Opinion
CIVIL ACTION NO. 9:18-2158-HMH-BM
01-15-2019
GREGORY D. IVY, Petitioner, v. HECTOR JOYNER, Warden, Respondent.
REPORT AND RECOMMENDATION
This Petition for a writ of habeas corpus was filed, pro se, pursuant to 28 U.S.C. § 2241. Petitioner is currently incarcerated at the Federal Correctional Institution in Estill.
Respondent filed a motion to dismiss or in the alternative for summary judgment on October 2, 2018. As the Petitioner is proceeding pro se, a Roseboro order was entered by the Court on October 4, 2018, advising Petitioner of the importance of a dispositive motion and of the necessity for him to file an adequate response. Petitioner was specifically advised that if he failed to respond adequately, the Respondent's motion may be granted, thereby ending his case. Petitioner thereafter filed a response in opposition to the motion on November 9, 2018, and Respondent filed a reply on November 16, 2018.
This matter is now before the Court for disposition.
This case was automatically referred to the undersigned United States Magistrate Judge for all pretrial proceedings pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 19.02(B)(2)(c), D.S.C. Respondent has filed a motion to dismiss or in the alternative for summary judgment. As this is a dispositive motion, this Report and Recommendation is entered for review by the Court.
Background
On October 15, 2014, Petitioner was arrested by the Richmond County, Georgia, Sheriff's Office for Use of an Article with Altered ID, Possession of Marijuana, and Possession of a Firearm by a Convicted Felon. See Rohmer Affidavit, ¶ 4 & Attachment 1 (Documents from the Superior Court of Richmond County, Docket No. 2014-RCCR-1752). The charges were nolle prosequed on August 5, 2015. Id. However, on January 8, 2015, while Petitioner was still in the primary custody of the State of Georgia for Case Number 2014-RCCR-1752, his probation was revoked in Case Number 2012-RCCR-1557. See Rohmer Affidavit, ¶ 5 & Attachment 2 (Georgia Department of Corrections ("GADOC"), Revocation of Probation Case No. 2012-RCCR-1552). Petitioner was sentenced to serve 6 years, 2 months, and 2 days imprisonment. Id. Petitioner completed his state sentence on May 17, 2017. Id.
In the interim, on January 21, 2015 the United States Marshal Service borrowed Petitioner from the GADOC via a federal writ; see Rohmer Affidavit, ¶ 6 & Attachment 3 (United States Marshals Service Prisoner Tracking System, USM-129); and the record before the Court shows that Petitioner was sentenced on July 30, 2015, to a 72-month term of imprisonment, to be followed by a three year term of supervision, by the United States District Court for the Southern District of Georgia for being a Felon in Possession of a Firearm in violation of 18 U.S.C. § 922(G)(1) and § 924(A)(2). See Rohmer Affidavit, ¶ 7 & Attachments 4 and 5. The United States District Court ordered this sentence to be served consecutively to the revoked state probation term in Richmond County Superior Court, Case Number 2012-RCCR-1557. See Rohmer Affidavit Attachment 4. Following his federal conviction and sentencing, Petitioner was returned to state custody on August 4, 2015. See Rohmer Affidavit Attachment 3.
Since Petitioner's state sentence was completed on May 17, 2017, the Bureau of Prisons computed Petitioner's federal sentence as beginning on May 17, 2017, the day the GADOC turned Petitioner over to the exclusive custody of the United States Marshal Service. See Rohmer Affidavit, ¶ 11 & Attachment 2 Respondent's Exhibit 2 (Georgia Department of Corrections, Revocation of Probation Case No. 2012-RCCR-1552); see also Rohmer Affidavit Attachment 5. Petitioner currently has a projected release date of May 14, 2022, via Good Conduct Time (GCT) Release. See Rohmer Affidavit, ¶ 11. However, Petitioner asserts in this federal habeas action that he should have received credit on his federal sentence from January 21, 2015, when he was taken on a writ into federal custody, through July 30, 2015 (the date he was federally sentenced), and that he should also receive a nunc pro tunc designation with federal credit for the time he was in state custody from July 30, 2015 forward. Petitioner also separately complains that time spent in custody from January 21, 2015 (the date Petitioner was taken from state authorities on the federal writ) through August 4, 2015 (the date that he was returned to state custody) was not credited to his state sentence, and that those days should be credited toward his state sentence. See Petitioner's Memorandum in Opposition, p. 2, ¶ 4.
With respect to his state sentence calculation, the Central Office Administrative Remedy Response states that documentation from the Georgia Department of Corrections verifies prior custody credit from January 8, 2015, through May 17, 2017, was spent in service of Petitioner's Georgia sentence [see Court Docket No. 1-1, p. 1(attached to Petition)]. As for his federal sentence, Petitioner is correct that he did not receive credit on his federal sentence from January 21, 2015 through the date of his return to state custody. It is also undisputed that, while the time from August 4, 2015 (the date of Petitioner's actual return to state custody) through May 17, 2017 has been credited to his state sentence, it has not been credited to his federal sentence.
However, it is undisputed that eighty-five (85) days of prior custody credit starting on October 14, 2014, through January 7, 2015, were applied to his federal sentence since they were not applied to his state court sentence. See Rohmer Affidavit, ¶ 10. Petitioner does not seek relief regarding that time period.
I.
(Exhaustion)
Respondent does not contest that, to the extent Petitioner is challenging the Bureau of Prisons ("BOP") decision not to credit him for prior time served in state custody, this claim may be brought under 28 U.S.C. § 2241, and that Petitioner has exhausted his administrative remedies with respect to this claim. See Rohmer Affidavit, ¶ 8 & Attachment 6; Court Docket No. 1-1; see also Hughes v. Slade, 347 F.Supp.2d 821 (C.D.Cal. 2004); Jimenez v. Warden, FDIC, Fort Devens, Massachusetts, 147 F.Supp.2d 24, 27 (D.Mass. June 8, 2001); 18 U.S.C. § 3585; Chua Han Mow v. United States, 730 F.2d 1308, 1313 (9th Cir. 1984) [ "It is only when a prisoner has exhausted his administrative remedies that he becomes entitled to litigate the matter in the district court." ]. See also United States v. Mathis, 689 F.2d 1364, 1365 (11th Cir. 1982). Therefore, that claim is properly before this Court for review.
II.
(Custody Credit)
Initially, with respect to Petitioner's state credit claim, documentation from the Georgia Department of Corrections shows that Petitioner was placed in the custody of the state prison on January 8, 2015, and there is no indication of any break in service. See Court Docket No. 9-1, pp. 13-14. While Petitioner conclusorily states that he did not receive credit on his state sentence from January 21, 2015 through August 4, 2015, he has provided no documentation or evidence to support this assertion. Accordingly, even if this was a cognizable federal claim, Petitioner has not shown that he did not receive state credit for this time period on his state sentence, and this claim is therefore without merit. See Smith v. North Carolina, 528 F.2d 807, 809 (4th Cir. 1975)[Petitioner bears the burden of proving his allegations when seeking a writ of habeas corpus].
With respect to Petitioner's federal sentence, Petitioner was sentenced on his federal conviction on July 30, 2015. Under federal law,
[a] federal sentence cannot commence before it is imposed, United States v. Walker, 98 F.3d 944, 945-946 (7th Cir. 1996), and a district court has no power to award presentence credit, United States v. Wilson, 503 U.S. 329, 333 (1992); United States v. Ross, 219 F.3d 592, 594 (7th Cir. 2000). A district court may order a federal sentence to run concurrently with an undischarged state sentence, 18 U.S.C. § 3584(a); Romandine v. United States, 206 F.3d 731, 737-738 (7th Cir. 2000) . . . . [but the BOP cannot give credit for any period of presentence custody that has already been credited against another sentence], 18 U.S.C. § 3585(b); Ross, 219 F.3d at 594.Short v. Revell, No. 05-1890, 152 Fed.Appx. 542, 544 (7th Cir. Oct. 24, 2005)(unpublished).
A prisoner cannot receive double credit, and prior custody credit will therefore not ordinarily be granted under § 3585 if the prisoner has already received prior custody credit toward another sentence. See United States v. Mojabi, 161 F.Supp.2d 33, 36 (D.Mass. 2001)["Section 3585(b) prohibits 'double-credit', i.e. awarding credit for presentence time served against one sentence if that time has already been credited against another sentence."]; United States v. Arroyo, 324 F.Supp.2d 472, 473-474 (S.D.N.Y. 2004)[BOP is precluded from granting credit for time in pre-sentence detention that has already been credited against another sentence]; Nguyen v. Department of Justice, No. 97-6489, 1999 WL 96740 (6th Cir. Feb. 3, 1999); Ransom v. Morton, No. 95-15127, 1995 WL 620935 (9th Cir. Oct. 19, 1995); see also 28 U.S.C. ¶ 3585(b); Bacon v. Federal Bureau of Prisons, No. 545-18, 2001 WL 34684734 (D.S.C. Mar. 22, 2001); see also Program Statement 5800.28, Sentence Computation Manual (New Law/CCCA)(Rohmer Affidavit Exhibit 7).
Title 18 U.S.C. § 3585, Calculation of a term of imprisonment; provides as follows:
(a) Commencement of sentence. A sentence to a term of imprisonment commences on the date the defendant is received in custody awaiting transportation to, or arrives voluntarily to commence service of sentence at, the official detention facility at which the sentence is to be served.
(b) Credit for prior custody. A defendant shall be given credit toward the service of a term of imprisonment for any time he has spent in official detention prior to the date the sentence commences—
(1) as a result of the offense for which the sentence was imposed; or
(2) as a result of any other charge for which the defendant was arrested after the commission of the offense for which the sentence was imposed; that has not been credited against another sentence.
The United States Marshal Service's "borrowing" Petitioner from the GADOC via a federal writ also did not change his custody status for purposes of his federal credit calculation. Although 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. United States v. Evans, 159 F.3d 908, 911-912 (4th Cir. 1998); Stewart Bailey, 7 F.3d 384, 389 (4th Cir.1993)[a prisoner is not "in custody" when he appears in another jurisdiction's court pursuant to an ad prosequendum writ; he is merely "on loan" to that jurisdiction's authorities]; Thomas v. Whalen, 962 F.2d 358, 361 n. 3 (4th Cir.1992); Short, 152 Fed.Appx. at 544; Jake v. Herschberger, 173 F.3d 1059, 1062 n. 1 (7th Cir.1999); Sinito v. Kindt, 954 F.2d 467, 469 (7th Cir.1992)(per curiam)[writ of habeas corpus ad prosequendum does not alter custody status]; Flick v. Blevins, 887 F.2d 778, 781 (7th Cir.1989)(per curiam)[prisoner delivered on writ of habeas corpus ad prosequendum does not alter custody status].
With regard to potential credit on his federal sentence for time served in state custody after August 4, 2015, Petitioner was specifically sentenced by the federal court to a term of 72 months to be served consecutively to the term he was currently serving for his state probation violation. See Rohmer Affidavit Attachment 4. Petitioner does not dispute that he received credit for the time from August 4, 2015, until May 17, 2017 against his state court sentence. Although Petitioner argues that his case should be remanded to the sentencing court because the district court did not state its reason for imposing a consecutive sentence, Petitioner has not set forth a valid argument for this Court to remand this case for a re-sentencing.
III.
(Nunc pro tunc designation)
As previously discussed, Petitioner also contends that he should receive a nunc pro tunc designation, with credit for the time he was in state custody from July 30, 2015 forward. "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, 2010 WL 93909 at *2 n.2 (D.S.C. Jan. 8, 2010). The BOP's decision to grant or deny a prisoner's nunc pro tunc designation request is reviewed for an abuse of discretion. Barden v. Keohane, 921 F.2d 476, 478 (3d Cir. 1991).
Here, the federal sentencing judge specifically ordered that Petitioner's federal sentence was to run consecutive to his state court sentence. Further, because "the Petitioner received credit toward his state sentence for the time served prior to [May 17, 2017] . . . he [ ] is not entitled to credit toward his federal sentence for this time because he received credit toward his state sentence for this time." Pratt, 2010 WL 93909, at * 2. Therefore, Petitioner has not shown that the BOP abused its discretion in denying his request and is not entitled to nunc pro tunc relief from this Court.
The federal sentencing court's specific statement for its sentence to be served consecutively distinguishes this case from the Fourth Circuit's recent decision in Mangum v. Hallembaek, 910 F.3d 770 (4th Cir. Dec. 12, 2018).
Conclusion
Based on the foregoing, it is recommended that the Respondent's motion to dismiss or for summary judgment be granted, and that this case be dismissed, with prejudice.
The parties are referred to the Notice Page attached hereto.
/s/_________
Bristow Marchant
United States Magistrate Judge January 15, 2019
Charleston, South Carolina
Notice of Right to File Objections to Report and Recommendation
The petitioner is advised that he 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 of Court
United States District Court
Post Office Box 835
Charleston, South Carolina 29402
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).