Opinion
C. A. 4:23-2618-JFA-TER
07-19-2023
Thomas Lee Brincefield, #21261-057, Petitioner, v. Nanette Barnes, Warden, Respondent.
REPORT AND RECOMMENDATION
Thomas E. Rogers, III United States Magistrate Judge.
Petitioner is a federal prisoner confined at FCI-Bennettsville. (ECF No. 1). Petitioner was sentenced by the United States District Court of the Middle District of North Carolina. He is seeking habeas relief under § 2241 and proceeding in this action pro se. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Rule 73.02(B)(2)(c), D.S.C., the undersigned is authorized to review such petitions for relief and submit findings and recommendations to the District Court.
STANDARD OF REVIEW
Under established local procedure in this judicial district, a careful review has been made of the pro se pleadings pursuant to the procedural provisions of the Anti-Terrorism and Effective Death Penalty Act of 1996. The review has been conducted in light of the following precedents: Denton v. Hernandez, 504 U.S. 25 (1992); Neitzke v. Williams, 490 U.S. 319, 324-25 (1989); Haines v. Kerner, 404 U.S. 519 (1972); Nasim v. Warden, Maryland House of Correction, 64 F.3d 951 (4th Cir. 1995)(en banc); Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983); Loe v. Armistead, 582 F.2d 1291 (4th Cir. 1978); and Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). The Petitioner is a pro se litigant, and thus his pleadings are accorded liberal construction. Erickson v. Pardus, 551 U.S. 89, 94 (2007)(per curiam); Cruz v. Beto, 405 U.S. 319 (1972). Even under this less stringent standard, the petition is subject to summary dismissal.
Furthermore, this court is charged with screening Petitioner's lawsuit to determine if “it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court.” Rule 4 of Rules Governing Section 2254 Cases in the United States District Courts. Following the required initial review, it is recommended that the Petition submitted in this case should be dismissed.
DISCUSSION
Petitioner alleges he is contesting how his sentence is being carried out, calculated, or credited by prison authorities (for example, revocation of calculation of good time credits). (ECF No. 1 at 1). Petitioner states he has an “aggregate term to run concurrent with each other as to counts 2 and 5, and to run concurrent with the sentence that I am presently serving in case no. 1:03-cr-346-1.” (ECF No. 1 at 2). Petitioner alleges he exhausted all the way to the Central Office level. (ECF No. 1 at 3).
In 2018, Petitioner pleaded guilty to count two, distribution of heroin and count five, possession of a firearm by a convicted felon, in No. 1:17-cr-0025-NCT-1(M.D.N.C). (ECF No. 1at 10). Petitioner was sentenced to 121 months as to count two and 120 months as to count five to run concurrently with each other and to run concurrently with the sentence from No. 1:03-cr-346-1. (ECF No. 1 at 10). Petitioner alleges the BOP is failing to comply with Program Statement 5160.05. (ECF No. 1 at 11). The 2017 charges resulted in revocation of his supervised release on the 2003 criminal case. Petitioner submitted BOP computation documents. (ECF No. 1-1). Requested relief is to have all his sentences running concurrently. However, it is evident from Petitioner's attachments that his sentences are running concurrently already.
This program statement is inapplicable as it involves designation of a state institution for service of a federal sentence. Petitioner is held in a federal facility for federal sentences. The applicable program statement is BOP Program Statement 5880.28, which is the sentence computation manual.
Petitioner's sentences began on different dates because he was not sentenced on the same dates for all three sentences. Concurrent running of two different sentences simply cannot begin before the second sentence has been given. Concurrency to the 2003 criminal case/2016 revocation can only begin to run when Petitioner was sentenced on the new charges(counts two and five) in 2018. On August 10, 2016, Petitioner was sentenced to 36 months for the supervised release violation from the 2003 criminal action. On August 31, 2018, Plaintiff was sentenced to 121 months with a concurrent 120 months. Petitioner's concurrency began only once he had multiple sentences in August 2018 and not before then because there was no sentence to yet run the revocation sentence concurrent to.
To the extent Petitioner may be arguing that the sentences are being run consecutively, the attachments to the Petition show the three sentences are not being run consecutively(which would be a total of more than 200 months if that were the circumstance). Petitioner's statutory term release date from the August 2018 sentence is June 30, 2026, which is 94 months.
To the extent Petitioner is attempting to argue some form of “retroactive concurrency” for the two years he was only serving the 2016 revocation sentence because he had not yet receive the 2018 sentences, BOP Program Statement 5880.28, at page 1-13, states that “[i]n no case can a federal sentence of imprisonment commence earlier than the date on which it is imposed.” See also 18 U.S.C. § 3585(a).
To the extent Petitioner is seeking “double credit” for the time he was serving the revocation sentence and the time he was held on the pending 2017 charges, 18 U.S.C. § 3585(b) prohibits the BOP from giving Petitioner “double credit” for that time period. It is impossible for Petitioner to receive credit toward his 2018 sentence before that sentence was imposed, because he was already receiving credit toward another sentence, the 2016 sentence. Accordingly, Petitioner could not receive custody credit toward No. 1:17-cr-0025-NCT-1(M.D.N.C) before August 2018, because he was already receiving credit toward his sentence in No. 1:03-cr-346-1. See e.g. Ozsusamlar v. McCaffrey, No. 3:22-CV-21, 2022 WL 18638822, at *6 (N.D. W.Va. Aug. 3, 2022), report and recommendation adopted, No. 3:22-CV-21, 2023 WL 316131 (N.D. W.Va. Jan. 19, 2023)(“Petitioner was not eligible to obtain credit for time served prior to imposition of his second federal sentence, because he was already receiving credit for that time toward his first federal sentence.”).
Petitioner's sentence was properly calculated and he received the appropriate custody credit he is statutorily entitled to. The Petition shows Petitioner's sentences are running concurrently as sentenced and the Petition-requesting relief of “federal sentence to run concurrent with the sentence he is serving in case 1:03-cr-346-1”-is recommended to be summarily dismissed.
RECOMMENDATION
Accordingly, it is recommended that the Petition be dismissed without requiring the respondent to file a return.
IT IS SO ORDERED.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 2317
Florence, South Carolina 29503
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).