Huff v. Sanders

Filing 25

RECOMMENDED DISPOSITION recommending that 1 Petitioner's 28 U.S.C. § 2241 petitoin for writ of habeas corpus be granted in part and denied in part. The BOP should calculate Petitioner's federal sentence as commencing on the date of i mposition, 5/16/03, and running concurrently with his state sentence. Petitioner shoud receive pre-sentence detention credit for: 1/21/95; 9/11/01 until 9/12/01; 8/29/02 until 9/1/02; and 12/4/02 until 5/15/03. Petitioner should not receive pre-sentence detention credit for the period of 9/11/02, until 12/03/02. Objections to R&R due by 11/26/2008. Signed by Magistrate Judge Beth Deere on 11/12/08. (hph)

IN THE UNITED STATES DISTRICT COURT E A S T E R N DISTRICT OF ARKANSAS E A S T E R N DIVISION J A M E S ELI HUFF, II R e g . #66671-079 VS. L IN D A SANDERS Warden, FCC, Forrest City, Arkansas R E C O M M E N D E D DISPOSITION I. P r o c e d u r e for Filing Objections: T h e following recommended disposition has been sent to United States District Ju d g e William R. Wilson, Jr. Any party may file written objections to this re c o m m e n d a tio n . Objections should be specific and should include the factual or legal b a sis for the objection. If an objection is to a factual finding, specifically identify that f in d in g and the evidence that supports your objection. An original and one copy of your o b je c tio n s must be received in the office of the United States District Court Clerk no later th a n eleven (11) days from the date you receive the Recommended Disposition. A copy w ill be furnished to the opposing party. Failure to file timely objections may result in w a iv e r of the right to appeal questions of fact. M a il your objections and "Statement of Necessity" to: C lerk , United States District Court E a ste rn District of Arkansas 6 0 0 West Capitol Avenue, Suite A-149 L ittle Rock, AR 72201-3325 CASE NO.: 2:06CV00002 WRW/BD RESPONDENT PETITIONER

II.

I n tr o d u c tio n : Pending is Petitioner James Eli Huff, II's Petition for Writ of Habeas Corpus

(d o c k e t entry #1). Respondent Linda Sanders has responded (#8), and Petitioner has re p lie d (#9). Also pending is Petitioner's Motion to Amend or Correct his Petition (#20). Respondent answered (#21) and substantially changed her original position regarding the p e n d in g petition. Petitioner's proposed amended petition does not add any new facts or c la im s for relief. Accordingly, the Court recommends that Petitioner's Motion to Amend (# 2 0 ) be DENIED. For the reasons that follow, however, the Court recommends that this P e titio n for Writ of Habeas Corpus (#1) be GRANTED in part and DENIED in part. III. B a c k gro u n d : O n December 15, 1995, Petitioner received a federal prison sentence for d istrib u tio n of marijuana. He was released from federal custody on July 18, 2000, with f iv e years of supervision to follow. On September 11, 2001, Petitioner was arrested for d riv in g while intoxicated, but the charges stemming from this arrest were dismissed. Petitioner was arrested again on August 29, 2002, for forgery. The charges originating f ro m this arrest were burglary, credit/debit card abuse (forgery), and unlawful possession o f a firearm (#8-5, p. 6). Petitioner posted bond and was released on September 1, 2002. On September 10, 2002, after consultation with his United States Probation Officer, P e titio n e r entered a federal residential drug treatment center (#2-2, p. 4).

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P e titio n e r remained in the residential drug treatment center while awaiting a su p e rv ise d release revocation determination, until he was taken into custody by the State o f Texas on December 4, 2002. According to Respondent, this arrest placed Petitioner in th e primary custody of the State of Texas (# 8, p. 2). On December 27, 2002, Petitioner w a s released to a federal detainer and housed in the Federal Detention Center in Houston (" F D C -H o u s to n " ) (#8-5, p. 6). Petitioner remained exclusively in federal facilities from D e c e m b e r 27, 2002 until August 13, 2003. While in federal custody, Petitioner received a 24-month sentence for supervised re lea se violations on May 16, 2003. On the same day, Petitioner received a 180-month s e n te n c e for being a felon in possession of a firearm. The sentencing judge 1 ordered the tw o sentences to run consecutively (#8-7, p. 3). At the time, there was no other state or f e d e ra l sentence in existence, and Judge Lake did not mention the yet to be imposed state s e n te n c e. Judge Lake then ordered Petitioner remanded to the custody of the United S ta te s Marshal (#8-7, p. 3). Petitioner remained incarcerated in FDC-Houston until July 10, 2003, when he was tra n s f e rr e d to the Federal Correctional Institution in Oakdale, Louisiana ("FCI-Oakdale"). The record shows that the Bureau of Prisons ("BOP") designated FCI-Oakdale as the f a cility at which Petitioner was to serve his federal sentence (#8-4, p. 2). The BOP then c h a n g ed Petitioner's admission status to that of a temporarily housed holdover (#8-4, p.
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The Honorable Simeon Timothy Lake, III, United Stated District Judge for the S o u th e r n District of Texas. 3

2 ). Oakdale does have a detention center for pretrial and holdover inmates. Petitioner, h o w ev er, was placed in FCI-Oakdale, not in the detention center.2 O n August 13, 2003, Petitioner was delivered to the State of Texas (#8-5, p. 3). On September 10, 2003, the State of Texas sentenced Petitioner to 12 years in prison on th e charges stemming from his August 29, 2002 arrest. This arrest was also the basis for P e titio n e r's federal supervised release revocation and federal felon-in-possession c o n v ic tio n . The state court judge ordered Petitioner's state sentence to run concurrent w ith his federal sentence and remanded him to federal incarceration (# 2-2, p. 15). Petitioner remained in the custody of the State of Texas until January 2, 2004, w h e n Petitioner was returned to the FDC-Houston. While housed in FDC-Houston, the S ta te of Texas granted Petitioner's parole. On August 13, 2004, Petitioner was returned to the State of Texas. On August 25, 2004, Petitioner completed his state parole c e rtif ic a te and was released from state custody. According to Petitioner, the federal g o v e rn m e n t did not issue a detainer and he was released, only to self-surrender to federal a u th o ritie s on September 1, 2004. According to Respondent, however, Petitioner began to serve his federal sentence only on August 25, 2004, when he was paroled by the State o f Texas.

The facilities are distinguishable by the facility code. Petitioner was placed in "O A K ", signifying FCI-Oakdale, not "OAD", signifying the detention center (# 8-5, p. 3). 4

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O rig in a lly, Petitioner was not given any prior custody credit toward his federal s e n te n c e from before August 25, 2004. The BOP has since changed its position regarding p rio r custody credit. O n March 12, 2008, Petitioner filed a Motion to Amend (#20). Respondent treated th e Motion to Amend as a request for a nunc pro tunc designation (#21). In granting P e titio n e r's request, the BOP credited Petitioner with 167 additional days of pre-sentence c re d it and designated Petitioner's service in the Texas Department of Corrections as s e rv ic e toward his federal sentence (#21). The only pre-sentence credit still contested by th e BOP is the time Petitioner spent in a residential drug treatment center from September 1 1 , 2002, until December 3, 2002. IV. A n a l y s is of Petitioner's Claims: T h e Attorney General, through the BOP, has responsibility for computing federal s e n te n c in g credit and determining the commencement of sentences under 18 U.S.C. § 3585. United States v. Tindall, 455 F.3d 885, 888 (8th Cir. 2006) (citing United States v . Wilson, 503 U.S. 329, 334-35, 112 S.Ct. 1351 (1992)). These determinations are made a f te r the inmate has begun serving his or her sentence. Id. If an inmate disagrees with the B O P 's computation, the proper avenue for review is administratively through the BOP, th e n judicial review under 28 U.S.C. § 2241. Id.

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A.

Administrative Exhaustion:

R e sp o n d e n t initially asked this Court to dismiss the pending petition for failure to e x h a u st administrative remedies (#8). A petitioner is required to exhaust his a d m in is tra tiv e remedies before filing a 28 U.S.C. § 2241 petition for writ of habeas c o rp u s . United States v. Chappel, 208 F.3d 1069 (8th Cir. 2000) (citing United States v. Iv e rs e n , 90 F.3d 1340, 1344 (8th Cir 1996) and Kendrick v. Carlson, 995 F.2d 1440, 1447 (8th Cir. 1993)). Failure to exhaust does not deprive the Court of jurisdiction, however, a s the exhaustion requirement is judicially created, not jurisdictional. Lueth v. Beach, 498 F .3 d 795, 797 n. 3 (8th Cir. 2007). Regardless, this Court thoroughly reviewed the record a n d cannot find fault in Petitioner's use of the administrative process. T h e BOP has in place an administrative remedy process for federal inmates. See 2 8 C.F.R. §§ 542.10-19. First, an inmate must request an Informal Resolution ("BP-8") o f the issue from prison staff. 28 C.F.R. § 542.13(a). If the issue is not resolved, the in m a te must submit a formal, written Administrative Remedy Request ("BP-9") to the W a r d e n . 28 C.F.R. § 542.14. An inmate who is not satisfied with the Warden's response to the BP-9 may submit an appeal ("BP-10") to the Regional Director. 28 C.F.R. § 542.15(a). An inmate who is not satisfied with the Regional Director's response to the

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B P -1 0 may submit a final appeal ("BP-11") to the General Counsel.3 Id. Once the re q u e s t or appeal is filed, the Warden must respond within 20 calender days.4 28 C.F.R. § 542.18. The Warden may extend the response time for an additional 20 days. Id. If the in m a te does not receive a response within the time allotted, the inmate may consider the a b s e n c e of a response to be a denial. Id. Respondent concedes that Petitioner attempted to exhaust his administrative re m e d ie s by filing administrative requests and appeals at every level possible. Respondent contends, however, that Petitioner filed several appeals improperly, thus b a rr in g issuance of this writ. The record shows that Petitioner filed the required BP-8, which was denied, and th e n timely filed a BP-9. The BP-9 was dated July, 23, 2005. Warden Sanders's response to the BP-9 is dated August 22, 2005, well after the 20 calender days in which she had to re sp o n d . Warden Sanders may have given herself an extension of time to respond under 2 8 C.F.R. § 542.18, thus, her response would have been timely. This is questionable, h o w e v e r, as § 542.18 requires staff to inform the inmate of the extension in writing, and R e s p o n d e n t has not provided any evidence, i.e. a copy of notice or data notation, that P e titio n e r was ever informed of an extension. 28 C.F.R. § 542.18. According to P e titio n e r, he never received a response from Warden Sanders, or the return of his

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The appeal to the General Counsel is the final step in administrative exhaustion.

The Regional Director must respond within 30 calender days and the General C o u n s e l within 40 calender days. 7

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o rig in a l BP-9. Respondent makes no serious attempt to counter Petitioner's assertion. Petitioner then, as the regulations provide, properly treated his BP-9 as denied. Petitioner then timely filed the required BP-10 and stated that he had not received a response from the Warden or the return of his original BP-9 (# 2-3, p.1). Petitioner c re a te d and attached a replica of his BP-9 to his BP-10 (# 2-3, p. 2). This apparently was u n sa tisf a c to ry to the regional office, as they ordered Petitioner to resubmit his appeal with th e original BP-9 and the Warden's response within 10 days (#2-3, p. 3). Petitioner in s te a d filed his BP-11 noting that the regional office requested an impossibility, i.e., that h e file the original BP-9 that was never returned to him, and file the Warden's response th a t Petitioner did not believe existed (#2-3, p. 4). Although not argued by Petitioner, it a p p e a rs he could not have complied with the regional office's instructions in a timely m a n n e r, even if he had possessed the requested documents.5 In his BP-11, Petitioner re q u e ste d that the General Counsel review his sentence calculation or order the regional o f f ic e to accept and review his BP-10 (#2-3, p. 4). General Counsel did neither, instead re je c tin g Petitioner's BP-11 for filing at the wrong level (#2-3, p. 5). Of course, by the

Petitioner's BP-10 was dated September 23, 2005, but not "logged as received" u n d e r 28 C.F.R. § 542.18 until September 29, 2005, or six days after completion. Petitioner received his rejection notice on October 12, 2005, and his response submission w a s due on October 15, 2005, ten days after the October 5, 2005 date of the rejection n o tic e . If Petitioner had complied immediately with the regional office's directions, and it again had taken six days for the submission to be logged as received, the submission w o u ld of been "filed" on or about October 18, 2005, three days after it was due. 8

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tim e his BP-11 was rejected, Petitioner could not resubmit his BP-10 because the time to a p p e a l or resubmit had lapsed. The purpose of administrative exhaustion is to allow an agency notice of a c o m p la in t and an opportunity to address it. Chandler v. Crosby, 379 F.3d 1278, 1287 (1 1 th Cir. 2004). A review of the record shows, as Respondent concedes, that Petitioner a ttem p ted to file at every possible level. It is also clear that Petitioner attempted to re c re a te documents he did not have in an attempt to comply with filing requirements. Petitioner gave the BOP fair notice and several opportunities to address his concerns. The record shows quite clearly that Petitioner attempted to exhaust his administrative re m e d ie s, but was unable to comply with the BOP's demands. Administrative exhaustion is not a "game of legal gotcha." Schneider v. Delo, 85 F.3d 335, 339 (8th Cir. 1996). Petitioner exhausted his administrative remedies to the fullest extent allowed by the BOP. Accordingly, this Court cannot recommend dismissal of this petition for lack of a d m in is tra tiv e exhaustion. B. P e titio n e r 's Sentence Computation:

P e titio n e r requests that the BOP compute his federal sentence to run from the date it was imposed and that he receive pre-sentence detention credit beginning with his a d m is s io n into the federal residential drug treatment center on September 10, 2002. Respondent initially denied that Petitioner was entitled to any of the requested relief. Respondent's position has now changed, as evidenced by the response (#21) to

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P e titio n e r's Motion to Amend (#20). Regardless of Respondent's current position, P e titio n e r is entitled to almost all of the relief he requests. Petitioner's federal sentence s h o u ld run from the date it was imposed, concurrent with his state sentence, and he s h o u ld receive most of the pre-sentence detention credit he requests. 1. Commencement of Petitioner's Federal Sentence: A sentence of imprisonment commences on the date the defendant is received into c u sto d y awaiting transportation to the official detention center where the sentence will be s e rv e d . 18 U.S.C. § 3585(a). On May 16, 2003, Petitioner received consecutive federal s e n te n c es of 24 and 180 months. He was remanded to the custody of the United States M arsh al (#8-7, p. 3). R e sp o n d e n t claims that Petitioner's sentence did not commence until August 25, 2 0 0 4 , and that Petitioner was only temporarily in federal custody until that time. The r e c o rd , however, shows otherwise. At the time Petitioner received his federal sentences, th e re were no other sentences in existence. After being sentenced, Petitioner remained in f e d era l custody, awaiting transfer to a federal prison, until his designation and transfer on J u ly 10, 2003 (#8-4, p. 2). After Petitioner was released from the State of Texas to a f e d era l detainer, he was in the primary custody of the United States (#8-5, p. 6, ¶ 2).6 See U .S . v. Cole, 416 F.3d 894, 897 (8th Cir. 2005) (a sovereign relinquishes primary

Although a Writ of Habeas Corpus ad Prosequendum was issued along with an a rre st warrant, the Petition for Warrant or Summons (#8-5, p. 5-7) clearly states that P etitio n er was released to a federal detainer. 10

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ju ris d ic tio n by releasing an individual on bail). In addition, it appears the writs requesting tra n sf e r of Petitioner were from the Montgomery County Sheriff and the Texas D e p a rtm e n t of Correction, not from the United States (#8-5, p. 3). Respondent admits that a sentence commences on the date of imposition when a p ris o n e r is serving no other federal or state sentence, and is in exclusive federal custody (# 8 , ¶ 11). Accordingly, Petitioner's sentence commenced on May 16, 2003. 2. Concurrent Sentences: T h e State of Texas ordered Petitioner's state sentence to run concurrent with his f e d e ra l sentences. Clearly, the state court cannot determine Petitioner's federal sentence. When there is any conflict, the federal sentence controls. U.S. v. Mayotte, 249 F.3d 797, 7 9 9 (8th Cir. 2001). In this case, there is no conflict between Petitioner's state and f e d e ra l sentences. Petitioner's federal sentences were ordered to be served consecutively. Judge Lake did not order the federal sentences to run consecutive to the yet to be imposed s ta te sentence, even though he was aware of the pending charges, even though at the time o f sentencing, he had clear authority to order the federal sentences to run consecutive to a n y yet to be imposed state sentence. United States v. Brown, 920 F.2d 1212, 1217 (5th C ir. 1991), abrogated on other grounds, United States v. Candia, 454, F.3d 468, 472-73 (5 th Cir. 2006). Respondent originally stated that under 18 U.S.C. § 3584, the BOP is required to tre a t Judge Lake's silence regarding the yet to be imposed state sentence as ordering

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c o n se c u tiv e sentences. Section 3584 does contain a presumption regarding federal s e n te n c es . See Fegans v. U.S., 506 F.3d 1101 (8th Cir. 2007) (recognizing a presumption u n d e r § 3584(a) regarding federal sentences). It is questionable, however, whether this p re su m p tio n applies to yet to be imposed state sentences. See McCarthy v. Doe, 146 F.3d 1 1 8 , 121-22 (2d Cir. 2005); Barden v. Keohane, 921 F.2d 476, 478 (3d Cir. 1990); but see R o m a n d in e v. U.S., 206 F.3d 731, 738 (7th Cir. 2000) (disagreeing with McCarthy, s ta tin g that a presumption does apply, but also stating that the effective decision is then m a d e by the Attorney General or the state judge); U.S. v. Eccleston, __ F.3d __, 2008 WL 8 3 5 6 9 9 (10th Cir. March 31, 2008) (even when state court orders state sentence to run c o n c u rre n t to federal sentence, federal court must affirmatively order concurrent s e n te n c e s or BOP determination of consecutive sentences is lawful); see also, Fegans, 5 0 6 F.3d at 1104 (noting the disagreement between Romandine and McCarthy with reg ard to a yet to be imposed state sentence). It is true that § 3584(a) may contain a presumption that multiple sentences imposed a t different times run consecutively unless ordered otherwise. Hendrix v. Norris, 81 F.3d 8 0 5 (8th Cir. 1996). It is also true that the district court's silence may indicate an intent to ru n the sentences consecutively. Id. at 808. When imposing concurrent or consecutive te rm s , however, the district judge must consider the factors set forth in 18 U.S.C. § 3553(a). 18 U.S.C. § 3584(b). In the present case, it was not possible for Judge Lake to c o n sid e r all of the factors set forth in § 3553(a) with regard to Petitioner's state sentence,

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b e c a u se at the time of sentencing, there was no state sentence in existence. In addition, it m ig h t well have been improper for Judge Lake to make an "educated guess" as to the le n g th of Petitioner's yet to be imposed state sentence. See, e.g., United States v. Brewer, 2 3 F.3d 1317, 1320-21 (8th Cir. 1994) (district court's "educated guess" regarding u n d is c h a rg e d state sentence resulted in a failure to impose reasonable incremental p u n is h m e n t). It appears that the interests of justice would be best served in this case by g iv in g effect to the state court sentence, cf. Hendrix, 81 F.3d at 808 (Heaney, J. d iss e n tin g ), especially since the state court's unambiguous sentence does not conflict with a n y federal sentence or statute. The Second Circuit has noted that "in some circuits, when a defendant is sentenced f irs t in federal court and then on an unrelated offense in state court, neither judge can e f f e c t concurrent sentencing even if that is the intention of both." Abdul-Malik v. HawkS a w y e r, 403 F.3d 72, 75 (2d Cir. 2005). The result is that the Executive branch may p ro s e c u te the case and then determine whether the sentence will be consecutive to, or c o n c u rre n t with, a separate state sentence, all without regard to judicial intent. This result c o n f lic ts with basic principles of Federalism "because the federal BOP is given the e f f e c tiv e authority to enforce (or not) a state court's determination that a state sentence s h o u ld run concurrently." Abdul-Malik, 403 F.3d at 76; see also, Fegans, 506 F.3d at 1104.

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T h e BOP's approach also appears to disregard considerations of comity. Comity is "[ c]o u rtesy among political entities (as nations, states, or courts of different jurisdictions), in v o lv in g especially mutual recognition of legislative, executive, and judicial acts." Black's Law Dictionary, 7th ed. 1999. To the BOP's credit, it eventually, in effect, gave c r e d e n c e to the clear intent of the state court through the BOP's nunc pro tunc d esig n atio n authority (#21). In the present case, the BOP should run Petitioner's state sentence concurrent with h is federal sentences, as explicitly ordered by the state court. Because Petitioner was a lre a d y paroled by the State of Texas, and because this Court recommends that P e titio n e r's federal sentence commence on the date of imposition, this decision would not c h a n g e Petitioner's current sentence calculation (#21). The only question remaining c o n c e rn s credit for pre-sentence detention. 3. Pre-Sentence Detention Credit: The BOP has now awarded Petitioner pre-sentence detention credit for the f o l lo w in g dates: January 21, 1995; September 11, 2001 until September 12, 2001; August 2 9 , 2002 until September 1, 2002; and December 4, 2002 until May 15, 2003 (#21-2, p. 6 ). The BOP has also decided to commence Petitioner's federal sentence on the date of im p o s itio n , May 16, 2003. In addition to the time now credited by the BOP, Petitioner s e e k s credit for the time he spent in a residential drug treatment center from September 1 0 , 2002, until December 3, 2002. Although Petitioner is entitled to all of the pre-

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s e n te n c e detention credit the BOP has now granted, he is not entitled to pre-sentence d e te n tio n credit for the time he spent in the residential drug treatment center. A defendant is entitled to prior custody credit for any time spent in official d e te n tio n , prior to the date the sentence commences, that was not credited to another s e n te n c e. 18 U.S.C. § 3585(b). The BOP initially denied Petitioner any pre-sentence c re d it. The BOP cited the notation on the state judgment that gave Petitioner credit for tim e already served before imposition of his state sentence. The BOP then declined to g iv e Petitioner federal credit for time credited to the state sentence. The BOP ignored, h o w e v e r, the rest of the state sentence. The state court specifically chose to run the state s e n te n c e concurrent with Petitioner's already imposed federal sentences. The BOP now, in effect, has run Petitioner's state and federal sentences concurrent with each other. Credit against only the state sentence, however, would not reduce Petitioner's period of a c tu a l imprisonment. Accordingly, Petitioner is entitled to pre-sentence detention credit to w a rd his federal sentence as well. See Kayfez v. Gasele, 993 F.2d 1288 (7th Cir. 2003) (P o stc o n v ictio n Petitioner serving concurrent state and federal sentences was entitled to c re d it against his federal sentence for all of his pre-sentence incarceration, even though tim e had already been credited against state sentence; since Petitioner's sentences were c o n c u rre n t, crediting only against state sentence would not reduce his period of actual im p ris o n m e n t). This pre-sentence credit is limited to the time already given to Petitioner a f te r the BOP's nunc pro tunc designation (#21).

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P e titio n e r is not entitled to credit for the time spent in the residential drug tre a tm e n t center. See U.S. v. Johnson, 418 F.3d 879, 880-81 (8th Cir. 2005) (no credit for tim e spent at a halfway house while on supervised release). This time was not "official d e te n tio n " under 18 U.S.C. § 3585(b). See Reno v. Koray, 515 U.S. 50, 58-59, 115 S.Ct. 2 0 2 1 (1995) (time spent in a community treatment center while on bail is not "official d e ten tio n " ). Accordingly, the BOP was correct to deny Petitioner pre-sentence credit f ro m September 11, 2002, until December 3, 2002. V. C o n c lu s io n : T h e Court recommends that Petitioner's 28 U.S.C. § 2241 petition for writ of h a b e a s corpus (#1) be GRANTED in part and DENIED in part. The BOP should c a lc u la te Petitioner's federal sentence as commencing on the date of imposition, May 16, 2 0 0 3 , and running concurrently with his state sentence. Petitioner should receive pres e n te n c e detention credit for: January 21, 1995; September 11, 2001 until September 12, 2 0 0 1 ; August 29, 2002 until September 1, 2002; and December 4, 2002 until May 15, 2 0 0 3 . Petitioner should not receive pre-sentence detention credit for the period of S e p te m b e r 11, 2002, until December 3, 2002. D A T E D this 12th day of November, 2008.

____________________________________ UNITED STATES MAGISTRATE JUDGE

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