United States District Court, Eastern District of Virginia, Richmond Division
Dated John A. Gibney, Jr. States District Judge
Terrell Anthony Hargrove, a federal inmate proceeding pro se and in forma pauperis, submitted this 28 U.S.C. § 2241 petition (hereinafter "§ 2241 Petition, " ECF No. 1), in which he alleges that he is entitled to credit for "Willis" time, which arises from the holding in Willis v. United States, 438 F.2d 923, 925 (5th Cir. 1971). The matter is before the Court for evaluation of Respondent's Motion to Dismiss, or, in the Alternative, for Summary Judgment (hereinafter "Motion for Summary Judgment, " ECF No. 7).
A. Standard for Receiving Credit for “Willis" Time Served
While 18 U.S.C. § 3585(b)(2) bars crediting a federal prison term with time already counted toward another sentence, the Fifth Circuit in Willis created an exception recognized by the Bureau of Prisons (hereinafter "BOP"). Winston v. Stansberry, No. 3:10CV631, 2011 WL 2693383, at *2 (E.D. Va. July 11, 2011) (citing Willis, 438 F.2d at 925), affd,
472 F.App'x 199 (4th Cir. 2012). Under Willis, the BOP grants prior custody credit, even if it results in "double-credit" toward a state sentence, when two conditions are met: (1) a prisoner's state and federal sentences run concurrently; and, (2) the federal sentence full term release date is equal to or greater than the state sentence full term release date. Id. (citing Willis, 438 F.2d at 925). Under these conditions, the BOP credits the federal sentence for time spent in state pre-sentence custody that begins on or after the date of the federal offense, and runs to the imposition of the first sentence. Id. Pursuant to this policy, prisoners sentenced to concurrent terms of imprisonment for state and federal charges, for whom credit towards the state sentence ultimately fails to reduce the duration of their incarceration due to the longer concurrent federal sentence, may receive federal credit towards their sentence for that time in non-federal pre-trial custody.
B. Procedural History
On November 20, 2003, a judge in the Circuit Court for the County of Chesterfield (hereinafter "Circuit Court") sentenced Hargrove to five years and four months' imprisonment, with all but four months suspended, for eluding police. See Commonwealth v. Hargrove, No. CR03F00352-01 (Va. Cir. Ct. Nov. 20, 2003). The Court also imposed a five-year term of probation. Id.
On November 5, 2005, while Hargrove was on probation for the November 2003 Chesterfield conviction, members of the Richmond Police Department and Federal Bureau of Investigation executed a search warrant, recovering a firearm and 17.7 grams of cocaine base from Hargrove's safe. (Statement of Facts ¶ 2-3, United States v. Hargrove, No. 3:06CR26 (E.D. Va. filed May 1, 2006); Criminal Complaint Affidavit ¶¶ 3-6, United States v. Hargrove, No. 3:06CR26 (E.D. Va. filed Nov. 7, 2005).) State authorities initiated criminal charges for probation violation, possession of a controlled substance, possession of marijuana with intent to distribute, possession of a firearm by a felon, and possession of a firearm while possessing drugs. (Resp't's Mem. Supp. Mot. Summ. J. Ex. 1 ("Kelly Declaration") ¶ 6 (citations omitted), ECF No. 8-1.) The state dismissed all charges except for the probation violation. (Id.) On February 21, 2006,  the Circuit Court found that Hargrove had violated the terms of his probation, and sentenced Hargrove to four years and eight months imprisonment for Hargrove's probation violation, with all but eight months suspended. See Commonwealth v. Hargrove, No. CR03A00352-01 (Va. Cir. Ct. Feb. 21, 2006).
Based upon the conduct leading to Hargrove's November 5, 2005 arrest, a federal grand jury indicted him on one count of conspiracy to distribute and possession with intent to distribute cocaine base (Count One), possession of firearm in furtherance of drug trafficking crime (Count Two), and possession of a firearm by a convicted felon (Count Three). Indictment, United States v. Hargrove, No. 3:06CR26 (E.D. Va. filed Jan. 17, 2006). On May 1, 2006, Hargrove pled guilty, pursuant to a plea agreement, to Counts One and Two. Plea Agreement ¶ 1, United States v. Hargrove, No. 3:06CR26 (E.D. Va. filed May 1, 2006). On July 11, 2006, the Court sentenced Hargrove to 84 months of imprisonment for Count One, and 60 months of imprisonment for Count Two, to be served consecutively. Judgment at 2, United States v. Hargrove, No. 3:06CR26 (E.D. Va. July 11, 2006). The Court held that this sentence would "run concurrent to the sentence imposed on February 21, 2006 in the Circuit Court for Chesterfield County, Virginia." Id.
On June 16, 2008, the Court granted Hargrove's Motion for Retroactive Application of Sentencing Guidelines to a Crack Cocaine Offense pursuant to 18 U.S.C. § 3582, and reduced Hargrove's sentence for Count One to 70 months. Order Granting Motion to Reduce Sentence, United States v. Hargrove, No. 3:06CR26 (E.D. Va. filed June 16, 2008). On January 5, 2012, the Court granted an additional 18 U.S.C. § 3582 Motion, reducing Hargrove's sentence for Count One to 60 months. Order Granting Motion to Reduce Sentence, United States v. Hargrove, No. 3:06CR26 (E.D. Va. filed Jan. 5, 2012). Hargrove's current total sentence for Counts One and Two is 120 months.
The Court received Hargrove's § 2241 Petition on January 28, 2014. On July 3, 2014, Respondent filed a "Motion for Summary Judgment." On July 23, 2014, the Court received from Hargrove a Response to the Respondent's Motion (hereinafter "Petitioner's Response, " ECF No. 10).
C. Summary of Hargrove's Claims
Hargrove contends that "pursuant to Willis v. United States, 438 F.2d 923 ..., this Court must issue and order ... the Respondent [to credit] all time entitled to this petitioner, under Willis Time Credit, because petitioner was, and currently still is, in service of a concurrent sentencing term" (Mem. Supp. § 2241 Pet. 11, ECF No. 2.) Although Hargrove's § 2241 Petition does not specify how much credit Hargrove requests, it appears he believes Willis entitles him to a federal sentence credit from the date of his arrest through the end of his July 2006 Chesterfield sentence for violating probation. (See Pet'r's Resp. 2 ("[T]he [federal] judge obviously intended that the credit be given for the time served back to November 5, 2005 and continuing through June 26, 2006.")) Hargrove challenges Respondent's denial of this credit, alleging that because the United States "'borrowed' [him] from state custody through a federal writ [of habeas corpus ad prosequendum], " he was in federal custody as of March 8, 2006. (Mem. Supp. § 2241 Pet. 2.) For the reasons set forth below, the Court will GRANT Respondent's Motion for Summary Judgment.
D. 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). The party seeking summary judgment bears the responsibility 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,
477U.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 ...