KEVIN F. McDONALD, Magistrate Judge.
This matter is before the court on the respondent's motion to dismiss, or in the alternative, for summary judgment (doc. 8). The petitioner, a federal prisoner proceeding pro se, seeks habeas corpus 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 petitions for relief and submit findings and recommendations to the district court.
The respondent filed a motion to dismiss, or in the alternative, for summary judgment on November 18, 2016 (doc. 8). On November 22, 2016, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the petitioner was advised of the motion to dismiss and summary judgment procedures and the possible consequences if he failed to adequately respond to the motion (doc. 9). On January 30, 2017, the petitioner filed a response in opposition to the motion (doc. 15).
The petitioner is an inmate currently incarcerated at the Federal Correctional Institution ("FCI") in Edgefield, South Carolina (doc. 1 at 1). He is serving a 292-month term of incarceration imposed by the United States District Court for the Eastern District of Tennessee for possession of a firearm as a convicted felon (id. at 2-3). The petitioner's projected release date is August 13, 2019, via Good Conduct Time ("GCT") release (doc. 8-1 at 10).
On October 13, 1995, the petitioner was arrested by local law enforcement in Sullivan County, Tennessee, for Driving Under the Influence, Possession of Marijuana for Resale, and Convicted Felon in Possession of a Firearm in Case Number S38, 449, giving the State of Tennessee primary jurisdiction over his incarceration (doc. 8-1 at 2).
The petitioner pled guilty to Possession of Marijuana in Case Number S38, 449 on October 14, 1996, and was sentenced to two years imprisonment (id. at 2-3). The petitioner's two-year sentence was ordered to run concurrently to his existing parole revocation term in Case No. 18, 592-93B (id. at 3).
On October 23, 1996, the petitioner was indicted in United States District Court for the Eastern District of Tennessee for Felon in Possession of a Firearm in violation of 18 U.S.C. § 922(g)(1) (doc 8-1 at 11). On November 14, 1996, the petitioner was temporarily taken into federal custody by the United States Marshals Service via a writ of habeas corpus ad prosequendum on a charge of Felon in Possession, thereby giving the United States secondary jurisdiction over his incarceration (id. at 17). On September 15, 1997, the petitioner was sentenced in the United States District Court for the Eastern District of Tennessee in Case No. 2:96-CR-00035-001 to a 292-month term of imprisonment for Felon in Possession of a Firearm (id. at 11-12). The Judgment & Commitment Order noted: "The term of imprisonment imposed by this judgment shall run consecutive with the defendant's term of imprisonment pursuant to the judgment of the State of Tennessee Parole Board" (id.).
On October 3, 1997, the petitioner was returned to the custody of the State of Tennessee to complete his state sentence on the parole revocation (doc. 8-1 at 17). On March 24, 1998, the petitioner completed his state sentence and was taken into exclusive federal custody to begin his consecutive federal sentence (id.).
The Bureau of Prisons ("BOP") prepared a sentence computation for the petitioner commencing his 292-month federal sentence on the date he completed his Tennessee state sentences on March 24, 1998, and was taken into exclusive federal custody to begin serving his consecutive federal sentence (doc. 8-1 at 23). The petitioner did not receive any prior custody credit toward his federal sentence, as the time spent in pre-sentence federal custody was applied toward his Tennessee state term (id.). The petitioner's projected release date from federal custody is August 13, 2019, via GCT release (doc. 8-1 at 8).
In his present § 2241 petition, filed on September 23, 2016, the petitioner challenges the execution of his sentence, claiming that the BOP failed to properly calculate his time served while in federal custody (doc. 1 at 8). The petitioner states that he "served time in a federal facility from October 13, 1996, through September 15, 1997, which was not credited toward another sentence" (id.).
A habeas petitioner's suit is not ripe until administrative remedies have been exhausted. United States v. Woods, 888 F.2d 653, 653 (10th Cir. 1989). Inmates may challenge almost any aspect of their confinement through the Administrative Remedy Process. The BOP has a four step formal administrative grievance process, including an informal resolution process. See 28 C.F.R. §§ 542.10 et seq. An inmate may complain about any aspect of his confinement by first seeking to informally resolve the complaint at the institution level. Id. § 542.13. If the matter cannot be resolved informally, the inmate may file a formal written complaint to the warden within 20 calendar days after the date upon which the basis for the request occurred. Id. § 542.14. The matter will be investigated, and a written response provided to the inmate. Id. If dissatisfied with the response, the inmate may appeal to the Regional Director within 20 days of the date of the Warden's response. Id. § 542.15(a). If dissatisfied with the regional response, the inmate may appeal to the General Counsel within 30 days of the Regional Director's response. Id. Appeal to the General Counsel is the final level of agency review. Id. Thus, a claim has not been administratively exhausted until it has been properly filed with the General Counsel. Id. If during this process, the inmate does not receive a response from the Warden, Regional Director, or General Counsel within the allotted time frames, including extensions, the inmate may consider such response or appeal as denied and appeal to the next level. Id. § 542.18.
The respondent agrees that the petitioner properly exhausted his administrative remedies in Remedy #849744 regarding his request for prior custody credit at all four levels of the administrative remedy process (doc. 8-2).
Federal Rule of Civil Procedure 56 states, as to a party who has moved for summary judgment: "The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). As to the first of these determinations, a fact is deemed "material" if proof of its existence or nonexistence would affect the disposition of the case under the 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. In 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 district court that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (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; rather, he must demonstrate that specific, material facts exist that give rise to a genuine issue. Id. at 324. Under this standard, the existence of a mere scintilla of evidence in support of the petitioner'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 the granting of the summary judgment motion. Id. at 248. "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." Id. Because the respondent has presented to the Court matters outside the pleadings, which the Court did not exclude, the respondent's motion to dismiss shall be treated as one for summary judgment.
The computation of a federal sentence is the responsibility of the Attorney General of the United States and has been delegated to the BOP. See United States v. Wilson, 503 U.S. 329, 331 (1992); 28 C.F.R. § 0.96. 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, 2006 WL 1878327, at *2 (W.D. Pa. July 6, 2006); see Wilson, 503 U.S. at 333-35. Federal statutes mandate when a federal sentence commences and when a petitioner can receive credit for prior custody:
18 U.S.C. § 3585.
The petitioner claims he is entitled to credit for approximately 11 months served in a federal facility that he contends were not credited towards another sentence (doc. 1 at 8). The undersigned disagrees.
The United States Supreme Court has held 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) ("[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." (citing 18 U.S.C. § 3585(b))). 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 calculated the petitioner's credit for time served to avoid awarding the petitioner double credit for his prior detention time. As previously stated, at the petitioner's sentencing, the United States District Court for the Eastern District of Tennessee ordered that "[t]he term of imprisonment imposed by this judgment shall run consecutive with the defendant's term of imprisonment pursuant to the judgment of the State of Tennessee Parole Board" (doc. 8-1 at 12). The BOP's determination of the petitioner's sentence was within its authority:
Morgan v. Morgan, 2010 WL 3239080, at *3 (E.D.N.C. Aug. 16, 2010) (citation omitted). Further, the BOP's current computation of the petitioner's time-served credits is in accordance with § 3585(b), which seeks to avoid double crediting a prisoner for time served. See 18 U.S.C. § 3585(b); Wilson, 503 U.S. at 337. The BOP determined that the petitioner was not entitled to any prior credit because he was receiving credit for his state sentence while in temporary federal custody (doc. 8-1 at 17 (Individual Custody and Detention Report stating that his state sentence was satisfied on March 24, 1998, and the petitioner was turned over to federal custody), doc. 8-1 at 20 (notation that a Tennessee state official reported that the petitioner was given state credit "while on writ to feds"), doc. 8-2 at 10 (response from Nation Inmate Appeals dated May 27, 2016, stating that, at the time he had been sentenced, "staff confirmed that all of the days you were in custody had been credited toward your state sentence"). The petitioner has received all of the prior custody credit toward his federal sentence to which he is lawfully entitled, and his federal sentence has been computed correctly in accordance with all applicable statutes and law. Accordingly, summary judgment is appropriate.
Wherefore, based upon the foregoing, this court recommends that the respondent's motion for summary judgment (doc. 8) be granted.
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must `only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
