Opinion
C/A 5:20-2866-HMH-KDW
04-29-2021
Sultan Adnan Al-Bizri, Petitioner, v. Nanette Barnes, FCI Bennettsville Warden, Respondent.
REPORT AND RECOMMENDATION
Kaymani D. West Florence, South Carolina United States Magistrate Judge.
Sultan Adnan Al-Bizri (“Petitioner”), proceeding pro se, filed the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. This matter is before the court pursuant to 28 U.S.C. § 636(b)(1)(B), and Local Civil Rule 73.02(B)(2)(c) DSC, for a Report and Recommendation on Respondent's Motion for Summary Judgment. ECF No. 20. On October 13, 2020, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Petitioner of the Summary Judgment Motion, dismissal procedures, and the possible consequences if he failed to respond adequately to Respondent's Motion. ECF No. 21. After receiving an extension, ECF No. 24, Petitioner filed a Response in Opposition to Respondent's Motion for Summary Judgment on December 14, 2020. ECF No. 26.
Having carefully considered the parties' submissions and the record in this case, the undersigned recommends that Respondent's Motion for Summary Judgment, ECF No. 20, be granted, and this Petition be denied.
I. Factual and Procedural Background
Petitioner is currently confined at the Federal Correctional Institution Bennettsville in the custody of the Federal Bureau of Prisons (“BOP”). He is serving a 120-month term of imprisonment. Petitioner filed the instant habeas petition challenging the execution of his federal sentence and requesting his sentence be credited with the 453 days he served in state custody. ECF No. 1.
In support of the summary judgment motion, Respondent offers the affidavit of Jan Stopps (“Stopps”), a Correctional Programs Specialist at the Designation and Sentence Computation Center in Grand Prairie, Texas. ECF Nos. 20-1 at 2-4; 20-2 at 1-3. Stopps attests Petitioner was arrested by local Texas authorities on January 29, 2010, for unlawful possession of a firearm, aggravated assault causing bodily injury, possession with intent to deliver a controlled substance, and possession of marijuana. ECF No. 20-2 at 2. Stopps states the United States Marshals Service (“USMS”) temporarily removed Petitioner from state custody pursuant to a federal writ of habeas corpus ad prosequendum on June 16, 2010. Id. at 2, 37. Petitioner was sentenced in the United States District Court for the Northern District of Texas on November 19, 2010, to 120-months imprisonment for felon in possession of a firearm. Id. at 46-47. Stopps attests Petitioner was returned to state custody on November 29, 2010. Id. at 2. Petitioner was sentenced in Texas state court on April 21, 2011, to fourteen years incarcerated for aggravated assault; the remaining state charges were dismissed. Id. at 2, 33. The state court began Petitioner's sentence on January 29, 2010, the date of his original arrest. Id. at 33. Petitioner was released on bond to the USMS to begin serving his federal sentence on April 28, 2011. Id. at 29, 39, 59.
The BOP completed a sentence computation for Petitioner and commenced his 120- month sentence on April 28, 2011. Id. at 16. In 2013, the BOP reviewed Petitioner's sentence computation in response to Petitioner's request that the Texas state facility where Petitioner was detained be designated nunc pro tunc as the initial place for service of his federal felon-in-possession sentence. Id. at 77-78. In response to this request, the BOP sent a letter to Petitioner's federal sentencing court on September 19, 2013, asking the sentencing judge's position concerning a retroactive designation. Id. On September 30, 2013, Petitioner's sentencing judge sent a response stating his intent was for the federal sentence to run consecutive to the state sentence. Id. at 80. The BOP completed a review of Petitioner's nunc pro tunc request evaluating the factors under 18 U.S.C. § 3621(b) and denied Petitioner's request for a retroactive designation. Id. at 83.
Petitioner filed a second request for a nunc pro tunc designation asking the BOP to give him prior custody credit from: (a) January 29 to June 16, 2010, the time he spent in state custody on related charges, and (b) June 16, 2010, to April 28, 2011, the time he spent in state custody while on a federal writ. ECF No. 1-2 at 2. Petitioner was informed that the Designation and Sentence Computation Center (“DSCC”)/Barden review completed a review of his nunc pro tunc retroactive designation request, and his request was denied, and that subsequent direction from the sentencing court further supported the DSCC's position in the matter. ECF No. 1-3 at 4, 11.
Petitioner filed the instant petition challenging the manner in which he is serving his federal sentence and asking the court to order the BOP to give him credit for time he served in state custody. ECF No. 1-1.
II. Discussion
A. Standard for Summary Judgment
The court shall grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a). The movant bears the initial burden of demonstrating that summary judgment is appropriate; if the movant carries its burden, then the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If a movant asserts that a fact cannot be disputed, it must support that assertion either by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials;” or “showing . . . that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1).
In considering a motion for summary judgment, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). 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. Further, while the federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case, see, e.g., Cruz v. Beto, 405 U.S. 319 (1972), the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts that set forth a federal claim, nor can the court assume the existence of a genuine issue of material fact when none exists. Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990).
B. Analysis
1. Prior Custody Credit
Petitioner seeks an adjustment to his 120-month sentence based on the time he spent in federal custody on a writ of habeas corpus ad prosequendum to answer and be sentenced for his instant federal offense. ECF No. 1. Respondent contends summary judgment should be granted on this claim because Petitioner's federal sentence did not commence until April 28, 2011, the day Petitioner was received from state authorities into exclusive federal custody. ECF No. 20-1 at 6- 7. Moreover, Respondent argues Petitioner is not entitled to any prior custody credit because his state sentence began on January 29, 2010, the date of his initial arrest, and continued to run until he was released to federal custody on April 28, 2011. Id. at 8-9. Respondent states all Petitioner's potentially creditable prior time in custody was credited against his state sentence, and therefore none of that time may be credited against this federal sentence. Id. at 9.
In response, Petitioner acknowledges that BOP's program statement 5880.28 and 18 U.S.C. § 3585(b) prevent him from receiving credit for time credited against another sentence. ECF No. 26 at 4. Petitioner, however, claims he is entitled to credit toward his federal sentence via an adjustment pursuant to U.S.S.G § 5G1.3(b) and the relevant conduct enhancements he received based upon the related state offense. Id. In further support of his request for prior custody credit, Petitioner argues he is entitled to a sentencing adjustment in accordance with the federal sentencing guidelines. Id. at 5. Petitioner contends the sentencing court erred in failing to give him credit for the time he served in state custody on relevant conduct, arguing the court improperly considered the conduct he committed in his state case in arriving at the 120-month term of imprisonment. Id. at 5-6. Petitioner also claims the sentencing court improperly imposed an upward variance based on Petitioner's “relevant conduct state offense.” Id. at 7. Petitioner alleges he is entitled to a 453-day adjustment towards his federal sentence under U.S.S.G. § 5G1.3. Id. at 5-7.
Pursuant to 18 U.S.C. § 3585(b), the BOP is responsible for determining the beginning date of the prisoner's sentence and calculation of a release date giving the prisoner credit for pretrial custody. See United States v. Wilson, 503 U.S. 329, 332 (1992); Henderson v. Owen, No. 3:08-3220-HMH-JRM, 2009 WL 1254031, at *3 (D.S.C. May 1, 2009) aff'd, 333 Fed.Appx. 713 (4th Cir. 2009). “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.” See 18 U.S.C. § 3585(a).
Here, Texas retained primary custody over Petitioner after he was produced pursuant to a writ of habeas corpus ad prosequendum. See United States v. Evans, 159 F.3d 908, 912 (4th Cir. 1998) (explaining that producing a state prisoner under a writ of habeas corpus ad prosequendum to answer federal charges does not relinquish state custody). Under § 3585(b), prior custody credits may only be granted in this case for the time Petitioner spent in federal detention for which he did not receive credit towards another sentence. Because Petitioner received sentencing credit for all the time he spent in state custody, the undersigned finds that under § 3585 the BOP properly refused Petitioner's request for prior custody credit. The undersigned recommends the court deny Petitioner's habeas claim seeking relief on this ground.
The undersigned further finds Petitioner's challenge to errors made by the sentencing court, as opposed to the BOP's implementation of his sentence, is inappropriate for a § 2241 petition. A challenge to a sentence imposed by the sentencing court must be made under 28 U.S.C. § 2255. Unless a § 2255 motion would be “inadequate or ineffective, ” a habeas corpus petition cannot be entertained by a court. 28 U.S.C. 2255(e). Petitioner has not shown and it does not appear that there is any basis for concluding that § 2255 is inadequate or ineffective to test the legality of Petitioner's detention. Accordingly, the undersigned recommends Petitioner's challenge to his sentence under U.S.S.G § 5G1.3 be dismissed.
2. Nunc Pro Tunc Designation
Petitioner claims the BOP did not properly evaluate his request for nunc pro tunc designation. ECF No. 26 at 7-15. Petitioner argues the BOP abused its discretion when it based its denial of his nunc pro tunc request on the sentencing judge's written statement of intent, as well as when it failed to analyze the statutory factors properly, correctly, and independently. Id. at 8. Specifically, Petitioner argues the BOP improperly deferred to the sentencing court's delayed statement of intent that the judge intended to impose a consecutive sentence when denying Petitioner's nunc pro tunc designation request. Id.
Respondent argues the BOP properly declined to make a nunc pro tunc designation because doing so would contravene the federal sentencing court's stated intent that the sentence it imposed should be consecutive to a state sentence. ECF No. 20-1 at 9-10. Respondent also states the BOP also considered all the factors in § 3621(b), finding none weighed in favor of a nunc pro tunc designation. Id. at 10. Respondent contends Petitioner's argument that the sentencing court lacked authority to order its sentence to run consecutively to a later imposed state sentence turns on a mistaken premise about the sentencing court's authority. Id. Respondent cites to Setser v. United States, 566 U.S. 231, 237 (2012), and explains that the sentencing court properly stated its intent, and the BOP properly considered the statement in its analysis. Id. Respondent argues the BOP acted within its discretion in considering whether Petitioner should get a nunc pro tunc designation. Id. at 11.
In compliance with 18 U.S.C. § 3621, the BOP conducted a review of Petitioner's federal sentence under Barden v. Keohane, 921 F.2d 476 (3rd Cir. 1990), for a nunc pro tunc designation. See ECF No. 20-2 at 2, 83. A nunc pro tunc designation is a method whereby the BOP retroactively designates a state facility as the official place of imprisonment for a prisoner who has served or is serving time in state custody, thereby running the state and federal sentences concurrently. Jefferson v. Berkebile, 688 F.Supp.2d 474, 487 (S.D. W.Va. 2010) (citation omitted).
Here, the record reflects that the BOP reviewed Petitioner's request for nunc pro tunc designation under the five factors stated in § 3621(b), and found Petitioner should not be granted a nunc pro tunc designation. See ECF No. 20-2 at 2, 83. The undersigned finds the BOP's denial was not an abuse of discretion. See Heddings v. Garcia, No. 11-1346, 2012 WL 3186477, *2-3 (10th Cir. Aug. 7, 2012) (explaining the BOP did not abuse its discretion in denying request for nunc pro tunc designation where federal court stated, post-judgment, that it was “absolutely opposed, ” and where the BOP also relied on the nature of the offenses and the presumption of consecutive sentences in 18 U.S.C. § 3584(a)); Lee v. Wilson, No. 1:11cv981, 2012 WL 3069407, at *9 (E.D. Va. July 26, 2012) (upholding BOP's refusal to grant credit where federal court judge was asked and responded that he thought the sentences should run concurrently, and where the presumption in 3584(a) led to consecutive sentences, and where the BOP properly considered the other factors in § 3621(b)). The undersigned finds Petitioner's challenge to the denial of his request for nunc pro tunc designation lacks merit and recommends the court dismiss this claim.
III. Conclusion and Recommendation
Based upon the foregoing, the undersigned recommends that Respondent's Motion for Summary Judgment, ECF No. 20, be GRANTED and the Petition be DENIED.
IT IS SO RECOMMENDED