Opinion
C/A No. 0:18-2418-TMC-PJG
03-29-2019
Michael Odai Grant, Petitioner, v. Bonita S. Mosely, Respondent.
REPORT AND RECOMMENDATION
Petitioner Michael Odai Grant, a self-represented federal prisoner confined at FCI Edgefield, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.) for a Report and Recommendation on Respondent's motion for summary judgment. (ECF No. 12.)
Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Petitioner of the summary judgment and dismissal procedures and the possible consequences if he failed to respond adequately to Respondent's motion. (ECF No. 13.) Petitioner failed to respond to Respondent's motion within the time allotted. The court then entered an order directing Petitioner to advise as to whether he wished to continue to pursue this case and to file a response. (ECF No. 17.) On February 4, 2019, the court received a letter from Petitioner stating he would like the court "to proceed forward with [his] motion" with the grounds he had presented. (ECF No. 19.) The court has construed this letter as a response and has considered Respondent's motion for summary judgment in light of the Petition's allegations. Having carefully considered the parties' submissions and the record in this case, the court finds that Respondent's motion should be granted and the Petition be denied.
BACKGROUND
The record supports the following undisputed facts. On July 1, 2013, the Georgia Department of Corrections revoked Petitioner's parole in two pending state cases. (See GA Dep't Corr. Sentence Computation Report for Michael Odai Grant, ECF No. 12-1 at 6-7 (showing parole revocation dates for Petitioner's 2008 Oconee and Clark County sentences)). On July 10, 2013, Petitioner was indicted on federal drug and gun charges in the United States District Court for the Middle District of Georgia. (See United States v. Grant, Case No. 3:13-cr-000240CAR0CHW-1 (M.D. Ga. July 10, 2013) ("Sentencing Docket") at ECF No. 1 (Indictment)). On July 30, 2013, Petitioner was removed to federal custody on a writ of habeas corpus ad prosequendum. (See Sentencing Docket at ECF No. 10 (Am. Order Granting Motion for Writ of Habeas Corpus ad prosequendum) & ECF No. 13 (Arrest Warrant)). Petitioner briefly returned to state custody to testify in a Bibb County, Georgia trial from October 6, 2014 to February 17, 2015. (See U.S. Marshals Serv. Custody/Detention Report for Michael Odai Grant, ECF No. 12-1 at 8; Sentencing Docket at ECF No. 28 (Order Granting Motion for Writ of Habeas Corpus ad testificandum)). Petitioner has remained in federal custody ever since.
On November 17, 2015, Petitioner completed his state sentence. (See GA Dep't Corr. Incarceration Details for Michael Odai Grant, ECF No. 12-1 at 14.) On December 18, 2015, the Middle District of Georgia sentenced Petitioner to 120 months' imprisonment on his federal charges. (See Pet., ECF No. 1 at 1; Sentencing Hearing Transcript, ECF No. 62 & Judgment, ECF No. 64, Sentencing Docket.) Petitioner contends he is entitled to credit on his federal sentence for time served from July 30, 2013 to November 7, 2015. (Pet., ECF No. 1 at 8.)
DISCUSSION
A. Summary Judgment Standard
Summary judgment is appropriate only if the moving party "shows that there is no genuine dispute as to any material fact and the [moving party] is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A party may support or refute that a material fact is not disputed by "citing to particular parts of materials in the record" or by "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). Rule 56 mandates entry of summary judgment "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
In deciding whether there is a genuine issue of material fact, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, "[o]nly 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." Id. at 248.
The moving party has the burden of proving that summary judgment is appropriate. Once the moving party makes this showing, however, the opposing party may not rest upon mere allegations or denials, but rather must, by affidavits or other means permitted by the Rule, set forth specific facts showing that there is a genuine issue for trial. See Fed. R. Civ. P. 56(c), (e); Celotex Corp., 477 U.S. at 322. Further, while the federal court is charged with liberally construing a petition filed by a pro se litigant to allow the development of a potentially meritorious case, see, e.g., Erickson v. Pardus, 551 U.S. 89 (2007), the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts which set forth a federal claim, nor can the court assume the existence of a genuine issue of material fact where none exists. Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990).
B. 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). 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, 679 (4th Cir. 2004) (citing In re Vial, 115 F.3d 1192, 1194 n.5 (4th Cir. 1997) (en banc)); United States v. Miller, 871 F.2d 488, 490 (4th Cir. 1989).
C. Respondent's Motion
Respondent concedes that Petitioner's allegations are properly before the court under § 2241 and that Petitioner has exhausted his administrative remedies regarding this claim. (Respt.'s Mem. Supp. Summ. J., ECF No. 12 at 2-3.) However, Respondent asserts the Federal Bureau of Prisons ("BOP") has correctly calculated Petitioner's sentence, including any credits to which he is entitled. (Id. at 5-9.)
1. 18 U.S.C. § 3585 Calculation
BOP has the authority to execute sentences and compute jail time, including the computation of pre-sentence credits. United States v. Wilson, 503 U.S. 329, 333-35 (1992). According to 18 U.S.C. § 3585(a), "A sentence to a term of imprisonment commences on the date the defendant is received in custody awaiting transportation to . . . the official detention facility at which the sentence is to be served." Further, "a federal sentence cannot commence prior to the date it is pronounced, even if made concurrent with a sentence already being served." Coloma v. Holder, 445 F.3d 1282, 1284 (11th Cir. 2006). In this case, BOP determined that Petitioner's sentence commenced on the earliest possible date—December 18, 2015—the day the court imposed his federal sentence. (Rohmer Decl., ECF No. 12-1 at 2-3.)
The application of prior custody credit toward a federal sentence is governed by 18 U.S.C. § 3585(b), which provides:
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—In addition, prisoners who are in state custody and are removed on a federal writ of habeas corpus ad prosequendum are not entitled to credit on a subsequent federal sentence for the days detained in federal custody on the writ when they received the credit towards their state sentence. See United States v. Evans, 159 F.3d 908, 912 (4th Cir. 1998); Thomas v. Whalen, 962 F.2d 358, 361 n.3 (4th Cir. 1992) (noting that, pursuant to the predecessor of § 3585, a prisoner is not in custody, but is "on loan" when he appears in federal court pursuant to a writ ad prosequendum). Rather, primary custody remains with the sovereign that first arrested the defendant until that sovereign relinquishes custody by bond, acquittal, dismissal of charges, parole, probation, or discharge of sentence. See United States v. Poole, 531 F.3d 263, 271 (4th Cir. 2008); United States v. Cole, 416 F.3d 894, 897 (8th Cir. 2005); Poland v. Stewart, 117 F.3d 1094, 1098 (9th Cir. 1997).
(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.
Accordingly, BOP determined that Petitioner remained in Georgia state custody until November 17, 2015, when he completed his state sentence. (Rohmer Decl., ECF No. 12-1 at 3.) And, in accordance with § 3585(b), BOP awarded Petitioner thirty days of prior custody credit for his time in exclusive federal custody prior to his federal sentencing—from November 18, 2015 to December 17, 2015. (Rohmer Decl., ECF No. 12-1 at 4; Sentence Monitoring Computation Data for Michael Odai Grant, ECF No. 12-1 at 23.)
Further, the record shows that the Georgia Department of Corrections considered Petitioner incarcerated within its system from July 2, 2013 to November 17, 2015 and, thus, applied that time to Petitioner's state sentence. (See GA Dep't Corr. Incarceration Details for Michael Odai Grant, ECF No. 12-1 at 15.) Permitting Petitioner to receive double credit for this time would violate 18 U.S.C. § 3585(b). See United States v. Wilson, 503 U.S. 329, 333 (1992) ("[T]he final clause of § 3585(b) allows a defendant to receive credit only for detention time 'that has not been credited against another sentence.' "); United States v. Kramer, 12 F.3d 130, 132 (8th Cir. 1993) (explaining that the record shows that the petitioner received credit toward his state sentence for that time period and holding that the BOP "properly decided not to award [the petitioner] credit for the time served, as it would have contravened the proscription in 18 U.S.C. § 3585(b) against double crediting"). Thus, Petitioner has not shown that BOP did not correctly calculate his sentence under the applicable statutory authority.
2. Nunc Pro Tunc Consideration
In addition to its calculations under 18 U.S.C. § 3585, BOP considered whether the relevant time period qualified for retroactive, concurrent nunc pro tunc designation. (See Rohmer Decl., ECF No. 12-1 at 4-5; Pet. Attach., ECF No. 1-1 at 2.) However, BOP denied Petitioner's request for retroactive nunc pro tunc designation because his state sentence was imposed before his federal sentence. (See Pet. Attach., ECF No. 1-1 at 2 (citing Barden v. Keohane, 921 F.2d 476, 483-84 (3d Cir. 1990) (noting nunc pro tunc designation was only available where the state sentence was imposed after the federal sentence)); BOP Program Statement 5160.05, Designation of State Institution for Service of Federal Sentence, ECF No. 12-1 at 30-31.)
Petitioner asserts he is entitled to nunc pro tunc designation because the federal sentencing court intended Petitioner to receive credit for this time. (Pet., ECF No. 1 at 2, 6-7.) Petitioner further asserts that the Government verbally agreed to credit this time as part of his plea agreement because Petitioner had assisted the Government with a number of other cases, and contends the "PSR writer" led the sentencing court to believe that Petitioner would automatically receive the credit. (Id.) In support, Petitioner directs the court to the transcript of his sentencing hearing. (Id. at 7) (referencing Sentencing Docket at ECF No. 79 at 7-8 (Sentencing Transcript) (discussing whether Petitioner's sentence should run concurrently to his state sentence, but finding the issue moot because Petitioner's state sentence ended prior to federal sentencing, and stating his time begins July 30, 2013, when he entered federal custody under the writ)). However, nothing in the record changes the fact that Petitioner's state sentence was imposed first and, thus, under the applicable authority, he is not entitled to nunc pro tunc designation. In addition, the court notes Petitioner's written plea agreement does not reflect any discussion regarding credit for time served, but the sentencing transcript suggests Petitioner did receive a significant downward departure for substantially assisting authorities with multiple investigations. (See Sentencing Docket at ECF No. 41 (Plea Agreement) & ECF No. 79 at 3-4, 5-7 (Sentencing Transcript).)
RECOMMENDATION
For the foregoing reasons, the court recommends Respondent's motion for summary judgment (ECF No. 12) be granted and the Petition be denied.
/s/_________
Paige J. Gossett
UNITED STATES MAGISTRATE JUDGE March 29, 2019
Columbia, South Carolina
The parties' 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
901 Richland Street
Columbia, South Carolina 29201
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).