Opinion
9:18-cv-00430 (MAD/TWD)
06-28-2021
GREGORY THOMAS, Petitioner, v. WARDEN FCI RAY BROOK, Respondent.
Gregory Thomas Petitioner, pro se Ray Brook Federal Correctional Institution ANTOINETTE T. BACON Acting United States Attorney Northern District of New York Attorney for Respondent EMER M. STACK, ESQ. Assistant United States Attorney
Gregory Thomas
Petitioner, pro se
Ray Brook
Federal Correctional Institution
ANTOINETTE T. BACON
Acting United States Attorney
Northern District of New York
Attorney for Respondent
EMER M. STACK, ESQ.
Assistant United States Attorney
REPORT-RECOMMENDATION AND ORDER
THÉRÈSE WILEY DANCKS, UNITED STATES MAGISTRATE JUDGE.
I. INTRODUCTION
This matter has been referred for a Report-Recommendation by the Honorable Mae A. D'Agostino, United States District Judge, pursuant to 28 U.S.C. § 636(b) and N.D.N.Y. Local Rule 72.3(c). Petitioner Gregory Thomas, an inmate at the Federal Correctional Institution (“FCI”) in Ray Brook, New York, brings this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. (Dkt. No. 1.) Petitioner does not challenge his conviction, but rather alleges that the Federal Bureau of Prisons (“BOP”) improperly denied him credit toward his federal sentence for time spent in state custody. Respondent Warden FCI Ray Brook has filed a response, together with the Declaration of Alan Ray, a Correctional Program Specialist employed by the BOP at the Designation and Sentence Computation Center in Grand Prairie, Texas. (Dkt. No. 5.) Petitioner filed a reply. (Dkt. No. 8.) For the reasons discussed below, the Court recommends denying and dismissing the petition.
II. BACKGROUND
On April 14, 2005, Petitioner was arrested by the Syracuse Police Department and charged with resisting arrest, loitering, and criminal possession of a controlled substance in the third and seventh degree in Onondaga County Court in case number I-2005-1205-1. (Dkt. No. 5-1 at ¶ 5; see also Dkt. No. 5-2 at 2-3.) On April 19, 2005, a parole violator warrant (#436748) was lodged by the State of New York in Onondaga County Court in case number I-2001-0184-1. (Dkt. No. 5-1 at ¶ 6.)
Page citations refer to the pagination CM/ECF automatically generates. Excerpts from the record are reproduced exactly as they appear in the original and errors in spelling, punctuation, and grammar have not been corrected unless indicated.
On July 20, 2005, while in state custody, Petitioner was indicted on federal charges in this Court in case number 5:05-CR-0322-13 (NAM). (Dkt. No. 5-2 at 3.) Petitioner was temporarily transferred to federal custody after the issuance of a writ of habeas corpus ad prosequendum on August 2, 2005. (Dkt. No. 5-1 at ¶ 7.) Although it appears the state charges filed in case number I-2005-1205-1 were dismissed on March 9, 2006, Petitioner remained in state custody related to the state parole violation in case number I-2001-0184-1. (See Dkt. No. 1-1 at 36; Dkt. No. 5-10 at 8.)
On May 23, 2007, following a jury trial, the Honorable Norman A. Mordue, Senior United States District Judge, sentenced Petitioner in case number 5:05-CR-0322-13 (NAM) to a term of imprisonment of 360 months for conspiracy to engage in a pattern of racketeering activity. (Dkt. No. 5-1 at ¶ 8.)
On September 13, 2011, Petitioner's sentence was reduced from 360 months to 292 months. (Dkt. No. 5-1 at ¶ 11.) A review of the docket reveals that on March 30, 2018, Petitioner's sentence was reduced from 292 months to 235 months. See United States v. Thomas, No. 5:05-CR-0322-13 (NAM), Dkt. No. 1107.
On June 14, 2007, after sentencing, Petitioner was returned to state custody. (Dkt. No. 5-1 at ¶ 9.) It thus appears Petitioner remained in temporary federal confinement through his federal trial and sentencing.
On July 31, 2007, Petitioner's state parole was revoked, and he was re-paroled and taken into federal custody. Id. at ¶ 10. The BOP calculated Petitioner's federal sentence beginning on July 31, 2007, the same date he was released on parole from the State of New York. Id. at ¶ 15. He received five days of jail credit from April 14, 2005, through April 18, 2005. Id.
On October 10, 2014, Petitioner filed an administrative grievance with the BOP seeking federal credit for time served in state custody from August 2, 2005, through May 23, 2007. (Dkt. No. 5-15 at 10.) On November 12, 2014, the BOP denied Petitioner's request:
Originally, you were re-paroled from your New York Sentence on May 20, 2004. On April 19, 2005 you were remanded back to New York State custody for violating your Parole. According to your Presentence Investigation Report, you remained in “Primary” state custody related to the state parole violation. Additionally, your Jail Credit memorandum dated August 28, 2007 states in part “04-19-2005 Parole Warrant issued, and inmate held on New York State Parole warrant. On 07-31-2007 parole revoked, and re-paroled same day. Total credit given to parole revocation 843 days from 04-19-2005 to 07-31-2007. Information verified with New York State Parole.”
On August 2, 2005, while you were in service of your New York State parole sentence, you were produced on a Federal Writ to answer charges for your instant federal offense. On May 23, 2007, while on Federal Writ from New York State, you were sentenced to three hundred sixty (360) months for Conspiracy to Engage in a Pattern of Racketeering Activity. Subsequently, on September 13, 2011, your sentence was amended to a term of two hundred ninety-two (292) months. Jail credit awarded to your federal sentence was from April 14, 2005 to April 18, 2005. . . .
With regard to the period you spent in Federal custody, documentation provided by New York State Division of Parole reflected the period of credit you are seeking has already been credited to the service of the state sentence. To double-credit this period to your federal sentence would be contrary to the law, Title 18 U.S.C. § 3585(b), and Bureau of Prisons policy.
Therefore, based on the foregoing, we have accurately computed your sentence computation as starting on July 31, 2007, the date you were re-paroled from New York State.Id. at 8-9. Petitioner exhausted his administrative remedies by appealing the denial to the Regional Office and Central Office. See id. at 2-7.
During the administrative grievance process Petitioner also argued that he should receive a nunc pro tunc retroactive designation, and that the BOP should exercise its discretion to designate a state prison as the place for service of a federal sentence. Id. On May 6, 2015, the BOP sent a letter to Judge Mordue to obtain the Court's position regarding the granting of a retroactive designation allowing Petitioner's federal sentence to be served concurrent to his state sentence, explaining, in part, that:
On May 23, 2007, Gregory Thomas was sentenced by the Court to a 360-month (later reduced to 292-month) term of confinement for Conspiracy to Engage in a Pattern of Racketeering Activity. At the time the federal sentence was imposed, Mr. Thomas was under the primary jurisdiction of state authorities in New York, and in federal custody pursuant to a Writ. The respective Judgment in Criminal Case was silent regarding any relationship with the forthcoming action in state court. Following sentencing, Mr.
Thomas was appropriately returned to state authorities and the U.S. District Court Judgment was filed as a detainer.
On July 31, 2007, Mr. Thomas' state parole was revoked for the offense Criminal Possession of a Controlled Substance and he was re-paroled.
Mr. Thomas satisfied his state obligation on July 31, 2007, and was released to the federal detainer to commence the service of his federal sentence as provided by Title 18 U.S.C. § 3585(a).
Mr. Thomas has requested that his federal sentence be served concurrently with the state term, which would be accomplished by the Bureau of Prisons (Bureau) designating the state institution for service of his federal sentence. Such action would thereby reduce the total amount of time spent in custody. In Setser v. United States, ___ U.S. ___, 132 S.Ct. 1463, 192 [ ] (2012) the United States Supreme Court held that the authority to order a federal sentence concurrent or consecutive with any other sentence rests with the federal sentencing court.
Such a retroactive designation is made if the federal sentencing Court indicates the federal term is to be concurrent to the state term, or if the federal sentencing Court does not state its intention, such designation may be completed after the review of all factors under Title 18 U.S.C. § 3621(b).(Dkt No. 5-10 at 2-3.)
On or about August 10, 2015, Judge Mordue responded both by telephone, and email, as follows:
The Judge reviewed your letter dated May 6, 2015, including consideration of the Court's authority to impose a consecutive or concurrent sentence in this case, and after reviewing the case material, he notes it was his intention to have the federal sentence run consecutively with the undischarged state term of imprisonment and therefore, he finds no reason to deviate now from that decision.(Dkt. No. 5-11 at 2.) On August 11, 2015, the BOP denied Petitioner's request for a retroactive designation. (Dkt. No. 5-12 at 2.) The BOP specifically considered and applied Judge Mordue's direction in computing Petitioner's sentence. (Dkt. No. 5-1 at ¶¶ 13, 14; see Dkt. No. 5-12 at 2.)
At the time of briefing, Petitioner's projected release date was October 29, 2024. Id. According to the publicly available website maintained by the BOP, Petitioner's projected release date is now June 26, 2024.
See https://www.bop.gov/inmateloc/ (BOP Register Number 13366-052) (last visited June 28, 2021).
As noted, Petitioner argues that he is entitled to 21 months and 23 days of credit toward his federal sentence, representing time that he spent in state custody between August 2, 2005, and May 23, 2007. (Dkt. No. 1 at 3.) According to Petitioner, his state charges were dismissed in case number I-2005-1205-1 and because he “wasn't found guilty of a crime” in that case, his time in “county jail” should be credited towards his federal sentence pursuant to 18 U.S.C. § 3585(b). Id.; see also Dkt. No. 1-1 at 36.
Respondent argues for denial of the petition, asserting that the BOP's sentence calculation is correct. (Dkt. No. 5.) Specifically, Respondent argues that (1) Judge Mordue has already denied Petitioner's request for his federal sentence to run concurrently with his state sentence, and Petitioner's request would effectively nullify the direction of the sentencing court; (2) when a state inmate spends time on a federal writ, the federal court merely “borrows” the inmate and he continues serving his state term of imprisonment, which is not credited toward any subsequent federal sentence; and (3) Petitioner is seeking credit for time that has already been credited toward his state term.
In his reply, Petitioner maintains that he was improperly denied credit against his federal sentence from August 2, 2005, through May 23, 2007, because, on March 9, 2006, Onondaga County State Court Judge John J. Brunetti dismissed the state charges in case number I-2005-1205-1, which “was never credited to [his] state or federal sentence.” (Dkt. No. 8.) He claims the BOP “committed an error, as well as abuse of discretion by acting contrary to law” “by failing to include Petitioner's credit from August 2, 2005 to May 23, 2007 against his federal sentence, in which facts shows was never credited to Thomas' state or federal sentence.” Id. at 4. Lastly, Petitioner argues that had he “pleaded guilty to those pending state charges and had been sentenced to a period of incarceration, it would have been incumbent upon the district court to sentence [him] to concurrent time to that sentence, pursuant to U.S.S.G. § 5G1.3(b)(2).” Id. at 3 (alteration in original).
III. DISCUSSION
Habeas corpus relief is available if a prisoner is “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3). A § 2241 petition is generally the appropriate vehicle to raise claims arising from a prison official's computation of a prisoner's sentence. Poindexter v. Nash, 333 F.3d 372, 377 (2d Cir. 2003).
Although a prisoner may later seek judicial review, it is the responsibility of the BOP, and not the courts, to determine the commencement of a federal sentence and calculate any credit toward that sentence for time already served. Tisdale v. Menifee, 166 F.Supp.2d 789, 791 (S.D.N.Y. 2001) (citing United States v. Montez-Gaviria, 163 F.3d 697, 700-01 (2d Cir. 1998)). Thus, with respect to a § 2241 petition challenging the computation of credit on a federal sentence, a district court has the power only to review a decision by the BOP, not to make credit determinations in the first instance. Wright v. Hudson, No. 9:12-CV-01638-JKS, 2015 WL 5971055, at *1 (N.D.N.Y. Oct. 14, 2015).
The earliest that a federal sentence may begin to run is on the date that it was imposed. United States v. Labeille-Soto, 163 F.3d 93, 98 (2d Cir. 1998). The sentence commences when the defendant is received into custody at the detention facility designated by the BOP. 18 U.S.C. § 3585(a); Labeille-Soto, 163 F.3d at 98. When a defendant was in primary state custody at the time his or her federal sentence was imposed, the BOP must determine whether the district court intended the federal sentence to run concurrently with, or consecutively to, the state sentence. 18 U.S.C. § 3584(a); Dutton v. U.S. Attorney Gen., 713 F.Supp.2d 194, 199 (W.D.N.Y. 2010).
If the district court's judgment is silent on this issue, the court's silence is construed as an intent to impose a consecutive sentence, and the federal sentence commences only when primary state custody over the defendant is relinquished. Clapper v. Langrod, 186 F.Supp.3d 235, 238 (N.D.N.Y. 2016) (citing 18 U.S.C. § 3584(a)). An inmate in this situation may ask the BOP for a retroactive designation of the non-federal prison as the institution for service of the federal sentence. Id. (citing 18 U.S.C. § 3621(b)). The BOP then considers the inmate's personal circumstances in relation to the factors set forth at 18 U.S.C. § 3621(b) to determine if a nunc pro tunc designation is consistent with the intent of the federal sentencing court or the criminal justice system. Id. “The [BOP's] decision regarding nunc pro tunc designation is reviewed for abuse of discretion.” Jennings v. Schult, 377 Fed.Appx. 97, 98 (2d Cir. 2010) (summary order).
If, however, the district court explicitly stated the federal sentence should run concurrently with the state sentence, the BOP will “designate the State correctional facility as the place for the defendant to serve his Federal sentence, ” and the federal sentence “will be deemed to commence upon imposition.” Clapper, 186 F.Supp.3d at 238 (quoting Dutton, 713 F.Supp.2d at 199 (citing 18 U.S.C. §§ 3585(a), 3621(b))).
When the BOP calculates any credit toward a federal sentence from time served before the sentence was imposed, 18 U.S.C. § 3585(b) requires that the defendant “receive credit only for detention time ‘that has not been credited against another sentence.'” United States v. Wilson, 503 U.S. 329, 333 (1992) (quoting 18 U.S.C. § 3585(b)). Therefore, under 18 U.S.C. § 3585(b), the BOP cannot grant an inmate credit toward the federal sentence for the same period of time in custody that has also been credited toward a state sentence. Id. at 337 (“Congress made clear that a defendant could not receive a double credit for his detention time.”); see Lopez v. Terrell, 654 F.3d 176, 184-85 (2d Cir. 2011) (explaining that the BOP is prohibited from crediting time against a federal sentence that was already credited against a state sentence); see also Ortiz v. Breckon, No. 9:17-CV-559 (LEK), 2018 WL 557879, at *3 (N.D.N.Y. Jan. 22, 2018) (“Time that has been credited to a state sentence may not also be credited toward a federal sentence because [18 U.S.C.] § 3585(b) prohibits defendants from receiving ‘double credit for [their] detention time.'”) (alteration in original) (quoting Wilson, 503 U.S. at 337 (other citations omitted)).
In this case, the BOP calculated Petitioner's federal sentence beginning on July 31, 2007, the same date he was released on parole from the State of New York. (Dkt. No. 5-1 at ¶ 15.) He received five days of jail credit from April 14, 2005, through April 18, 2005. Id. Because the time between August 2, 2005, and May 27, 2007, was credited to Petitioner's state sentence for the parole violation, the BOP was correct not to credit it towards his federal sentence. See Labeille-Soto, 163 F.3d at 99 (“[A] defendant has no right to credit on his federal sentence for time that has been credited against his prior state sentence.”); Reynolds v. Warden of FCI Ray Brook, No. 9:16-CV-1264 (TJM/TWD), 2020 WL 918766, at *1 (N.D.N.Y. Feb. 26, 2020) (petitioner is not entitled to credit against a federal sentence for time he spent incarcerated that counted towards the term of his state sentence), aff'd, ___ Fed.Appx. ___, 2021 WL 2550413 (2d Cir. June 22, 2021); see also United States v. Fermin, 252 F.3d 102, 108 n.10 (2d Cir. 2001) (“The Bureau of Prisons could not credit Fermin for the time he had already served because it was credited against another sentence -- the state parole violation . . . .”).
Although Petitioner claims that the time he spent in state custody from August 2, 2005, to May 23, 2007, was “never credited to [his] state or federal sentence, ” (Dkt. No. 8 at 4), the record demonstrates the 21 months and 23 days for which he seeks credit on his federal sentence were credited against his state sentence. (See Dkt. No. 5-15 at 8, indicating “total credit given to parole revocation 843 days from 04-19-2005 to 07-31-2007”.)
To the extent Petitioner argues that his federal sentence should be deemed to have commenced as of August 5, 2005, when he first entered federal custody pursuant to the writ of habeas corpus ad prosequendum, this argument fails. As Respondent correctly notes, “[w]hen a state prisoner is transferred into federal custody pursuant to the writ, the state retains primary custody over him or her because the prisoner is ‘on loan' to federal authorities.” (Dkt. No. 5 at 4, quoting Clapper, 186 F.Supp.3d at 239.); see also United States v. Smith, 812 F.Supp. 368, 371 (E.D.N.Y. 1993) (“A federal writ of habeas corpus ad prosequendum merely loans the prisoner to federal authorities.”); id. at 371 (“A federal sentence does not begin to run . . . when the defendant 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 obligations.”). Additionally, the date of August 5, 2005, precedes his May 23, 2007, sentencing by almost two years and, as noted above, “under 18 U.S.C. § 3585(a), a federal sentence cannot commence prior to the date on which it is imposed.” Lopez v. Terrell, 654 F.3d 176, 185 (2d Cir. 2011).
Moreover, to the extent Petitioner aruged during the administrative grievance process that he should receive a nunc pro tunc retroactive designation, the Court concludes that the BOP did not abuse its discretion in denying Petitioner's request to designate his state facility as his place of federal confinement, either for the duration of his state custody or for the period that he was temporarily transferred to federal custody. As discussed above, the BOP contacted Judge Mordue for the Court's position on a concurrent designation and, thereafter, considered the 18 U.S.C. § 3621(b) factors, including “any statement by the court that imposed the sentence, ” and ultimately denied Petitioner's request. (Dkt. No. 5-1 at ¶¶ 13, 14; see Dkt. Nos. 5-10 through 5-12, 5-15.) See, e.g., Wright, 2015 WL 5971055, at *1 (dismissing § 2241 petition where the record showed that the BOP considered the 18 U.S.C. § 3621(b) factors). As pointed out by Respondent, the BOP calculated Petitioner's sentence exactly as directed by the sentencing judge. (Dkt. No. 5 at 3-4.) See also Ortiz, 2018 WL 557879, at *3 (“Because the BOP lacked authority to designate the state facility as Petitioner's place of federal confinement-thereby causing his sentences to run concurrently, defying the federal sentencing court's intent-it did not abuse its discretion by denying Petitioner's request for a nunc pro tunc designation.”).
Lastly, Petitioner suggests in his reply memorandum that had he “pleaded guilty to those pending state charges and had been sentenced to a period of incarceration, it would have been incumbent upon the district court to sentence [him] to concurrent time to that sentence, pursuant to U.S.S.G. § 5G1.3(b)(2).” (Dkt. No. 8 at 3, alteration in original.) “But arguments raised for the first time in a reply memorandum are waived and need not be considered.” Cotona v. Fed. Bureau of Prisons, No. 13 CIV. 609 JMF, 2013 WL 5526238, at *2 (S.D.N.Y. Oct. 7, 2013) (citing Connecticut Bar Ass'n v. United States, 620 F.3d 81, 91 n.13 (2d Cir. 2010); Cioffi v. Averill Park Cent. Sch. Dist. Bd. of Educ., 444 F.3d 158, 169 (2d Cir. 2006)).
In any event, to the extent Petitioner “is arguing for relief under Section 5G1.3(b), this issue is more appropriately resolved by the sentencing court pursuant to a motion under Section 2255 rather than this Court pursuant to a petition under Section 2241.” Reynolds, 2019 WL 8064012, at *2 n.2 (citing Dixon v. Terrell, No. 10-CV-5262, 2011 WL 4543712, at *11 (E.D.N.Y. Sept. 29, 2011); Jackson v. Killian, No. 08-CV-4386, 2009 WL 1835004, at *3 (S.D.N.Y. June 23, 2004) (“Challenging the sentencing court's section 5G1.3 calculation is ‘more appropriately brought as an issue for the sentencing court pursuant to a motion under [S]ection 2255, rather than the district court in a [S]ection 2241 habeas petition where petitioner is held in custody.'” (quoting Saunders v. Unnamed Warden, No. 07-CV-4293, 2008 WL 2775763, at *7 (D.N.J. July 14, 2008) (denying habeas petition pursuant to Section 2241 where petitioner argued that he was entitled to a downward departure or sentence reduction under Section 5G1.3)))). The Court expresses no opinion on the success of any such motion.
Based on the foregoing, all of Petitioner's jail time has been credited to either his federal or state sentence, and the BOP's calculations are correct. Any remaining arguments are without merit.
WHEREFORE, based on the findings above, it is hereby
RECOMMENDED that the petition (Dkt. No. 1) be DENIED and DISMISSED; and it and it is further
ORDERED that the Clerk of the Court shall serve a copy of this Report-Recommendation and Order on Petitioner, along with copies of unpublished decisions cited herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have fourteen (14) days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Secretary of HHS, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72.
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