Filed: Aug. 27, 2013
Latest Update: Mar. 28, 2017
Summary: CLD-373 NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 13-2304 _ CLEVELAND HOWARD, Appellant v. ARCHIE B. LONGLEY, WARDEN _ On Appeal from the United States District Court for the Western District of Pennsylvania (W.D. Pa. Civ. No. 1-12-cv-00037) District Judge: Honorable Sean J. McLaughlin _ Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2) or Summary Action Pursuant to Third Circuit L.A.R. 27.4 and I.O.P. 10.6 August 8, 2013 Before: RENDELL, JORDA
Summary: CLD-373 NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 13-2304 _ CLEVELAND HOWARD, Appellant v. ARCHIE B. LONGLEY, WARDEN _ On Appeal from the United States District Court for the Western District of Pennsylvania (W.D. Pa. Civ. No. 1-12-cv-00037) District Judge: Honorable Sean J. McLaughlin _ Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2) or Summary Action Pursuant to Third Circuit L.A.R. 27.4 and I.O.P. 10.6 August 8, 2013 Before: RENDELL, JORDAN..
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CLD-373 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 13-2304
___________
CLEVELAND HOWARD,
Appellant
v.
ARCHIE B. LONGLEY, WARDEN
____________________________________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(W.D. Pa. Civ. No. 1-12-cv-00037)
District Judge: Honorable Sean J. McLaughlin
____________________________________
Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2) or
Summary Action Pursuant to Third Circuit L.A.R. 27.4 and I.O.P. 10.6
August 8, 2013
Before: RENDELL, JORDAN and SHWARTZ, Circuit Judges
(Opinion filed: August 27, 2013)
_________
OPINION
_________
PER CURIAM
Pro se appellant Cleveland Howard seeks review of the District Court’s denial of
his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2241. Because the
appeal does not present a substantial question, we will summarily affirm.
1
Howard is a federal inmate, who filed a habeas corpus petition claiming that the
Federal Bureau of Prisons (“BOP”) erred in computing his sentence. The relevant facts
are not in dispute. Howard was arrested in 2004 on state charges related to a robbery
committed in Cincinnati. He was sentenced to three years in prison in January 2005. In
October 2005, Howard pleaded guilty to federal conspiracy and firearm charges. One
conspiracy charge related to the Cincinnati robbery; the remaining conspiracy charges
related to other robberies. The plea agreement provided that Howard would receive a
sentence of seventeen years in prison.
On January 11, 2006, Howard was sentenced to a seventeen-year term in federal
prison. At the hearing, defense counsel asked if the federal sentence would run
concurrently with the state sentence. After ascertaining that Howard had about eleven
months left on his state sentence, the District Judge replied that the sentences would run
concurrently and that the remaining eleven months would thus count toward Howard’s
federal sentence. The subsequent order reflected this decision by recommending to the
BOP that a portion of Howard’s sentence be served concurrently with his state sentence.
Howard, who was appearing in federal court subject to a writ of habeas corpus ad
prosequendum, was returned to state custody. He remained there until he was released to
serve his federal sentence on December 12, 2006. The BOP determined that Howard’s
federal sentence commenced on the day it was imposed, January 11, 2006. The BOP
gave him one day of prior custody credit and fifty-seven days of credit pursuant to Willis
v. United States, 438 F.2d 923 (5th Cir. 1971). According to the BOP, Howard has a
projected release date of September 5, 2020.
2
After challenging the computation of his sentence with the BOP, Howard filed a
habeas corpus petition claiming that all time served on his state sentence should have
counted against his federal sentence. The District Court denied the petition, concluding
that Howard’s sentence was correctly computed. After the District Court denied his
motion for reconsideration,1 Howard appealed.
Howard’s challenge to the BOP’s computation of his sentence is properly brought
in a § 2241 petition. See United States v. Grimes, 641 F.2d 96, 99 (3d Cir. 1981). We
have jurisdiction under 28 U.S.C. § 1291. We exercise de novo review over the denial of
the petition. See Vega v. United States,
493 F.3d 310, 314 (3d Cir. 2007). The BOP is
responsible for computing a federal prisoner’s period of incarceration under applicable
federal law. See United States v. Wilson,
503 U.S. 329, 334-35 (1992). In calculating
the sentence, the BOP determines (1) when the federal sentence commenced, and (2)
whether there are any credits to which the prisoner may be entitled. See 18 U.S.C.
§ 3585.
In this case, the BOP correctly determined that, pursuant to 18 U.S.C. § 3585(a),
Howard’s sentence commenced on January 11, 2006, the date it was imposed. In making
this determination, the BOP relied on guidelines that direct that the sentence for an
inmate begins on the day it was imposed when the inmate, like Howard, (1) is in the
primary custody of the state when his federal sentence is imposed, and (2) the court
1
Howard sought reconsideration on the basis that the District Court might not have considered
his objections to the Magistrate Judge’s Report and Recommendation. The court denied
reconsideration because it had considered his objections, as reflected in the order denying the
petition.
3
orders the sentence to run concurrently with the state sentence. See Fed. Bureau of
Prisons, Program Statement 5880.28, Sentence Computation Manual 1-13, 1-32A-33
(1999). This is the earliest possible date that Howard’s sentence could have commenced
because a sentence cannot start earlier than the day it was imposed. Id. at 1-13; see also
United States v. Flores, 616 F.2d 840, 841 (5th Cir. 1980) (“[A] federal sentence cannot
commence prior to the date it is pronounced, even if made concurrent with a sentence
already being served.”) Howard nonetheless argues that his federal sentence should have
commenced before it was imposed – at the start of his state sentence – relying on Barden
v. Keohane,
921 F.2d 476 (3d Cir. 1990). Barden is of no help, however, because it
involved the opposite sentencing situation: i.e., Barden’s federal sentence was imposed
before his state sentence. Id. at 478. Barden thus did not involve the question of whether
a federal sentence could commence before it was imposed. The simple fact here is that
Howard received what the sentencing court recommended: the approximately eleven
months remaining on his state sentence also counted against his federal sentence because
the BOP ran his sentence concurrently with the state sentence from the day the federal
sentence was imposed.2
Howard also argues that the sentencing court erred by not applying § 5G1.3 of the
United States Sentencing Guidelines to adjust his sentence for all time served on the state
sentence. The District Court concluded that Howard could not bring the claim in a
2
Although Howard does not challenge the BOP’s computation of credits against his sentence,
we note that he cannot receive credit for the time served on his state sentence prior to the
commencement of his federal sentence because 18 U.S.C. § 3585(b)(2) does not allow an inmate
to receive such double credit. See Wilson, 503 U.S. at 337.
4
§ 2241 petition. We agree. A challenge under the Sentencing Guidelines goes to the
validity of a sentence, rather than the execution of a sentence, and is thus inappropriate
for a § 2241 petition. See United States v. Eakman, 378 F.3d 294, 297 (3d Cir. 2004).
Howard could have presented this challenge in a motion under 28 U.S.C. § 2255, and he
has not met the criteria for demonstrating that the remedy provided by § 2255 is
inadequate or ineffective. See In re Dorsainvil,
119 F.3d 245, 249-51 (3d Cir. 1997).
For these reasons, we will summarily affirm the District Court’s orders denying
Howard’s habeas corpus petition and his motion for reconsideration. See 3d Cir. L.A.R.
27.4; I.O.P. 10.6.
5
