United States District Court, E.D. Virginia, Norfolk Division
ZEB A. HENSON, Petitioner,
UNITED STATES DEPARTMENT OF JUSTICE, etai, Respondents.
REPORT AND RECOMMENDATION
Lawrence R. Leonard, Judge
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
FACTUAL AND PROCEDURAL BACKGROUND
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
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
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 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, ¶¶ 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 ...