United States District Court, E.D. Virginia, Richmond Division
JASON L. McCRIGHT, Petitioner,
ERIC WILSON, Respondent.
A. Gibney, Jr. Judge
L. McCright, a federal inmate proceeding pro se,
filed this petition for habeas corpus under 28 U.S.C. §
2241 (hereinafter "§ 2241 Petition, " ECF No.
1.) McCright contends that the Bureau of Prisons
("BOP") "has denied me jail credit from [the]
time I was sentenced 3/2009 to June 6th 2012, the
sentence was concurrent to any other sentence." (§
2241 Pet. 7 (capitalization corrected).) The matter is now
before the Court on Respondent's Motion for Summary
Judgment (ECF No. 8). Because, as explained below,
McCright's federal sentence was not ordered to run
concurrent to the state sentence he had been serving and the
BOP has properly calculated his sentence, the Motion for
Summary Judgment will be GRANTED.
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 Slates 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. Ban, 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 Motion for Summary Judgment, Respondent
submits: (1)the Declaration of Forest Kelly, Correctional
Programs Specialist at the Department of Justice's
Designation and Sentence Computation Center
("DSCC") in Grande Prairie, Texas ("Kelly
Decl., " ECF No. 9-1); (2) the Judgment for
McCright's 2009 federal conviction (ECF No. 9-2);
McCright's Sentence Summary from the Virginia Department
of Corrections ("VDOC") (ECF No. 9-3); the U.S.
Marshals Service Individual Custody and Detention Report (ECF
No. 9-4); the Order reducing McCright's federal sentence
to 128 months (ECF No. 9-5); a letter dated May 8, 2012, from
the VDOC to the U.S. Marshals Service (ECF No. 9-6); and the
BOP's Public Inmate Information Data as of September 12,
2017 (ECF No. 9-7). McCright has not responded, but he did
sign his § 2241 Petition under penalty of perjury
(§ 2241 Pet. 10).
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 McCright.
Summary of Pertinent Facts
Imposition of McCright's State and Federal
October 20, 2008, McCright committed the federal offense of
Distribution of Cocaine Base for which he is currently
incarcerated. (Kelly Decl. ¶ 5).
December 5, 2008, McCright was sentenced in the Circuit Court
of the City of Newport News, Virginia to a 4-year and 2-month
state term of imprisonment for an unrelated state offense of
Distribution of Cocaine. (Id. ¶ 6.) McCright
was taken into custody by state authorities on December 5,
February 27, 2009, McCright was transferred to federal
custody pursuant to a writ for prosecution. (Id.
¶ 7.) On July 17, 2009, McCright was sentenced in the
Eastern District of Virginia, to a 192-month term of
imprisonment for Distribution of Cocaine Base. (Id.
¶ 8.) This sentence was later reduced to a term of 128
months. (Id.) Neither the original Judgment, nor the
Order reducing the sentence, indicate that the federal
sentencing court ordered the term to be served concurrently
with any other sentence. (ECF No. 9-2, at 2-7; ECF No. 9-5,
at 2.) McCright was returned to the VDOC on
September 22, 2009, for the continued service of the state
term of imprisonment. (Kelly Decl. ¶ 9.)
Service of the State and Federal Sentences
was released by the VDOC, via good time release, on June 6,
2012, to the exclusive custody of federal authorities.
(Id. ¶ 10.) The BOP conducted a sentence
computation and determined that McCright's federal
sentence commenced on June 6, 2012-the date he came into
exclusive federal custody. (Id.) The BOP received
records from the VDOC which showed that McCright entered
VDOC's custody on February 24, 2009. (Id. ¶
11.) The VDOC calculated Petitioner's sentence as a
4-year and 2-month term of confinement beginning upon
commitment to the VDOC with jail credit from April 11, 2008
through May 2, 2008, and from December 5, 2008 through
February 24, 2009. (Id.) The BOP sentence
computation determined that the federal sentence, a 128-month
term, was to run consecutively to the prior state sentence
because the judicial orders in McCright's case were
silent as to whether the sentence was to be served
consecutively or concurrently. (Id. ¶¶
8-12.) As all of ...