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Henson v. United States Department of Justice

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

February 2, 2018

ZEB A. HENSON, Petitioner,
v.
UNITED STATES DEPARTMENT OF JUSTICE, etai, Respondents.

          REPORT AND RECOMMENDATION

          Lawrence R. Leonard, Judge

         This matter is before the Court on pro se Petitioner Zeb A. Henson's ("Petitioner") Petition for a Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2241 ("the Petition"), ECF No. 1, and the Respondents, the United States Department of Justice, the Federal Bureau of Prisons, and Eric D. Wilson, Warden, FCI Petersburg, Medium's (collectively "the Respondents") Motion to Dismiss for Failure to State a Claim, or in the Alternative, for Summary Judgment ("the Motion"), ECF No. 5. The Motion was referred for disposition to the undersigned United States Magistrate Judge ("the undersigned") pursuant to 28 U.S.C. § 636(b)(1)(B) and (C), Federal Rule of Civil Procedure 72(b), Eastern District of Virginia Local Civil Rule 72, and the April 2, 2002, Standing Order on Assignment of Certain Matters to United States Magistrate Judges. For the following reasons, the undersigned RECOMMENDS that the Respondents' Motion to Dismiss, or in the alternative, for Summary Judgment, ECF No. 5, be GRANTED, and the Petition, ECF No. 1, be DISMISSED WITH PREJUDICE.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         Based on a review of the respective submissions of the parties, it does not appear that the material background facts of Petitioner's arrests, convictions, and sentences are in dispute. The undersigned finds that the Declaration of Bryan Erickson, Correctional Program Specialist, submitted in support of the Respondents' Motion aptly recounts the relevant chronology of Petitioner's criminal charges and convictions. ECF No. 6, attach. 1 at 1-7. The Respondents rely on this Declaration and the Petition to generate their Statement of Undisputed Material Facts. See ECF No. 6 at 3-6. This Declaration provides, in pertinent part:

5. A review of Mr. Henson's PSR revealed that he was arrested on August 14, 2009 by the Rockbridge County, Virginia authorities for Manufacture Controlled Substance in case number GT09-9125. Mr. Henson was released on bond the same day. Mr. Henson's PSR reveals that on December 1, 2009, the state charges were nolle prossed. This arrest also lead [sic] to the federal instant offense, of which Mr. Henson is presently serving a term of imprisonment in federal custody.
6. On September 30, 2009, Mr. Henson was arrested by Rockbridge County law enforcement for a violation of probation in case number CR07000028-01 and remained in custody. See Court and Legal Services Release, Richmond, Virginia, attached hereto as Attachment 1. On December 3, 2009, he appeared in the Rockbridge Circuit Court, at which time the Court declined to revoke his probation and he was released from custody. Id. at 1.
7. On August 3, 2010, Mr. Henson was arrested by local law enforcement in Rockbridge County and charged with Assault and Battery and Unlawful Use of a Telephone in case numbers CR10000464-00 and CR10000472-00. See Warrant of Arrest- Misdemeanor (State), Zeb Anthony, attached hereto as Attachment 2; Sentencing Order, Virginia v. Henson. No. CR10000464-00, January 21, 2011, attached hereto as Attachment 3; Unlawful Use of Telephone, Virginia v. Henson. No. CR10000472-00, January 21, 2011, attached hereto as Attachment 4. Mr. Henson remained in Virginia state custody at this time. Id. 8. According to a sealed indictment from the United States District Court for the Western District of Virginia, on September 16, 2010, a one Count Indictment was issued in case number 6:IOCR00013 charging Mr. Henson with knowingly and willfully possessing, with the intent to distribute, 5 grams or more of actual methamphetamine, a Schedule II controlled substance, in violation of 21 U.S.C §§ 84l(a)(1) and (b)(1)(B). In addition, the Court issued an Arrest Warrant on the same date as the Indictment.
9. According to a sealed Petition for Writ of Habeas Corpus Ad Prosequendum issued in case number 6:10CR00013 by the United States District Court for the Western District of Virginia on June 20, 2010, the district court commanded Rockbridge County Jail to surrender Mr. Henson to the custody of the United States Marshals Service.
10. Mr. Henson remained in the custody of the United States Marshal pursuant to the federal writ until March 23, 2011, when he was returned to the custody of the State of Virginia. See United States Marshals Service Prisoner Tracking System, Zeb Anthony Henson, at 1, attached hereto as Attachment 5.
11. While Mr. Henson was in custody on the federal writ, he was sentenced in several Virginia state cases. On January 21, 2011, Mr. Henson was sentenced to a 12-month term of imprisonment for Assault and Battery in case number CR10000464-00, to run concurrently with a 30-term [sic] of imprisonment for Unlawful Use of a Telephone in case number CR10000472-00. See Attachment 3; Attachment 4; see also Virginia Department of Corrections Summary Audit, Zeb Anthony Henson, attached hereto as Attachment 6. On February 28, 2011, Mr. Henson was sentenced to a 5-year term of imprisonment for Possession of a Controlled Substance with Intent to Distribute in case number CR10000489-00[1] to run concurrently with a 6-month term of imprisonment for Trespassing in case number CR1 0000490-00 but consecutively with any other sentences. See Sentencing Order, Virginia v. Henson. Nos. CR10000489-00 & CR10000490-00, February 28, 2011, attached hereto as Attachment 7; see also Attachment 6. On March 14, 2011, Mr. Henson was sentenced to a 4-year term of imprisonment for a violation of probation in case number CR07000028-01, 1 year and six months of which would run concurrently with his other sentences and 2 years and six months of which would run consecutively with any other sentence. See Revocation Order, Virginia v. Henson. No. CR07000028-01, March 14, 2011, attached hereto as Attachment 8; see also Attachment 6.
12. On March 18, 2011, the United States District Court for the Western District of Virginia sentenced Mr. Henson to an 84-month term of imprisonment in case number 6:10CR00013. See Judgment [sic] in a Criminal Case, United States v. Henson, No. 6:10-cr-00013-NKM, March 18, 2011 [D.E. 42], attached hereto as Attachment 9.
13. On March 23, 2011, the United States Marshals Service returned Mr. Henson to the custody of the State of Virginia to serve out his state sentences. See Attachment 5.
14. On July 3, 2012, the United States District Court for the Western District of Virginia issued an order in case number 6:10CR00013 reducing Mr. Henson's term of imprisonment from 84 months to 72 months. See Order Amending Judgment, United States v. Henson, No. 6:10-cr-00013-NKM, July 3, 2012 [D.E. 57], attached hereto as Attachment 10.
15. On April 10, 2015, the United States District Court for the Western District of Virginia issued an order in case number 6:10CR00013 reducing Henson's term of imprisonment from 72 months to 58 months. See Order Regarding Motion for Sentencing Reduction Pursuant to 18 U.S.C. § 3582(c)(2), United States v. Henson. No. 6:10-cr-00013-NKM, April 10, 2015 [D.E. 59], attached hereto as Attachment 11.
16. Mr. Henson completed his state sentences on April 27, 2015, and was released via good conduct time to the "exclusive" custody of the United States Marshals Service to begin service of his federal sentence. See Attachment 5; see also Letter from Tashia Martin, Commonwealth of Virginia, Department of Corrections, to United States Marshals Service (Apr. 7, 2015), attached hereto as Attachment 12.
17. Upon Henson's admission into BOP custody, the Designation and Sentence Computation Center ("DSCC") conducted a review of Henson's file in order to determine if there were any prior custody credits that needed to be applied to Henson's federal sentence and to calculate his projected release date. It was determined that all of Henson's time in prior custody had been applied to his state sentence and therefore could not be applied to his federal sentence. See Attachment 6. Henson has been in the custody of the Bureau of Prisons since this time, serving his 58-month term of imprisonment for Possession with Intent to Distribute Five Grams or more of Actual Methamphetamine in violation of 21 U.S.C. § 84l(a)(1). See SENTRY Public Information Inmate Data, Zeb Anthony Henson, Register No. 15641-084, at 2, attached hereto as Attachment 13. Mr. Henson is presently housed at Federal Correctional Institution Petersburg, Virginia ("FCI Petersburg") and has a projected release date via 362 IE COND of June 25, 2018. Id. at 1.
18. During an audit of Mr. Henson's sentence computation during the administrative remedy process, it was noted that Mr. Henson had not received state or federal time- served credit for a period where he had been in the custody of the state of Virginia. Mr. Henson was incarcerated by the state of Virginia from September 30, 2009 through December 3, 2009 on a probation violation in which the judge chose not to revoke him, and that credit had not been awarded towards his state sentence. As such, it was awarded to his federal sentence and he received the prior custody credit.

ECF No. 6, attach. 1 at 2-7, ΒΆΒΆ 5-18. For the purposes of the undersigned's consideration of the Respondents' Alternative Motion for Summary Judgment, and in light of Petitioner's failure to challenge the same in his Response in Opposition, the Court will treat the above quoted portion as an accurate ...


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