United States District Court, E.D. Virginia, Alexandria Division
T. S. ELLIS, III, District Judge.
Wayne Wheelock, a federal inmate housed in the Eastern District of Virginia and proceeding pro se, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, challenging the calculation of his sentence by the Bureau of Prisons ("BOP"). Respondent has filed a motion for summary judgment, with a supporting memorandum and exhibits. Petitioner was given the opportunity to file responsive materials, pursuant to Roseboro v. Garrison , 528 F.2d 309 (4th Cir. 1975), and he filed a reply. Thereafter, respondent filed a reply memorandum of law.
Because the facts and legal arguments are fully set forth in the existing pleading and record oral argument is not necessary. Accordingly, the matter is now ripe for disposition. For the reasons that follow, respondent's motion for summary judgment must be granted, and thus judgment will he entered in respondent's favor.
The following material facts are uncontroverted. Pet.'r's Reply 1 ("Petitioner, Wayne Wheelock, hereby adopts and accepts the respondents statement of the case as his own."). On October 2, 2009, petitioner was arrested by the U.S. Marshals Service ("USMS") for failing to register and update a registration as a sex offender. Resp. Mot. Summ. J. attach 1. On October 5, 2009, after petitioner's federal detention hearing was held, petitioner was turned over to tribal custody to address outstanding tribal warrants. Id . attach 3. On October 7, 2009, a writ of habeas corpus ad prosequendum was issued to the Warden of the Menominee Tribal Jail, for petitioner's appearance at his federal preliminary bearing set for October 15, 2009. Id. at 3. The USMS picked petitioner up on October 15, 2009, transported him to federal court for his hearing, and returned him to the tribal jail that same day. Id . attach 5. On October 16, 2009, the Menominee Indian Tribal Court revoked petitioner's probation and ordered that his stayed sentence of 150 days would go into effect immediately, presumably for his failure to register as a sex offender. See id. attach. 6.
On October 27, 2009, petitioner was indicted on one count of sexual abuse of a minor and one count of failing to register and update registration in the United States District Court for the Eastern District of Wisconsin. Id . attachs. 7, 8. Pursuant to a writ of habeas corpus ad prosequendum issued October 28, 2009, petitioner appeared for his arraignment hearing on October 29, 2009 and was returned to the tribal jail that same day. Id . attach. 9. On October 30, 2009, petitioner escaped from the custody of tribal authorities. Id. at 4. He was apprehended the following day and returned to the Menominee Tribal Jail. Id.
On November 2, 2009, petitioner completed his 150 day sentence that was imposed when he violated his probation and continued to be held in the Menominee Tribal Jail on pending tribal charges of disorderly conduct, three counts of assault, battery, abduction, and a violation of the Sex Offender Registration and Notification Program. That same day, the USMS picked up petitioner, again pursuant to a writ of habeas corpus ad prosequendum. and kept him in temporary custody pending the outcome of his federal criminal case. On March 19, 2010, petitioner plead guilty to sexual abuse of a minor, failure to register as a sex offender, and conspiracy to assault a federal law enforcement officer and was sentenced to 96 months in prison. Id . attach. 15.
Petitioner was then returned to tribal authorities on March 25, 2010, and the federal judgment was lodged as a detainer. Id . attachs. 16, 17. On June 2, 2010, petitioner was sentenced to serve twenty days in jail for violating the Sex Offender Registration and Notification Program. Id . attach. 12. On June 30, 2010, petitioner plead guilty to two counts of assault and one count of battery. Id . attach. 13. He was sentenced to a 20-day term on one count of assault; a 30-day term on the other count of assault; and a 6-month term on the battery count, including three months stayed. Id . Petitioner received credit for time served on his tribal sentence. On July 2, 2010, petitioner completed service of his tribal sentences and was transferred to the primary custody of the USMS for service of his 96-month federal sentence. Id. at 5.
Petitioner received a prior custody credit of four days on his federal sentence, for the time he was held in primary federal custody from October 2-5, 2009, prior to his release to the custody of tribal authorities. Id . Petitioner was not granted prior custody credit for any of the time he spent in USMS custody pursuant to the writs of habeas corpus ad prosecmendum, approximately four and a half months. Id. at 6. He was also not given prior custody credit for the time during which he escaped from tribal custody, from October 30 through October 31, 2009. Id . The Bureau of Prisons (BOP") also considered and ultimately rejected petitioner's request for a nunc pro tunc designation of his tribal jail as his place of imprisonment for purposes of his federal sentence, "after considering all of (he relevant factors under 18 U.S.C. § 3621(b):" Id. at 6-7.
Petitioner and respondent agree that petitioner exhausted his administrative remedies through BOP's Administrative Remedy Program. Petitioner then turned to the federal forum and filed the instant petition for habeas corpus relief under § 2241, requesting that this Court enter an Order directing BOP to grant him credit for time spent in "official detention from October 5, 2009 to January 4, 2011." Typed Pet. 1. Accordingly, this matter is now ripe for review on the merits.
II. Standard of Review
Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party bears the burden of proving that judgment on the pleadings is appropriate. See Celotex Corp. v. Catren , 477 U.S. 317, 323 (1986) (moving party bears the burden of persuasion on all relevant issues). To meet that burden, the moving party must demonstrate that no genuine issues of material fact are present for resolution. Id. at 322. Once a moving party has met its burden to show that it is entitled to judgment as a matter of law, the burden then shifts to the non-moving party to point out the specific facts which create disputed factual issues. Anderson v. Liberty Lobby. Inc. , 477 U.S. 242, 248 (1986); Matsushita Electrical Industrial Co. v. Zenith Radio Corp. , 475 U.S. 574, 587 (1986). In evaluating a motion for summary judgment, a district court should consider the evidence in the light most favorable to the non-moving party and draw all reasonable inferences from those facts in favor of that party. United States v. Diebold. Inc. , 369 U.S. 654, 655 (1962). Those facts for which the moving party bears the burden of proving are facts which are material. "[Title substantive law will identify which facts are material. Only disputes over facts which might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson , 477 U.S. at 248. An issue of material fact is genuine when, "the evidence... create[s] (al fair doubt; wholly speculative assertions will not suffice." Ross v. Communications Satellite Corp. , 759 F.2d 355, 364 (4th Cir. 1985). Thus, summary judgment is appropriate only where no material facts are genuinely disputed and the evidence as a whole could not lead a rational fact finder to rule for the non-moving party. Matsushita , 475 U.S. at 587.
"Challenges to the execution of a federal sentence are properly brought under 28 U.S.C. § 2241." U.S. v. Little , 392 F.3d 671, 679 (4th Cir. 2004). As such, a "request for ...