McAlister v. Outlaw

Filing 12

MEMORANDUM OPINION AND ORDER dismissing, with prejudice, 2 Petitioner's petition for writ of habeas corpus. Signed by Magistrate Judge Beth Deere on 4/21/09. (hph)

I N THE UNITED STATES DISTRICT COURT E A S T E R N DISTRICT OF ARKANSAS E A S T E R N DIVISION R O B E R T CHARLES McALISTER R e g # 17858-076 VS. NO. 2:08-CV-00211-BD PETITIONER

T .C . OUTLAW, Warden, Federal Correctional Complex, F o r r e s t City, Arkansas M E M O R A N D U M OPINION AND ORDER I. I n tr o d u c tio n :

R ESPO N D EN T

R o b e rt Charles McAlister, an inmate at the Federal Correctional Institution, F o r re st City, Arkansas ("FCI-FC"), brings this petition for writ of habeas corpus (docket e n try #1) under 28 U.S.C. § 2241. For the reasons that follow, the petition is dismissed w ith prejudice. II. B a c k gro u n d : O n June 19, 2001, Petitioner was indicted in the United States District Court for the Western District of Tennessee ("the District Court") for conspiracy to manufacture a n d distribute methamphetamine. He was arrested and taken into federal custody on June 2 1 , 2001. (#8-5 at p. 2) On June 29, 2001, the District Court released Petitioner on bond. (#8-5 at p. 3) Petitioner was arrested by state authorities in Fulton County, Kentucky on July 30, 2 0 0 1 . On September 14, 2001, he was transferred to the custody of the United States 1

M a rs h a l pursuant to a writ of habeas corpus ad prosequendum. On April 3, 2002, he pled g u ilty in District Court to the charge of conspiracy to manufacture and distribute m e th a m p h e ta m in e , and the Honorable Julia S. Gibbons imposed a sentence of fifty-one m o n th s in the custody of the United States Bureau of Prisons ("BOP"). (#8-6) The Ju d g m e n t was entered on April 5, 2002, and was silent as to whether the sentence would ru n concurrently or consecutively to any yet to be imposed state sentence. (#8-6 at p. 2) O n May 20, 2002, the Marshal returned Petitioner to Kentucky authorities. A fe d era l detainer was lodged against Petitioner. (#8-7) The state did not, however, ac k n o w led g ed receipt of the detainer. (#8-7) On July 11, 2002, Petitioner appeared in the Circuit Court of Fulton County, K e n tu c k y and changed his plea to guilty on the state charges. On September 26, 2002, a F u lto n County Circuit Court Judge sentenced Petitioner to six years of imprisonment in th e Kentucky Department of Correction. (#8-8 at p. 7) In the Judgment, entered on the s a m e day, the Judge ordered the state prison term to be served "concurrent with the F e d [ e ra l] charges." (#8-8 at p. 3) In August, 2003, the Kentucky Department of Correction released Petitioner to p a ro le without notifying the Marshal as required by the detainer. The Marshal arrested P e titio n e r on October 5, 2007, and on October 15 the BOP designated him to serve his s e n te n c e at FCI-FC. (#8-5) Petitioner was transported to FCI-FC on October 17, 2007. Respondent gave Petitioner credit toward his sentence for time served from May 15,

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2 0 0 1 , to May 17, 2001; June 21, 2001, to June 29, 2001; and September 14, 2001, to May 1 9 , 2002. Petitioner is currently projected to be released on October 1, 2010.1 (#8-3) In its initial calculation of Petitioner's sentence, the BOP treated Petitioner's f e d era l sentence as running consecutively to his state sentence. Petitioner properly used th e BOP's administrative review process to request nunc pro tunc designation of the time h e served in the Kentucky Department of Correction toward his federal sentence. (#8-9 at p . 7) The BOP denied Petitioner's request. (#8-9 at p. 2) Petitioner has exhausted his a d m in is tra tiv e remedies and now seeks review of the BOP's decision under 28 U.S.C. § 2241. Id. III. D is c u s s io n : T h e Court reviews the BOP's decision for abuse of the agency's "substantial d is c re tio n under 18 U.S.C. § 3621." Fegans, 506 F.3d 1101, 1105 (8th Cir. 2007). The Attorney General, through the BOP, has responsibility for computing federal s e n te n c e s 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. W ils o n , 503 U.S. 329, 334-35, 112 S.Ct. 1351 (1992)). The BOP computes an inmate's

In his brief, Respondent contends that Petitioner is not entitled to credit for time s e rv e d from September 14, 2001 through May 19, 2002. (#8 at pp. 4-5) This argument is , however, contrary to Respondent's own records. According to the Sentence M o n ito rin g Computation Data provided by the Respondent, the BOP has given Petitioner 2 6 0 days of credit for time served including credit for time served from September 14, 2 0 0 1 through May 19, 2002 . (#8-3 at p. 3) 3

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s e n te n c e after the inmate has begun serving his or her sentence. Id. Congress has a u th o riz e d the BOP to designate "any available penal or correctional facility that meets m in im u m standards of health and habitability . . . whether maintained by the Federal G o v e rn m e n t or otherwise" as a BOP correctional facility for purposes of serving a federal se n ten c e . 18 U.S.C. § 3621(b). This statute "provides the BOP with broad discretion to ch o o se the location of an inmate's imprisonment," as long as it considers the five factors s e t forth in 18 U.S.C. § 3621(b). Fults v. Sanders, 442 F.3d 1088, 1090-91 (8th Cir. 2 0 0 6 ). Respondent contends that because Judge Gibbons was silent about whether the s e n te n c e she imposed was to be concurrent or consecutive to Petitioner's yet to be im p o s e d state sentence, "the Bureau of Prisons is required by law to compute the federal se n ten c e as running consecutively to his subsequently imposed six-year Commonwealth o f Kentucky sentence." (#8 at p. 7) Under 18 U.S.C. § 3584(a), when a federal court is imposing multiple terms of im p riso n m e n t at the same time or the defendant is already subject to an undischarged term of imprisonment on a state charge and the court is silent, then under the statute there is a presumption that the sentences are consecutive. 18 U.S.C. § 3584(a). The court is a lso authorized, however, to order multiple federal sentences to run concurrently or to o r d e r a federal sentence to run concurrently with an undischarged state term after it first

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c o n s id e rs the factors set forth in 18 U.S.C. § 3553(a). Id. See also, United States v. S h a fe r, 438 F.3d 1225, 1227 (8th Cir. 2006). Congress has not, however, specifically addressed whether federal courts may o rd e r a federal sentence to be served concurrently or consecutively in a situation, such as th is one, where a state sentence has not yet been imposed. Fegans, 506 F.3d at 1103. As P e titio n e r notes, the Sixth Circuit has held that federal courts may not order a federal s e n te n c e concurrent or consecutive to a yet to be determined state sentence. See United S t a te s v. Quintero, 157 F.3d 1038, 1039-40 (6th Cir. 1998); but see United States v. M a y o tte , 249 F.3d 797, 799 (8th Cir. 2001) (holding consecutive sentence may be im p o se d consistent with the last sentence of § 3584(a)). Accordingly, under Sixth Circuit c a se law, Judge Gibbons was required to remain silent on the issue at the time of s e n te n c in g . Accordingly, her silence cannot be interpreted as mandating that the BOP c o m p u te Petitioner's federal sentence as consecutive to his state sentence. When a federal defendant is already serving a state sentence, the BOP has the p ra c tica l power to "make the federal sentence run concurrently by designating the state p ris o n as a place of federal confinement, so that the clock would start to tick on the f e d era l sentence." Fegans v. U.S., 506 F.3d 1101, 1103 (8th Cir. 2007) (quoting R o m a n d in e v. United States, 206 F.3d 731, 738 (7th Cir. 2000)). In making this a ss e ss m e n t, the BOP is guided by its Program Statement 5160.05 ("the Program S ta te m e n t" ) which specifies the procedure the BOP must follow when an inmate has

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re q u e ste d nunc pro tunc designation of a state institution for service of his federal s e n te n c e . Id. at 1104. Under paragraph 8 of the Program Statement, the BOP may make a nunc pro tunc designation only "when it is consistent with the intent of the federal s e n te n c in g court or the goals of the criminal justice system." BOP Program Statement 5 1 6 0 .0 5 at ¶ 8. Further, under the Program Statement, if BOP officials decide, on an in m a te request, that a concurrent sentence "may be appropriate," they must "send a letter to the sentencing court . . . inquiring whether the court has any objections." BOP P rog ram Statement 5160.05 at ¶ 9(b)(4)(c). Petitioner claims he is entitled to nunc pro tunc designation because the judge who im p o s e d the state court sentence ordered the sentence to run concurrently with his federal s e n te n c e . The state court's intent may be considered by the BOP, but is not binding. Fagans, 506 F.3d at 1104. Consequently, a state court's action may raise a petitioner's e x p e cta tio n for a concurrent sentence, but does not, as Petitioner suggests, resolve the is s u e . Id. (citing Hendrix v. Norris, 81 F.3d 805, 807 (8th Cir. 1996); Abdul-Malik v. H a w k -S a w y e r, 403 F.3d 72, 75 (2d Cir. 2005)). P e titio n e r acknowledges that the District Court has not weighed in as to whether th e sentences should run concurrently or consecutively. Petitioner claims, however, that " th e re are indications that would suggest that had Petitioner's sentencing judge had the o p p o rtu n ity to impose a concurrent sentence She [sic] would have done so." (#9 at p. 2) Petitioner claims that the following factors indicate the District Court would have

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im p o s e d a concurrent sentence: (1) it is "common practice" for federal and state sentences to run concurrently; (2) the state sentencing judge recommended concurrent sentences; a n d (3) the Assistant United States Attorney did not oppose Petitioner's request to have the time served on his state sentence credited toward his federal sentence. (#9 at p. 2) None of these factors, however, give a clear indication that the District Court intended the s e n te n c e s to be concurrent. The BOP has fulfilled its obligation to determine the District Court's intent by sen d ing the Court a letter asking whether it objects to Petitioner's request for nunc pro tu n c designation. The District Court has not responded, however, to the BOP's c o rre s p o n d e n c e . Given the District Court's silence, this Court cannot hold that the BOP ac ted outside its discretion in denying Petitioner's request for nunc pro tunc designation. P e titio n e r also claims that because the state did not deliver Petitioner to the M a rs h a l as set forth in the detainer, "the Bureau of Prisons did not believe Petitioner had a n y unserved federal sentence because the federal and state sentences were being run co n cu rren tly." Petitioner offers no support for his claim that the state institution's failure to execute the detainer creates a presumption that the sentences were served concurrently. The detainer sent to Kentucky authorities clearly indicates that the Marshal considered the s e n te n c e unserved and, as set forth above, the state has no authority to declare any part of P e titio n e r' s federal sentence served.

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F in a lly, Petitioner claims that concurrent designation would not be contrary to the o b je c tiv e s of the criminal justice system. Petitioner claims his state and federal offenses a t issue in this petition are the only offenses he has committed. Further, he claims that he c o m p lete d his state incarceration and probation without incident and is committed to le a d in g a law-abiding life. As set forth above, 18 U.S.C. § 3621(b) provides the BOP with broad discretion to d e te rm in e the location of an inmate's imprisonment," as long as it considers the five f a c to rs set forth in 18 U.S.C. § 3621(b). Fults v. Sanders, 442 F.3d 1088, 1090-91 (8th C ir. 2006). In this case, the BOP responded to Petitioner's request for nunc pro tunc d e sig n a tio n according to its Program Statement. It considered the factors delineated in 18 U .S .C . § 3621(b) to determine whether retroactive concurrent designation would be a p p ro p ria te . (#8-9 at p. 2) It considered Petitioner's "current offense, prior criminal re c o rd , and the sentencing options available to the court." (#8-9 at p. 2) It also sought th e federal sentencing court's opinion. (#8-9 at p. 2) After conducting its review, the B O P "determined concurrent designation would be inconsistent with the objectives of the c rim in a l justice system and would not serve the interest of safety of society." (#8-9 at p. 2 ) The BOP acted within its broad discretion when it denied Petitioner's request for nunc p r o tunc designation.

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IV .

C o n c lu s io n : F o r the foregoing reasons, Petitioner's petition for writ of habeas corpus (#2) is

d is m is s e d with prejudice, this 21st day of April, 2009.

____________________________________ UNITED STATES MAGISTRATE JUDGE

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