NOEL L. HILLMAN, District Judge.
On or about August 9, 2013, Petitioner Born I. Rush, a prisoner confined at the Federal Correctional Institution in Fairton, New Jersey, filed this writ of habeas corpus under 28 U.S.C. § 2241, challenging the calculation of his sentence. (ECF No. 1). Petitioner paid the filing fee and, on November 19, 2013, the Court ordered an Answer from Respondent. (ECF No. 2). On December 18, 2013, Respondent filed his Response. (ECF No. 5). Petitioner filed his Traverse on January 17, 2014. (ECF No. 6). This matter is now fully briefed. For the reasons that follow, the Petition will be denied.
Petitioner was arrested by New Jersey state authorities for possession of a handgun on February 24, 2009 and was remanded to the Monmouth County Jail. On March 12, 2009, the United States District Court for the District of New Jersey (the "federal court") entered an Indictment against Petitioner for a drug-related offense. On August 5, 2009, Petitioner appeared before the federal court via a writ of habeas corpus
Petitioner was sentenced on the drug-related offense in federal court on January 24, 2011 to 96 months' imprisonment. The federal sentencing order did not provide any guidance as to whether this sentence was to run concurrent to, or consecutive to, any state-imposed sentence. After the sentencing hearing, Petitioner returned to the Monmouth County Jail, where his federal sentence was lodged as a detainer.
On December 23, 2011, Petitioner was sentenced in the state court on the handgun offense to eight years' imprisonment to run concurrent to his federal sentence. Petitioner was then remanded to state custody to serve his sentence. On March 9, 2012, Petitioner was resentenced in the state court for the specific purpose of making his state sentence run concurrent to his federal sentence. Per the resentencing order entered on that date, Petitioner was resentenced to a term of three years in the custody of the commissioner of the New Jersey Department of Corrections. (Pet. 15, Ex. B, State Resentencing Order, ECF No. 1). He was then paroled from his state sentence three days later, on March 13, 2012.
After his parole from the state sentence on March 13, 2012, Petitioner was turned over to the United States Marshal Service to commence service of his federal sentence. On June 18, 2012, Petitioner filed an administrative remedy with the Bureau of Prisons ("BOP") seeking jail time credit on his federal sentence, as well as a
On October 2, 2012, the federal court denied Petitioner's request for retroactive designation, and the Order denying same appears on the docket in Petitioner's underlying criminal case.
Petitioner then filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 challenging the BOP's computation of his sentence. Specifically, Petitioner seeks prior custody credit for time he spent in the Monmouth County Jail from March 19, 2009 to March 13, 2012.
In his Petition, Petitioner cites four potential sources of error. Specifically, Petitioner argues (1) "his right to due process was abridged because an act of the B.O.P. negated a factual assumption of the sentencing judge which formed part of the basis of his sentence;" (2) "his guilty plea to the state charges was induced by a promise which was later negated by an act of the B.O.P.;" (3) "the B.O.P.'s decision to make petitioner's sentences run consecutively amounted to an unconstitutional usurpation of a judicial function by an executive agency;" and (4) "the B.O.P. abused its discretion when it denied the nunc pro tunc request because it failed to give appropriate weight to 3621(b)'s factors." (Pet. 10, ECF No. 1).
In his Answer (ECF No. 5), Respondent asserts that the BOP properly calculated Petitioner's sentence in accordance with all applicable statutes and policies. Further, Respondent contends that there has been no due process violation because the BOP properly considered Petitioner's request for retroactive designation.
Petitioner has filed a Traverse (ECF No. 6), in which he reiterates and expands upon many of the arguments set forth in his Petition.
United States Code Title 28, Section 2243, provides in relevant part as follows:
A
III.
Habeas corpus is an appropriate mechanism for a federal prisoner to challenge the execution of his sentence.
In this case, Petitioner files this habeas petition challenging the BOP's execution of his federal sentence. Respondent concedes that Petitioner has exhausted his administrative remedies. Accordingly, this Court has jurisdiction over the instant habeas petition pursuant to 28 U.S.C. § 2241.
As set forth above, Petitioner enumerates four separate arguments in the conclusion section of his Petition. (Pet. 10, ECF No. 1). His first and third arguments are related to his assertion that his state and federal sentences should have run concurrently. Petitioner's second argument attacks the constitutionality of his plea agreement. And Petitioner's fourth argument challenges the BOP's decision to deny Petitioner a
However, in construing the Petition liberally, as this Court must,
As an initial matter, the Attorney General is responsible for computing federal sentences for all offenses committed on or after November 1, 1987,
Computation of a federal sentence is governed by 18 U.S.C. § 3585, and is comprised of a two-step determination. First, the BOP determines the date on which the federal sentence commences and, second, the BOP determines the extent to which credit is awardable for time spent in custody prior to commencement of the sentence.
In this case, Petitioner asserts that, for purposes of the commencement date calculation, he was received into federal custody on June 12, 2009
Rather, the record shows that Petitioner was arrested by state authorities, and thus entered state custody, on February 24, 2009.
With respect to sentence credit, the record shows that Petitioner's state sentence was credited 1,031 days, representing the total amount of time Petitioner spent in state custody since his arrest on February 24, 2009. (Ex. to Kitka Decl. 30-32, Attach. 6, State Sentencing Order, ECF No. 5-2). Petitioner again received this credit toward his state sentence when he was resentenced by the state on March 9, 2012. (Pet. 15-17, Ex. B, State Resentencing Order, ECF No. 1). Thus, pursuant to § 3585(b), the BOP correctly concluded that Petitioner was not entitled to credit against his federal sentence for time that had been already credited against his state sentence. 18 U.S.C. § 3585 (b);
Although Petitioner repeatedly asserts that he entered federal custody on June 12, 2009 because his "state parole was satisfied," he also contends that he "made bail, but was never released and was held in custody for a federal detainer lodged against him[.]" (Pet. 6, ECF No. 1). Further, Petitioner cites to
In
However, as explained in further detail below, Petitioner in this case was not serving concurrent federal and state sentences. Thus, the limited exception to § 3585(b)'s rule against double credit delineated in
For these reasons, the Petition is denied to the extent it challenges the calculation of Petitioner's sentence with specific respect to the commencement date of his federal sentence or the computation of his sentence credit.
As discussed above, the BOP is the agency responsible for implementing and applying federal law concerning the computation of federal sentences.
18 U.S.C. § 3584(a).
Thus, if a federal sentencing court is silent as to whether a federal sentence is to be consecutive or concurrent to a state sentence, the BOP presumes that they are to be served consecutively.
However, in
An inmate may request this retroactive designation from the BOP and, although the BOP must consider the inmate's request for concurrent service of sentences, it is not obligated to grant same.
In this case, the federal court did not specify whether the federal sentence was to run consecutive or concurrent to the state sentence. (Ex. To Kitka Decl. 24, Attach. 5, Federal Sentencing Order, ECF No. 5-2). Accordingly, the default presumption is that Petitioner's sentences should run consecutively, which is precisely the conclusion reached by the BOP via its denial of Petitioner's request for retroactive designation. Nevertheless, Petitioner argues that his federal and state sentences should run concurrently.
In his third enumerated argument, Petitioner asserts that "the B.O.P.'s decision to make petitioner's sentences run consecutively amounted to an unconstitutional usurpation of a judicial function by an executive agency." (Pet. 10, ECF No. 1). The Court determines that this argument is entirely without merit. Like the inmate in
As his first ground for relief, Petitioner asserts that "the B.O.P. negated an assumption of fact upon which federal judge relied when determining his sentence." (Pet. 10, ECF No. 1). In support of this assertion, Petitioner contends that "the B.O.P. has a duty, mandated by due process, to execute sentences in a manner that is consistent with the intent and beliefs of the sentencing judge." (Pet. 4, ECF No. 1). Based on this language, it appears that Petitioner is alleging that the federal sentencing court intended for Petitioner's federal and state sentences to run concurrently — which would support a retroactive designation under
However, Petitioner has not offered any evidence to suggest that the federal sentencing court expressed any intention for concurrent sentences. Petitioner vaguely refers to an "[un]expressed view
Moreover, the sentencing court — albeit through a different judge than the judge who originally sentenced him
As set forth above, the federal sentencing order is silent as to whether the state and federal sentences should run consecutively or concurrently; and neither the record before the Court, nor the allegations of the Petition, establish that the federal sentencing court intended for the sentences to run concurrently. Therefore, Petitioner's argument in this respect is without merit.
Petitioner also points to the order of the state court in support of his assertion that the state and federal sentences should run concurrently. (Pet. 13, Ex. A, State Sentencing Order, ECF No. 1). The judgement of the state court expressly dictates that Petitioner's state sentence is to run concurrent to his federal sentence. However, it is well settled in the Third Circuit that a state court's direction as to whether a state sentence should be concurrent or consecutive to a federal sentence is not binding on federal courts or on the BOP.
Further, the Court notes that Petitioner was resentenced on March 9, 2012. (Pet. 15, Ex. B, State Resentencing Order, ECF No. 1). Petitioner explains that when he learned that the BOP did not intend to comply with the intentions of the state sentencing order, he contacted his lawyer, who then filed a motion with the state court. The state court then resentenced Petitioner "to what was believed to be a correction that would satisfy the plea to run state sentence and federal sentence together without any prejudice toward the federal court." (Pet. 2, ECF No. 1). Indeed, the state resentencing order expressly indicated that "[t]he purpose of this is to resentence [Petitioner] to make his sentence on I-09-11-02182 to run concurrent to his federal sentence." (Pet. 15, Ex. B, ECF No. 1). The resentence reduced Petitioner's sentence from eight years to three years and resulted in his parole from his state sentence mere days later, on March 13, 2012, and his release into federal custody. (
This creative resentencing by the state court effectively resulted in concurrent service of Petitioner's federal sentence and the remainder of his state sentence. Thus, Petitioner has already received part of the relief he seeks.
In this argument, Petitioner states that "his guilty plea to the state charges was induced by a promise which was later negated by an act of the B.O.P." (Pet. 10, ECF No. 1). Petitioner does not further elaborate on this argument in his Petition. Nevertheless, to the extent Petitioner means to assert a due process argument related to his state plea agreement, such a claim does not concern the execution of Petitioner's sentence. Accordingly, it is not cognizable in a petition filed pursuant to § 2241.
As his fourth argument, Petitioner asserts that the BOP abused its discretion when it denied his request for retroactive, or
In this case, Petitioner requested that the BOP retroactively designate the facility where he served his state sentence as the institution for service of his federal sentence and he exhausted his administrative remedies in this respect. On August 3, 2012, the BOP requested a statement from the federal sentencing court regarding its position on the retroactive designation but did not receive a direct response.
The BOP then reviewed Petitioner's request for
The record clearly shows that the BOP properly contacted the sentencing court for its position, and properly reviewed Petitioner's history and case to determine whether a
Therefore, Petitioner has not established any abuse of discretion in the BOP's consideration of his request for retroactive designation.
For the foregoing reasons, Petitioner's challenge to the validity of his plea agreement will be dismissed as not cognizable under § 2241. The remainder of the Petition is denied.
An appropriate Order will be entered.
