Opinion
C. A. 9:21-01113-DCC-MHC
08-24-2021
Akeem Jamal Edwards, Petitioner, v. Warden Hutchinson, FCI Edgefield, Respondent.
REPORT AND RECOMMENDATION
MOLLY H. CHERRY UNITED STATES MAGISTRATE JUDGE
The pro se Petitioner, Akeem Jamal Edwards, a federal inmate at FCI-Williamsburg, brings this action as an application for writ of habeas corpus (Petition) pursuant to 28 U.S.C. § 2241. In an Order entered June 7, 2021, Petitioner was warned of pleading deficiencies in his Petition and given an opportunity to file an amended petition. ECF No. 5. Petitioner has not filed an amended petition.
I. BACKGROUND
This is the second § 2241 action filed by Petitioner. In the current Petition, he requests credit for time he spent in “official detention” from July 15, 2013, through January 18, 2017. See Petition, ECF No. 1 at 6, 8; Memorandum, ECF No. 1-1 at 1, 2, 18. His one ground for relief is that he “seeks for the District Court to review his sentence computation and calculations.” Id. at 6. He claims that “[b]ased upon Judgment and Commitment Order at Sentencing, it was Order[e]d that [he] receive credit toward his federal sentence for all time served in federal custody since July 15, 2013.” Id.
Although Petitioner asks to be credited for time from “May 2013” to July 2017 in the “Request for Relief” portion of his Petition (ECF No. 1 at 8), this appears to be scrivener's error because May 2013 is prior to Petitioner's being taken into federal custody in July 2013 (discussed below) and is also prior to Petitioner's arrest by state authorities on June 12, 2013. Moreover, in his ground for relief and in his Memorandum, Petitioner specifically requests credit beginning on July 15, 2013 (not May 2013). See ECF No. 1 at 6; ECF No. 1-1 at 1, 2, 18. Finally, Petitioner has not provided any facts to support any claim that he is entitled to sentence credit beginning in May 2013.
In his first § 2241 petition, Petitioner requested allotment of “prior jail credit from [July 15, 2013]” and appeared to request nunc pro tunc designation beginning May 14, 2014. See Edwards v. Hutchinson, No. 9:19-CV-02785-DCC-BM, Petition, Docket Entry 1 at 6-7.Summary judgment was entered in favor of the respondent, and the petition was dismissed. See Edwards v. Hutchinson, No. 9:19-CV-02785-DCC, 2020 WL 1872371 (D.S.C. Apr. 15, 2020).
While generally a federal sentence cannot commence prior to the date of its imposition and until the defendant is in federal custody, an inmate in non-federal custody may have his federal sentence commence the date it is imposed, if the BOP makes a nunc pro tunc designation under 18 U.S.C. § 3621(b). Barden v. Keohane, 921 F.2d 476, 482-83 (3d Cir. 1990). “A nunc pro tunc designation is utilized to designate a non-federal facility for service of a federal sentence to result in concurrent service of state and federal sentences while the inmate was or is in the primary custody of state authorities.” Pratt v. Owens, No. CIVA 9:08-3865-SB, 2010 WL 93909, at *2 n.2 (D.S.C. Jan. 8, 2010).
A federal court may take judicial notice of the contents of its own records, as well as those records of other courts. See Aloe Creme Labs., Inc. v. Francine Co., 425 F.2d 1295, 1296 (5th Cir. 1970); Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) (noting that courts may take judicial notice of other courts' records and proceedings).
The following pertinent facts, which also apply in this case, were recited in Petitioner's previous case:
Petitioner was arrested on June 12, 2013, by the Savannah-Chatham Metropolitan Police Department. On July 15, 2013, Petitioner was temporarily removed from state custody on a federal writ of habeas corpus ad prosequendum. On February 3, 2014, while still in federal custody, Petitioner's state probation was revoked in full. On May 14, 2014, Petitioner was sentenced by the Federal Court to a 120-month term of imprisonment. The sentencing judge recommended that “the defendant receive credit toward his federal sentence for all time served in federal custody since July 15, 2013.”
Petitioner was returned to state custody on May 14, 2014. On June 5, 2014, Petitioner was sentenced by the Superior Court of Chatham County, Georgia to a total three-year term of imprisonment for Possession of Controlled Substance and Suspended License and a total ten-year term of imprisonment for Sale of Marijuana, Sale of Cocaine, and Illegal Use of Communication Facility.
On January 18, 2017, Petitioner satisfied his state obligations and was released to [the] United States Marshal Service to begin his federal sentence. Petitioner's federal sentence commenced on January 18, 2017, and he received no prior custody credit.Edwards v. Hutchinson, 2020 WL 1872371, at *2 (internal citations to the record omitted).
In the Order, it was also noted that:
In his objections, Petitioner states that he “is requesting the prior jail credit that was not credited toward his state sentence.” To the extent he also intends to seek credit for the time he served in state custody after May 14, 2014, the Magistrate Judge notes that Petitioner's federal sentence specifically stated that it was to be served consecutively to any term of imprisonment which may be imposed upon revocation of Petitioner's state probation and that silence as to whether a federal sentence should run consecutively or concurrently to any anticipated state sentence creates a presumption that the sentences should run consecutively. See Tessinger v. Warden FCI Williamsburg, C/A No. 18-157, 2019 WL 1318729, at *2 (D.S.C. Mar. 22, 2019). Accordingly, Petitioner is not entitled to credit for this time.Id. at *2 n. 2 (internal citation to the record omitted).
II. STANDARD OF REVIEW
Established local procedure in this judicial district, a careful review has been made of the pro se petition filed in this case pursuant to the procedural provisions of the Rules Governing Section 2254 Proceedings in the United States District Court, 28 U.S.C. § 2254; the Anti-Terrorism and Effective Death Penalty Act (AEDPA) of 1996; and in light of the following precedents: Denton v. Hernandez, 504 U.S. 25 (1992); Neitzke v. Williams, 490 U.S. 319, 324-25 (1989); Haines v. Kerner, 404 U.S. 519 (1972); Nasim v. Warden, Md. House of Corr., 64 F.3d 951 (4th Cir.1995); and Todd v. Baskerville, 712 F.2d 70 (4th Cir.1983). 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); King v. Rubenstein, 825 F.3d 206, 214 (4th Cir. 2016). However, even when considered under this less stringent standard, for the reasons set forth below, the Petition submitted in this case is subject to summary dismissal.
The Rules Governing Section 2254 are applicable to habeas actions brought under § 2241. See Rule 1(b) of Rules Governing Section 2254 Cases in the United States District Courts (the district court may apply any or all of these rules to a habeas corpus petition not filed pursuant to 28 U.S.C. § 2254).
III. DISCUSSION
It is recommended that this action be summarily dismissed because it is a successive petition. Title 28 Section 2244(a), as modified by the AEDPA, provides that:
No circuit or district judge shall be required to entertain an application for a writ of habeas corpus to inquire into the detention of a person pursuant to a judgment of a court of the United States if it appears that the legality of such detention has been determined by a judge or court of the United States on a prior application for a writ of habeas corpus, except as provided in section 2255.
While § 2244(a) does not expressly apply to habeas cases filed under § 2241, several circuit and district courts have held that this statute bars a second § 2241 petition where the grounds raised in the second petition have been raised and denied in a prior § 2241 proceeding. See Antonelli v. Warden, U.S.P. Atlanta, 542 F.3d 1348, 1350, 1352 (11th Cir. 2008) (affirming the district court's dismissal of a § 2241 petition as successive where the petitioner “alleg[ed] he was denied certain credits toward his sentence to which he was entitled” and the petitioner had previously filed a § 2241 petition raising the same grounds for relief, which had been denied on the merits); Queen v. Miner, 530 F.3d 253, 254-55 (3d Cir. 2008) (discussing that § 2244(a) barred a petitioner's successive § 2241 petition, in which he sought to challenge the same institutional conviction he challenged in a prior § 2241 petition); Valona v. United States, 138 F.3d 693, 695 (7th Cir. 1998) (noting that “§ 2244(a) bars successive petitions under § 2241 directed to the same issue concerning execution of a sentence”); Chambers v. United States, 106 F.3d 472, 474-75 (2d Cir. 1997) (dismissing the petitioner's § 2241 petition, which “rais[ed] the same challenge to the computation of [the petitioner's] sentence that he had raised in [two prior motions], ” pursuant to 28 U.S.C. § 2244(a) “[b]ecause this issue [had] already been decided on its merits”); but see Holland v. Warden Canaan USP, 998 F.3d 70, 74 (3d Cir. 2021) (holding that although Holland's § 2241 petition was successive, it did not deprive the court of jurisdiction, but noting that restrictions on successive petitions stem from a traditional equitable doctrine and that § 2244(a) curbs successive § 2241 petitions because no judge “shall be required to entertain” them). The issue of successiveness of a habeas petition may be raised by the court sua sponte. See Rodriguez v. Johnson, 104 F.3d 694, 697 (5th Cir. 1997) (successive § 2254 petition); Nall v. Cartledge, No. CA 6:12-2375-JFA-KFM, 2013 WL 2423184, at *4 (D.S.C. June 4, 2013) (successive § 2241 petition).
The Supreme Court has held that the restrictions on successive petitions found in § 2244 “constitute a modified res judicata rule, a restraint on what is called in habeas corpus practice ‘abuse of the writ.'” Felker v. Turpin, 518 U.S. 651, 664 (1996).
Petitioner contends that this Petition differs from his previous § 2241 petition because he erroneously argued in his previous petition that he was eligible for additional jail credit based upon the deprivation of time beginning on May 14, 2014, but he now requests an award of time beginning on July 15, 2013. See ECF No. 1-1 at 2. Review of the Petition, memorandum, and additional materials filed by Petitioner in this action reveals that his arguments in this Petition do not involve different issues from what was raised in Petitioner's prior petition. Additionally, contrary to Petitioner's argument, review of his previous petition indicates that Petitioner did previously (in his request for relief) ask for credit beginning on July 15, 2013. See Edwards v. Hutchinson, No. 9:19-CV-2785-DCC, Document No. 1 at 7. Finally, the report and recommendation in the previous case, which was adopted by the District Judge, specifically addressed the issue of whether Petitioner should receive credit for the earlier time period, noting that “[a]lthough Petitioner was physically in the hands of the United States Marshal before his federal sentencing, he actually remained in the legal custody of the State of Georgia during that period and therefore received credit only against his state sentence.” Edwards v. Hutchinson, No. 9:19-2785-DCC-BM, 2020 WL 3847493, at *3 (D.S.C. Jan. 28, 2020), report and recommendation adopted, 2020 WL 1872371 (D.S.C. Apr. 15, 2020).
As noted above, Petitioner's temporary removal from state custody on a federal writ of habeas corpus ad prosequendum was from July 15, 2013 until May 14, 2014.
Petitioner appears to argue that he previously asked for only some of the custody credit requested here. However, the Court considered both Petitioner's request for credit for time spent in jail prior to his federal sentencing (the time from July 15, 2013, when Petitioner was temporarily removed to federal custody, until his federal sentencing on May 14, 2014) and his request that he receive a nunc pro tunc designation with credit on his federal sentence from the date he was federally sentenced (July 15, 2013) through the date his state sentences were satisfied and he was turned over to the United States Marshal Service on January 18, 2017. Thus, the entire period of time for which Petitioner requests jail credit (July 15, 2013 to January 18, 2017) in the current § 2241 Petition was previously considered by the Court in addressing Petitioner's first § 2241 petition. Because the habeas claims raised in the instant petition were raised in Petitioner's first § 2241 petition, which was adjudicated on the merits, this petition is a second or successive petition for a writ of habeas corpus that is barred by § 2244(a) and should be dismissed.
As noted above, the Court specifically rejected Petitioner's argument in his first § 2241 action that he should receive credit for time spent in jail prior to his federal sentencing. The Court also stated:
In his Petition, it appeared that Petitioner was requesting credit for time spent in jail prior to his federal sentencing and that he was requesting to receive a nunc pro tunc designation with credit on his federal sentence from the date he was federally sentenced through the date his state sentence was satisfied and he was turned over to the United States Marshal Service. ECF No. 1. In his response in opposition, Petitioner stated that he was not arguing that his state and federal sentences should have run concurrently. Out of an abundance of caution, the Magistrate Judge addressed this claim. In his objections, Petitioner reiterates that he is not seeking relief on this ground. While it appears this claim is abandoned, like the Magistrate Judge, this Court has reviewed this claim out of an abundance of caution for a pro se Petitioner. To the extent Petitioner intends to seek a nunc pro tunc designation for the time he served in state custody between May 14, 2014, and January 18, 2017, the Court has reviewed the record, applicable law, and Report for clear error; finding none, the Court adopts this portion of the Report.Edwards v. Hutchinson, 2020 WL 1872371, at *1.
Even if this Petition is not subject to dismissal as a successive petition, this case is also subject to dismissal pursuant to the “abuse of the writ” doctrine. Prior to the enactment of the statutory bar on successive habeas petitions in 28 U.S.C. § 2244, the Supreme Court developed the “abuse of the writ” doctrine, which limited the review of successive habeas petitions. See McCleskey v. Zant, 499 U.S. 467, 490-96 (1991). Courts have found that, after the AEDPA, the abuse of the writ doctrine continues to apply to habeas petitions filed by federal prisoners. See Zayas v. INS, 311 F.3d 247, 257-58 (3d Cir. 2002); Whab v. United States, 408 F.3d 116, 119 n. 2 (2d Cir. 2005) (noting that the equitable “abuse of the writ” doctrine continues to apply post-AEPDA); Mendez v. United States, No. 04-HC-90-FL, 2004 WL 3327911, at *2 n.1 (E.D. N.C. 2004) (“The abuse of the writ doctrine, as set forth in McClesky, was not supplanted by the enactment of [AEDPA], which prohibits second or successive habeas petitions which raise matters already adjudicated in a previous petition, and requires second or successive petitions raising new claims to be authorized by the appropriate court of appeals.”) (citation omitted), aff'd, 126 Fed.Appx. 148 (4th Cir. 2005). Under the abuse of the writ doctrine “a court could decline to hear a claim that was both raised and adjudicated in an earlier petition.” Stanko v. Davis, 617 F.3d 1262, 1270 (10th Cir. 2010) (citing Sanders v. United States, 373 U.S. 1, 11-12 (1963)); Beras v. Johnson, 978 F.3d 246, 252 (5th Cir. 2020) (A § 2241 petition should be dismissed as an abuse of the writ when the petitioner raises a claim that he could have raised in a prior petition and when he raises the same claim he raised previously); Dotson v. Kizziah, 966 F.3d 443, 444-45 (6th Cir. 2020) (noting that the “district court correctly found that, to the extent Dotson's claims were or could have been raised in his § 2241 petition in the Southern District of Georgia, they were successive or an abuse of the writ, meaning the court need not address them.”).
In applying the abuse of the writ doctrine, “grounds may be considered the same even when supported by different legal arguments.” Id. (citation omitted). Nevertheless, “[e]ven if the same ground was rejected on the merits on a prior application, it is open to the applicant to show that the ends of justice would be served by permitting the redetermination of the ground.” Sanders, 373 U.S. at 16.The abuse of the writ doctrine thus precludes petitioners from “relitigating issues” and filing subsequent petitions for habeas corpus where an earlier petition has already been denied. Williams v. Wendt, No. Civ. A. 1:04CV136, 2006 WL 1004806, at *1 (N.D. W.Va. Apr. 7, 2006) (citing McClesky, 499 U.S. at 470, 492).
Here, pursuant to the abuse of the writ doctrine, this Court should decline to hear Petitioner's claims because they were raised and adjudicated in his prior petition and he has made no plausible argument that the ends of justice would be served by permitting the redetermination of the grounds on which his prior petition was denied. See Nezirovic v. Heaphy, No. 7:15CV00170, 2015 WL 4112162 (W.D. Va. 2015) (noting that because the petitioner raised or could have raised current challenges in previous § 2241 petition and presented no justification for failing to do so, claims were barred for review under the abuse of the writ doctrine); Hilton v. Johns, No. 5:11-HC-2098-BO, 2012 WL 3000429, at *2 (E.D. N.C. 2012) (commenting in a § 2241 case that the abuse of the writ doctrine mandates dismissal of claims presented in habeas petitions if they were raised, or could have been raised, in a previous petition). Thus, this action should be dismissed both as a successive petition and as an abuse of the writ. See, e.g., Garcia v. Meeks, No. 5:16-cv-02570-HMH-KDW, 2016 WL 8650124 at *2 (D.S.C. 2016) (“Because Petitioner could have raised the arguments he makes in the present Petition in his prior § 2241 action, the Petition submitted in this case is successive and an abuse of the writ.”).
As discussed above, the claims Petitioner raises here were previously adjudicated. Even if he has raised a new claim, Petitioner presents no justification for failing to raise such a claim in the first petition.
C. RECOMMENDATION
Accordingly, it is RECOMMENDED that the Petition in this action be DISMISSED without leave to amend and without requiring Respondent to file a return.