United States District Court, E.D. Virginia, Richmond Division
REPORT AND RECOMMENDATION
RODERICK C. YOUNG, UNITED STATES MAGISTRATE JUDGE.
Johnson, a federal inmate proceeding pro se, filed
this petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2241 ("§ 2241 Petition, " ECF
No. 1). The matter is before the Court for a Report and
Recommendation pursuant to 28 U.S.C. § 636(b). Johnson
contends that the Bureau of Prisons ("BOP") has
improperly calculated his federal sentence.
Claim One: (a) He is entitled to credit against his federal
sentence for all of the time he served in state custody
before the imposition of his federal sentence. (§ 2241
Claim Two: (b) The BOP erred when it determined that the
United States District Court for the District of New Jersey
did not grant him credit pursuant to United States Sentencing
Guidelines § 5G1.3(b). (Id. at 6-7, 10.)
Claim Two: The BOP erred when it determined that he was not
eligible for nunc pro tunc retroactive designation.
(Id. at 7, 11.)
Claim Three: The BOP's use of 18 U.S.C. § 3585(a)
and (b) is unconstitutional. (Id. at 7, 11-12.)
has moved to dismiss ("Motion to Dismiss, " ECF No.
9) Johnson's § 2241 Petition, or in the alternative
for summary judgment ("Motion for Summary Judgment,
" ECF No. 12), arguing that the BOP properly calculated
Johnson's sentence and that his other claims lack merit.
For the reasons set forth below, it is RECOMMENDED that the
Motion for Summary Judgment be GRANTED and the § 2241
Petition be DENIED because the Court finds no error in the
manner that Respondent has calculated Johnson's sentence.
Johnson has already received the benefit of nunc pro
tunc designation, and Johnson's claims regarding the
constitutionality of 18 U.S.C. § 3585(a) and (b) are
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 States 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, 411 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. Ban, 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
support of his Motion for Summary Judgment, Respondent
submits: (1) the Declaration of Robert C. Jennings, a
Management Analyst at the BOP's Designation and Sentence
Computation Center in Grand Prairie, Texas (Mem. Supp. Mot.
Summ. J. Ex. 1 ("Jennings Decl."), ECF No. 10-1);
(2) Johnson's BOP sentence computation records
(id. Attachs. A, C, E, F, ECF Nos. 10-2, 10-4, 10-6,
10-7); (3) records relating to Johnson's federal
conviction (id. Attachs. B, D, ECF Nos. 10-3, 10-5);
(4) Johnson's inmate disciplinary record (id.
Attach. G, ECF No. 10-8); (5) records from Johnson's
administrative remedy requests (id. Attach. H, ECF
No. 10-9); and, (6) relevant portions of BOP Program
Statement 5880.28, Sentence Computation Manual (CCCA of 1984)
("BOP Program Statement 5880.28") (id.
Attachs. I-L, ECF Nos. 10-10 through 10-13).
required by Roseboro v. Garrison, 528 F.2d 309 (4th
Cir. 1975), Johnson was advised of his right to respond to
Respondent's motion, as well as the consequences of
failing to respond. (ECF No. 11.) Johnson did not respond and
the time to do so has expired. 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
Summary of Pertinent Facts
was arrested by the Atlantic City, New Jersey, Police
Department for possession of heroin on April 7, 2012.
(Jennings Decl. ¶ 6.) Johnson was again arrested
"by the Atlantic City, New Jersey, Police Department on
December 3, 2012, for Possess/Distribute/
Manufacture/Dispense Controlled Dangerous Substances."
(Id.) The following year, "[o]n April 5, 2013,
Petitioner was sentenced on both cases to 4-years[']
imprisonment with 39 days of jail credit."
March 18, 2013, a Criminal Complaint was filed against
Johnson in the United States District Court for the District
of New Jersey ("Sentencing Court") for
"conspiracy to distribute, and to possess with intent to
distribute, 1 kilogram or more of a mixture or substance
containing a detectable amount of heroin, " on or about
the dates of November 10, 2012, through March 2013.
(Id. ¶ 7 (quoting id. Attach. B, at
2).) "On April 11, 2013, and November 20, 2013,
Petitioner was temporarily removed from state custody by the
United States Marshals Service on a federal writ of habeas
corpus ad prosequendum." (Id. ¶ 8 (citing
id. Attach. C).) Pursuant to BOP Program Statement
5880.28,  "[t]his time has been credited toward
his state sentence." (Id. ¶ 17 (citing
id. Attach. L).)
January 14, 2016, Johnson was sentenced by the Sentencing
Court for his conviction of conspiracy to distribute a
controlled substance. (Id. ¶ 9 (citing
id. Attach. D, at 2).) The Sentencing Court imposed
the following sentence:
The defendant is hereby committed to the custody of the
United States Bureau of Prisons to be imprisoned for a term
of 60 months, to run concurrent to the undischarged New
Jersey State term of imprisonment with credit received for
time previously served on this charge.
The Court further designates the New Jersey Department of
Corrections as the place of service for this sentence. The
U.S. Marshals Service shall file a detainer so the defendant
is returned to federal custody once his state term is
The Court makes the following recommendations to the Bureau
If or when the defendant is a federal prisoner; the defendant
shall be designated to a facility that will provide drug
treatment and counseling.
The defendant shall remain in custody pending service of
(Id. Attach. D, at 2.) In summary, the Sentencing
Court sentenced Johnson to "60-months to be served
concurrently with his state sentence, " and the BOP
"designated the New Jersey Department of Corrections as
the place to serve his federal sentence and commenced
Petitioner's federal sentence on January 14, 2016, the
date his federal sentence was imposed, in order to effectuate
concurrent service of ...