Opinion
8:23-cv-00855-MGL-JDA
01-25-2024
Emilio Flentall, Petitioner, v. Warden Sean Janson,[1] Respondent.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
Jacquelyn D. Austin United States Magistrate Judge
This matter is before the Court on Respondent's motion for summary judgment. [Doc. 11.] Petitioner, proceeding pro se, is a federal prisoner seeking relief pursuant to 28 U.S.C. § 2241. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(c), D.S.C., this magistrate judge is authorized to review post-trial petitions for relief and submit findings and recommendations to the District Court.
Petitioner filed this Petition for writ of habeas corpus on March 2, 2023. [Doc. 1.] On April 24, 2023, Respondent filed a motion for summary judgment. [Doc. 11.] The next day, the Court filed an Order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Petitioner of the summary judgment procedure and of the possible consequences if he failed to adequately respond to the motion. [Doc. 12.] The Clerk docketed a response in opposition to the summary judgment motion from Petitioner on August 10, 2023. [Doc. 37.] Accordingly, the motion is ripe for review.
This date reflects the date that the Petition was entered on the docket by the Clerk of Court. The Court observes that the envelope containing the Petition has no stamp from the prison mailroom and was mailed from Toccoa, Georgia, whereas the Petition lists Petitioner's place of confinement as FCI Edgefield. [Compare Doc. 1-2 at 1 with Doc. 1 at 1.] Accordingly, Petitioner is not entitled to benefit from the rule in Houston v. Lack, which held that, to protect the rights of prisoners who have no control over the processing of papers delivered to prison officials for mailing, the filing date for statute of limitations purposes is deemed to be the date that the filing is delivered to the prison mail room. 487 U.S. 266, 270-72, 276 (1988); see also Knickerbocker v. Artuz, 271 F.3d 35, 37 (2d Cir. 2001) (“We join the other circuits that have addressed this issue by holding that the prison mailbox rule established in Houston does not apply where a pro se prisoner delivers his notice of appeal to someone outside the prison system for forwarding to the court clerk.”).
Having carefully considered the parties' submissions and the record in this case, the Court recommends that Respondent's motion for summary judgment be granted and the Petition be denied.
BACKGROUND
Petitioner is incarcerated at the Edgefield Federal Correctional Institution located in Edgefield, South Carolina. [Doc. 1 at 1.] He was arrested in Clarke County, Georgia, on August 7, 2019, for violating parole in Stephens County Superior Court case number 12-SU-CR-046-CC. [Doc. 11-2 at 1-2 ¶ 7, 5, 7, 9.] On October 10, 2019, Petitioner's parole was revoked, and he was returned to the custody of the Georgia Department of Corrections. [Id. at 2 ¶ 7, 11.]
On February 6, 2020, Petitioner was temporarily removed from state custody via a writ of habeas corpus ad prosequendum in case number 3:20-CR-00003-CAR-CHW in the United States District Court for the Middle District of Georgia. [Id. at 2 ¶ 8, 13, 15, 18.] On August 18, 2020, Petitioner was sentenced to a 120-month term of imprisonment by the United States District Court for the Middle District of Georgia for possession of a stolen firearm. [Id. at 2 ¶ 9, 21-27.] The judgment ordered that the 120-month term of imprisonment “be served consecutively to the term of imprisonment imposed in Stephens County Superior Court case no. 12-SU-CR-046-CC for violation of parole.” [Id. at 22.] On August 27, 2020, Petitioner was returned to state custody upon satisfaction of the writ, and the United States Marshals Service filed a detainer for the federal sentence. [Id. at 2 ¶ 10, 18.]
Petitioner was discharged from the Georgia Department of Corrections and turned over to federal custody on April 10, 2022. [Id. at 2 ¶ 11, 18, 29.] Petitioner's federal sentence has been computed as commencing on April 10, 2022, the day he was discharged from state custody into primary federal custody. [Id. at 2 ¶ 12, 33.] No presentence custody credit has been awarded to his federal sentence. [Id. at 2 ¶ 13.] Petitioner was projected to earn 540 days of good conduct time credits, but due to an infraction of institutional rules, 41 days of credit was forfeited. [Id. at 2 ¶ 14, 35.] Petitioner's projected release date is November 27, 2030. [Id. at 2 ¶ 14, 33.]
Petitioner asserts the following grounds for relief, quoted substantially verbatim, in this action:
Ground One: The Bureau of Prisons [(“BOP”)] erred by failing to entertain Petitioner's request for nunc pro tunc designation of the Georgia Department of Corrections as a federal facility in order to credit Petitioner's federal sentence with pretrial detention time served by 5th Amendment
Supporting Facts: Petitioner argues that the BOP erred by failing to entertain his request for nunc pro tunc designation of state facility as a federal facility in order to credit his federal sentence time served
Ground Two: The BOP erred in refusing to recognize its authority vested by the Attorney General to make such designation. See Memorandum attached
Supporting Facts: See Memorandum of law attached
Ground Three: The BOP erred in refusing to designate Petitioner's state prison facility as a place of confinement for service of his federal sentence
Supporting Facts: See Memorandum of law attached
Ground Four: The BOP erred by failing to treat Petitioner fairly and impartially as they have other prisoners
Supporting Facts: See Memorandum of law brief attached[Doc. 1 at 6-7.] In his memorandum in support of the Petition, Petitioner argues:
Under the statute and the [BOP]'s regulations [P]etitioner is entitled to “fair treatment” on his application for nunc pro tunc designation of the facility as a place of confinement for Federal sentencing purposes. See CFR 542.12 (2006). See also Barden (“inmates . . . have the right to expect that as human beings [they] will be treated respectfully, impartially and fairly by all personnel).
The [BOP] has wide discretion to designate the place of confinement as required by the 5th and 6th Amendments of the U.S. Constitution. See Murray-v-arrier, 478 U.S. 495, 196 s.ct. 2636, 2649, 91 L.Ed.2d 397 (1986).
...
The [BOP] fail[ed] to adhere to [its] own policy, statutory authority and regulations to adequately designate [P]etitioner's Federal facility as a place of confinement. Petitioner avers that the BOP violated his rights under the 5th and 6th Amendments of the United States Constitution.[Doc. 1-1 at 2.] For his relief, Petitioner asks that the Court “issue a judicial Order to designate the place of his imprisonment for nunc pro tunc designation of the State of Georgia prison facility as a federal facility in order to credit his federal sentence with time served.” [Doc. 1 at 7.]
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).
Summary Judgment Standard
Rule 56 of the Federal Rules of Civil Procedure states, as to a party who has moved for summary judgment:
The court shall grant summary judgment 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). A fact is “material” if proof of its existence or non-existence would affect disposition of the case under applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of material fact is “genuine” if the evidence offered is such that a reasonable jury might return a verdict for the non-movant. Id. at 257. When determining whether a genuine issue has been raised, the court must construe all inferences and ambiguities against the movant and in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
The party seeking summary judgment shoulders the initial burden of demonstrating to the court that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, may not rest on the allegations averred in his pleadings. Id. at 324. Rather, the non-moving party must demonstrate specific, material facts exist that give rise to a genuine issue. Id. Under this standard, the existence of a mere scintilla of evidence in support of the non-movant's position is insufficient to withstand the summary judgment motion. Anderson, 477 U.S. at 252. Likewise, conclusory allegations or denials, without more, are insufficient to preclude granting the summary judgment motion. Ross v. Commc'ns Satellite Corp., 759 F.2d 355, 365 (4th Cir. 1985), overruled on other grounds, 490 U.S. 228 (1989). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Anderson, 477 U.S. at 248. Further, Rule 56 provides in pertinent part:
A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations
(including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.Fed. R. Civ. P. 56(c)(1). Accordingly, when Rule 56(c) has shifted the burden of proof to the non-movant, he must produce existence of a factual dispute on every element essential to his action that he bears the burden of adducing at a trial on the merits.
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 § 2241 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); United States v. Miller, 871 F.2d 488, 489-90 (4th Cir. 1989) (distinguishing between attacks on the “computation and execution of the sentence [and] the sentence itself”). 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. 8:06-047-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.
Calculation of a Term of Imprisonment
In a habeas proceeding where computation of a federal sentence is at issue, a court must consider two separate issues: (1) when the federal sentence commences and (2) to what extent the defendant can receive credit for time spent in custody prior to commencement of the sentence. Binford v. United States, 436 F.3d 1252, 1254 (10th Cir. 2006). Federal statutes mandate when a federal sentence commences and when a petitioner can receive credit for prior custody:
(a) Commencement of sentence.-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.
(b) Credit for prior custody.-A defendant shall be given credit toward the service of a term of imprisonment for any time he has spent in official detention prior to the date the sentence commences-
(1) as a result of the offense for which the sentence was imposed; or
(2) as a result of any other charge for which the defendant was arrested after the commission of the offense for which the sentence was imposed;
that has not been credited against another sentence.18 U.S.C. § 3585.
Although 28 U.S.C. § 2241 does not contain a statutory exhaustion requirement, courts consistently require 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 (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 “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 (3rd 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). Here, Respondent acknowledges Petitioner exhausted his administrative remedies before filing the Petition. [Docs. 11-1 at 4 n.2; 11-2 at 1 ¶ 6.]
The computation of a federal sentence is the responsibility of the Attorney General and has been delegated to the BOP. See United States v. Wilson, 503 U.S. 329, 331-36 (1992); 28 C.F.R. § 0.96. Respondent argues that the BOP has properly calculated Petitioner's sentence, including the commencement date and prior custody credit, and properly determined that a nunc pro tunc designation is not appropriate for Petitioner. [Doc. 11-1 at 4-9.] The Court agrees.
Pursuant to 18 U.S.C. § 3585(a) and the BOP's policy in computing sentences, a federal sentence cannot commence prior to the date of its imposition and until the defendant is in federal custody. United States v. Evans, 159 F.3d 908, 911 (4th Cir. 1998); United States v. Labeille-Soto, 163 F.3d 93, 98 (2d Cir. 1998). When a federal court sentences a defendant who is in state custody and is borrowed by federal authorities to dispose of federal charges pursuant to a writ of habeas corpus ad prosequendum, the inmate is not in federal custody. Thomas v. Whalen, 962 F.2d 358, 361 n.3 (4th Cir. 1992). The inmate's federal sentence generally does not commence until the inmate fully discharges the state sentence and is transferred to federal custody. Id. at 360-61 & n.3.
Here, Petitioner fully discharged his state sentence and was transferred to federal custody on April 10, 2022, when he was discharged from the Georgia Department of Corrections. [Doc. 11-2 at 2 ¶ 11, 18, 29.] Indeed, Petitioner does not argue that his federal sentence commenced before April 10, 2022. [See Docs. 1; 1-1; 37.] Accordingly, the Court concludes that the BOP properly determined that Petitioner's federal sentence commenced on April 10, 2022.
The Court notes that, in his response to the motion for summary judgment, Petitioner asserts that his “out date was June 14th 2020, but [he] wasn't release[d] until April 10th 2022.” [Doc. 37 at 2.] The Court is unsure what Petitioner relies on for the June 14, 2020, date. Nonetheless, this argument attacks the length of his state sentence and not his federal sentence. Petitioner does not argue-and nothing in the record supports-that he was in federal custody before April 10, 2022, such that his federal sentence could be computed as commencing before that date.
With respect to the BOP's calculation of Petitioner's prior custody credit, as stated, § 3585(b) prohibits the BOP from applying prior custody credit toward the federal sentence if the prisoner already received the credit toward another sentence. 18 U.S.C. § 3585(b); see, e.g., United States v. Brown, No. 91-5877, 1992 WL 237275, at *1 (4th Cir. Sept. 25, 1992) (“[A] defendant may receive credit against his federal sentence for time spent in official detention prior to the date his sentence commences unless it has been credited against another sentence.”). As a result, in enacting § 3585(b), “Congress made clear that a defendant could not receive a double credit for his detention time.” Wilson, 503 U.S. at 337.
Here, the record reflects that the BOP's calculation of Petitioner's prior custody credits is in accordance with § 3585(b). The BOP determined that Petitioner was not entitled to receive presentence custody credit toward his federal sentence because all time spent in official detention was credited to his state sentence. [Doc. 11-2 at 2 ¶ 13.] Thus, the BOP's calculation of Petitioner's prior custody credit is in accordance with § 3585(b), which seeks to avoid double crediting a prisoner for time served. 18 U.S.C. § 3585(b); Wilson, 503 U.S. at 337.
With respect to Petitioner's challenge to the BOP's denial of his request for a nunc pro tunc designation, the Court concludes that the BOP did not err in denying Petitioner's request. As stated, a federal sentence cannot commence prior to the date of its imposition and until the defendant is in federal custody. However, an inmate in non-federal custody may have his federal sentence commence the date it is imposed if the BOP makes a nunc pro tunc designation under 18 U.S.C. § 3621(b), which allows the non-federal facility to serve as a place for service of the federal sentence. Barden v. Keohane, 921 F.2d 476, 483 (3d Cir. 1990). Section 3621(b) enumerates the following factors for the BOP to consider in making a nunc pro tunc designation: (1) the resources of the non-federal facility; (2) the nature and circumstances of the offense; (3) the history and characteristics of the prisoner; (4) any statement by the sentencing court; and (5) any pertinent policy statement issued by the Sentencing Commission pursuant to 28 U.S.C. § 994(a)(2). 18 U.S.C. § 3621. Although under no obligation to grant a nunc pro tunc designation request, the BOP is to consider the language of the federal and state judgments, the state sentence data record to include jail credit, and “any other pertinent information relating to the federal and state sentences.” BOP Program Statement 5160.05(9)(b)(4)(b), available at https://www.bop.gov/mobile/policy/ (search by number 5160.05) (last visited Jan. 25, 2024). The BOP is afforded wide latitude in exercising its delegated authority under § 3621(b). Barden, 921 F.2d at 483; Trowell v. Beeler, 135 Fed.Appx. 590, 593 (4th Cir. 2005). Further, the BOP's decision to grant or deny a nunc pro tunc designation is subject to judicial review only for the purposes of abuse of discretion. Barden, 921 F.2d at 478.
The BOP considered Petitioner's request for time credit as one for a retroactive nunc pro tunc designation. [Doc. 11-2 at 2 ¶ 15.] However, it did not grant Petitioner's request because “Petitioner's sentencing court ordered that the term of imprisonment run consecutively to the state case” and “[t]he BOP does not have the authority to alter a sentence imposed by the court, but merely to process the sentence in accordance with BOP policy and federal statutes.” [Id.] The Court concludes that the BOP did not abuse its discretion in denying Petitioner a nunc pro tunc designation. See Rabb v. Wilson, No. 1:13cv999 TSE/TRJ, 2015 WL 731475, at *5 (E.D. Va. Feb. 19, 2015) (“If a federal sentencing court explicitly exercises its discretion to determine that sentences should run consecutive, the BOP has no power, ability, or discretion to overrule that decision.”). As stated, the judgment in Petitioner's federal case ordered that the 120-month term of imprisonment “be served consecutively to the term of imprisonment imposed in” the state case. [Doc. 11-2 at 22.] “This sentencing decision, made with full knowledge of [P]etitioner's crimes and imposed sentences, is not one that can be overturned by the BOP.” Rabb, 2015 WL 731475, at *6. Therefore, the Court concludes that Respondent's motion for summary judgment should be granted and the Petition should be dismissed because Petitioner has received all of the prior custody credit toward his federal sentence to which he is lawfully entitled, and his federal sentence has been computed correctly in accordance with applicable law.
To the extent Petitioner seeks to amend his Petition [see Doc. 37 at 1 (response to motion for summary judgment, titled “MOTION FOR OBJECTION RULE < > and MOTION TO AMEND”)], such request should be denied. Because Petitioner's request to amend was filed after Respondent filed a motion for summary judgment, Rule 15(a)(2) of the Federal Rules of Civil Procedure applies. See Fed.R.Civ.P. 15(a)(1) (providing for amendment as a matter of course within 21 days after serving the initial pleading or within 21 days after service of a responsive pleading or motion, whichever is earlier); Fed.R.Civ.P. 15(a)(2) (providing that, “[i]n all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave”). Although Rule 15(a)(2) states that the Court “should freely give leave when justice so requires,” a court should deny leave to amend if amendment would be futile, the moving party has acted in bad faith, or amendment would be prejudicial to the opposing party. United States v. Pittman, 209 F.3d 314, 317 (4th Cir. 2000); see generally Mayle v. Felix, 545 U.S. 644, 655 (2005) (recognizing that Rule 15 is applicable to habeas proceedings). Here, amendment would be futile because, as explained, Petitioner's federal sentence has been computed correctly. Additionally, some of the claims he seems to assert-e.g., double jeopardy and ineffective assistance of counsel [Doc. 37 at 1-2]-are not properly raised in a petition for habeas corpus under § 2241, which, as discussed above, is the proper method to challenge the computation or execution of a sentence and not the sentence itself [see also id. at 2 (seeking that his sentence be expunged)].
RECOMMENDATION
Wherefore, based upon the foregoing, the Court recommends that Respondent's motion for summary judgment [Doc. 11] be GRANTED and the Petition [Doc. 1] be DENIED.
IT IS SO RECOMMENDED.
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
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).