Cater v. Drew (INMATE3)

Filing 21

REPORT AND RECOMMENDATIONS re 1 Petition for Writ of Habeas Corpus filed by James Otis Cater; it is the Recomm of the Mag Judge that the 28 USC 2241 petition for habeas corpus relief filed by Cater be denied and that this case be dismissed with prejudice; Objections to R&R due by 4/27/2009. Signed by Honorable Terry F. Moorer on 4/14/09. (vma, )

IN THE DISTRICT COURT OF THE UNITED STATES F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION J A M E S OTIS CATER, P e titio n e r, v. D A R L E N E DREW, R e sp o n d e n t. ) ) ) ) ) ) ) ) )

Civil Action No. 2:07cv739-MEF (WO)

R E C O M M E N D A T I O N OF THE MAGISTRATE JUDGE T h e petitioner, James Otis Cater ("Cater"), a federal inmate acting pro se, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. The respondent has filed a n answer. For the reasons that follow, the court concludes that habeas relief should be d e n ie d . I. BACKGROUND

In September 1990, in the Circuit Court of Morgan County, Alabama, Cater pled g u ilty to unlawful possession of cocaine in violation of Ala. Code § 13A-12-212. On D e c em b e r 11, 1990, the trial court sentenced Cater to five years in state prison. Cater began s e rv in g the sentence on December 16, 1991, when he was committed to the Alabama D ep artm en t of Corrections ("ADOC"). In August 1992, a federal grand jury in the Southern District of Alabama indicted C a te r on charges of conspiracy with intent to distribute cocaine in violation of 21 U.S.C. §§ 8 4 1 (a) and 846. The federal charges arose from acts related to the basis of Cater's state court

c o n v ic tio n . A writ of habeas corpus ad prosequendum was issued for Cater to appear and a n sw e r the federal charges, and he was taken into temporary federal custody on December 8 , 1992. A jury found Cater guilty as charged, and on June 15, 1993, the United States D is tric t Court for the Southern District of Alabama sentenced him to a 300 months in federal p riso n . Because of a change in the sentencing guidelines, the court later reduced Cater's s e n te n c e to 240 months. C a te r remained in the physical custody of federal authorities until July 1, 1993, when h e was returned to state custody and the ADOC. On September 24, 1993, Cater completed h is state sentence, and he was released to the custody of United States Marshals on S e p te m b e r 25, 1993. He was transferred to a Federal Bureau of Prisons ("BOP") facility on O c to b e r 20, 1993. O n April 10, 2001, in accordance with Program Statement 5160.05 of the Sentence C o m p u ta tio n Manual, the BOP issued a nunc pro tunc designation calculating Cater's federal se n ten c e as having commenced on June 15, 1993, the date it was imposed. This effectively g ra n te d Cater credit against his federal sentence for time he spent incarcerated in an ADOC f a c ility from June 15, 1993, through September 24, 1993. Cater received credit against his s ta te sentence for time he spent serving the state sentence from December 16, 1991, through J u n e 14, 1993. O n August 15, 2007, Cater filed the instant petition for habeas corpus relief pursuant

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to 28 U.S.C. § 2241.1 (Doc. No. 1.) In his petition, Cater claims (1) that he is entitled to c re d it against his federal sentence for approximately 18 months he was in state custody (from D e c em b e r 16, 1991, to June 14, 1993) and (2) that his federal drug conviction violates p rin ciples of double jeopardy and is void because the federal prosecutor for the Southern D is tric t of Alabama failed to obtain the requisite approval from the United States Department o f Justice before filing a federal prosecution based on acts made the subject of a prior state p r o s e c u ti o n . T h e respondent has filed an answer asserting (1) that Cater is not entitled to additional c re d it against his federal sentence because the BOP has credited him with all the time to w h ic h he is entitled and (2) that, to the extent Cater challenges the validity of his federal c o n v ic tio n , his claims are not cognizable in a § 2241 habeas petition and duplicate claims he p re se n ted in prior habeas proceedings wherein the courts determined he was not entitled to a n y relief. II. A. DISCUSSION

Credit Against Federal Sentence for Time Spent in State Custody C a te r contends he is entitled to credit against his federal sentence for time he spent

in state custody from December 16, 1991, to June 14, 1993. (Habeas Petition, Doc. No. 1

Although Cater's petition was date-stamped "received" in this court on August 17, 2007, it was signed by Cater on August 15, 2007. Under the "mailbox rule," a pro se inmate's petition is deemed filed the date it is delivered to prison officials for mailing, presumptively the day it is signed by the inmate. Houston v. Lack, 487 U.S. 266, 271-72 (1988); Adams v. United States, 173 F.3d 1339, 1340-41 (11th Cir. 1999). 3

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a t pp. 1-7; see also Doc. No. 14 at pp. 6-8.) He maintains he is entitled to this credit because h is federal conviction arose from acts related to the basis of his state court conviction and b e c a u s e his federal sentence was to run concurrently with his state sentence. (Id.) T h e United States Attorney General, acting through the BOP, is responsible for c o m p u tin g the amount of credit due for the time served by a defendant prior to sentencing. U n ite d States v. Wilson, 503 U.S. 329, 335 (1992); see 18 U.S.C. § 3621. Program Statement 5 8 8 0 .2 8 "transmits the `Sentence Computation Manual' which establishes the policies and p ro c e d u re s for the computation of sentences imposed for violations of the United States C o d e ." Program Statement 5880.28, ¶ 1. This Program Statement provides that 18 U.S.C. § 3585(a) establishes the rule for the commencement of a sentence. It also provides that 18 U .S .C . § 3585(b), which deals with "credit for prior custody," is controlling for making credit d e te rm in a tio n s for sentences imposed under the Sentencing Reform Act. See Program S ta te m e n t 5880.28, pp. 1-14. Title 18 U.S.C. § 3585 provides: C a lcu latio n of a term of imprisonment. (a ) Commencement of sentence.­ A sentence to a term of im p ris o n m e n t commences on the date the defendant is received in custody awaiting transportation to, or arrives voluntarily to c o m m e n c e service of sentence at, the official detention facility a t which the sentence is to be served. (b ) Credit of Prior Custody.­ A defendant shall be given c re d it toward the service of a term of imprisonment for any time h e has spent in official detention prior to the date the sentence c o m m e n c es­ 4

(1 ) as a result of the offense for which the s e n te n c e was imposed; or (2 ) as a result of any other charge for w h ic h the defendant was arrested after the c o m m is sio n of the offense for which the sentence w a s imposed; that has not been credited against another sentence. 1 8 U.S.C. § 3585. In determining the proper credit, a two part analysis is helpful. First, it must be d e ter m in e d when the sentence commenced. A sentence "cannot begin prior to the date it is p ro n o u n c e d , even if made concurrent with a sentence already being served." United States v . Flores, 616 F.2d 840, 841 (5 th Cir. 1980); see also Program Statement 5880.28, pp. 1-13 (s ta tin g that federal sentence of imprisonment cannot commence earlier than date on which it is imposed). In the instant case, Cater's federal sentence commenced on June 15, 1993, th e date it was imposed. See 28 U.S.C. § 3585(a). N e x t, it must be determined what credit is due for time served by Cater prior to the c o m m e n c em e n t of his federal sentence. The court must begin with the plain language of the s ta tu te itself. See Harris v. Garner, 216 F.3d 970, 972 (11 th Cir. 2000) (en banc); United S ta tes v. Steele, 147 F.3d 1316, 1318 (11 th Cir. 1998). Section 3585(b) states that, in some c irc u m s ta n c e s , a defendant is entitled to credit for time served prior to sentence c o m m e n c e m e n t unless that time has been credited against another sentence. See 18 U.S.C. § 3585(b). In enacting this provision, "Congress made clear that a defendant could not

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re c eiv e a double credit for his detention time." United States v. Wilson, 503 U .S. 329, 337 (1 9 9 2 ). Cater wishes to receive credit against his federal sentence for time he spent in state c u sto d y from December 16, 1991, to June 14, 1993. However, all of the time for which C a te r is currently seeking credit was credited against his state sentence. Cater is not entitled to receive any additional credit against his federal sentence, for so doing would result in his re c eip t of "double credit." See 18 U.S.C. § 3585(b); Wilson, 503 U .S. at 337. See also A z u r e v. Gallegos, 97 Fed.Appx. 240 (10 th Cir. Mar. 26, 2004) (pursuant to 18 U.S.C. § 3585(b), no relief in habeas corpus to afford petitioner credit against his federal sentence f o r time spent in custody prior to his federal sentencing, where federal and state sentences w e re concurrent from date of petitioner's federal sentencing and time spent in custody prior to federal sentencing was credited toward petitioner's state sentence); Cathcart v. United S t a te s Bureau of Prisons, No. 99-6424, 2000 WL 554547, at *2 (10 th Cir. May 4, 2000) (a f f irm in g dismissal of habeas petition on ground that § 3585(b) prohibited petitioner from re c e iv in g credit for time served in federal custody where that time had been credited to his sta te sentence); Torres v. Brooks, No. 99-1321, 2000 WL 158963 (10 th Cir. Feb. 15, 2000) (p e titio n e r not entitled to credit for time spent in state custody prior to commencement of his f e d era l sentence notwithstanding statement by federal district judge at sentencing that p etitio n er should be credited for those days; § 3585(b) prohibits such double credit). F o r the reasons indicated above, Cater is not entitled to any habeas relief based on this

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c la im . B. C h a lle n g e to Federal Conviction C a te r contends that his 1993 federal drug conviction in the United States District C o u rt for Southern District of Alabama violates principles of double jeopardy and is void b e c au s e the federal prosecutor for the Southern District failed to obtain approval from the D e p a rtm e n t of Justice before filing a federal prosecution based on acts made the subject of a prior state prosecution. (Habeas Petition, Doc. No. 1 at pp. 1-7; see also Doc. No. 14 at p p . 4-8). C o u rt records establish that this is the latest of several challenges by Cater to the 1993 d rug conviction entered by the federal district court in Alabama's Southern District. Cater's p rio r challenges include two motions under 28 U.S.C. § 2255, a motion for new trial, a m o tio n to correct sentence, and two petitions for writ of error coram nobis. See United States v . Cater, Criminal Case No. 1:92cr133 (S.D. Ala.); see also Cater v. Griffin, Civil Action No. 1 :0 5 c v 5 5 1 -C B (S.D. Ala. 2005). In addition, Cater filed a previous petition under 28 U.S.C. § 2241 with this court, wherein he presented the same challenge to the 1993 conviction a s s e r t e d in his instant petition. See Cater v. Griffin, Civil Action No. 2:06cv697-WKW (M .D . Ala. 2006). A s this court has previously recognized, Cater's attack on the validity of the co n v iction imposed upon him in 1993 by the United States District Court for the Southern D is tric t of Alabama presents a claim for which 28 U.S.C. § 2255 is the exclusive remedy,

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u n le ss "the remedy by [such] motion is inadequate or ineffective to test the legality of [the in m a te 's ] detention." See Cater v. Griffin, Civil Action No. 2:06cv697-WKW (M.D. Ala. 2 0 0 6 ) (Doc. No. 4); 28 U.S.C. § 2255. It is apparent that Cater challenges his conviction th ro u g h a § 2241 petition in an attempt to circumvent the applicable one-year period of lim it a tio n and/or the constraint on successive § 2255 motions contained in 28 U.S.C. § 2 2 4 4 ( b ) ( 3 ) ( A ) .2 However, under no circumstances can this court allow Cater's

c irc u m v e n tio n of the procedural gatekeeping provisions contained in the Antiterrorism and E f f ec tiv e Death Penalty Act ("AEDPA"); Title 28 § 2255 is not rendered inadequate or in e f f e c tiv e to challenge the legality of a petitioner's detention merely because the applicable lim ita tio n period has expired or a subsequent motion under the section would be barred as su c c e ss iv e . Thus, under the circumstances of this case, Cater cannot proceed on his claim in a § 2241 petition. T h e § 2241 petition and supporting arguments demonstrate that Cater's challenge to h is 1993 federal conviction would be barred from review in a § 2255 motion before the U n ited States District Court for the Southern District of Alabama by the AEDPA's g a te k e ep in g provisions on untimely and successive petitions. The inadequate and ineffective " sa v in g s clause of § 2255 applies to a claim when: 1) that claim is based upon a retroactively a p p lic a b le Supreme Court decision; 2) the holding of that Supreme Court decision establishes

"A 1-year period of limitation shall apply to a motion under this section." 28 U.S.C. § 2255 ¶6. "Before a second or successive [28 U.S.C. § 2255 motion] . . . is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application." 28 U.S.C. § 2244(b)(3)(A). 8

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th e petitioner was convicted for a nonexistent offense; and, 3) circuit law squarely foreclosed su c h a claim at the time it otherwise should have been raised in the petitioner's trial, appeal, o r first § 2255 motion." Wofford v. Scott, 177 F.3d 1236, 1244 (11 th Cir. 1999). All the C o n s titu tio n requires, if it requires anything, is that a reasonable opportunity existed through w h ich an inmate could have pursued judicial relief on his claims. Id. "[T]he only

s e n te n c in g claims that may conceivably be covered by the savings clause are those based u p o n a retroactively applicable Supreme Court decision overturning circuit precedent." Id. a t 1245. Cater does not meet the prerequisites necessary to invoke application of the savings c lau se of § 2255. His claim is not premised upon a Supreme Court decision issued after his c o n v ic tio n which was made retroactively applicable to such conviction. Moreover, Cater has n o t been "convicted of any crime which a retroactively applicable Supreme Court decision o v e rtu rn in g prior circuit precedent has made clear is nonexistent." Wofford, 177 F.3d at 1 2 4 5 . Finally, relevant federal law did not foreclose Cater from presenting the claim now b e f o re this court at the time such claims otherwise should have been raised. Specifically, the p l e a d in g s filed herein establish that Cater had the requisite procedural opportunity to raise th e instant habeas claim challenging the validity of his conviction and have such claim d e c id e d either at sentencing or on direct appeal. Cater also had the opportunity to present his c la im in a properly filed § 2255 motion. These opportunities are all the Constitution requires. Id . at 1244. The claim pending before this court, therefore, fails to warrant relief under the

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s a v in g s clause of § 2255. A federal prisoner cannot use § 2241 simply to escape the procedural restrictions p la c e d on § 2255 motions by the AEDPA. Wofford, 177 F.3d at 1245. "[T]he savings clause . . . does not exist to free a prisoner of the effects of his failure to raise an available claim e a rlie r." Id. "If it were the case that any prisoner who is prevented from bringing a § 2255 p e titio n could, without more, establish that § 2255 is `inadequate or ineffective,' and th e re f o re that he is entitled to petition for a writ of habeas corpus under § 2241(c)(3), then C o n g re ss would have accomplished nothing at all in its attempts --through statutes like the A E D P A ­ to place limits on federal collateral review." Triestman v. United States, 124 F.3d 3 6 1 , 376 (2 n d Cir. 1997); see also In re Dorsainvil, 119 F.3d 245, 251 (3 r d Cir. 1997) (a f e d era l petitioner may not proceed under "§ 2241 merely because [he] is unable to meet the strin g e n t gatekeeping requirements of the amended § 2255. Such a holding would effectively e v isc e ra te Congress's intent in amending § 2255."); In re Vial, 115 F.3d 1192, 1194 n. 5 (4 th C ir. 1997) (internal citations omitted) ("The remedy afforded by § 2255 is not rendered in a d e q u ate or ineffective merely because an individual has been unable to obtain relief under th a t provision, ... or because an individual is procedurally barred from filing a § 2255 m o tio n ." ). In light of the foregoing, the court concludes that Cater' claim challenging the validity

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o f his conviction is not cognizable in a 28 U.S.C. § 2241 petition.3

III.

CONCLUSION

A c c o rd in g ly, it is the RECOMMENDATION of the Magistrate Judge that the 28 U .S .C . § 2241 petition for habeas corpus relief filed by Cater be denied and that this case be d is m is s e d with prejudice. It is further O R D E R E D that the parties shall file any objections to this Recommendation on or b e fo r e April 27, 2009. A party must specifically identify the findings in the

R e c o m m e n d a tio n to which objection is made; frivolous, conclusive, or general objections w ill not be considered. Failure to file written objections to the Magistrate Judge's proposed f in d in g s and recommendations shall bar a party from a de novo determination by the District C o u rt of issues covered in the Recommendation and shall bar the party from attacking on a p p e al factual findings accepted or adopted by the District Court except upon grounds of

Moreover, the claim is successive. Successive § 2241 petitions are subject to dismissal in the district court because No circuit or district judge shall be required to entertain an application for a writ of habeas corpus to inquire into the detention of a person pursuant to a judgment of a court of the United States if it appears that the legality of such determination has been determined by a judge or court of the United States on a prior application for a writ of habeas corpus, except as provided in section 2255. 28 U.S.C. § 2244(a). Cater's challenge to the validity of his 1993 federal conviction has previously been adjudicated by the court of conviction, the United States District Court for the Southern District of Alabama. The challenge to his conviction presented in his current petition is therefore successive and is subject to dismissal on that basis. See Antonelli v. Warden, U.S.P. Atlanta, 542 F.3d 1348, 1352 (11th Cir. 2008). 11

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p l a i n error or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5 th Cir. 1982). See S te in v. Reynolds Securities, Inc., 667 F.2d 33 (11 th Cir. 1982). See also Bonner v. City of P r ic h a r d , 661 F.2d 1206 (11 th Cir. 1981) (en banc). D o n e this 14 th day of April, 2009.

/s /T e r r y F. Moorer TERRY F. MOORER U N IT E D STATES MAGISTRATE JUDGE

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