Filed: Jul. 09, 2008
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2008 Decisions States Court of Appeals for the Third Circuit 7-9-2008 Andrew King v. Fed Bur Prisons Precedential or Non-Precedential: Non-Precedential Docket No. 08-1161 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008 Recommended Citation "Andrew King v. Fed Bur Prisons" (2008). 2008 Decisions. Paper 863. http://digitalcommons.law.villanova.edu/thirdcircuit_2008/863 This decision is brought to you for free and open access by
Summary: Opinions of the United 2008 Decisions States Court of Appeals for the Third Circuit 7-9-2008 Andrew King v. Fed Bur Prisons Precedential or Non-Precedential: Non-Precedential Docket No. 08-1161 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008 Recommended Citation "Andrew King v. Fed Bur Prisons" (2008). 2008 Decisions. Paper 863. http://digitalcommons.law.villanova.edu/thirdcircuit_2008/863 This decision is brought to you for free and open access by t..
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Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
7-9-2008
Andrew King v. Fed Bur Prisons
Precedential or Non-Precedential: Non-Precedential
Docket No. 08-1161
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008
Recommended Citation
"Andrew King v. Fed Bur Prisons" (2008). 2008 Decisions. Paper 863.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/863
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2008 Decisions by an authorized administrator of Villanova
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DLD-213 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-1161
___________
ANDREW M. KING,
Appellant
v.
FEDERAL BUREAU OF PRISONS; MR. RONNIE R. HOLT, Warden, U.S.P. Canaan
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil No. 07-cv-02243)
District Judge: Honorable Sylvia H. Rambo
____________________________________
Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
May 30, 2008
Before: BARRY, CHAGARES and ROTH, CIRCUIT JUDGES.
(Opinion filed July 9, 2008)
_________
OPINION
_________
PER CURIAM
Andrew M. King appeals, pro se, from the order of the United States
District Court for the Middle District of Pennsylvania dismissing his 28 U.S.C. § 2241
habeas corpus petition. We will summarily affirm the District Court’s order.
I.
On January 3, 1997, King, who was then on parole for a New York state sentence,
was arrested by New York state troopers while transporting narcotics. Although state
narcotics and resisting arrest charges were eventually dropped, New York did issue a
parole violator warrant against King on May 19, 1997. On August 27, 1997, King was
transferred from New York state custody to federal custody pursuant to a writ ad
prosequendum. He then pled guilty to the federal racketeering and narcotics charges. On
October 4, 1999, the United States District Court for the Eastern District of New York
sentenced King to a term of imprisonment of 144 months, which was to run concurrent to
a state sentence. On November 8, 1999, King was returned to the physical custody of
New York.
New York authorities revoked King’s parole on July 11, 2000, and sentenced him
to a term of imprisonment of not less than 7 years and not more than 21 years. In
calculating his incarceration period, the state authorities awarded him prior custody credit
from the issuance of the state parole violator warrant on May 19, 1997, through July 10,
2000, which was the day before the state’s revocation of parole. King was then paroled
from his state sentence on March 24, 2006, and he was remanded to federal custody in
order to serve out his federal sentence. In calculating his sentence, the Federal Bureau of
Prisons (“BOP”) did not give King credit for the time period already credited by state
authorities against his state parole sentence.
Naming the federal warden as respondent, King filed a federal habeas petition
2
under 28 U.S.C. § 2241 with the District Court (M.D. Pa. Civ. No. 07-cv-00375). He
challenged the BOP’s credit calculation and claimed that he was entitled to credit for the
entire time he spent in federal custody under the writ ad prosequendum. On July 11,
2007, the District Court denied his petition on the merits. According to the District Court,
the BOP did not err in its calculation, and 18 U.S.C. § 3585(b) precluded any federal
credit for the same time period previously credited against his state parole sentence. We
affirmed the denial on November 9, 2007. See King v. Lindsay, 254 F. App’x 135 (3d
Cir. 2007) (per curiam) (not precedential).
On December 11, 2007, King executed another § 2241 petition. On December 28,
2007, the District Court sua sponte dismissed King’s habeas petition “as a second or
successive petition under 28 U.S.C. § 2244(b).” (12/28/07 Order at 1.) King filed a
timely notice of appeal.1
II.
The District Court dismissed King’s second federal habeas petition pursuant to 28
U.S.C. § 2244(b). However, this “gatekeeping” provision generally does not apply to
petitions for habeas relief filed pursuant to 28 U.S.C. § 2241. See, e.g., Zayas v. INS, 311
F.3d 247, 255 (3d Cir. 2002). Instead, second or successive § 2241 petitions are governed
by the “abuse of the writ” doctrine.
Id. at 256-58 We, however, need not determine
1
We have jurisdiction under 28 U.S.C. § 1291 and exercise plenary review over the
District Court’s legal conclusions. See, e.g., Ruggiano v. Reish, 307 F.3d 121, 126-27
(3d Cir. 2002).
3
whether King’s second habeas petition was actually barred by the doctrine because the
claims raised in his second petition clearly lack any merit. See, e.g., Tourscher v.
McCullough, 184 F.3d 236, 240 (3d Cir. 1999) (“We may affirm the district court on any
ground supported by the record.” (citation omitted)). Because his appeal thereby fails to
present a substantial question, we will summarily affirm the District Court’s dismissal of
his second habeas petition pursuant to Third Circuit Local Appellate Rule 27.4 and I.O.P.
10.6.
In his second petition filed with the District Court and now on appeal, King has
essentially attempted to re-characterize his previously unsuccessful sentencing calculation
claims by alleging unconstitutional detention arising out of the BIA’s supposed
“misinterpretation” of 18 U.S.C. § 3585(b). Claiming that he had misunderstood the
governing legal principles in his first habeas proceedings, he has apparently asserted that
his claims are based on the theory that he previously “served time on a federal sentence”
as opposed to any alleged entitlement on his part to “credit” that may be granted or
“disallowed” at the BOP’s own discretion. (Appellant’s Informal Br. at 5.) However, his
new theories still fail to establish that the BOP either misinterpreted the statutory
provision or otherwise violated his federal constitutional rights.
With respect to his federal custody pursuant to a writ ad prosequendum, the
District Court expressly concluded in its denial of the first habeas petition that King
himself remained in the “primary custody” of New York state authorities. See, e.g.,
Ruggiano v. Reish, 307 F.3d 121, 125 n.1 (3d Cir. 2002); Rios v. Wiley,
201 F.3d 257,
4
274 (3d Cir. 2000). Once King completed his state parole sentence on March 24, 2006,
and was returned to federal custody, the BOP satisfied its statutory obligations by
computing his federal sentence and ascertaining whether he was entitled to any “credit”
towards his sentence. See, e.g., United States v. Wilson, 503 U.S. 329, 331-37 (1992);
Ruggiano, 307 F.3d at 126;
Rios, 201 F.3d at 263, 269. Section 3585(b) specifically
governs the award of “credit” for a defendant’s incarceration prior to the commencement
of the federal sentence:
(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(b) (emphasis omitted and added). Accordingly, as we expressly stated
in affirming the District Court’s denial of the initial habeas petition, “a defendant can
only receive credit towards a federal sentence for prior custody ‘that has not been credited
against another sentence.’” King, 254 F. App’x at 135-36 (quoting 18 U.S.C. § 3585(b)).
Although asserting that it was done “solely for state record keeping” purposes
(Appellant’s Informal Br. at 9), King has failed “to dispute that the time [in question] was
credited towards his state sentence for a parole violation.” King, 254 F. App’x at 135.
5
Applying the express statutory language, the BOP appropriately refused to credit this time
against his federal sentence. See, e.g. Wilson, 503 U.S. at 337. King provides no real
support for his claims that such a straightforward application of clear statutory language
violated his constitutional rights. Likewise, we must reject his unsupported attempt to
characterize the dispute here as anything other than a question of “credit” under the
applicable statutory provision. He, in essence, has sought the benefit of “double credit,”
even though “Congress [itself] made clear that a defendant could not receive a double
credit for his detention time.”
Wilson, 503 U.S. at 337; see also, e.g.,
Rios, 201 F.3d at
271-73. We therefore must conclude that the BOP committed no reversible error in its
sentencing calculations.
III.
For the foregoing reasons, we will summarily affirm the District Court’s dismissal
of King’s habeas petition.
6
