 U.S.C. § 3553(a) “in order to achieve a reasonable incremental punishment for the instant offense and avoid unwarranted disparity.” U.S.S.G. § 5G1.3(d) cmt. n. 4(A). In complex situations with multiple sentences, the sentencing court “may exercise its discretion in accordance with [§5G1.3(d)] to fashion a sentence of appropriate length and structure....” U.S.S.G. § 5G1.3(d) cmt n. 4(D). From the presentencing report and the ultimately imposed sentence, it appears the District Court took this guidance into account at Petitioner's sentencing. The parties and the Court were aware of Petitioner's state sentence history at sentencing via the presentence report. Petitioner's potential sentence ranged from 188 months to 235 months to serve, and he was sentenced to serve 188 months, the bottom of the applicable guideline range. (Docs. 74, ¶ 91; 76). Moreover, the sentencing judge specifically referenced consideration of the factors at 18 U.S.C. §3553(a), as the commentary to U.S.S.G. § 5G1.3(d) suggests doing when multiple sentences apply to a defendant. (Doc. 77).
Nothing in the record supports Petitioner's argument that his sentence should have been 168 months or that he would have received a lower or different sentence if his attorney had requested credit for time served at the sentencing hearing. U.S.S.G. § 5G1.3(b) does not divest a sentencing judge of sentencing discretion, and even if Petitioner could show relevant conduct existed between his state and federal cases, he cannot show that his sentences and history were not appropriately considered as the guidelines suggest. These factors together establish that Petitioner cannot show a reasonable probability that his sentence would have been different but for his attorney's failure to ask for credit for time served at sentencing. Therefore, Petitioner cannot satisfy the second prong of Strickland. Ground Two of Petitioner's Section 2255 motion should be denied.
3. No hearing is required.
Upon review of the record as required by Rule 8 of the Rules Governing Section 2255 Proceedings, no hearing is necessary in Petitioner's case. Petitioner's allegations “are affirmatively contradicted by the record, ” which conclusively shows that Petitioner is not entitled to relief. 28 U.S.C. § 2255(b); Rosin v. United States, 786 F.3d 873, 877 (11th Cir. 2015).
CONCLUSION
Petitioner has not shown that he has exhausted his administrative remedies regarding his request for time served, and even if he had exhausted, he would need to file his Section 2241 petition in the district in which he is incarcerated. Petitioner also failed to show that but for his attorney's actions his sentence would have been different. Based on the foregoing, it is RECOMMENDED that Petitioner's motion be DISMISSED as to ground one and DENIED as to ground two.
OBJECTIONS
Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections to this Recommendation, or seek an extension of time to file objections, WITHIN FOURTEEN (14) DAYS after being served with a copy thereof. Any objection is limited in length to TWENTY (20) PAGES. See M.D. Ga. L.R. 7.4. The District Judge shall make a de novo determination of those portions of the Recommendation to which objection is made. All other portions of the Recommendation may be reviewed for clear error.
The parties are further notified that, pursuant to Eleventh Circuit Rule 3-1, “[a] party failing to object to a magistrate judge's findings or recommendations contained in a report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions if the party was informed of the time period for objecting and the consequences on appeal for failing to object. In the absence of a proper objection, however, the court may review on appeal for plain error if necessary in the interests of justice.”
SO RECOMMENDED.