United States District Court, E.D. Virginia, Richmond Division
KEVIN E. FRAZIER, Petitioner,
ERIC WILSON, Respondent.
A. Gibney, Jr. Judge
E. Frazier, a federal inmate proceeding pro se,
filed this petition for habeas corpus under 28 U.S.C. §
2241 (hereinafter "§ 2241 Petition, " ECF No.
1.) Frazier contends that the Bureau of Prisons
("BOP") has improperly calculated his federal
sentence. By Memorandum Opinion and Order entered on February
1, 2018, the Court denied without prejudice Respondent's
motion for summary judgment and granted Frazier's motion
to supplement. (ECF Nos. 20-21.) Frazier has submitted
another Motion to Supplement, wherein he seeks to add
additional argument in support of his § 2241 Petition.
(ECF No. 26.) Frazier's Motion to Supplement (ECF No. 26)
will be GRANTED.
matter is now before the Court on Respondent's Renewed
Motion for Summary Judgment ("Renewed Motion for Summary
Judgment, " ECF No. 28). Frazier has also submitted a
Motion for Summary Judgment (ECF No. 24), and has responded
to Respondent's Renewed Motion for Summary Judgment. (ECF
No. 30.) The matter is ripe for disposition.
§ 2241 Petition and Memorandum in Support of his Motion
to Supplement (ECF No. 19), Frazier argues he is entitled to
relief based upon the following claims:
Claim One: "Petitioner believes he is entitled to
presentence credit pursuant to the limited exceptions
outlined in BOP's Program Statement 588.28 and pursuant
to decisions held in Willis v. U.S.[, ] 438 F.2d 923
(5th Cir. 1971) and Kayfez v. Casele, 993 F.2d 1288
(7th Cir. 1993)." (§2241 Pet. 6.)
Claim Two: "Petitioner object[s] 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."
Claim Four: Frazier is entitled to custody credit from April
9, 2010 through December 5, 2011 because the BOP has
improperly considered December 5, 2011 as the date he was
paroled from his Pennsylvania sentence(s) to the U.S.
Marshals rather than April 9, 2010. (Mem. Supp. Mot. Supp.
reasons that follow, Respondent's Renewed Motion for
Summary Judgment (ECF No. 28) will be GRANTED, and
Frazier's Motion for Summary Judgment (ECF No. 24) will
Standard for Summary Judgment
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). "[W]here 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)).
reviewing a summary judgment motion, the Court "must
draw all justifiable inferences in favor of the nonmoving
party." United Stales 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
support of his Renewed Motion for Summary Judgment,
Respondent submits: (1) the Declaration of Dawn L. Giddings,
Correctional Programs Specialist at the Department of
Justice's Designation and Sentence Computation Center
("DSCC") in Grande Prairie, Texas ("Giddings
Decl., " ECF No. 29-1); (2) a copy of the Pennsylvania
Department of Corrections' Moves Report for Frazier
(id. Attach. 1, ECF No. 29-2); and, (3) a copy of
Frazier's Order to Release on Parole/Reparole issued by
the Pennsylvania Board of Probation and Parole. (Id.
Attach. 2, ECF No. 29-3.)
support of his prior motion for summary judgment, Respondent
submitted: (1) the Declaration of Ronald Williams, Management
Analyst at BOP's DSCC in Grand Prairie, Texas
("Williams Decl., " ECF No. 7-1); (2) a copy of
Frazier's Judgment & Commitment Order (id.
Attach. 1, ECF No. 7-2); (3) records relating to
Frazier's federal and state detentions (id.
Attach. 2, ECF No. 7-3); (4) a copy of Frazier's
Pennsylvania Commitment Order (id. Attach. 3, ECF
No. 7-4); (5) records relating to the BOP's calculation
of Frazier's federal sentence (id. Attach. 4,
ECF No. 7-5); (6) a copy of DSCC's explanation of
Frazier's federal sentence (id. Attach. 5, ECF
No. 7-6); (7) a copy of Frazier's 18 U.S.C. §
3621(b) Worksheet (id. Attach. 6, ECF No. 7-7); (8)
a copy of a letter from the DSCC to the Honorable Paul S.
Diamond, United States District Judge for the Eastern
District of Pennsylvania (id. Attach. 7, ECF No.
7-8); and, (9) a copy of a letter from DSCC to Frazier
denying him a nunc pro tunc designation.
(Id. Attach. 8, ECF No. 7-9.)
signed his § 2241 Petition under penalty of perjury
(§ 2241 Pet. 9), and previously submitted his own
Declaration ("Frazier Decl., " ECF No. 12).
Further, Frazier submitted exhibits with his Memorandum in
Support of his § 2241 Petition. (ECF Nos. 2-1 through
2-7.) The Court will consider these submissions in
determining the propriety of the Renewed Motion for Summary
Judgment. See Fed. R. Civ. P. 56(c). Finally,
Frazier has submitted numerous other filings and memoranda at
various stages of this litigation. (See ECF Nos. 2,
9, 10, 19, 22, 23, 25, 27, 30.) Although these submissions fail
to constitute admissible evidence, the Court considers
Frazier's arguments his support of his position.
light of the foregoing principles and submissions, the
following facts are established for purposes of
Respondent's Renewed Motion for Summary Judgment. The
Court draws all permissible inferences in favor of Frazier.
Summary of Pertinent Facts
Frazier's 2003 Pennsylvania Sentence
August 25, 2003, Frazier was serving a Pennsylvania state
sentence ("2003 Pennsylvania Sentence") and was
sent by the Pennsylvania Department of Corrections to a
community corrections center. (Williams Decl. ¶ 4.) While
on parole for his 2003 Pennsylvania Sentence, 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
Frazier's Federal Sentence
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,
Frazier's 2007 Pennsylvania Sentence
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.)
Frazier received credit for his 2003 Pennsylvania Sentence
and 2007 Pennsylvania Sentence back to January 7, 2005.
(Williams Decl. ¶ 15; id. Attach. 5, at 2.)
December 5, 2011, Frazier "was paroled from his
Pennsylvania sentence[s] to the federal detainer to serve his
120-month sentence." (Williams Decl. ¶ 13;
id. Attach. 4, at 2; id. Attach. 5) Frazier
has remained in the BOP's custody since that date.
(Williams Decl. ¶ 13.) Thus, between January 7, 2005 and
December 5, 2011, Frazier concurrently served both the 2003
Pennsylvania Sentence and the 2007 Pennsylvania