United States District Court, E.D. Virginia, Richmond Division
REPORT AND RECOMMENDATION
RODERICK C. YOUNG UNITED STATES MAGISTRATE JUDGE
Nathaniel Babb, 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). In his
§ 2241 Petition, Babb contends that the Bureau of
Prisons ("BOP") has improperly calculated his
federal sentence. (§ 2241 Pet. 6.) Respondent has
submitted a Motion to Dismiss, or in the alternative, a
Motion for Summary Judgment ("Motion for Summary
Judgment, " ECF No. 5). Babb has filed a Response (ECF
No. 8). 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 Babb's
Standard for Summary Judgment
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)).
reviewing a summary judgment motion, the Court "must
draw all justifiable inferences in favor of the nonmoving
party." United Stales v. Carolina Transformer
Co., 978 F.2d 832, 835 (4th Cir. 1992) (citing
Anderson v. Liberty Lobby, Inc., 477 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 ....").
support of its Motion for Summary Judgment, Respondent
submits: (1)the Declaration of Jan Stopps, a Management
Analyst at the BOP's Designation and Sentence Computation
Center ("DSCC") in Grand Prairie, Texas (Mem. Supp.
Mot. Summ. J. Ex. 1 ("Stopps Decl."), ECF No. 6-1);
(2) a print-out from the BOP's SENTRY System detailing
the computation of Babb's bank fraud sentence
(id. Attach. 1, ECF No. 6-2); (3) a copy of a DSCC
form evaluating potential jail credit for Babb (id.
Attach. 2, ECF No. 6-3); (4) a print-out from the U.S.
Marshals Service Prisoner Tracking System detailing
Babb's arrest and incarceration in the Western District
of Kentucky dated March 17, 2010 (id. Attach. 3, ECF
No. 6-4); (5) a printout from the BOP's SENTRY System
detailing the computation of Babb's transporting child
pornography sentence (id. Attach. 4, ECF No. 6-5);
(6) a print-out from the BOP's SENTRY System detailing
Babb's administrative history (id. Attach. 5,
ECF No. 6-6); (7) a copy of BOP Program Statement 5880.28
Page 1-12 (id. Attach. 6, ECF No. 6-7); and (8) a
print-out from the U.S. Marshals Service Prisoner Tracking
System detailing Babb's arrest and incarceration in the
Western District of Kentucky dated February 29, 2012
(id. Attach. 7, ECF No. 6-8).
general rule, a non-movant must respond to a motion for
summary judgment with affidavits or other verified evidence.
Celotex Corp., 477 U.S. at 324. In opposition to
Respondent's Motion for Summary Judgment, Babb submitted
a Response that he swore to under penalty of perjury.
(See Resp. in Opp. 8, ECF No. 8.) Therefore, the
following facts are established for purposes of summary
judgment. The Court draws all permissible inferences in favor
Summary of Pertinent Facts
February 22, 2010, Babb was sentenced in the U.S. District
Court for the District of South Carolina to 33 months of
imprisonment for two counts of bank fraud. (Stopps Decl.
¶ 7 (citation omitted).) Babb's 33-month sentence
was completed on January 20, 2012. (Id. ¶ 9
April 5, 2010-while serving his 33-month sentence for bank
fraud-Babb was indicted in the U.S. District Court for the
Western District of Kentucky for transportation of child
pornography. (Id. ¶ 10 (citation omitted).)
Babb pled guilty to transportation and possession of child
pornography, and his Plea Agreement stated, "At the time
of sentencing, the United States will. .. recommend
[Babb's] sentence run concurrent with [Babb's]
undischarged federal sentence as provided by [United States
Sentencing Guideline ("USSG")] § 5G1.3."
Plea Agreement 5-6, United States v. Babb, No.
3:10-CR-43-R (filed July 19, 2011). On February 22, 2012, Babb
was sentenced in the Western District of Kentucky to 97
months of imprisonment for transportation and possession of
child pornography. (Stopps Decl. ¶ 11 (citation
omitted); id. Attach. 4 at 1.) The Court ordered his
97-month sentence "be served concurrently, with the
sentence of imprisonment the defendant i[s] presently serving
in the U.S. District Court for the District of South
Carolina." (Stopps Decl. ¶ 11 (citation omitted).)
On February 22, 2012, the BOP prepared a sentence computation
for Babb explaining that Babb received prior custody credit
from January 21, 2012 (the day after he was released from his
sentence for bank fraud) through February 21, 2012 (the day
before his sentence for transportation of child pornography
was imposed). (Id. ¶ 12; id. Attach. 4
at 2.) The BOP projects Babb will be released on February 9,
2019. (Stopps Decl. Attach. 4 at 2.)
argues that because the Western District of Kentucky ordered
that his sentence for transportation and possession of child
pornography be served concurrently with his sentence for bank
fraud out of the District of South Carolina, he should
receive prior custody credit from the time he was
indicted on the charge of transporting child
pornography on April 5, 2010. (§ 2241 Pet. 12-13.) Babb
asserts that because the BOP has instead calculated his
sentence from the date his sentence for transportation and
possession of child pornography was imposed-February 22,
2012-he has served past his appropriate release date and is
therefore entitled to immediate release. (Id. at
execution of federal sentences and the computation of jail
time is an administrative function within the authority of
the Attorney General, who has delegated this task to the BOP.
United States v. Wilson, 503 U.S. 329, 335 (1992).
This function includes computing presentence time credits and
determining a sentence's commencement date. Id.
at 333-35. It is well settled that determinations as to the
credit which a defendant is due for time spent in federal
custody are to be made by the BOP and not the sentencing
court. Id. at 334.
18 U.S.C. § 3585 requires the BOP to "commence[ a
federal sentence] on the date the defendant is received in
custody awaiting transportation to, or arrives voluntarily to
commence service of sentence at, the official detention
facility at which the sentence is to be served." 18
U.S.C. § 3585(a). Critically for Babb, "when a
federal sentence is ordered to run concurrently with a
sentence being served, it can only run concurrently with that
part of the prior sentence remaining to be