United States District Court, E.D. Virginia, Alexandria Division
Yusef A. Rabb, Petitioner,
Eric D. Wilson, Respondent.
T.S. ELLIS, III, District Judge.
Yusef A. Rabb, 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 Bureau of Prisons' refusal to consider his petition seeking nunc pro tunc designation of the federal facility in which he served sentences for D.C. Code offenses. On March 3, 2014, respondent filed a Motion to Dismiss for Failure to State a Claim, or in the alternative, for Summary Judgment, accompanied by a supporting memorandum. 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 response. Respondent filed a reply to petitioner's response. For the reasons that follow, respondent's Motion must be granted, and the petition must be dismissed.
The petitioner has a lengthy criminal history, and the following material facts are undisputed. On May 9, 1991, petitioner was arrested by authorities in Washington, D.C. for Murder I While Armed, Carrying a Pistol without a License, and Possession of a Firearm During Crime of Violence. See Memorandum of Law in Support of Respondent's Motion to Dismiss, or in the Alternative, Motion for Summary Judgment ("Resp.'s Mem.") [Dkt. 8], Ex. A (Erickson Decl.) ¶ 5. On July 11, 1991, petitioner was convicted and sentenced in the District of Columbia Superior Court to a 7-year sentence on a prior charge of Possession with Intent to Distribute Cocaine. Id . ¶ 6; Att. 1. On October 27, 1992, petitioner was convicted and sentenced in the same court to a 25 year-to-life term on his May 9, 1991 charges. This sentence was ordered to run consecutively to his sentence imposed for Possession with Intent to Distribute Cocaine. Id . ¶ 7; Att. 2. On February 23, 1993, petitioner was paroled from his original 7-year sentence and began serving his 25-to-life sentence. Resp.'s Mem., Ex. A ¶ 8. On December 15, 1994, petitioner pled guilty and was sentenced in the District of Columbia Superior Court to a term of 16 months-to-4 years for Attempted Possession with the Intent to Distribute Cocaine. This sentence was to run concurrently with any other previously-imposed sentence. Id . ¶ 9; Att. 4.
On December 24, 1994, while confined at the Lorton Correctional Complex, petitioner attacked and repeatedly stabbed another inmate. See Resp.'s Mem., Ex. B. at 1. Petitioner was charged with Assault with Intent to Murder, and on July 28, 1995 - while still in custody on his D.C. sentences - he pled guilty, and was sentenced by this Court to a 105-month sentence. Id . Ex. A ¶ 10; Att. 5 (Judgment in a Criminal Case). The sentencing judge explicitly stated that the 105-month should "run consecutive to any other sentence presently being served." Resp.'s Mem., Ex. A, Att. 5; see also Ex. B, at 2-3. In 1999, the Lorton facility closed, and petitioner was transferred to Virginia state prison before being transferred to the custody of the Federal Bureau of Prisons ("BOP") in 2004. See Memorandum in Support of Petition for a Writ of Habeas Corpus ("Pet.'s Mem.") [Dkt. 3] ¶¶ 31 n.1, 32. Petitioner began serving his federal sentence on June 21, 2010, when he was paroled from his D.C. offenses. See Resp.'s Mem., Ex. A ¶ 11. Petitioner is currently housed at FCC Petersburg ("Petersburg"), and is scheduled to be released from custody on February 2, 2018. Pet.'s Mem. ¶ 1; Resp.'s Mem., Ex. A ¶ 13.
On January 31, 2012, petitioner submitted to Petersburg officials a petition to designate nunc pro tunc designate his federal confinement as the place of concurrently serving his federal sentence, along with an attempt at informal resolution of his request. See Pet.'s Mem. ¶ 14. After being told that informal resolution of his request was not possible, petitioner submitted all required formal administrative remedies. Id . ¶¶ 26. The BOP's Regional Director denied petitioner's request for nunc pro tunc designation based on the fact that the petitioner's federal sentence was ordered to run consecutively to his D.C. sentences, and thus determined that his sentence had been calculated correctly. See Petitioner's Memorandum of Law in Opposition to Respondent's Motion to Dismiss, or in the Alternative, Motion for Summary Judgment ("Pet.'s Opp.") [Dkt. 12], Ex. 1, at unnumbered page 10. The BOP's Central Office affirmed this decision, finding that "[petitioner's] sentence has been computed as directed by federal statute [and BOP policy]." Id. at unnumbered page 12.
Petitioner alleges that the BOP's refusal to consider his nunc pro tunc petition is erroneous, and violates 18 U.S.C. § 3621(b), "which confers on the BOP discretionary authority to determine the computation and place of service for federal sentences, including nunc pro tunc designations of concurrency." Pet.'s Mem. ¶ 39. Petitioner seeks to have his federal facility designated as the place of serving his federal sentence concurrent to his D.C. sentences. According to petitioner, such designation would result in the calculation of his federal sentence starting on July 28, 1995, the date it was imposed, rather than on June 21, 2010, the date on which he was paroled from his D.C. sentence. Id . ¶ 34. In the alternative, he argues that the BOP could calculate his federal sentence as running from the date he entered federal custody, on July 1, 2004. He argues that, notwithstanding this Court's order that his sentences run consecutively, the BOP is required "to make its own determination as to concurrency, " id. ¶ 47, based upon various statutory factors provided in 18 U.S.C. § 3621(b). Respondent states that the BOP does not have authority to consider petitioner's request, in light of this Court's order that petitioner's federal sentence run consecutive to his D.C. sentences. Se; e.g., Resp.'s Mem., at 2.
Because it is undisputed that petitioner has exhausted his administrative remedies, this petition is ripe for review on the merits. For the reasons stated below, respondent's Motion for Summary Judgment must be granted.
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. The moving party bears the burden of proving that judgment as a matter of law is appropriate. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). 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 shifts to the nonmoving party to point out the specific facts that create disputed factual issues. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In evaluating a motion for summary judgment, a district court should consider the evidence in the light most favorable to the nonmoving 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 which the moving party bears the burden of proving are facts which are material. "[T]he 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 suinmary judgment." Anderson, 477 U.S. at 248; see also Hooven-Lewis v. Caldera, 249 F.3d 259, 265 (4th Cir. 2001). An issue of material fact is genuine when, "the evidence... create[s] [a] fair doubt; wholly speculative assertions will not suffice." Ross v. Commc'ns Satellite Corp., 759 F.2d 355, 364 (4th Cir. 1985), abrogated on other grounds by Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). 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 nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
A. Relevant Legal Standards
This petition has been properly filed as a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2241, which gives district courts jurisdiction over petitions by federal inmates who allege that they are "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3). Specifically, challenges to the "execution of a federal sentence are properly brought under § 2241, " including challenges to the BOP's ...