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Frazier v. Wilson

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

February 1, 2018

KEVIN E. FRAZIER, Petitioner,
ERIC WILSON, Respondent.



         Kevin E. Frazier, a federal inmate proceeding pro se, filed this petition for habeas corpus under 28 U.S.C. § 2241 ("§ 2241 Petition, " ECF No. I.) Frazier contends that the Bureau of Prisons ("BOP") has improperly calculated his federal sentence. (Id. at 6-7.)[1] Specifically, Frazier states:

Claim One:[2] "Petitioner believes he is entitled to presentence credit pursuant to the limited exceptions outlined in BOP's Program Statement 5880.28 and pursuant to decisions held in Willis v. U.S., 438 F.2d 923 (5th Cir. 1971) and Kayfez v. Caseie, 993 F.2d 1288 (7th Cir. 1993)." (§2241 Pet. 6.)
Claim Two: "Petitioner objects to there being a requirement outlined in BOP's Program Statement 5880.28 which requires both sentencing court's [] non-federal and federal to order concurrent sentencing for [an] inmate to be awarded presentence credit under BOP's Program Statement 5880.28 policy." (Id. at 7.)
Claim Three: "Petitioner believes he is entitled to the same equal rights and treatment which were granted to Thomas Wilson,, . another federal prisoner within the BOP." (Id.)

         Respondent has submitted a Motion to Dismiss, or in the alternative, a Motion for Summary Judgment ("Motion for Summary Judgment, " ECF No. 6). However, Respondent's Motion for Summary Judgment did not address Frazier's Claims Two and Three. Accordingly, by Memorandum Order entered November 16, 2017, the Court directed Respondent to respond to Frazier's Claims Two and Three. (ECF No. 14.) On November 29, 2017, the Court received from Respondent additional briefing addressing Frazier's Claims Two and Three. (ECF No. 15.) Frazier received a Roseboro[3]notice and he filed a Response to the Motion for Summary Judgment (ECF Nos. 9, 10), and a Response to Respondent's additional briefing. (ECF No. 16.) Frazier has also submitted a Motion for Leave to Supplement his § 2241 Petition ("Motion to Supplement, " ECF Nos. 17, 18). For the reasons that follow, Respondent's Motion for Summary Judgment (ECF No. 6) will be DENIED WITHOUT PREJUDICE. Frazier's Motion to Supplement (ECF Nos. 17, 18) will be GRANTED.

         I. Frazier's Federal and State Sentences

         A. Frazier's 2003 Pennsylvania Sentence

         On August 25, 2003, Frazier was paroled from a Pennsylvania state sentence ("2003 Pennsylvania Sentence"). (Williams Decl. ¶ 4.)[4] While still on parole, on January 4, 2005, Frazier was arrested by the Philadelphia Police Department "in connection with multiple armed robberies." (Id. ¶ 5.) On May 24, 2005, Frazier's parole was revoked in connection with his 2003 Pennsylvania Sentence. (Id. ¶ 15.) Frazier received custody credit back to January 4, 2005 towards his 2003 Pennsylvania Sentence. (Id. ¶ 15; id. Attach. 5, at 2.) Thus, between January 4, 2005 and May 24, 2005, Frazier was serving his 2003 Pennsylvania Sentence.

         B. Frazier's Federal Sentence

         Frazier was then indicted on October 25, 2005 in the U.S. District Court for the Eastern District of Pennsylvania with conspiracy to interfere and interference with interstate commerce by robbery, aiding and abetting, and using and carrying a firearm during a crime of violence. (Williams Decl. ¶ 6 (citation omitted).) On November 15, 2005, Frazier was taken from the Commonwealth of Pennsylvania and placed into federal custody pursuant to a writ of habeas corpus ad prosequendum. (Id. ¶ 7.) Pursuant to a written plea agreement, Frazier was sentenced for the federal charges to a 120-month term of imprisonment on March 22, 2007. (Id. ¶¶ 9, 10 (citation omitted).) Frazier's federal judgment was silent as to any state sentence. (Id. Attach. 1, at 2-7.)

         C. Frazier's 2007 Pennsylvania Sentence

         On March 28, 2007, Frazier was returned to Pennsylvania authorities. (Williams Decl. ¶ 11; id. Attach 2, at 3.) The U.S. Marshals lodged a federal detainer with the Pennsylvania Department of Corrections "for Frazier's federal sentence to be served after Pennsylvania authorities disposed of Frazier's state cases." (Williams Decl. ¶11.) On May 14, 2007, Frazier pled guilty in the Philadelphia Court of Common Pleas to robbery inflicting serious bodily injury and was sentenced to 5-10 years of imprisonment. (Id. ¶ 12; id. Attach. 3, at 2.) The Pennsylvania sentencing judge ordered that Frazier's robbery sentence run concurrent with "any state or federal sentence serving" ("2007 Pennsylvania Sentence"). (Williams Decl. Attach. 3, at 2; id. ¶ 12.) Thus, between May 14, 2007 and December 5, 2011, Frazier concurrently served both the 2003 Pennsylvania Sentence and the 2007 Pennsylvania Sentence.

         On December 5, 2011, Frazier "was paroled from his Pennsylvania sentence[s] to the federal detainer to serve his 120-month sentence." (Williams Decl. ¶ 13.) Frazier has remained in the BOP's custody since that date. (Id.)

         II. Kayfez and Willis Credits

         At the crux of Frazier's § 2241 Petition is his request that the BOP grant him what are known as Kayfez and Willis credits. (See § 2241 Pet. 6-7.) Kayfez and Willis credits are exceptions to the general rule against "awarding credit for presentence time served against one sentence if that time already has been credited against another sentence." Spor v. Warden, No. 1:16-05310, 2017 WL 1078188, at *5 (S.D. W.Va. Jan. 25, 2017) (quoting United States v. Mojabi, 161 F.Supp.2d 33, 36 (D. Mass. 2001)), adopted by, No. CV 1:16-05310, 2017 WL 1058986 (S.D. W.Va. Mar. 20, 2017). Frazier contends that he meets the qualifications for Kayfez or Willis credits as outlined in BOP Program Statement 5880.28.

         Title 18 Section 3585 governs the BOP's calculation of a federal prisoner's sentence. United States v. Wilson, 503 U.S. 329, 331-32 (1992). Specifically, 18 U.S.C. § 3585(b) states,

A defendant shall be given credit toward the service of a term of imprisonment for any time he has spent in official detention prior to the date the sentence commences-
(1) as a result of the offense for which the sentence was imposed; or
(2) as a result of any other charge for which the defendant was arrested after the commission of the offense for which the sentence was imposed; that has not been credited against another sentence.

18 U.S.C. § 3585(b). The Supreme Court has held that 18 U.S.C. § 3585(b) prohibits double-crediting, i.e. awarding credit for presentence time already credited against another sentence. Wilson, 503 U.S. at 337. However, notwithstanding 18 U.S.C. § 3585(b),

the Fifth and Seventh Circuits indicated that a petitioner was entitled to time spent in presentence State custody that was attributable to the federal offense even if the petitioner was given credit on his State sentence for that period of time. See Kayfez v. Gasele, 993 F.2d 1288, 1290 (7th Cir. 1993) (even though defendant received state credit for his presentence custody, the court found defendant was entitled to credit against his federal sentence for all his presentence incarceration because defendant's sentences were concurrent and crediting only the state sentence would not reduce defendant's actual imprisonment); Willis v. United States, 438 F.2d 923, 925 (5th Cir. 1971) (reasoning that ...

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