Opinion
C. A. 1:22-1924-DCN-SVH
11-07-2022
Jonathan Maurice Ussery, Petitioner, v. R. S. Dunbar, Respondent.
REPORT AND RECOMMENDATION
Shiva V. Hodges United States Magistrate Judge
Petitioner Jonathan Maurice Ussery, proceeding pro se, filed this petition seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2241, alleging that the Bureau of Prisons (“BOP”) has improperly denied his request to designate the institution where he served his state sentence nunc pro tunc for service of his federal sentence and to credit him for time served in state custody. Petitioner is imprisoned at Federal Correctional Institution (“FCI”) Williamsburg in Salters, South Carolina. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civ. Rule 73.02(B)(2)(c) (D.S.C.) for a Report and Recommendation on Respondent's motion for summary judgment. [ECF No. 16]. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Petitioner of the summary judgment and dismissal procedures and the possible consequences if he failed to respond adequately to Respondent's motion. [ECF No. 17]. On October 18, 2022, the undersigned ordered Respondent to supplement the record and extended Petitioner's deadline to respond to Respondent's motion for summary judgment. [ECF No. 19]. Respondent supplemented the record on October 25, 2022. [ECF No. 21]. Petitioner filed a timely response to Respondent's motion on October 27, 2022. [ECF No. 22].
Having carefully considered the parties' submissions and the record in this case, the undersigned recommends the court grant Respondent's motion for summary judgment.
I. Factual and Procedural Background
On May 15, 2010, state authorities in Gaston County, North Carolina, arrested Petitioner for, inter alia, robbery with a dangerous weapon and larceny of a motor vehicle. [ECF Nos. 1 at 7-8, 22 at 2]. Petitioner was subsequently released on bond. [ECF No. 1 at 8]. On September 25, 2010, state authorities in Rutherford County, North Carolina, arrested Petitioner for, inter alia, assault with a deadly weapon. [ECF No. 1 at 8].
On April 29, 2011, while in state custody, Petitioner was temporarily transferred to federal custody for prosecution pursuant to a federal writ of habeas corpus ad prosequendum (“Writ”). [ECF No. 1 at 8, 22 at 2]. On October 23, 2012, the federal court sentenced Petitioner to 79 months' imprisonment for possession of a firearm by a convicted felon under 18 U.S.C. § 922(g)(1). U.S. v. Ussery, C/A No. 1:11-cr-32 (W.D. N.C. ); ECF Nos. 1 at 8, 1-2 at 26, 54, and 22 at 2. United States District Judge Martin Karl Reidinger (“Judge Reidinger”) did not specify whether Petitioner's sentence was to run consecutive with or concurrent to the anticipated sentences on the state charges. See ECF No. 1-2 at 25-32, 54-59. On October 30, 2012, Petitioner was returned to state custody, with the federal judgment lodged as a detainer. [ECF Nos. 1 at 8, 16-1 at 2, and 22 at 2].
On December 12, 2012, Petitioner was sentenced in Gaston County, North Carolina, to 67 to 90 months for the May 15, 2010 robbery with a dangerous weapon charge, Case No. 10CRS056614, and eight to 10 months for the larceny of a motor vehicle charge, Case No. 10CRS056618. [ECF Nos. 1 at 8, 1-2 at 34, and 22 at 2]. It appears the other charges were dismissed. See id. The sentence for larceny of a motor vehicle was to run consecutive to the sentence for robbery with a dangerous weapon. [ECF No. 1-2 at 36, 40]. Judge Hugh B. Lewis further recommended the total state sentence run concurrent to the federal sentence. Id. at 37, 40; ECF No. 22 at 4.
On February 6, 2013, Petitioner was sentenced in Rutherford County, North Carolina, to 40 to 57 months for assault with a deadly weapon, Case No. 10CRS53372. [ECF No. 1 at 8, 1-2 at 45, and 22 at 3]. He was credited for 864 days spent in confinement prior to the judgment as a result of the charges. [ECF No. 1-2 at 45]. Judge Gary M. Gavenus noted the sentence was to begin at the expiration of the sentence imposed in Case No. 10CRS056618 and “any sentence which he is currently serving.” [ECF No. 1-2 at 45, 49-50]. Additional charges were dismissed. [ECF Nos. 16-1 at 2 and 22 at 3].
On October 31, 2013, the BOP sent a letter soliciting Judge Reidinger's clarification as to the terms of Petitioner's federal sentence. [ECF No. 16-1 at 2, 57-58]. The letter stated: “Mr. Ussery requests that the Bureau of Prisons (Bureau) designate the state institution in North Carolina for concurrent service of his federal sentence, thereby reducing the total amount of time spent in custody.” [ECF No. 16-1 at 57]. It further explained:
Should the Court indicate the sentence is to run concurrent to the state term, the Bureau will commence the sentence in the above judgment on the date of imposition, which will result in Mr. Ussery's satisfaction of his federal sentence on or about July 17, 2018. Should the Court indicate the term is to run consecutive to the state term, Mr. Ussery's sentence will not be calculated until he completes his state sentence and is released to the federal detainer.Id. at 58. On December 2, 2013, Judge Reidinger responded that it was his intent that Petitioner's federal sentence run consecutive to any state sentence subsequently imposed. [ECF No. 16-1 at 2, 60-61]. He specifically wrote:
Mr. Ussery's Presentence Investigation Report indicates that at the time of his federal sentencing, he had three separate state criminal actions pending, only one of which related to the conduct underlying his federal charge. Accordingly, it was my intention for his federal sentence to run consecutively to any state sentence that was subsequently imposed. It was simply by oversight that this was not included in the judgment.Id. at 60.
Petitioner was paroled by the state of North Carolina on March 31, 2020, and was transferred to federal custody, where he remains. [ECF Nos. 1 at 8, 16-1 at 3, 22 at 3].
Based upon this history, Respondent calculates Petitioner's federal sentence as having commenced on March 31, 2020, the day he was transferred into federal custody for service of the federal sentence. [ECF No. 16-1 at 3]. Respondent states the BOP did not apply any credit for Petitioner's period in custody from September 25, 2010, to March 30, 2020, as that credit was applied to his state sentences. [ECF No. 16-1 at 3]. The BOP calculates Petitioner's current projected release date via Good Conduct Time as November 9, 2025. [ECF No. 16-1 at 1].
Petitioner challenges the BOP's refusal to designate nunc pro tunc the state prison at which he served his state sentence for service of his federal sentence and to credit him for time he served in state custody. [ECF No. 1]. He asserts the BOP should have considered the state court's preference that the sentences be run concurrently. Id. He argues he was ordered “TO SERVE THREE sentences”: “[a] 79-month federal sentence (first sentence)”; “a 67 to 90 month and 8 to 10 month state sentence” to be run “concurrently to the 79-month federal sentence (second sentence)”; and a “40 to 57 month consecutive sentence to be served AFTER completion of the 79-month, 67 to 90 month and 8 to 10 month sentences (third sentence).” [ECF No. 22 at 3-4]. He claims he will actually serve “between 16.2 and 19.8 years when his combined term of imprisonment based on the record should not exceed more than 7.5 years.” ECF No. 1 at 7, 9. He alleges his “sentences have already expired and he should no longer be restrained of his liberty.” Id. at 9. He requests the court issue an order instructing the BOP to immediately release him from federal custody. Id.
II. Discussion
A. Standard for Summary Judgment
Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “[S]ummary judgment will not lie if the dispute about a material fact is ‘genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. At the summary judgment stage, the court must view the evidence in the light most favorable to the non-moving party and draw all justifiable inferences in its favor. Id. at 255. However, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. at 248. The moving party has the burden of proving that summary judgment is appropriate. Once the moving party makes this showing, however, the opposing party may not rest upon mere allegations or denials, but rather must, by affidavits or other means permitted by the Rule, set forth specific facts showing that there is a genuine issue for trial. See Fed.R.Civ.P. 56.
B. Analysis
Respondent does not contest whether Petitioner has exhausted his administrative remedies with respect to these claims. [ECF No. 16 at 2]. Accordingly, the undersigned has addressed Petitioner's claims on their merits.
1. Nunc Pro Tunc Designation
The parties dispute when Petitioner's federal sentence commenced. Petitioner argues the BOP should have granted his request that the state institution be designated nunc pro tunc as the place where he was to serve his federal sentence, effectively causing his federal custody to commence on October 23, 2012, the day it was imposed and crediting time served in state custody towards his federal sentence. [ECF No. 1 at 2, 6-9]. Respondent maintains Petitioner's federal custody did not commence until his release from state custody on March 31, 2020, as the BOP properly denied Petitioner's request that the state facility be designated nunc pro tunc for service of his federal sentence. [ECF No. 16 at 10-11].
Because Petitioner was first arrested by state authorities, the state of North Carolina had primary jurisdiction over him. See United States v. Smith, 812 F.Supp. 368, 371 (E.D.N.Y. 1993) (“In the context of successive criminal prosecutions by different sovereignties, this ‘chief rule which preserves our two systems of court from actual conflict of jurisdiction' means that the sovereignty which first arrests the individual acquires the right to prior exclusive jurisdiction over him, . . . and this plenary jurisdiction is not exhausted until there has been complete compliance with the terms of, and service of any sentence imposed by, the judgment of conviction entered against the individual by the courts of that first sovereignty ....” (quoting In re Liberatore, 574 F.2d 78 (2d Cir. 1978)). Federal authorities borrowed Petitioner from the state pursuant to the Writ and returned him to the state following his sentencing. See United States v. Evans, 159 F.3d 908, 912 (4th Cir. 1998) (holding that the state “retains primary jurisdiction” over a prisoner in state custody who is present in federal court pursuant to a Writ); see also Thomas v. Whalen, 962 F.2d 358, 361 n.3 (4th Cir. 1992) (stating that “[a] prisoner is not even in custody for purposes of [beginning a federal sentence] when he appears in federal court pursuant to a writ ad prosequendum; he is merely ‘on loan' to federal authorities”).
The computation of a federal sentence is governed by 18 U.S.C. § 3585 and is comprised of a two-step determination: first, the date on which the federal sentence commences and, second, the extent to which credit may be awarded for time spent in custody prior to commencement of the sentence. 18 U.S.C. § 3585. A federal sentence cannot commence before it is imposed. See 18 U.S.C. § 3585(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.”); Evans, 159 F.3d at 912 (“A federal sentence does not begin to run, however, when a prisoner in state custody is produced for prosecution in federal court pursuant to a federal writ of habeas corpus ad prosequendum. Rather, the state retains primary jurisdiction over the prisoner, and federal custody commences only when the state authorities relinquish the prisoner on satisfaction of the state obligation.”).
After a district court imposes a sentence, the Attorney General, through the BOP, is responsible for administering the sentence. United States v. Wilson, 503 U.S. 329, 335 (1992). Subject to the provisions in § 3585 and other rules and regulations, authority to determine when a federal sentence commences belongs uniquely to the BOP, subject to federal judicial review under a “deferential abuse-of-discretion standard.” United States v. Hayes, 535 F.3d 907, 909-10 (8th Cir. 2008), cert denied, 556 U.S. 1185 (2009). If the BOP exercises its discretion to designate nunc pro tunc a state detention facility as the place where an inmate will serve his federal sentence, the defendant may receive federal sentencing credit for time served in state prison after the nunc pro tunc designation. See 18 U.S.C. § 3621(b); Evans, 159 F.3d at 911-12. “Where the inmate is subject to both federal and state sentences, the BOP's nunc pro tunc designation can have the effect of running his federal and state sentences concurrently.” Zeigler v. Andrews, C/A No. 5:17-HC- 2044-FL, 2019 WL 6044809, at *3 (W.D. N.C. Nov. 14, 2019) (citing Mangum v. Hallembaek, 824 F.3d 98, 101 (4th Cir. 2015) (“Mangum I”).
Nunc pro tunc designation is addressed in 18 U.S.C. § 3621(b), which provides as follows:
The Bureau may designate [as the place of imprisonment] any available penal or correctional facility that meets minimum
standards of health and habitability established by the Bureau, whether maintained by the Federal Government or otherwise and whether within or without the judicial district in which the person was convicted, that the Bureau determines to be appropriate and suitable, considering-
(1) the resources of the facility contemplated;
(2) the nature and circumstances of the offense;
(3) the history and characteristics of the prisoner;
(4) any statement by the court that imposed the sentence-
(A) concerning the purposes for which the sentence to imprisonment was determined to be warranted; or
(B) recommending a type of penal or correctional facility as appropriate; and
(5) any pertinent policy statement by the Sentencing Commission pursuant to section 994(a)(2) of title 28.18 U.S.C.A. § 3621(b). Courts review challenges to the BOP's nunc pro tunc determination under an abuse of discretion standard. Trowell v. Beeler, 135 Fed.Appx. 590, 593 (4th Cir. 2005) (citing Barden v. Keohane, 921 F.3d 476 (3d Cir. 1990).
In Mangum I, the court considered § 3621(b) and addressed circumstances similar to those presented in Petitioner's case. Like Petitioner, Mangum challenged the BOP's refusal to designate nunc pro tunc a state facility for service of his federal sentence where the state sentencing judge, who imposed a sentence after the federal judge had imposed a sentence, specified the state sentence should be run concurrent to the federal sentence. Id. at 99. As in the instant case, at the time of sentencing, the district judge in Mangum I failed to state whether the petitioner's federal sentence “was to be served concurrently with or consecutively to any other sentence, including his yet-to-be imposed state sentence.” Id. at 100. Like Petitioner, Mangum also served his state sentence and was paroled to a federal detainer. Id. The court in Mangum I explained:
At the time Mangum was sentenced in the North Carolina federal court in May 2007, a federal district judge in this circuit was powerless to impose a federal sentence to be served consecutively to a state sentence that had not yet been imposed. See United States v. Smith, 472 F.3d 222, 225 (4th Cir. 2006) (“The plain language of [§ 3584(a)] does not grant a district court authority to order that its sentence run consecutively to a future sentence.”), abrogated in part by Setser, 132 S.Ct. at 1466, as stated in United States v. Obey, 790 F.3d 545, 549 (4th Cir. 2015). To be sure Setser later resolved a circuit split, holding that, under § 3584(a), a district court “has authority to order that the federal sentence be consecutive to an anticipated state sentence that has not yet been imposed,” see 132 S.Ct. at 1466. Nonetheless, we are confident that any definition of an arbitrary and capricious determination by an administrative agency such as the BOP would include within it the agency's invocation of a presumed intention on the part of a federal sentencing judge to do that which he was powerless to do under binding precedent at the time he imposed a sentence. In this case, one might reasonably expect the BOP to exercise its discretion to weigh heavily what the state judge did say rather than what the federal judge did not and could not say.824 F.3d at 102-03.
After the case was remanded to the district court, the district court provided the BOP an opportunity to reconsider the petitioner's nunc pro tunc request. Mangum v. Hallembaek, 910 F.3d 770, 774 (4th Cir. 2018) (“Mangum II”). The BOP wrote the sentencing judge to obtain clarification as to whether he intended for Mangum's sentence to be run concurrent with or consecutive to his state sentence, and the sentencing judge indicated that, if Mangum had been sentenced in state court prior to his federal court sentencing, he would not have ordered that the sentences be run concurrently. Id. at 774-75. As a result, the BOP again denied Mangum's request for Nunc pro tunc designation. Id. at 775. Mangum filed a motion to compel, which the district court denied, concluding the BOP had properly evaluated the relevant statutory factors under 18 U.S.C. § 3621(b) and had reasonably denied the Nunc pro tunc request. Id. The Fourth Circuit reversed the district court's decision, finding it erred in failing to compel the BOP to evaluate the relevant factors under § 3621(b) in accordance with its mandate. Id. at 776. The court noted the BOP “gave the state court's sentencing views only token consideration,” “characterized as ‘dicta' this Court's instruction that the BOP consider the state court's views and indicated that it ‘has done so in this case' without elaborating on this assertion or otherwise engaging with the state court's clear preference for concurrent sentences.” Id. at 777. It wrote: “Under our mandate, however, the state court's statement was entitled as a matter of law to receive more weight than the federal court's views, which could be given no weight under binding circuit precedent at the time.” Id. at 778 (emphasis in original).
Petitioner claims the BOP erred in soliciting clarification from Judge Reidinger, ECF No. 1 at 9, but the instant case is distinguishable from Mangum II in that Judge Reidinger sentenced Petitioner on October 23, 2012, nearly seven months after the Supreme Court issued its decision in Setser v. U.S., 566 U.S. 231 (2012). Judge Reidinger's preference was not binding on the BOP because he did not include such a provision in the order and judgment. See United States v. Torres, C/A No. 5:14-CR-228-FL-1, 2018 WL 3150678, at *2 (E.D. N.C. June 27, 2018) (“[T]he court has no authority to modify [a] defendant's judgment or otherwise ‘order,' post-judgment, that the sentences run concurrently or consecutively.”) (citing Dillon v. United States, 560 U.S. 817, 824 (2010) (“‘A judgment of conviction that includes a sentence of imprisonment constitutes a final judgment' and may not be modified by a district court except in limited circumstance.'”). However, the BOP did not abuse its discretion as it had in Mangum II by soliciting Judge Reidinger's subsequent input because, unlike the district judge in Mangum II, Judge Reidinger had the power at the time of sentencing to declare Petitioner's sentence consecutive to the not-yet-imposed state sentence. See Cooper v. Batts, 2022 WL 4009862, at *3 (6th Cir. 2022) (finding “[t]he BOP's consultation with the sentencing judge did not constitute error” where the petitioner was sentenced post-Setzer and the sentencing judge failed to specify during the sentencing whether his sentence was to run concurrent with or consecutive to a yet-to-be determined state sentence).
In Kirby v. Andrews, C/A No. 5:17-HC-2014-FL, 2020 WL 365561, at *4 (E.D. N.C. Jan. 22, 2020), the court explained as follows:
Contrary to petitioner's arguments, this action is distinguishable from Mangum I and Mangum II because the federal court sentenced petitioner after the Supreme Court decided Setser. As explained in Mangum II, this timing is significant: Setser abrogated prior Fourth Circuit precedent and held that a federal district court has authority to run a federal sentence concurrent with or consecutive to an anticipated state sentence. Id. at 778 n.6; see also Setser, 566 U.S. 236, 244. Thus, unlike in Mangum II, the federal sentencing court's views were “highly relevant” to the BOP's analysis of petitioner's request for nunc pro tunc designation. See id. 778 n.6. The BOP therefore did not abuse its discretion by relying on the federal sentencing court's clear preference for consecutive sentences ....Here, the state court's preference would not be entitled to greater weight than the federal court's preference, as it was in Mangum I and II, because Petitioner's federal sentence was imposed post-Setser, making Judge Reidinger's opinion “highly relevant.” See id.
The BOP's solicitation of Judge Reidinger's opinion and subsequent decision to deny the Nunc pro tunc request are also consistent with the BOP's policies and procedures. Federal BOP Program Statement 5160.05 § 8 provides: “A designation for concurrent service of sentence will be made only when it is consistent with the intent of the federal sentencing court or the goals of the criminal justice system.”
The question remains whether the BOP was required to consider the state court's preference in evaluating Petitioner's Nunc pro tunc request. See ECF No. 1 at 9 (arguing the BOP abused its discretion by denying the Nunc pro tunc request without considering the state court's “expressed intent for concurrent sentences”). The United States District Court for the Eastern District of North Carolina considered this same argument in Kirby and concluded the BOP had not abused its discretion in failing to consider the state court's preference because the petitioner was sentenced post-Setser. Kirby, 2020 WL 365561, at *4. Kirby appears to have interpreted Mangum I and II as holding the BOP was required to consider the state court's preference in the absence of a relevant opinion from the federal sentencing court. Such an interpretation is supported by Mangum I and II insomuch as they stress the federal district judge was “powerless” to order the federal sentence run concurrent with a not-yet-imposed state sentence and that the BOP should have considered “what the state judge did say rather than what the federal judge did not and could not say.” Mangum II, 910 F.3d at 777 (citing Mangum I at 102, 103) (emphasis in original). The undersigned's research has yielded no case in which a court has found the BOP erred in failing to consider a state court's preference in evaluating a nunc pro tunc request where sentencing occurred post-Setser and the federal sentencing court subsequently expressed its view on the matter. In the absence of further guidance, it is reasonable to limit the pronouncement in Mangum I and II that the BOP must consider the state court's position to circumstances in which the position of the federal sentencing court is “legally irrelevant,” Mangum II, 910 F.3d at 778. See Cooper, 2022 WL 4009862, at *3 (rejecting the petitioner's assertion that the state court recommended his sentences be served concurrently for lack of proof and noting “he would not be entitled to relief because the district court or the BOP determines whether a prisoner receives credit for time served in state custody”) (citing Setser, 566 U.S. at 241)); Winters v. Kallis, 766 Fed.Appx. 393, 396 (7th Cir. 2019) (“As the BOP correctly recognized, a state court has no authority to order that a federal sentence run concurrently to a state sentence.”).
It noted the parties disputed whether the state court had actually ordered the state sentence to run concurrent to the federal sentence, but “assume[d] without deciding” that the state court ordered concurrent sentences. Kirby, 2020 WL 365561, at *2 n.2.
Courts in the Fourth Circuit have recognized that “the views of the sentencing court are but one of the statutory factors for the Bureau of Prisons to consider in evaluating requests for such a Nunc pro tunc designation.” United States v. Clark, C/A No. 7:15-CR-0024, 2020 WL 1892315 (W.D. Va. Apr. 16, 2020) (citing Trowell v. Beeler, 135 Fed.Appx. 590, 595 (4th Cir. 2005) (“While the federal sentencing court may of course express its views on the matter, BOP cannot simply accept these views at face value and accord them controlling weight as a blanket policy. In other words, BOP may not simply defer entirely to the will or the reasoning of the federal sentencing court when faced with an inmate's request for Nunc pro tunc designation.”)).
Here, a review of the § 3621(b) factors worksheet dated December 10, 2013, reflects the BOP denied Petitioner's Nunc pro tunc request after considering and providing some analysis of factors in addition to Judge Reidinger's opinion. Addressing the first factor, the resources of the facility contemplated, the BOP provided: “The inmate is in the primary state custody in North Carolina. (Security Level-Unknown).” [ECF No. 21-1]. With respect to factor 2, the nature and circumstances of the offense, the form lists Petitioner's state and federal offenses and notes: “Federal and State charges are related only on the offense for Assault with Firearm/Deadly Weapon on Company.” Id. In evaluating the third factor, the history and characteristics of the prisoner, the BOP cited Petitioner's prior offenses, as reflected in the Pre-Sentence Investigation Report to include: “Misdemeanor Assault with a Deadly Weapon with Intent to Kill, Felony Assault with a Deadly Weapon on Government Official, Misdemeanor Flee/Elude Arrest with Motor Vehicle, Traffic Offenses, Felony Possession with Intent to Sell and Deliver Cocaine, Misdemeanor Possession of Marijuana Less than 1/2 ounce, Felony Sell/Deliver Cocaine, Petty Larceny, and Driving While Impaired. Id. It further recognized an infraction for fighting with a weapon in Petitioner's state disciplinary records. Id. The BOP considered Judge Reidinger's statement in evaluating the fourth factor, any statement by the court that imposed the sentence. Id. It noted the fifth factor, any pertinent statement issued by the Sentencing Commission, was inapplicable. Id.
The BOP exercises “broad discretion” in evaluating nunc pro tunc requests. Mangum, 910 F.3d at 773. Because the BOP considered all applicable factors under 18 U.S.C. § 3621(b), the undersigned recommends the court find it did not abuse that discretion.
2. Prior Custody Credit
Petitioner argues the BOP should have credited him for all the time he spent in state custody following his federal sentencing, effectively resulting in expiration of his federal sentence prior to his release from state prison. [ECF No. 1 at 9]. This argument is predicated on the notion that the BOP should have granted his request for Nunc pro tunc designation. See id. at 7-9. Respondent maintains Petitioner was not entitled to credit against his federal sentence for time served in state prison because that time was credited toward his state sentences. [ECF No. 16 at 8-9].
Petitioner cites to Gonzalez-Hernandez v. Coakley, 778 Fed.Appx. 245 (4th Cir. 2019), as supporting his argument. In Gonzalez-Hernandez, the court affirmed the district court's determination that the petitioner was not entitled to credit from the date of his federal arraignment, October 15, 2013, to the date of his federal sentencing and entry of judgment, September 18, 2017. Id. However, it concluded that the petitioner “might be eligible for credit for the period of time between entry of his federal judgment and the completion of a previously imposed state sentence on September 22, 2017” because “the court had the discretion to run [his] federal sentence concurrently with the undischarged portion of his state sentence” and even though “the federal criminal judgment was silent on this point, ‘where a conflict exists between an orally pronounced sentence and the written judgment, the oral sentence will control.'” Id. at 245-46 (quoting United States v. Osborne, 345 F.3d 281, 283 n.1 (4th Cir. 2003)).
Petitioner's case does not present the scenario in which the orally-pronounced sentence conflicted with the written judgment as to whether his federal sentence should be run consecutively or concurrently. Neither the federal sentencing transcript nor the federal judgment indicate whether the sentence should be run consecutively or currently. See ECF No. 1-2 at 25-32, 54-59.
Credit for prior custody is governed by 18 U.S.C. § 3585(b), which states:
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 offenses 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.18 U.S.C. § 3585(b). The United States Supreme Court has held that under Section 3585(b), “Congress made clear that a defendant could not receive double credit for his detention time.” Wilson, 503 U.S. at 337; see also United States v. Mojabi, 161 F.Supp.2d 33, 36 (D. Mass. 2001) (holding that “[s]ection 3885(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”).
Petitioner was not credited for federal time between his transfer into federal custody on April 29, 2011, pursuant to the Writ, and his transfer back into state custody following his federal sentencing on October 30, 2012. This time was credited toward Petitioner's state sentences, as the State retained primary jurisdiction over him during this period. See ECF No. 1-2 at 34 (crediting four days for time spent in confinement prior to sentencing in Case No. 10CRS056614) and 45 (crediting 864 days for time spent in confinement prior to sentencing in Case No. 10CRS053372). Petitioner was credited for time against his state sentences from the time of the December 2012 sentencing until he was paroled on March 31, 2020. See ECF No. 1 at 8.
Because all of the time Petitioner served prior to his entry into federal custody on March 31, 2020, was credited toward his state sentences, the undersigned recommends the court find the BOP appropriately determined Petitioner was entitled to no credit prior to this date.
III. Conclusion
For the foregoing reasons, the undersigned recommends the court grant Respondent's motion for summary judgment [ECF No. 16], deny the petition for writ of habeas corpus, and dismiss the petition with prejudice and without an evidentiary hearing.
IT IS SO RECOMMENDED.
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).