Opinion
1:19-cv-64
06-29-2021
DEVIN SMITH, Petitioner v. FCI MCKEAN WARDEN, Respondent
SUSAN PARADISE BAXTER, UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION
RICHARD A. LANZILLO, UNITED STATES MAGISTRATE JUDGE
I. Recommendation
It is respectfully recommended that the petition for a writ of habeas corpus filed by federal prisoner Devin Smith (Petitioner) pursuant to 28 U.S.C. § 2241 be denied.
II. Report
A. Background
On June 2, 2016, Petitioner, while on probation for a prior conviction in the State of Michigan, was arrested by state authorities in Lexington, Kentucky, for criminal conduct involving the possession and distribution of illegal narcotics. ECF No. 9-5 ¶ 3. On July 8, 2016, Petitioner was transferred to Clinton County, Michigan, pursuant to an outstanding warrant for violating the conditions of his probation. Id. ¶ 4. On August 15, 2016, the state court in Michigan revoked Petitioner's probation and sentenced him to a term of between fourteen months and ten years incarceration. Id. ¶ 5. Petitioner received a prior custody credit of 241 days, including the 38 days that he spent in state custody between July 8 and August 15, 2016. Id.
The charges against Petitioner in state court in Kentucky were ultimately dismissed. ECF No. 9-5 ¶ 7.
Based on the same conduct, the United States District Court for the Eastern District of Kentucky issued an indictment on September 1, 2016, charging Petitioner with Possession with the Intent to Distribute Heroin in violation of 21 U.S.C. § 841(a)(1). Id. ¶ 6. Pursuant to a federal writ of habeas corpus ad prosequendum, the United States Marshal Service (USMS) "borrowed" Petitioner from the State of Michigan and transferred him to federal custody for prosecution on October 12, 2016. Id. ¶ 9. Following a guilty plea, the District Court sentenced Petitioner to a 60-month term of imprisonment on May 24, 2017. Id. ¶ 10. Notably, the judgment entered in Petitioner's federal case did not indicate that the federal sentence should run concurrently with any other term of imprisonment. ECF No. 9-13.
On June 15, 2017, federal authorities returned Petitioner to the State of Michigan. ECF No. 9-5 ¶ 11. On July 6, 2017, Petitioner paroled from his Michigan term of imprisonment and was released to the exclusive custody of the United States Marshal Service to begin serving his federal sentence. Id. ¶ 12.
The instant petition for writ of habeas corpus, filed pursuant to 28 U.S.C. § 2241, challenges the BOP's calculation of his federal release date. Petitioner contends that the BOP should have exercised its discretion to retroactively provide Petitioner with custody credit for the time that he spent in state custody pursuant to the Court of Appeals for the Third Circuit's decision in Bar den v. Keohane, 921 F.2d 476 (3d Cir. 1991). See ECF No. 3.
Under § 2241, district courts have authority to grant habeas corpus "within their respective jurisdictions." Petitioner is confined at FCI McKean, which is located within the territorial boundaries of the Western District of Pennsylvania.
B. Analysis
For federal prisoners, 28 U.S.C. § 2241 confers habeas jurisdiction over an inmate's challenge to the execution - as opposed to the validity - of his sentence. Car dona v. Bledsoe, 681 F.3d 533, 535 (3d Cir. 2012). Two types of claims may ordinarily be litigated in a § 2241 proceeding. First, a prisoner may challenge conduct undertaken by the Federal Bureau of Prisons (the "BOP") that affects the duration of his custody. For example, a prisoner can challenge the BOP's computation of his federal sentence, see, e.g., Barden v. Keohane, 921 F.2d 476, 478-79 (3d Cir. 1990), or the constitutionality of a BOP disciplinary action that resulted in the loss of good conduct sentencing credits, Queen v. Miner, 530 F.3d 253, 254 n.2 (3d Cir. 2008). Secondly, a prisoner can challenge BOP conduct that "conflicts] with express statements in the applicable sentencing judgment." Cardona, 681 F.3d at 536; Woodall, 432 F.3d at 243. Because the allegations in the instant habeas action challenge the BOP's computation of Petitioner's federal sentence, this Court has jurisdiction under § 2241 to consider Petitioner's claim.
In the instant case, Petitioner does not appear to dispute that his federal sentence commenced on July 6, 2017, or that he initially received credit for all prior time served in state custody that was not credited against another sentence. Rather, he maintains that the BOP abused its discretion by denying his nunc pro tunc request to have the time that he served in state custody credited against his federal sentence. Petitioner relies on the Third Circuit's decision in Barden, in which the Court of Appeals held that 18 U.S.C. § 3621(b) provides the BOP with discretionary authority to designate a state institution for service of an inmate's federal sentence nunc pro tunc. Barden, 921 F.2d at 477-78, 483. For Barden to apply, the defendant must have been “in non-federal primary custody at the time the federal sentence was imposed, and the federal sentencing court [must have been] silent as to its intent to run the federal sentence concurrently with the non-federal sentence." McCarthy v. Warden, 2013 WL 3943551, at *3 (M.D. Pa. July 29, 2013) (citing 18 U.S.C. § 3621). Under such circumstances, "the prisoner may ask the BOP to exercise its discretion pursuant to 18 U.S.C. [§] 3621(b) to designate the state prison as the place of imprisonment for the federal sentence, effectively making the sentences concurrent." Id. See also Setser v. United States, 566 U.S. 231, 234-36 (2012); Barden, 921 F.2d at 477-78.
In considering such a request, the BOP has a duty to apply the following § 3621(b) factors: "(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 ... (5) any pertinent policy statement issued by the Sentencing Commission[.]" Allen v. Warden McKean FCI, 701 Fed.Appx. 80, 83 n. 8 (3d Cir. 2017) (quoting 18 U.S.C. § 3621(b)). The BOP adduces the intent of the sentencing court by reviewing "the judgment of convictions, as well as federal and state sentencing data." See Prescod v. Schuylkill, 630 Fed.Appx. 144, 147 (3d Cir. 2015). If the BOP's determination affects the duration of a prisoner's sentence, the BOP's decision is subject to habeas corpus review for abuse of discretion. Bar den, 921 F.2d at 478-79.
Applying these standards to the instant § 2241 motion, Petitioner has failed to demonstrate that the BOP abused its discretion with respect to his request for a nunc pro tunc designation to a state institution. The administrative record indicates that the BOP declined Petitioner's request for a concurrent designation because "the sentencing court was aware of the undischarged term of imprisonment in the state of Michigan" but chose to remain silent as to whether the federal sentence would run concurrently or consecutively. ECF No. 3 at 8. Under such circumstances, "the BOP did not act unreasonably by treating the sentencing judge's silence as counseling against concurrency." Allen, 701 Fed.Appx. at 83 (citing 18 U.S.C. § 3584(a) ("Multiple terms of imprisonment imposed at different times run consecutively unless the court orders that the terms are to run concurrently."). Nor has Petitioner alleged, must less demonstrated, that the BOP abused its discretion with respect to any of the other § 3621(b) factors. In short, there is no evidence that Petitioner's federal sentence was intended to run concurrently with his state sentences or that the BOP improperly failed to designate the Michigan state prison as the place of service of his federal sentence nunc pro tunc. Because the BOP did not abuse its discretion, Petitioner's petition for writ of habeas corpus should be denied.
III. Conclusion
For the foregoing reasons, it is respectfully recommended that Petitioner's petition for a writ of habeas corpus be denied.
Because "[f]ederal prisoner appeals from the denial of a habeas corpus proceeding are not governed by the certificate of appealability requirement," the Court need not make a certificate of appealability determination in this matter. Williams v. McKean, 2019 WL 1118057, at *5 n, 6 (W.D. Pa. Mar. 11, 2019) (citing United States v. Cepero, 224 F.3d 256, 264-65 (3d Cir. 2000), abrogated on other grounds by Gonzalez v. Thaler, 565 U.S. 134 (2012)); 28 U.S.C. § 2253(c)(1)(B).
IV. Notice
In accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72, the parties may seek review by the district court by filing Objections to the Report and Recommendation within fourteen (14) days of the filing of this Report and Recommendation. Any party opposing the objections shall have fourteen (14) days from the date of service of Objections to respond thereto. See Fed. R. Civ. P. 72(b)(2). Failure to file timely objections may constitute a waiver of appellate rights. See Brightwell v. Lehman, 637 F.3d 187, 194 n.7 (3d Cir. 2011); Nara v. Frank, 488 F.3d 187 (3d Cir. 2007).