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Johnson v. Wilson

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

February 22, 2018

ERIC WILSON, Respondent.


          M. Hannah Lauck United States District Judge

         Ronald Johnson, a federal inmate proceeding pro se, filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 (1;§ 2241 Petition;' ECF No. 1). Johnson contends that the Bureau of Prisons ("BOP") has improperly calculated his federal sentence. On December 19, 2017, the Magistrate Judge issued a Report and Recommendation that recommended denying Johnson's § 2241 Petition. (ECF No. 15.) Following two extensions of time in which to respond to the Magistrate Judge's Report and Recommendation, Johnson filed objections. ("Objections, " ECF No. 19.) For the reasons that follow, Johnson's Objections will be OVERRULED, and his § 2241 Petition will be DENIED.

         I. BACKGROUND

         The Magistrate Judge made the following findings and recommendations:

         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). "[Wlhere 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 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, 477 251 (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 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).
As 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 Johnson.

         B. Summary of Pertinent Facts

         Johnson 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." (Id.)

         On 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, [1] "[t]his time has been credited toward his state sentence." (Id. ¶ 17 (citing id. Attach. L).)

         On 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 complete.
The Court makes the following recommendations to the Bureau of Prisons:
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 sentence.

(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 the state and federal sentences." (Id. ¶ 14 (citing id. Attach. I).)

         After the Sentencing Court imposed Johnson's federal sentence, Johnson was returned to state custody on January 20, 2016, "to resume serving his New Jersey state sentence." (Id. ¶ 11.) Because Johnson was already in custody serving his New Jersey state sentence, "[w]hen Petitioner was sentenced federally . . . New Jersey maintained primary custodial authority over him." (Id. ¶ 14.) "The U.S. Marshals obtained temporary custody via a federal writ of habeas corpus ad prosequendum for prosecution and sentencing." (Id.) Johnson completed his state sentence on February 18, 2016, and "was then taken into federal custody to serve the remainder of his federal sentence." (Id. ¶ 11.)

         Johnson was "awarded prior custody credit from February 26, 2013, through April 4, 2013, pursuant to Willis v. United States, 438 F.2d 923 (5th Cir. 1971)." (Id. ¶ 12.) Such prior custody credit may be awarded when (1) the federal and non-federal sentences run concurrently and, (2) "the Raw Effective Full Term (EFT) date of the non-federal term is equal to or less than the Raw EFT Term date of the federal sentence." (Id. ¶ 16 (citing id. Attach. K).) If these two prerequisites are satisfied, the BOP may award prior custody credit "for any time spent in non-federal presentence custody that begins on or after the date of the federal offense up to the date that the first sentence begins to run, federal or nonfederal." (Id. (citing id. Attach. K).) In this case, Johnson was awarded prior custody credit because his federal sentence was ordered to run concurrent to his state sentence (id. ¶ 9 (citing id. Attach. D)), and "[t]he Raw EFT of Petitioner's federal sentence is January 13, 2021, which is greater than the Raw EFT Term date of his state sentence, April 4, 2017, " (id. ¶ 16). Although Johnson received prior custody credit, he was "sanctioned with the loss of 27 days good conduct time for institutional violations during his time in federal custody. Therefore, his projected release date is May 9, 2020." (Id. ¶ 12 (citing id. Attachs. A, F, G).)

         C. Analysis

         In Johnson's § 2241 Petition, he alleges error in the calculation of his federal sentence. Specifically, Johnson argues that: (1)(a) he is entitled to credit for all of the time he spent in state custody before the imposition of his federal sentence and, (b) the BOP improperly denied him credit pursuant to United States Sentencing Guidelines ("U.S.S.G.") § 5G1.3(b); (2) the BOP erred when it determined that he was ineligible for nunc pro tunc designation; and, (3) the BOP's use of 18 U.S.C. § 3585(a) and (b) is unconstitutional. The Court will discuss each claim in turn.

         1. Claim One

         In Claim One (a), Johnson argues that he is entitled to credit against his federal sentence for all of the time he spent in state custody serving his state sentence. (§ 2241 Pet. 10.) Pursuant to 18 U.S.C. § 3585(a), "[a] sentence to a term of imprisonment commences on the date the defendant is received in custody awaiting transportation to, or arrives voluntarily to commence service at, the official detention facility at which the sentence is to be served." 18 U.S.C. § 3585(a). If a federal sentence is "imposed on a defendant who is already subject to an undischarged term of imprisonment, " the BOP may award credit toward the prisoner's federal sentence pursuant to 18 U.S.C. § 3584(a), which controls the imposition of concurrent federal sentences. 18 U.S.C. § 3584(a). The BOP considers a federal sentence to commence on the date it is imposed. See United States v. Labeille-Soto, 163 F.3d 93, 98-99 (2d Cir. 1998) (holding that a federal sentence cannot commence before it is imposed); see also United States v. McClean, No. 88-5506, 1989 WL 5457, at *1 (4th Cir. Jan. 13, 1989) (citations omitted) ("A federal sentence cannot commence prior to the date it is pronounced. Consequently, 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 served.").

         In Johnson's case, his federal sentence was imposed on January 14, 2016, and the Sentencing Court ordered Johnson's federal sentence to run concurrent to the "undischarged New Jersey State term of imprisonment." (Jennings Decl. Attach. D, at 2.) After Johnson's federal sentence was imposed, he was returned to New Jersey custody to complete the remainder of his New Jersey sentence. (Jennings Decl. ¶ 11.) Johnson's New Jersey sentence and federal sentence ran concurrently from January 14, 2016, through February 18, 2016, the date he completed his New Jersey sentence. (Id.) As discussed above, when a federal sentence is ordered to run concurrent to a state sentence, the federal sentence commences on the date it was imposed and can only run concurrent to the remaining portion of the state sentence. See Labeille-Soto, 163 F.3d at 98-99; McClean, 1989 WL 5457, at *1. Johnson received all of the concurrent credit to which he is entitled because, although his state sentence commenced on April 5, 2013 (Jennings Decl. ΒΆ 6), he was only entitled to concurrent credit for his state and federal sentences once his federal sentence was imposed on January 14, 2016. The Court ...

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