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Frazier v. Wilson

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

June 19, 2018

KEVIN E. FRAZIER, Petitioner,
ERIC WILSON, Respondent.


          John A. Gibney, Jr. Judge

         Kevin 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.

         The 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.

         In his § 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:[1]

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." (Id.)
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. 2.)

         For the 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 be DENIED.

         I. 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). "[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)).

         In 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 materials").

         In 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.)

         In 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.)

         Frazier 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.)[2] Although these submissions fail to constitute admissible evidence, the Court considers Frazier's arguments his support of his position.

         In 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.

         II. Summary of Pertinent Facts

         A. Frazier's 2003 Pennsylvania Sentence

         On 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.[3] (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 Sentence.

         B. Frazier's Federal Sentence

         Frazier 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, at 2-7.)

         C. Frazier's 2007 Pennsylvania Sentence

         On 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.)

         On 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 Sentence.[4]

         III. ...

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