Opinion
8:23-cv-0310-JFA-JDA
01-27-2023
Antwan Rivers, Petitioner, v. Warden Dunbar, Respondent.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
JACQUELYN D. AUSTIN, UNITED STATES MAGISTRATE JUDGE
Antwan Rivers (“Petitioner”) is a prisoner in the custody of the Federal Bureau of Prisons (“BOP”) and is currently incarcerated in South Carolina at the Williamsburg Federal Correctional Institution (“FCI Williamsburg”). [Doc. 1 at 1.] Proceeding pro se, Petitioner brings this habeas corpus action under 28 U.S.C. § 2241 to challenge the calculation of his sentence. [Id. at 2.] 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 Magistrate Judge is authorized to review such petitions for relief and submit findings and recommendations to the District Court. For the reasons below, the Petition filed in this matter is subject to summary dismissal.
BACKGROUND
Petitioner commenced this action on January 18, 2023, challenging the BOP's calculation of his sentence and release date. [Doc. 1 at 2, 10.] Petitioner contends he was sentenced on January 9, 1996, in the United States District Court for the Southern District of Georgia at case number 4:95-cr-00123-015. [Id. at 1.] Petitioner contends he filed a grievance at FCI Williamsburg on November 20, 2022, addressing the BOP's failure to properly calculate his sentence and award him credit for time served. [Id. at 2.] According to Petitioner, the grievance is still pending. [Id.]
A prisoner's pleading is considered filed at the moment it is delivered to prison authorities for forwarding to the court. See Houston v. Lack, 487 U.S. 266, 270 (1988). Petitioner's envelope is marked as having been received by the prison mailroom at FCI Williamsburg on January 18, 2023, which is also the date the Petition was signed. [Docs. 1-1 at 2; 1 at 10.]
According to the BOP's Inmate Locator, Petitioner currently has a projected release date of May 30, 2028. See https://www.bop.gov/inmateloc/ (search by Petitioner's BOP Register Number “08932-021”) (last visited Jan. 24, 2023). The Court notes that projected release dates inherently fluctuate. This is so because they depend on a number of factors, including a prisoner's amount of credit for pre-sentence detention or “jail time served”; the award of various types of sentence credits, such as when an inmate earns good time, work, education, or other sentence-related credits, which reduce his max-out date; and the loss of those credits for disciplinary reasons, which may extend the max-out date. See Twitty v. Reynolds, No. 0:11-cv-2667-DCN-PJG, 2012 WL 2366452, at *1 n.2 (D.S.C. June 1, 2012), Report and Recommendation adopted by 2012 WL 2368330 (D.S.C. June 21, 2012).
Petitioner asserts a single ground in his Petition. Specifically, Petitioner contends the “BOP failed to classify [his] custody, failed to calculate [his] sentence and credit [his] jail time.” [Id. at 6.] According to Petitioner, he turned himself into custody on January 14, 1995, because he had been informed that there was a warrant for his arrest. [Id. at 7.] In February or March 1995, he appeared in the Southern District of Georgia on federal charges. [Id.] He was sentenced to a term of 204 months' imprisonment in the custody of the BOP. [Id.] According to Petitioner, he was found guilty in 1997 on unrelated state charges and received a life sentence. [Id. at 7-8.] He was paroled out of state custody on August 3, 2022, and released to a federal detainer. [Id. at 8.] Petitioner contends that, prior to the federal detainer, he had been incarcerated for 27 years and 9 months, which he claims is not being credited toward his federal sentence. [Id.] For his relief, Petitioner seeks an order of the Court directing the BOP to correct his sentence calculation and credit him for time served for the sentenced imposed on January 9, 1996, or, in the alternative, grant his immediate release. [Id. at 9.]
The undersigned takes judicial notice of the following additional information that is available from the public dockets of Petitioner's underlying federal and state criminal cases referenced above.
The Court takes judicial notice of the records in Petitioner's cases in both the state and federal courts. See Philips v. Pitt Cnty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (explaining courts “may properly take judicial notice of matters of public record”); Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) (“We note that ‘the most frequent use of judicial notice is in noticing the content of court records.'”).
State Conviction and Sentence
Petitioner was indicted in the State of Georgia in 1995 and charged with the crimes of malice murder, felony murder, aggravated assault, and possession of a firearm during the commission of a crime. See Rivers v. State, 516 S.E.2d 525, 526 & n.1 (Ga. 1999). A jury acquitted Petitioner of the malice murder charge but found him guilty of the remaining charges. Id. at 526. As the Georgia Supreme Court explained,
The crimes took place on January 7, 1995, and [Petitioner] was arrested pursuant to a warrant a week later. He was charged in an indictment returned by the Chatham County grand jury on April 12, and his trial commenced on June 16, 1997. The jury returned its verdicts on June 17 and, on July 24, the trial court filed its sentence of life imprisonment for felony murder (the aggravated assault having merged therein) and a five-year term of imprisonment, to be served consecutively, for the possession conviction.Id. n.1.
Federal Conviction and Sentence
On June 7, 1995, an indictment was issued in the United States District Court for the Southern District of Georgia, charging Petitioner with conspiracy to distribute cocaine base and cocaine hydrochloride (“Count 1”) and use of a firearm during drug trafficking (“Count 2”). See United States v. Rivers, No. 4:95-cr-00123-WTM-CLR-15 (S.D. Ga. June 7, 1995) (“U.S. v. Rivers”), Doc. 3. An arrest warrant issued that same day, and the arrest warrant was returned executed on July 26, 1995, at which time Petitioner made an initial appearance, pursuant to a writ of habeas corpus ad prosequendum issued by the District Court, and entered a not guilty plea at the arraignment. Id., Doc. 122. In October 1995, a jury trial was held and the jury returned a verdict of guilty as to Count 1. Id., Doc. 478. Petitioner was acquitted as to Count 2. Id., Doc. 490. On January 9, 1996, Petitioner was sentenced to a term of 204 months' imprisonment and 5 years' supervised release. Id., Doc. 590. On June 12, 2009, the sentencing court entered an order reducing Petitioner's sentence to 162 months; on January 9, 2012, the sentencing court entered an order reducing Petitioner's sentence to 120 months; and on April 8, 2019, the sentencing court entered an order reducing Petitioner's sentence to 82 months. Id., Docs. 1072; 1136; 1320.
APPLICABLE LAW
Liberal Construction of Pro Se Petition
Petitioner brought this action pro se, which requires the Court to liberally construe his pleadings. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam); Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978); Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Pro se pleadings are held to a less stringent standard than those drafted by attorneys. Haines, 404 U.S. at 520. Even under this less stringent standard, however, the pro se petition is still subject to summary dismissal. Id. at 520-21. The mandated liberal construction means only that if the court can reasonably read the pleadings to state a valid claim on which the petitioner could prevail, it should do so. Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999). A court may not construct the petitioner's legal arguments for him. Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993). Nor should a court “conjure up questions never squarely presented.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
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; see also Rule 1(b) Rules Governing Section 2254 Cases in the U.S. District Courts (2012) (a district court may apply these rules to a habeas corpus petition not filed pursuant to § 2254).
Habeas Corpus
Generally
Habeas corpus proceedings are the proper mechanism for a prisoner to challenge the legality or duration of his custody. See Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). The primary means of attacking the validity of a federal conviction and sentence is through a motion pursuant to 28 U.S.C. § 2255, while a petition for habeas corpus under § 2 241 is the proper method to challenge the computation or execution of a federal sentence. See United States v. Little, 392 F.3d 671, 678-79 (4th Cir. 2004).
A petitioner may bring a petition for a writ of habeas corpus under § 2241 if he is “attack[ing] the computation and execution of the sentence rather than the sentence itself.” U.S. v. Miller, 871 F.2d 488, 490 (4th Cir. 1989); Diaz v. Warden, FCI Edgefield, No. 4:17-cv-00093-RBH, 2017 WL 2985974, at *2 (D.S.C. July 13, 2017) (noting a § 2241 petition “is the proper means for a federal prisoner to challenge the BOP's sentencing calculations”). A petition pursuant to § 2241 challenging the execution of a federal prisoner's sentence generally addresses “such matters as the administration of parole, computation of a prisoner's sentence by prison officials, prison disciplinary actions, prison transfers, type of detention and prison conditions.” Jiminian v. Nash, 245 F.3d 144, 146 (2d Cir. 2001); see also Manigault v. Lamanna, No. 8:06-cv-047-JFA-BHH, 2006 WL 1328780, at *1 (D.S.C. May 11, 2006) (“A motion pursuant to § 2241 generally challenges the execution of a federal prisoner's sentence, such as parole matters, computation of sentence by prison officials, prison disciplinary actions, and prison transfers.”). A petition under § 2241 must be brought against the warden of the facility where the prisoner is being held, 28 U.S.C. § 2242; Rumsfeld v. Padilla, 542 U.S. 434-35 (2004), and “in the district of confinement rather than in the sentencing court,” Miller, 871 F.2d at 490.
Exhaustion
The execution of sentences and the computation of jail time is an administrative function under the authority of the Attorney General, who has delegated this task to the BOP, including the responsibility for computing time credits and determining a sentence termination date once a defendant actually commences serving his sentence. United States v. Wilson, 503 U.S. 329, 334-35 (1992). Accordingly, the Attorney General, through the BOP, must make the initial determination to award sentence credit for time spent in official detention; a district court does not have the jurisdiction to make an initial determination. U.S. v. Jeter, 161 F.3d 4, at *1 (4th Cir. 1998) (unpublished table decision). As a result, prior to filing a § 2241 habeas petition, a petitioner must exhaust his administrative remedies. McClung v. Shearin, 90 Fed.Appx. 444, 445 (4th Cir. 2004). The requirement to exhaust administrative remedies is not waivable. Jeter, 161 F.3d 4, at *2. Further, a petitioner's failure to exhaust administrative remedies is excused only upon a showing of cause and prejudice. McClung, 90 Fed.Appx. at 445.
The BOP's Administrative Remedy Program is found at 28 C.F.R. §§ 542.10 through 542.19. The grievance process consists of three levels of review: institutional, regional, and national. See id. First, an inmate must seek to informally resolve any complaint relating to his confinement. Id. § 542.13. Next, if the complaint cannot be resolved informally, the inmate may file a formal written Administrative Remedy Request; Requests must be filed within twenty days of the incident giving rise to the complaint. Id. § 542.14. Then, if the inmate is dissatisfied with the response, he may appeal to the Regional Director; appeals to the Regional Director must be submitted within twenty days of the date the warden signed his response. Id. § 542.15(a). Finally, if the inmate is dissatisfied with the Regional Director's response, the inmate may appeal to the General Counsel; appeals to the General Counsel must be submitted within thirty days of the date the Regional Director signed his response. Id.
Although 28 U.S.C. § 2241 does not contain a statutory exhaustion requirement, courts have required prisoners to exhaust their administrative remedies prior to seeking habeas review under § 2241. See Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 490-91 (1973) (requiring exhaustion in a § 2241 matter); Timms v. Johns, 627 F.3d 525, 531 (4th Cir. 2010) (noting courts require “exhaustion of alternative remedies before a prisoner can seek federal habeas relief” (internal quotation marks omitted)). Exhaustion allows prison officials to develop a factual record and provides “an opportunity to resolve disputes concerning the exercise of their responsibilities before being haled into court.” Jones v. Bock, 549 U.S. 199, 204 (2007). Any arguments not advanced at each step of the administrative appeal are procedurally defaulted. See Moffat v. Broyles, 288 F.3d 978, 981-82 (7th Cir. 2002). Moreover, if a prisoner cannot obtain an administrative remedy because of his failure to timely appeal at the administrative level, then the prisoner has procedurally defaulted his § 2241 claim, unless the prisoner can demonstrate cause and prejudice for the failure. See, e.g., Moscato v. Fed. Bureau of Prisons, 98 F.3d 757, 760 (3d Cir. 1996), cited with approval in Watkins v. Compton, 126 Fed.Appx. 621, 622 (4th Cir. 2005); Nigro v. Sullivan, 40 F.3d 990, 997 (9th Cir. 1994). Additionally, “[w]here a petition for writ of habeas corpus is brought pursuant to 28 U.S.C. § 2241, the exhaustion of administrative remedies is jurisdictional.” Hicks v. Jordan, 165 Fed.Appx. 797, 798 (11th Cir. 2006); see Timms, 627 F.3d at 533. Although the exhaustion of administrative remedies is not waivable, Jeter, 161 F.3d at *2 (4th Cir. 1998), some courts have held that the judicial exhaustion requirement of § 2241 may be excused by courts for discretionary reasons, such as where requiring exhaustion would be futile. See, e.g., Dunkley v. Hamidullah, No. 6:06-cv-2139-JFA-WMC, 2007 WL 2572256, at *2 (D.S.C. Aug. 31, 2007). Further, courts have emphasized a petitioner's failure to exhaust administrative remedies may be excused only upon a showing of cause and prejudice. McClung, 90 Fed.Appx. at 445 (citing Carmona, 243 F.3d at 634-35).
DISCUSSION
As noted, Petitioner commenced this action to challenge the BOP's calculation of his sentence, and he asks this Court to order the BOP to award him credit for time served or to release him. However, this action is subject to summary dismissal because Petitioner has not exhausted his administrative remedies, and he has failed to demonstrate any cause or prejudice to show that the exhaustion requirement should be waived.
Petitioner concedes he has not exhausted his remedies. [Doc. 1 at 2.] Specifically, he alleges that he filed a grievance at FCI Williamsburg on November 20, 2022, and that the grievance is “Still Pending.” [Id.]
Because Petitioner is challenging the BOP's calculation of his release date, he must first exhaust his administrative remedies before bringing an action in this Court. Indeed, this is precisely the type of case which requires a fully developed administrative record so that the Court may evaluate the BOP's calculation of time to be credited to Petitioner's sentence. See Mero v. Phelps, No. 4:20-cv-3615-MGL-TER, 2020 WL 7774378, at *2 (D.S.C. Nov. 2, 2020) (“The BOP should be afforded the opportunity to correct any alleged errors, to develop its factual record, and apply its expertise to the situation.”), Report and Recommendation adopted by 2020 WL 7769784 (D.S.C. Dec. 30, 2020). Therefore, because Petitioner has not exhausted his administrative remedies, the Petition should be dismissed. See Rodgers v. Glenn, No. 1:16-cv-16-RMG, 2017 WL 1051011, at *3 (D.S.C. Mar. 20, 2017) (“Because [Petitioner] admits he did not [exhaust his administrative remedies], his lawsuit is barred by statute.”).
Further, Petitioner has not alleged facts showing any cause or prejudice to demonstrate that the exhaustion requirement should be waived. The Court is mindful that Petitioner was sentenced in federal court in 1996 to a term of 240 months and that his sentence subsequently has been reduced to 82 months. However, unless and until the BOP is able to resolve Petitioner's administrative grievance and make a determination concerning the proper calculation of credit due to Petitioner for the time he spent in state custody for his state sentence, this Court should not consider this Petition.
In this case, it is essential for Petitioner to exhaust his administrative remedies so that the BOP can create a record of its determinations regarding the relationship between Petitioner's state and federal sentences, the commencement of Petitioner's federal sentence, and any credit due Petitioner. At this time, upon the record from Petitioner's state and federal criminal proceedings, it appears that Petitioner's federal sentence did not begin until August 3, 2022, the date he was released on parole from state custody and into the custody of the BOP pursuant to a federal detainer. See, e.g., 18 U.S.C.A. § 3585(a) (“A sentence to a term of imprisonment commences on the date the defendant is received in custody awaiting transportation to, or arrives voluntarily to commence service of sentence at, the official detention facility at which the sentence is to be served.”). This is so because, when Petitioner appeared to answer his federal charges in 1995, he was already in state custody to answer state criminal charges, with the State of Georgia retaining primary jurisdiction over him. See, e.g., Cannon v. Deboo, No. 5:08-cv-69, 2009 WL 692148, at *5 (N.D. W.Va. Mar. 13, 2009). Petitioner was then “borrowed” from state custody pursuant to a writ of habeas corpus ad prosequendum to answer his federal charges and then returned for his state court criminal proceedings and sentence. See, e.g., Barbati v. Warden, USP Lee Cnty., No. 7:13-cv-00048, 2013 WL 3367536, at *1 (W.D. Va. July 5, 2013) (explaining an inmate is “‘borrowed'” by federal authorities upon the issuance of a writ of habeas corpus ad prosequendum and considered “‘on loan'” from the state authorities to the federal authorities). And, “[p]ursuant to 18 U.S.C. § 3585(b), a prisoner may not receive credit for prior custody against a federal sentence if the prisoner has already received credit for that time against another sentence.” Cannon, 2009 WL 692148, at *5; see also U.S. v. Brown, 977 F.2d 574, at *1 (4th Cir. 1992) (unpublished table decision). Thus, Petitioner's state sentence would not count towards his federal sentence. See U.S. v. Evans, 159 F.3d 908, 912 (4th Cir. 1998) (“A federal sentence does not begin to run . . . when a prisoner in state custody is produced for prosecution in federal court pursuant to a federal writ of habeas corpus ad prosequendum. Rather, the state retains primary jurisdiction over the prisoner, and federal custody commences only when the state authorities relinquish the prisoner on satisfaction of the state obligation.”); Johnson v. Deboo, No. 5:08-cv-184, 2009 WL 3583695, at *3 (N.D. W.Va. Oct. 26, 2009) (explaining where a petitioner was originally arrested by state authorities, and was thereafter taken into federal custody pursuant to a writ of habeas corpus ad prosequendum, the state retained primary custody of the petitioner during these federal proceedings because the petitioner was considered “borrowed” from the state for purposes of making a plea and for sentencing in federal court and that, following the petitioner's federal sentencing, he was returned to the state to be sentenced and serve his state sentence, where he remained in the custody of the state until his state sentence expired; thus, the petitioner was in official detention pursuant to his state court conviction, not his federal sentence, and that time was properly awarded to his state sentence rather than his federal sentence), aff'd, 384 Fed.Appx. 270 (4th Cir. 2010). Based on these factors and the applicable law, the undersigned is unable to conclude that Petitioner will suffer any prejudice or has shown any cause to excuse the exhaustion requirement. At this time, because “there is no record for the Court to review the BOP's analysis and decision” as “the BOP was not permitted the opportunity to consider . . . any sentence calculation issues claimed by Petitioner, the undersigned [concludes] such claim should be dismissed for lack of exhaustion.” Brown v. Tatum, No. 1:16-cv-05307, 2018 WL 1614093, at *4-5 (S.D. W.Va. Feb. 26, 2018), Report and Recommendation adopted by 2018 WL 1611599 (S.D. W.Va. Apr. 2, 2018).
CONCLUSION AND RECOMMENDATION
Accordingly, it is recommended that the § 2241 Petition be DISMISSED without prejudice and without requiring the Respondent to file an answer or return.
IT IS SO RECOMMENDED.
Petitioner's attention is directed to the important notice on the next page.
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
250 East North Street, Suite 2300
Greenville, South Carolina 29601
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).