KEVIN F. McDONALD, Magistrate Judge.
This matter is before the court on the respondents' motion to dismiss or, in the alternative, motion for summary judgment (doc. 9). The petitioner, a federal prisoner proceeding pro se, seeks habeas corpus relief pursuant to Title 28, United States Code, Section 2241. Pursuant to the provisions of Title 28, United States Code, Section 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.
The petitioner is currently incarcerated in Federal Correctional Institution ("FCI") Fort Dix (doc. 19). On March 9, 2018, the petitioner filed a petition in this court pursuant to 28 U.S.C. § 2241 seeking prior custody credit toward his federal sentence for time spent in pretrial confinement and for time spent serving a State of North Carolina sentence (doc. 1-1). On May 11, 2018, the respondents filed a motion to dismiss or, in the alternative, motion for summary judgment pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(6), and 56 (doc. 9). By order issued on May 14, 2018, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4
On June 7, 2014, the petitioner was arrested by the Wilmington Police Department in Wilmington, North Carolina, on drug and firearm charges (doc. 9-1, Ray decl. ¶ 4 & att. 1). On November 17, 2014, the petitioner was sentenced by the State of North Carolina in Case No. 14CRS006065 to a term of imprisonment of 17 months to 30 months for possession of firearm by felon; possession of a controlled substance with intent to manufacture, sell, or deliver ("PWIMSD") heroin; and felony possession of cocaine (id. ¶ 5 & att. 2).
On November 18, 2014, the petitioner was temporarily taken into federal custody by the United States Marshals Service pursuant to a federal writ of habeas corpus ad prosequendum (id. ¶ 6 & att. 3). On June 10, 2015, the petitioner was sentenced by the United States District Court for the Eastern District of North Carolina in Case No. 7:14-CR-103-1FL to a term of imprisonment of 188 months for felon in possession of a firearm and ammunition (id. ¶ 7 & att. 4).
On June 10, 2015, following sentencing, the petitioner was returned to state custody to continue serving his North Carolina sentence (id. ¶ 8 & att. 5). On December 9, 2015, he completed his North Carolina sentence and was taken into exclusive federal custody to serve his 188-month federal sentence (id. ¶ 9 & att. 6).
On April 6, 2017, the United States District Court for the Eastern District of North Carolina issued an amended judgment in Case No. 7:14-CR-103-1FL, reducing the petitioner's term of imprisonment to 120 months. Additionally, the court recommended that the Bureau of Prisons ("BOP") designate the North Carolina Department of Corrections to be the place of service of the petitioner's sentence, thereby making the federal sentence concurrent with the petitioner's imprisonment pursuant to his state court sentence in Case No. 14CRS006065 (id. ¶ 10 & att. 7).
On April 10, 2017, the BOP granted a "nunc pro tunc" designation allowing the petitioner's federal sentence to begin on the day it was imposed (June 10, 2015) and run concurrently to his state sentence (id. ¶ 11 & att.8). The BOP prepared a sentence computation based on the 120-month term of imprisonment in Case No. 7:14-CR-103-1FL (id. ¶ 12 & att. 9). The petitioner's sentence was computed as commencing on June 10, 2015, the same day it was imposed (id.). He has received no prior credit time, and he is eligible to earn 470 days Good Conduct Time (id.). This results in a projected release date of February 25, 2024, via Good Conduct Time Release (id.).
The respondents stipulate that the petitioner has exhausted his administrative remedies in Remedy No. 904988 (doc. 9 at 3; see doc. 1-2 at 4-8).
The respondents have moved for dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. In the alternative, the respondents argue that they are entitled to summary judgment pursuant to Rule 56 (doc. 9).
"The purpose of a Rule 12(b)(6) motion is to test the sufficiency of a complaint." Williams v. Preiss-Wal Pat III, LLC, 17 F.Supp.3d 528, 531 (D.S.C. 2014) (quoting Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999)). Rule 8(a) sets forth a liberal pleading standard, which requires only a "`short and plain statement of the claim showing the pleader is entitled to relief,' in order to `give the defendant fair notice of what . . . the claim is and the grounds upon which it rests.'" Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). The court must liberally construe pro se complaints to allow the development of a potentially meritorious case, Hughes v. Rowe, 449 U.S. 5, 9 (1980), and such pro se complaints are held to a less stringent standard than those drafted by attorneys. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir.1978).
"In deciding whether a complaint will survive a motion to dismiss, a court evaluates the complaint in its entirety, as well as documents attached or incorporated into the complaint." E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 448 (4th Cir. 2011). The court may consider such a document, even if it is not attached to the complaint, if the document "was integral to and explicitly relied on in the complaint," and there is no authenticity challenge. Id. (quoting Phillips v. LCI Int'l, Inc., 190 F.3d 609, 618 (4th Cir. 1999)). See also Int'l Ass'n of Machinists & Aerospace Workers v. Haley, 832 F.Supp.2d 612, 622 (D.S.C. 2011) ("In evaluating a motion to dismiss under Rule 12(b)(6), the Court . . . may also `consider documents attached to . . . the motion to dismiss, so long as they are integral to the complaint and authentic.'") (quoting Sec'y of State for Def. v. Trimble Navigation Ltd., 484 F.3d 700, 705 (4th Cir. 2007)). Rule 12(d) states: "If on a motion under Rule 12(b)(6) . . ., matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56. All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion." Fed. R. Civ. P. 12(d).
Here, the undersigned has considered documents attached by the respondents to the motion, consisting of the declaration of Alan Ray, Correctional Program Specialist with the BOP, along with attachments to the declaration (doc. 9-1). The undersigned has also considered documents attached to the petitioner's response in opposition to the motion, which consists of the judgments in his state and federal criminal cases (docs. 15-1, 15-2). While many if not all of these documents appear integral to the petition and no question as to their authenticity has been raised, the undersigned finds that the better course would be to treat the motion as one for summary judgment under Rule 56 as matters outside the pleadings have been presented to and not excluded by the court. See Fed. R. Civ. P. 12(d). The parties have been given a reasonable opportunity to present all material that is pertinent to the motion. Id.
Rule 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 nonmoving 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 plaintiff'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.
The petitioner was sentenced in accordance with the provisions of the Prison Litigation Reform Act of 1995 ("PLRA"), which applies to sentences for offenses committed on or after April 26, 1996. 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. The computation of a federal sentence requires consideration of two separate issues: (1) the commencement date of the federal sentence, and (2) the extent to which a defendant can receive credit for time spent in custody prior to commencement of the sentence (doc. 9-1, Ray decl. ¶ 13).
In determining the commencement date of a federal sentence, the BOP is guided by 18 U.S.C. § 3585(a), which states:
18 U.S.C. § 3585(a). While the provisions of § 3585(a) are determinative in most instances, 18 U.S.C. § 3621 describes procedures for prisoners who are not in exclusive federal custody when a federal sentence is imposed (doc. 9-1, Ray decl. ¶ 15). Program Statement 5880.28, promulgated as guidance for § 3621 provides:
(Id. & att. 11) (emphasis in original).
In compliance with 18 U.S.C. § 3621, the BOP conducted a review of the petitioner's federal sentence under Barden v. Keohane, 921 F.2d 476 (3
A nunc pro tunc review is made by considering the following factors set forth in § 3621:
18 U.S.C. § 3621(b). As part of the review process, the Designation & Sentencing Computation Center ("DSCC") considered the sentencing court's recommendation that the North Carolina Department of Corrections be the place of service of the federal sentence, thereby making his federal sentence concurrent with the petitioner's imprisonment in North Carolina (doc. 9-1, Ray decl. ¶ 17 & att. 7). The BOP determined it would be consistent with the intent of the federal sentencing court to grant a nunc pro tunc designation (id.).
Based upon the foregoing, the undersigned finds that the petitioner's federal sentence has been computed correctly as commencing on June 10, 2015, consistent with federal statutes, regulations, and policy as set out above.
The BOP must next determine whether a defendant is to receive any prior custody credit toward his federal sentence (doc. 9-1, Ray decl. ¶ 19). The BOP is guided in this endeavor by 18 U.S.C. § 3585(b), which provides:
18 U.S.C. § 3585(b).
The petitioner was in pretrial custody from the date of his arrest by the Wilmington Police Department on June 7 through November 16, 2014, the day prior to the imposition and commencement of his State of North Carolina sentence, a period of 163 days (doc. 9-1, Ray decl. ¶ 20). During the imposition of the state sentence, the New Hanover County Superior Court ordered on the criminal judgment that the petitioner was given credit for 163 days spent in confinement prior to the date of the judgment (id. & att. 2). Therefore, the time period from June 7 through November 16, 2014, cannot be credited toward the petitioner's federal sentence as to do so would be granting dual credit, which is prohibited by § 3585(b). The Supreme Court of the United States has found that under § 3585(b), "Congress made clear that a defendant could not receive double credit for his detention time." Wilson, 503 U.S. at 337. Consequently, under § 3585(b), prior custody credit cannot be granted if the prisoner had received credit toward another sentence. See United States v. Brown, No. 91-5877, 1992 WL 237275, at *1 (4th Cir. Sept. 25, 1992) ("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").
The petitioner began serving his state sentence on November 17, 2014 (doc. 9-1, Ray decl. ¶ 21 & att. 2). While serving his state sentence, the petitioner was borrowed from the state by federal officials under a federal writ of habeas corpus ad prosequendum (id. & att. 3). The petitioner was borrowed on the federal writ from November 18, 2014, through June 10, 2015 (id. & att. 5). These were only temporary periods of federal custody; the State of North Carolina still retained primary custodial jurisdiction (id.).
The BOP does not award prior custody credit for individuals who are in temporary federal custody on a writ of habeas corpus (id. ¶ 22). Pursuant to Program Statement 5880.28, Sentence Computation Manual (CCCA of 1984):
(Id. & att.13).
The BOP's reasoning for not granting time spent under a writ of habeas corpus as prior custody credit has been agreed to by several courts holding that a federal sentence does not begin to run when a federal defendant is produced for prosecution by a writ of habeas corpus ad prosequendum from state custody. See Stewart v. Bailey, 7 F.3d 384, 389 (4
The petitioner is not entitled to any prior custody credit toward his federal sentence because the time he spent in pretrial detention, June 7 through November 16, 2014, was credited toward his state sentence, and the time period from November 17, 2014, through December 9, 2015, was time he spent serving the actual state sentence (doc. 9-1, Ray decl. ¶ 23). There is nothing in the sentencing court's amended judgment to support the petitioner's assertion (doc. 1-1 at 3) that the sentencing court obviously intended when amending his federal sentence on April 6, 2017, that he was to receive all pretrial detention time and all time he served in the North Carolina Department of Corrections toward his federal sentence (see doc. 9-1, Ray decl. ¶ 24). The sentencing court merely recommended that the federal sentence be made concurrent with the undischarged state sentence the petitioner was serving at the time, and the court gave no indication that it intended the BOP to credit his federal sentence with pretrial custody time and the time spent serving the state sentence (id. & att. 7). The BOP honored the sentencing court's recommendation by designating the North Carolina Department of Corrections as the place for service of the federal sentence, via a nunc pro tunc designation, and commenced the federal sentence on the earliest date legally possible, the date it was imposed (id.). When a federal sentence is ordered to run concurrently with a sentence being served, this does not mean the prior sentence and latter sentence have the same starting date, because a federal sentence cannot commence prior to the date it is pronounced, even if made concurrent with a prior sentence already being served. The latter sentence can only be run concurrently with that part of the prior sentence remaining to be served. A concurrent sentence also does not mean that the defendant gets credit for all the time served on the prior sentence (id.). "[W]hen a federal sentence is ordered to run concurrently with a sentence being served, it can only run concurrently with that part of the prior sentence remaining to be served." United States v. McLean, No. 88-5506, 1989 WL 5457, at *1 (4th Cir. Jan. 13, 1989) (citing Shelvy v. Whitfield, 718 F.2d 441, 444 (D.D.C. 1983) ("Precedent in point confirms that a federal sentence made concurrent with a sentence already being served does not operate in a `fully concurrent' manner. Rather, the second sentence runs together with the remainder of the one then being served.")).
Based upon the foregoing, the undersigned finds that the petitioner's federal sentence has been computed correctly in accordance with all federal statutes, regulations, and policy as set out above. Accordingly, the petitioner is not entitled to the relief he seeks in his habeas petition.
Wherefore, based upon the foregoing, this court recommends that the respondents' alternative motion for summary judgment (doc. 9) be granted and that the petition be dismissed.
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:
