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Babb v. Wilson

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

November 27, 2017

JOHN NATHANIEL BABB, Petitioner,
v.
ERIC D. WILSON, Respondent.

          REPORT AND RECOMMENDATION

          RODERICK C. YOUNG UNITED STATES MAGISTRATE JUDGE

         John 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.)[1] 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 sentence.[2]

         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 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 ....").

         In 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).

         As a 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 of Babb.

         B. Summary of Pertinent Facts

         On 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 (citation omitted).)

         On 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).[3] 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.)

         C. Analysis

         Babb 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 13.)

         The 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.

         Ordinarily, 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 ...


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