Opinion
ACTION 2:21cv245
12-17-2021
ERIC J. JOHNSON, #70717-067, Petitioner, v. R. WILSON, Acting Warden[1], FCC Petersburg, Respondent.
Daniel Patrick Shean
Daniel Patrick Shean
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
DOUGLAS E. MILLER, UNITED STATES MAGISTRATE JUDGE
Petitioner Eric J. Johnson ("Johnson") seeks a writ of habeas corpus under 28 U.S.C. § 2241 alleging error in the calculation of his fderal sentence. Specifcally, Johnson seeks credit fr time spent in state custody prior to commencement of his fderal sentence. The Respondent moved to dismiss Johnson's petition, or in the alterative fr summary judgment, and the matter was refrred to the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B). Because the Federal Bureau of Prisons ("BOP") properly calculated Johnson's sentence, the undersigned recommends that the Respondent's Motion fr Summar Judgment be granted, and the petition be dismissed.
I. RECOMMENDED FINDINGS OF FACT AND CONCLUSIONS OF LAW
Prior to his fderal conviction, on June 8, 2012, Johnson was arrested by state authorities in Pennsylvania as a result of a drug transaction. Kelly Deel. ¶ 6 (ECF No. 8-1, at 2). Because he was then on paole fr earlier convictions, he was recommitted to state custody to resume serving his originally imposed state sentences. Kelly Deel. ¶ 6, Attach. 2 (ECF No. 8-1, at 2, 12-13). He has remained in continuous custody since his state arrest. Id.
While in state custody, Johnson was indicted on fderal charges on June 13, 2012. Kelly Deel. ¶ 7, Attach. 3 (ECFNo. 8-1, at 2-3, 17-20). He was temporarily transfrred to fderal custody fr proceedings in connection with the fderal ofense several times-n July 17, 2012, March 5, 2013 to August 15, 2013, December 5, 2013, and fnally on July 30, 2014, the date of his fderal sentencing. Kelly Deel., ¶ 7, Attach. 4 (ECF No. 8-1, 3, 23-24). Following his fderal conviction, the district court ordered that his 200-month fderal sentence run concurrent with the state sentences which Johnson had by then resumed serving in state prison. Kelly Deel., ¶ 8, Attach. 5 (ECF No. 8-1, at 3, 27). He entered BOP custody afer completion of his state sentence on July 1, 2015, when he was taen into custody on a fderal detainer to fnish serving his concurrent fderal sentence. Kelly Deel. ¶ 12, Attach. 4 (ECF No. 8-1 at 4, 23). Johnson was later transfrred to Federal Corectional Center Petersburg, where he resided when he commenced this action.His fderal sentence was later reduced to 188 months under 18 U.S.C. § 3582(c)(2). Kelly Deel., ¶ 13, Attach. 7 (ECF No. 8-1, at 5, 36). At the time these matters were briefd, his projected release date was June 5, 2027. Kelly Deel., ¶ 13, Attach. 1 (ECF No. 8-1 at 5, 19).
Johnson was later transferred again and is presently housed at Federal Correctional Institute- Herlong, in Herlong, Califria. Because the Petition was properly commenced in the district where Johnson was then confned, his later tansfr outside the district does not defeat jurisdiction. United States v. Edwards, 27 F.3d 564, at* I (4th Cir. 1994) (unpublished) (table of decisions).
Although Johnson did not begin serving prison time in a fderal fcility until July 2015, the BOP calculated Johnson's fderal sentence as beginning July 30, 2014, the date he was sentenced by the federal court in Pennsylvania. Kelly Deel. ¶ 11 (ECF No. 8-1, at 4). This is because BOP designated his state fcility as a state institution where service of the concurrent fderal sentence would begin during the remainder of his state sentence. Kelly Deel. ¶¶ 10-11,
Attach. 6 (ECF No. 8-1 at 4, 34) (citing 18 U.S.C. § 362l(b)). However, Johnson did not receive credit against his fderal sentence fr the time he spent serving his state sentence fom June 8, 2012, until his fderal sentence was imposed July 30, 2014, and it is this allegedly denied sentencing credit which he challenges in this habeas claim. Johnson argues that, because the sentencing judge intended that his fderal sentence run concurrently, he should receive credit fr all the time he spent in custody befre his fderal conviction, and that BOP's refsal to credit him with this time spent in state custody befre his federal conviction is a sentence calculation error subject to correction under Section 2241.
The Respondent moved fr summary judgment, (ECF No. 7), arguing that Johnson's sentence was properly calculated, and that he has not stated any claim fr relief under Section 2241, Resp't Mem. (ECF No. 8, at 8). As required by Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), Johnson was advised of his right to respond to the motion, as well as the consequences of filing to respond (ECF No. 9). Johnson responded to the motion, submitting his own statement with exhibits. Pet.'s Resp. (ECF No. 14). Johnson's opposition acknowledges Respondent's aguments but contends that he should receive credit fr his pre-sentencing custody because he was not fund in violation of his state parole until the time of his fderal conviction. Pet.'s Resp., Attach. (ECF No. 14, at 2, 4). As a result, he argues the time spent in state custody should be considered pretrial detention fr which he claims credit on the fderal sentence.
As Respondent concedes, Johnson has properly exhausted his administrative remedies. Kelly Deel. ¶ 16 (ECF No. 8-1, at 6). The Motion fr Summay Judgment is therefre ripe to resolve.
II. STANDARD OF REVIEW
Federal Rule of Civil Procedure 56 requires the Court to grant a motion fr summary judgment if "the movant shows that there is no genuine dispute as to any material fct and the movant is entitled to judgment as a matter oflaw." Fed.R.Civ.P. 56(a); Celotex Cor. v. Catrett, 477 U.S. 317, 322-24 (1986). "A material fct is one 'that might afect the outcome of the suit under the governg law.' A disputed fct presents a genuine issue 'if the evidence is such that a reasonable jur could retu a verdict fr the non-moving par." Spriggs v. Diamond Auto Glass, 242 F.3d 179, 183 (4th Cir. 2001) (quoting Anderson v. Liber Lobby, Inc., 477 U.S. 242, 248 (1986)).
The pay seeking summar judgment has the initial burden of infrming the Court of the basis of its motion and identifing materials in the record it believes demonstrates the absence of a genuine dispute of material fct. Fed.R.Civ.P. 56(c); Celotex Cor., 477 U.S. at 322-25. When the moving pa has met its burden to show that the evidence is insufcient to support the nonmoving pary's case, the burden shifs to the nonmoving party to present specifc fcts demonstrating that there is a genuine issue fr trial. Matsushita Elec. Indus. Co. v. Zenith Radio Cor., 475 U.S. 574, 586-87 (1986).
In considering a motion fr summay judgment, "the court must draw all reasonable infrences in fvor of the nonmoving party, and it may not mae credibility determinations or weigh the evidence." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); see. Anderson, 477 U.S. at 255. "[A]t the summa judgment stage the judge's fnction is not himself to weigh the evidence and determine the tuth of the matter but to determine whether tere is a genuine issue fr trial." Anderson, 477 U.S. at 249.
III. ANALYSIS
Under 18 U.S.C. § 3585(a), a fderal sentence ordinarily begins when the defndant "is received in custody ... at the ofcial detention fcility at which the sentence is to be served." In addition, the sentence may not commence befre the date on which it was imposed by the sentencing court. United States v. McClean, 867 F.2d 609, 1989 W 5457, at *1 (4th Cir. Jan. 13, 1989) (unpublished table opinion). As relevant here, 18 U.S.C. § 362l(b) allows the BOP to designate a nonfderal fcility fr service of the federal sentence which carries out the direction of the sentencing court that a fderal sentence run concurrent with previously imposed state incarceration. Kelly Deel. ¶¶13-14 (citing Program Statement 5160.05 Designation of State Institution fr Service of Federal Sentences, Attach. 9) (ECF No. 6-1, at 47-51). But because service of the federal sentence cannot begin until it is imposed, in this case the BOP could not designate a state institution fr concurrent service of Johnson's sentence any earlier than July 30, 2014, the date he was sentenced on the fderal charges. Kelly Deel. ¶ 8, Attach. 5 (ECF No. 8-1, at 3, 26-27).
In addition, 18 U.S.C. § 3585(b) provides:
Credit fr prior custody - a defndant shall be given credit towards the service of a term of imprisonment fr any time he has spent in ofcial detention prior to the date the sentence commences.
1. As a result of the ofense fr which the sentence was imposed; or
2. As a result of any other charge fr which the defndant was arrested afer the commission of the ofense fr which the sentence was imposed: that has not been credited against another sentence.18 U.S.C. § 3585(b) (emphasis added). In this case, the time fr which Johnson complains he was denied credit was credited against his state sentence in Pennsylvania, ad as a result, BOP was precluded by statute fom crediting it against his fderal sentence notwithstanding the federal sentencing judge's direction that Johnson serve his sentences concurrently. The time he was in state custody was not pretrial detention, but time credited against his state sentence while he was in the state's primary custody befre commencement of his fderal sentence. Johnson did receive credit fr a portion of time he spent in state custody; namely, the 235 days fom the time he was convicted on the federal charges on July 30, 2014, until conclusion of his state sentence on June 30, 2015. Kelly Deel., ¶ 10, Attach. 6 (ECF No. 8-1, at 4, 34).
Although not expressly alleged, Johnson may contend he is entitled to credit fr time spent in state custody under BOP policy implementing the holding in Willis v. United States, 438 F.2d 923, 924 (5th Cir. 1971). So-called "Willis credit" is an exception to the statutor bar against credit fr time served befre a fderal sentence is imposed. See Frazier v. Wilson, No. 3:16cv933, 2018 WL 3040011, at *4-5 (E.D. Va. June 19, 2018) (citing BOP Program Statement 5880.28). When a fderal sentence runs concurently with a non-fderal sentence, the policy allows credit fr all of the time spent in non-fderal pre-sentence detention up to the time the frst of the concurrent sentences is imposed. Id Here, Johnson's time in state custody was not pre-sentence detention because the state sentence he was serving had already been imposed. The Pennsylvania sentencing documents attached to Respondent's motion demonstrate that this time was credited against multiple pre-existing state sentences. Kelly Deel. ¶ 14, Attach. 8 (ECF No. 8-1, at 5, 38-39).
In his responsive brief Petitioner argues, without citation, that he should receive credit on his concurrent fderal sentence because his parole violation in state court was not fnally determined until August 1, 2014, afer his fderal conviction and sentencing. Pet's Resp. (ECF No. 14, at 1). He observes that the credit against his state sentence (784 days) was calculated afer his fderal conviction. Id. But even if the fnal determination of state credit was not made until afer Johnson's fderal conviction, the undisputed fcts demonstrate that Johnson received state credit against multiple sentences, all of which were imposed prior to his fderal sentence. As a result, he was not serving a term of pre-sentence detention and is not entitled to credit under the BOP policy implementing Willis. Frazier, 2018 WL 3040011, at *5.
IV. RECOMMENDATION
For the fregoing reasons, the udersigned RECOMMENDS that Respondent's Motion fr Summary Judgment (ECF No. 7) be GRANTED and that Johnson's petition under 28 U.S.C. § 2241 be DENIED and the claims DISMISSED with prejudice.
V. REVIEW PROCEDURE
By copy of this report and recommendation, the parties are notifed that pursuant to 28 U.S.C. § 636(b)(1)(C):
1. Any paty may serve upon the other pay and fle with the Clerk written objections to the fregoing fndings and recommendations within furteen (14) days fom the date this report is frwarded to the objecting party by Notice of Electronic Filing or mail, see 28 U.S.C. § 636(b)(1), computed pursuant to Rule 6(a) of the Federal Rules of Civil Procedure. Rule 6(d) of the Federal Rules of Civil Procedure permits an extra three (3) days, if service occurs by mail. A pary may respond to any other party's objections within furteen (14) days afer being served with a copy thereof. See Fed.R.Civ.P. 72(b)(2) (also computed pursuant to Rule 6(a) and (d) of the Federal Rules of Civil Procedure).
2. A district judge shall make a de novo determination of those portions of this report or specifed fndings or recommendations to which objection is made.
The paties are frther notifed that falure to fle timely objections to the fndings and recommendations set frth above will result in a waiver of appeal fom a judgment of this court based on such fndings ad recommendations. Thomas v. Am, 474 U.S. 140 (1985); Car v. Huto, 737 F.2d 433 (4th Cir. 1984); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).