United States District Court, E.D. Virginia, Richmond Division
Hannah Lauck United States District Judge
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.
Magistrate Judge made the following findings and
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 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. 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
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
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." (Id.)
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
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
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 the state and federal sentences."
(Id. ¶ 14 (citing id. Attach. I).)
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.)
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).)
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.
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.").
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. ¶ 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 ...