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Hogge v. Wilson

United States District Court, E.D. Virginia, Richmond Division

January 20, 2015

THOMAS KEVIN HOGGE, Petitioner,
v.
ERIC WILSON, Respondent.

REPORT AND RECOMMENDATION

RODERICK C. YOUNG, Magistrate Judge.

Thomas Kevin Hogge, a federal inmate proceeding pro se, filed this petition for habeas corpus under 28 U.S.C. § 2241 (hereinafter "§ 2241 Petition, " ECF No.1). The matter is before the Court for a Report and Recommendation pursuant to 28 U.S.C. § 636(b). Hogge contends that the Bureau of Prisons(hereinafter "BOP") has improperly calculated his federal sentence. Specifically, Hogge argues;

Claim One: The BOP has improperly calculated the starting date of his federal sentence, and consequently, has increased the amount of time he must serve.

Claim Two: The Court should designate his sentence nunc pro tune.

Respondent has moved for summary judgment on the ground that Hogge's claims lack merit (ECF No. 7). Hogge has filed a Response (ECF No. 10). For the reasons that follow, it is RECOMMENDED that summary judgment be GRANTED and the § 2241 Petition be DISMISSED because the BOP has properly calculated his sentence and a nunc pro tune designation is not warranted.

A. Standard for Summary Judgment

Summary judgment must be rendered "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). It is the responsibility of the party seeking summary judgment to inform the Court of the basis for the motion, and to identify the parts of the record that demonstrate the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). "[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the pleadings, depositions, answers to interrogatories, and admissions on file." Id. at 324 (internal quotation marks omitted). When the motion is properly supported, the nonmoving party must go beyond the pleadings and, by citing affidavits or "depositions, answers to interrogatories, and admissions on file, ' designate specific facts showing that there is a genuine issue for trial.'" Id. (quoting former Fed.R.Civ.P. 56(c) and 56(e)(1986)).

In reviewing a summary judgment motion, the Court "must draw all justifiable inferences in favor of the nonmoving party." United States v. Carolina Transformer Co., 978 F.2d 832, 835 (4th Cir. 1992) (citing Anderson v. Liberty Lobby, Inc., All U.S. 242, 255 (1986)). However, a mere scintilla of evidence will not preclude summary judgment. Anderson, 477 U.S. at 251 (citing Improvement Co. v. Munson, 81 U.S. (14 Wall.) 442, 448 (1872)). "[T]here is a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury could properly proceed to find a verdict for the party... upon whom the onus of proof is imposed.'" Id. (quoting Munson, 81 U.S. at 448). Additionally, "Rule 56 does not impose upon the district court a duty to sift through the record in search of evidence to support a party's opposition to summary judgment.'" Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994) (quoting Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915 & n.7 (5th Cir. 1992)); see Fed.R.Civ.P. 56(c)(3) ("The court need consider only the cited materials....").

In support of his Motion for Summary Judgment, Defendant submits: (1) the Declaration of Forest B. Kelly, a Correctional Program Specialist at the Designation and Sentence Computation Center in Grande Prairie, Texas (Mem. Supp. Mot. Summ. J. Ex. 1("Kelly Decl."), ECF No. 8-1); (2) copies of state court records relating to Hogge's Virginia state convictions and sentences (Kelly Decl. Attach 1-3, 6); (3) records relating to Hogge's federal conviction ( id. Attach. 4-5); (4) relevant portions of the BOP Program Statement 5880.28, Sentence Computation Manual (CCA of 1984) ( id. Attach. 7, 10-12);[1] and, (5) Hogge's BOP sentence computation records ( id. Attach. 9, 13).

Hogge has responded and attached several exhibits pertaining to his sentence calculation. In light of the foregoing principles and submissions, the following facts are established for purposes of the Motion for Summary Judgment. The Court draws all permissible inferences in favor of Hogge.

B. Summary of Pertinent Facts

The Court notes at the outset that both the BOP's methodology and the Respondent's explanation of how the BOP is executing Hogge's sentence are difficult to follow. Nevertheless, in the end, and affording the appropriate deference to the BOP, the Court determines that the BOP's calculation results in a fair and equitable sentence in accordance with the governing statutes and the Sentencing Court's intent in imposing Hogge's sentence.

1. Hogge's Sentences

The following facts are largely undisputed by Hogge. In 1998 and 1999, Hogge amassed convictions in at least four Virginia state courts for various firearm, fraud, larceny, forgery, and traffic offenses. (Kelly Decl. ¶¶ 5-10.) On June 28, 1999, while in the primary custody of Virginia state authorities, Hogge was transferred into custody of the United States Marshals Service pursuant to a writ of habeas corpus ad prosequendum. (Kelly Decl. Attach. 4, at 1; see Kelly Decl. ¶ 11.) On February 18, 2000, the United States District Court for the Western District of Virginia (hereinafter "Sentencing Court") convicted Hogge of three counts of possession of a firearm after a felony conviction and sentenced him to 96 months of incarceration on each count to run concurrently. (Kelly Decl. Attach. 5, at 1-2.) The Sentencing Court ordered that 48 months of the sentence run concurrent with Hogge's undischarged state sentence, ...


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