JACQUELYN D. AUSTIN, Magistrate Judge.
This matter is before the Court on Respondent's motion to dismiss. [Doc. 10.] Petitioner, proceeding pro se, is a federal prisoner seeking relief pursuant to 28 U.S.C. § 2241. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(c), D.S.C., this magistrate judge is authorized to review post-trial petitions for relief and submit findings and recommendations to the District Court.
Petitioner filed this Petition for writ of habeas corpus on July 15, 2013.
Having carefully considered the parties' submissions and the record in this case, the Court recommends Respondent's motion be granted and the Petition be denied.
Currently, and at the time he filed the Petition, Petitioner is incarcerated at FCI Bennettsville. [Doc. 1 at 2.] He was arrested by the Mecklenburg County Sheriff's Office ("MCSO") in Charlotte, North Carolina on February 12, 2010 for possession of a firearm by a felon; possession with the intent to manufacture, sell, and deliver methamphetamine; possession of schedule VI controlled substances; and possession of schedule I controlled substances. [Doc. 10-1 at 2 ¶ 4; 7-8.] On February 13, 2010, Petitioner was released from detention via bond. [Id.] The State of North Carolina dismissed these charges in their entirety. [Id.]
On February 25, 2010, Petitioner was arrested by the MCSO for failing to register. [Id. at 2 ¶ 5; 9-10.] On March 10, 2010, he was released from detention via bond. [Id.] This charge was voluntarily dismissed by the State of North Carolina. [Id.]
On March 18, 2010, Petitioner was arrested by the MCSO for assault on a female and injury to real property. [Id. at 2 ¶ 6; 11-12.] On March 21, 2010, he was released from detention via bond. [Id.] These charges were ultimately dismissed by the State of North Carolina. [Id.]
On June 10, 2010, Petitioner was arrested by non-federal authorities in Greenville County, South Carolina for trafficking drugs. [Id. at 2 ¶ 7; 13-15.] Following this arrest, Petitioner remained in the primary custody of non-federal authorities. [Id.]
On June 16, 2010, a four-count Bill of Indictment was filed in the United States District Court for the Western District of North Carolina, charging Petitioner with federal offenses related to his February 12, 2010 arrest. [Id. at 2-3 ¶ 8; 16-19.] On July 9, 2010, the United States Marshals Service borrowed Petitioner from the State of South Carolina authorities via a writ of habeas corpus ad prosequendum to appear in federal court. [Id. at 3 ¶ 9; 20-21.] On May 19, 2011, Petitioner was sentenced to a 60-month term of federal imprisonment by the United States District Court for the Western District of North Carolina for possession of a firearm during and in relation to a drug trafficking crime. [Id. at 3 ¶ 10; 22-27.] On June 21, 2011, the federal writ having been satisfied, the United States Marshals Service returned Petitioner to the State of South Carolina authorities. [Id. at 3 ¶ 11; 20-21.]
On August 24, 2011, Petitioner was sentenced to a 3-year term of state imprisonment by the Greenville County Court of General Sessions for trafficking in methamphetamines more than 10 grams. [Id. at 3 ¶ 12; 28.] Subsequent to the imposition of this sentence, Petitioner was turned over to the South Carolina Department of Corrections for service of his 3-year state sentence. [Id. at 3 ¶ 12.]
On February 28, 2012, Petitioner was released from the South Carolina Department of Corrections into the exclusive custody of federal authorities for service of his 60-month term of federal imprisonment. [Id. at 3 ¶ 13.] Petitioner's federal sentence has been computed as commencing on February 28, 2012, the day he was placed in exclusive federal custody. [Id. at 3 ¶ 14; 33.] He has received 21 days of jail credit for periods of detention that occurred after the date of his federal offense that had not been credited toward any other sentence. [Id. at 3-4 ¶ 14; 33.] He is eligible to earn 235 days of Good Conduct Time, resulting in a projected release date of June 16, 2016. [Id. at 4 ¶ 14; 33.]
Petitioner alleges that his plea was invalid
Petitioner brought this action pro se, which requires the Court to liberally construe his pleadings. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam); Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978); Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Pro se pleadings are held to a less stringent standard than those drafted by attorneys. Haines, 404 U.S. at 520. Even under this less stringent standard, however, the pro se petition is still subject to summary dismissal. Id. at 520-21. The mandated liberal construction means only that if the court can reasonably read the pleadings to state a valid claim on which the petitioner could prevail, it should do so. Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999). A court may not construct the petitioner's legal arguments for him. Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993). Nor should a court "conjure up questions never squarely presented." Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a motion to dismiss for failure to state a claim should not be granted unless it appears certain that the plaintiff can prove no set of facts which would support her claim and entitle her to relief. When considering a motion to dismiss, the court should "accept as true all well-pleaded allegations and should view the complaint in a light most favorable to the plaintiff." Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). However, the court "need not accept the legal conclusions drawn from the facts" nor "accept as true unwarranted inferences, unreasonable conclusions, or arguments." Eastern Shore Mkts., Inc. v. J.D. Assocs. Ltd. P'ship, 213 F.3d 175, 180 (4th Cir. 2000). Further, for purposes of a Rule 12(b)(6) motion, a court may rely on only the complaint's allegations and those documents attached as exhibits or incorporated by reference. See Simons v. Montgomery Cnty. Police Officers, 762 F.2d 30, 31 (4th Cir. 1985). If matters outside the pleadings are presented to and not excluded by the court, the motion is treated as one for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. Fed. R. Civ. P. 12(d).
With respect to well-pleaded allegations, the United States Supreme Court explained the interplay between Rule 8(a) and Rule 12(b)(6) in Bell Atlantic Corp. v. Twombly:
550 U.S. 544, 555 (2007) (footnote and citations omitted); see also 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1216, at 235-36 (3d ed. 2004) ("[T]he pleading must contain something more . . . than a bare averment that the pleader wants compensation and is entitled to it or a statement of facts that merely creates a suspicion that the pleader might have a legally cognizable right of action.").
"A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). "The plausibility standard is not akin to a `probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (citing Twombly, 550 U.S. at 556). The plausibility standard reflects the threshold requirement of Rule 8(a)(2)—the pleader must plead sufficient facts to show he is entitled to relief, not merely facts consistent with the defendant's liability. Twombly, 550 U.S. at 557 (quoting Fed. R. Civ. P. 8(a)(2)); see also Iqbal, 556 U.S. at 678 ("Where a complaint pleads facts that are `merely consistent with' a defendant's liability, it `stops short of the line between possibility and plausibility of "entitlement to relief."'" (quoting Twombly, 550 U.S. at 557)). Accordingly, the plausibility standard requires a plaintiff to articulate facts that, when accepted as true, demonstrate that the plaintiff has stated a claim that makes it plausible the plaintiff is entitled to relief. Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (quoting Iqbal, 556 U.S. at 678). If on a motion pursuant to Rule 12(b)(6), matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment.
Rule 56 of the Federal Rules of Civil Procedure states, as to a party who has moved for summary judgment:
Fed. R. Civ. P. 56(a). A fact is "material" if proof of its existence or non-existence would affect disposition of the case under applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of material fact is "genuine" if the evidence offered is such that a reasonable jury might return a verdict for the non-movant. Id. at 257. When determining whether a genuine issue has been raised, the court must construe all inferences and ambiguities against the movant and in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
The party seeking summary judgment shoulders the initial burden of demonstrating to the court that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, may not rest on the allegations averred in his pleadings. Id. at 324. Rather, the non-moving party must demonstrate specific, material facts exist that give rise to a genuine issue. Id. Under this standard, the existence of a mere scintilla of evidence in support of the non-movant's position is insufficient to withstand the summary judgment motion. Anderson, 477 U.S. at 252. Likewise, conclusory allegations or denials, without more, are insufficient to preclude granting the summary judgment motion. Ross v. Commc'ns Satellite Corp., 759 F.2d 355, 365 (4th Cir. 1985), overruled on other grounds, 490 U.S. 228 (1989). "Only 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." Anderson, 477 U.S. at 248. Further, Rule 56 provides in pertinent part:
Fed. R. Civ. P. 56(c)(1). Accordingly, when Rule 56(c) has shifted the burden of proof to the non-movant, he must produce existence of a factual dispute on every element essential to his action that he bears the burden of adducing at a trial on the merits.
Because Respondent has presented to the Court matters outside the pleadings, which the Court did not exclude, Respondent's motion to dismiss shall be treated as one for summary judgment.
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). The primary means of attacking the validity of a federal conviction and sentence is through a motion pursuant to 28 U.S.C. § 2255, while 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, 678-79 (4th Cir. 2004); United States v. Miller, 871 F.2d 488, 489-90 (4th Cir. 1989) (distinguishing between attacks on the "computation and execution of the sentence [and] the sentence itself"). A petition pursuant to § 2241 challenging the execution of a federal prisoner's sentence generally addresses "such matters as the administration of parole, computation of a prisoner's sentence by prison officials, prison disciplinary actions, prison transfers, type of detention and prison conditions." Jiminian v. Nash, 245 F.3d 144, 146 (2d Cir. 2001) (citing Chambers v. United States, 106 F.3d 472, 474-75 (2d Cir. 1997)); see also Manigault v. Lamanna, No. 8:06-047-JFA-BHH, 2006 WL 1328780, at *1 (D.S.C. May 11, 2006) ("A motion pursuant to § 2241 generally challenges the execution of a federal prisoner's sentence, such as parole matters, computation of sentence by prison officials, prison disciplinary actions, and prison transfers."). A petition under § 2241 must be brought against the warden of the facility where the prisoner is being held, 28 U.S.C. § 2242; Rumsfeld v. Padilla, 542 U.S. 434-35 (2004), and "in the district of confinement rather than in the sentencing court," Miller, 871 F.2d at 490.
In a habeas proceeding where computation of a federal sentence is at issue, a court must consider two separate matters: (1) when the federal sentence commences and (2) to what extent the defendant can receive credit for time spent in custody prior to commencement of the sentence. Pettey v. Sherman, No. 05-131, 2006 WL 1878327, at *2 (W.D. Pa. July 6, 2006); see United States v. Wilson, 503 U.S. 329, 333-35 (1992). Federal statutes mandate when a federal sentence commences and when a petitioner can receive credit for prior custody:
18 U.S.C. § 3585.
In his response in opposition, Petitioner states that he is not proceeding on his nunc pro tunc designation request
The United States Supreme Court has determined that, under 18 U.S.C. § 3585(b), Congress intended the Attorney General, and not the sentencing court, to determine credits for time served, Wilson, 503 U.S. at 333-35; the Attorney General's authority to determine these credits has been delegated to the BOP, 28 C.F.R. § 0.96. As stated, pursuant to § 3585(b), the BOP is prohibited from applying any prior custody credit toward a federal sentence unless the prior time served was a result of (1) the offense for which the current sentence was imposed or (2) a charge for which the petitioner was arrested after the commission of the offense for which the current sentence was imposed. 18 U.S.C. § 3585(b). Moreover, § 3585(b) prohibits the BOP from applying prior custody credit toward the federal sentence if the prisoner already received the credit toward another sentence. Id.; see, e.g., United States v. Brown, 977 F.2d 574, 1992 WL 237275, at *1 (4th Cir. 1992) (unpublished table decision) (citing 18 U.S.C. § 3585(b)) ("[A] defendant may receive credit against his federal sentence for time spent in official detention prior to the date his sentence commences unless it has been credited against another sentence."). As a result, in enacting § 3585(b), "Congress made clear that a defendant could not receive a double credit for his detention time." Wilson, 503 U.S. at 337.
Here, the record reflects that the BOP's computation of Petitioner's time-served credits is in accordance with § 3585(b). Petitioner is not entitled to credit toward his federal sentence for the time period from when he was indicted in the Western District of North Carolina until he was released into the exclusive custody of federal authorities for service of his 60-month term of federal imprisonment because that time was already credited to his state sentence.
Additionally, Petitioner's arguments that he is entitled to a credit under Willis v. United States, 438 F.2d 923, 925 (5th Cir. 1971), and that the state court ordered the sentences to run concurrently are without merit. "Multiple terms of imprisonment imposed at different times run consecutively unless the court orders that the terms are to run concurrently." 18 U.S.C. § 3584(a). The Federal Judgment and Commitment Order was silent as to how the federal sentence was to run with the yet-to-be-imposed state sentence. [Doc. 10-1 at 4 ¶ 16.] Although the state court ordered the sentences to run concurrently, a state court's judgment does not create an entitlement to concurrent state and federal sentences. See Barden, 921 F.2d at 478 n.4 ("We recognize that neither the federal courts nor the [BOP] are bound in any way by the state Court's direction that the state and federal sentences run concurrently."). While the state sentencing court may have desired its sentence to run concurrently with the federal sentence, it did not have any authority to commence Petitioner's uncommenced federal sentence. See 18 U.S.C. § 3585(a); see also Meagher v. Clark, 943 F.2d 1277, 1282 (11th Cir. 1991) (holding an inmate could not receive credit on his federal sentence for prior time served on a state sentence, even though the state plea agreement provided that the state and federal sentences would be concurrent); Hawley v. United States, 898 F.2d 1513, 1514 (11th Cir. 1990) (holding that absent federal involvement in the state's plea bargain, federal courts are not bound by the state court's intentions and are free to use their own discretion in applying federal law to determine the conditions of the prisoner's federal sentence); Saulsbury v. United States, 591 F.2d 1028, 1035 (5th Cir. 1979) (holding that there can be no interference with federal discretion in sentencing and incarceration unless the federal government has implicated itself directly or indirectly in a state plea bargaining process). The only proper way for the state court to have effectuated such an intent would have been to release Petitioner to federal custody immediately at the time of sentencing. In this instance, the state retained custody of Petitioner, and did not release him to federal authorities until February 28, 2012. Therefore, the Court concludes that Respondent's motion for summary judgment should be granted and the Petition should be dismissed because Petitioner has received all of the prior custody credit toward his federal sentence to which he is lawfully entitled,
Wherefore, based upon the foregoing, the Court recommends that Respondent's motion for summary judgment be GRANTED and the Petition be DENIED.
IT IS SO RECOMMENDED.
Here, upon Petitioner's request, the BOP conducted a review to determine if it would be appropriate to grant Petitioner a nunc pro tunc designation that would allow his federal and state sentence to run concurrently. However, the BOP determined that Petitioner was not eligible for such a designation because he plead guilty to a violation of 18 U.S.C. § 924(c), and 18 U.S.C. § 924(c)(1)(D(ii) states, "no term of imprisonment imposed on a person under this subsection shall run concurrently with any other term of imprisonment imposed on the person, including any term of imprisonment imposed for the crime of violence or drug trafficking crime during which the firearm was used, carried, or possessed." [Doc. 10-1 at 6 ¶ 21.] Accordingly, the BOP did not abuse its discretionary authority in this case.
