Gholson v. Flournoy

Filing 16

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DISMISS without prejudice Gholson's 1 Petition due to his failure to exhaust his available administrative remedies prior to filing this Petition and DISMISS as moot all pending 15 Motions. It is further RECOMMENDED that the Court DIRECT the Clerk of Court to CLOSE this case and enter the appropriate judgment of dismissal and DENY Gholson leave to proceed in forma pauperis. Any party seeking to object to this Report a nd Recommendation is ordered to file specific written objections within fourteen (14) days of the date on which this Report and Recommendation is entered. (Objections to R&R due by 11/3/2017). Respondent's counsel is ORDERED to provide a copy of this Report and Recommendation to the Section Chief for Sentence Computations at BOP's Designation and Sentence Computation Center. ORDER directing service of the REPORT AND RECOMMENDATIONS of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 10/20/2017. (csr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
BRUNSWICK DIVISION

JEFFREY CURTIS GHOLSON,
Petitioner,

CIVIL ACTION NO.: 2:17-cv-47

v.
VICTOR FLOURNOY,
Respondent.

ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Petitioner Jeffrey Gholson (“Gholson”), who is housed at the Federal Correctional
Institution in Jesup, Georgia (“FCI Jesup”), filed a Petition for Writ of Habeas Corpus pursuant
to 28 U.S.C. § 2241. (Doc. 1.) Respondent filed a Response, (doc. 12), and Gholson filed a
Reply, (doc. 14).

Gholson also filed a Motion for Judgment on the Pleadings, or in the

alternative, a Motion for Hearing and Motion for Appointment of Counsel. (Doc. 15.) For the
reasons which follow, I RECOMMEND that the Court DISMISS without prejudice Gholson’s
Petition due to his failure to exhaust his available administrative remedies prior to filing this
Petition and DISMISS as moot all pending Motions. I further RECOMMEND that the Court
DIRECT the Clerk of Court to CLOSE this case and enter the appropriate judgment of
dismissal and DENY Gholson leave to proceed in forma pauperis.
Alternatively, as explained below, if the Court finds that Gholson has exhausted his
available administrative remedies and reaches the merits of his Petition, the Court should DENY
the overwhelming majority of Gholson’s arguments. Gholson essentially seeks credit toward his
federal sentence for over twenty-three (23) years of detention he spent incarcerated in state

institutions. Because Gholson served that time before his federal sentence commenced and
nearly all of that time was unquestionably credited toward his state sentences, Gholson cannot
receive federal credit for those years of incarceration. Additionally, the Federal Bureau of
Prisons (“BOP”) did not abuse its discretion when it denied Gholson’s request to have his state
facility of incarceration designated as the place where his federal sentence would be served.
However, as explained below, the record is not clear if six (6) days of Gholson’s prior custody
was credited toward his state sentence. 1 Thus, should the Court reach the merits of Gholson’s
Petition, it will need to receive additional briefing to resolve his claims as to those six (6) days.
BACKGROUND
On February 4, 1993, Gholson was convicted in the United States District Court for the
Middle District of Florida of bank robbery. (Doc. 12-1, pp. 11–15.) The Middle District of
Florida sentenced Gholson to 188 months’ imprisonment. (Id.) As explained in more detail
below, subsequent to his federal sentencing, Gholson was returned to the custody of the State of
Florida to answer pending state charges. (Id. at p. 2.) The state court imposed sentences totaling
thirty-two (32) years of incarceration. (Id. at p. 72.) Gholson served those sentences in state
facilities and entered federal custody on November 10, 2016, when he was paroled from his
Florida state sentences. (Doc. 12, p. 2.) The BOP calculates his projected release date as July 3,
2030, via good conduct time release. (Doc. 12-1, p. 2.)
In his Petition, Gholson contends that the BOP has miscalculated his sentence. (Doc. 1.)
Specifically, he contends that his federal sentence should have commenced either when he was
arrested on August 3, 1992, or when he was sentenced in the Middle District of Florida on
February 4, 1993. (Id.) Gholson also contends that the BOP has improperly denied him credit
1

Given this ambiguity and potential error, I ORDER Respondent’s counsel to provide a copy of this
Report and Recommendation to the Section Chief for Sentence Computations at BOP’s Designation and
Sentence Computation Center.
2

toward his federal sentence for the time spent in local and state facilities prior to November 10,
2016. Additionally, he alleges the BOP wrongly denied his request to designate his State of
Florida facility for the service of his federal sentence, which would have allowed his federal and
state sentences to run concurrently.
Respondent contends Gholson has received all of the credit against his federal sentence to
which he is entitled. (Doc. 12, pp. 7–9.) Respondent posits that 18 U.S.C. § 3585(b) and BOP
Program Statement 5880.28, Sentence Computation Manual (CCA of 1984), prohibit the
application of the requested prior custody credit Gholson seeks because the time at issue was
already applied toward the service of his state sentences. (Id. at p. 12.) Respondent also
maintains that the BOP properly computed Petitioner’s federal sentence to run consecutively to
his state sentence and that the BOP properly reviewed and denied, in the exercise of its
discretion, Gholson’s request for a nunc pro tunc designation. (Id. at pp. 9–12.) Finally,
Respondent maintains that Gholson failed to exhaust his available administrative remedies
before bringing this Petition.
DISCUSSION
I.

Whether Gholson Exhausted his Administrative Remedies
A.

Legal Requirements for Exhaustion

The Eleventh Circuit Court of Appeals has held that a Section 2241 petitioner’s failure to
exhaust administrative remedies is not a jurisdictional defect. Santiago-Lugo v. Warden, 785
F.3d 467, 474 (11th Cir. 2015); see also Fleming v. Warden of FCI Tallahassee, 631 F. App’x
840, 842 (11th Cir. 2015) (“[Section] 2241’s exhaustion requirement was judicially imposed, not
congressionally mandated, and . . . nothing in the statute itself support[s] the conclusion that the
requirement [is] jurisdictional.”).

Nevertheless, the Eleventh Circuit has noted “that the

3

exhaustion requirement is still a requirement and that courts cannot ‘disregard a failure to
exhaust . . . if the respondent properly asserts the defense.’” Id. (citing Santiago-Lugo, 785 F.3d
at 475). Failure to exhaust administrative remedies is an affirmative defense and inmates are not
required to specially plead or demonstrate exhaustion in their complaint. Jones v. Bock, 549
U.S. 199, 216 (2007).

However, the normal pleading rules still apply, and dismissal is

appropriate when an affirmative defense appears on the face of a complaint—making it clear that
a prisoner cannot state a claim for relief. Id. at 214–15. Thus, when a party admits in his
complaint or petition that he has not exhausted the grievance process, dismissal is warranted.
See Okpala v. Drew, 248 F. App’x 72 (11th Cir. 2007); Cole v. Ellis, No. 5:10-CV-00316-RSGRJ, 2010 WL 5564632, at *3 (N.D. Fla. Dec. 28, 2010); Rashid v. Liberty Cty. Jail, CV410092, 2010 WL 3239241, at *1 n.1 (S.D. Ga. May 3, 2010) (“Nothing in Jones . . . forbids the
Court from dismissing a complaint pursuant to [42 U.S.C.] § 1997e(a) if it is clear from the face
of the complaint that the prisoner has not exhausted all administrative remedies available to
him.”).
The requirement that the exhaustion of remedies occur “first in an agency setting allows
‘the agency [to] develop the necessary factual background upon which decisions should be
based’ and giv[es] ‘the agency a chance to discover and correct its own errors.’” Green v. Sec’y
for Dep’t of Corr., 212 F. App’x 869, 871 (11th Cir. 2006) (quoting Alexander v. Hawk, 159
F.3d 1321, 1327 (11th Cir. 1998) (first alteration in original)).

Furthermore, requiring

exhaustion in the prison setting “eliminate[s] unwarranted federal-court interference with the
administration of prisons” and allows “corrections officials time and opportunity to address

4

complaints internally before allowing the initiation of a federal case.” Woodford v. Ngo, 548
U.S. 81, 93 (2006). 2
The United States Supreme Court has noted exhaustion must be “proper.” Id. at 92.
“Proper exhaustion demands compliance with an agency’s deadlines and other critical procedural
rules because no adjudicative system can function effectively without imposing some orderly
structure on the course of its proceedings.” Id. at 90–91. In other words, an institution’s
requirements define what is considered exhaustion. Jones, 549 U.S. at 218. It is not the role of
the court to consider the adequacy or futility of the administrative remedies afforded to the
inmate. Higginbottom v. Carter, 223 F.3d 1259, 1261 (11th Cir. 2000). The court’s focus
should be on what remedies are available and whether the inmate pursued these remedies prior to
filing suit. Id.
Thus, under the law, prisoners must do more than simply initiate grievances; they must
also appeal any denial of relief through all levels of review that comprise the agency’s
administrative grievance process. Bryant v. Rich, 530 F.3d 1368, 1378 (11th Cir. 2008) (“To
exhaust administrative remedies in accordance with the PLRA [Prison Litigation Reform Act],
prisoners must ‘properly take each step within the administrative process.’”) (quoting Johnson v.
Meadows, 418 F.3d 1152, 1157 (11th Cir. 2005)); Sewell v. Ramsey, No. CV406-159, 2007 WL
201269 (S.D. Ga. Jan. 27, 2007) (finding that a plaintiff who is still awaiting a response from the
warden regarding his grievance is still in the process of exhausting his administrative remedies).

2

Although Woodford was a civil rights suit rather than a habeas petition, the Court “noted that the
requirement of exhaustion is imposed by administrative law in order to ensure that the agency addresses
the issues on the merits.” Fulgengio v. Wells, CV309-26, 2009 WL 3201800, at *4 (S.D. Ga. Oct. 6,
2009) (emphasis in original) (quoting Woodford, 548 U.S. at 90) (internal punctuation omitted). Thus,
exhaustion requirements are applicable to habeas petitions.

5

B.

Standard of Review for Exhaustion

“Even though a failure-to-exhaust defense is non-jurisdictional, it is like” a jurisdictional
defense because such a determination “ordinarily does not deal with the merits” of a particular
cause of action. Bryant, 530 F.3d at 1374 (internal punctuation and citation omitted). Further, a
judge “may resolve factual questions” in instances where exhaustion of administrative remedies
is a defense before the court. Id. In these instances, “it is proper for a judge to consider facts
outside of the pleadings and to resolve factual disputes so long as the factual disputes do not
decide the merits and the parties have sufficient opportunity to develop a record.” Id. at 1376.
In Turner v. Burnside, 541 F.3d 1079 (11th Cir. 2008), the Eleventh Circuit set forth a
“two-step process” that lower courts must employ when examining the issue of exhaustion of
administrative remedies. First, the court is to take the plaintiff’s version of the facts regarding
exhaustion as true. Id. at 1082. If, even under the plaintiff’s version of the facts, the plaintiff has
not exhausted, the complaint must be dismissed. Id. However, if the parties’ conflicting facts
leave a dispute as to whether plaintiff has exhausted, the court need not accept all of plaintiff’s
facts as true. Id. Rather, “the court then proceeds to make specific findings in order to resolve
the disputed factual issues[.]” Id. “Once the court makes findings on the disputed issues of fact,
it then decides whether under those findings the prisoner has exhausted his available
administrative remedies.” Id. at 1083. The Eleventh Circuit has held that a district court may
consider materials outside of the pleadings and resolve factual disputes regarding exhaustion in
conjunction with a Rule 12(b)(6) motion to dismiss so long as the factual disputes do not decide
the merits of the case. See Bryant, 530 F.3d at 1376–77.

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C.

Analysis of Gholson’s Efforts at Exhaustion

Inmates at FCI Jesup may grieve disputes through the BOP’s multi-level administrative
remedy procedure. This procedure is codified in 28 C.F.R. §542.10, et seq., and provides for the
formal review of any complaint which relates to any aspect of the inmate’s confinement,
including disputes of sentence computations. (Doc. 12-1, p. 6.) This procedure generally
commences with an attempt at informal resolution at the local level, which, if unsuccessful, is
followed by filing a formal complaint with the Warden using a BP-9 form. (Id.) An inmate may
appeal the Warden’s response to the inmate’s complaint by filing a BP-10 form with the
Regional Director. (Id.) If the Regional Director denies the appeal, the inmate may then file a
final appeal with the Office of General Counsel in Washington, D.C., by submitting a BP-11
form. (Id.); 28 C.F.R. § 542.15. An inmate must appeal through all three levels of the process to
exhaust his administrative remedies.
The evidence before the Court establishes that, though Gholson pursued some
administrative remedies related to the allegations raised in his Petition, he did not exhaust all
available remedies. (Doc. 12-1, pp. 6, 114–15.) He filed two grievances with the warden at FCI
Jesup and two appeals with the Southeast Regional Office. (Id.) However, he did not appeal any
of these filings to the Office of the General Counsel, the final step in the BOP’s administrative
remedy procedure.

(Id.)

Gholson’s claims concern BOP-related matters, which must be

appealed through the above-described process, and Gholson failed to do so.

To achieve

exhaustion, Gholson cannot merely take only the initial steps in the administrative process; he
must pursue all available remedies, including a final appeal. See Bryant v. Rich, 530 F.3d at
1378.

Additionally, based on Respondent’s submissions, it appears that the BOP’s

7

administrative remedies were available to Gholson, and he has raised no contentions to the
contrary.
In his Reply, Gholson does not deny that he failed to pursue the BOP’s administrative
remedies or argue that those remedies were unavailable to him. To the contrary, he admits that
he “has not exhausted his administrative remedies in this case, because Petitioner is suffering
irreparable harm from each day of his continued illegal incarceration.”

(Doc. 14, p. 5.)

However, faced with similar arguments, the United States Supreme Court rejected any “special
circumstances” exception to exhaustion requirements. Ross v. Blake, ___ U.S. ___, 136 S. Ct.
1850, 1856–58 (June 6, 2016).
Thus, even accepting Gholson’s account as true, under the first Turner step, he failed to
exhaust the prison’s available administrative remedies prior to filing his Petition. Moreover, if
the Court were to proceed to the second Turner step, the Court finds that Respondent’s account
of Gholson’s exhaustion to be reliable and accurate.

Ms. Kneyse Martin’s affidavit and

supporting materials reveal that administrative processes were available to Gholson to raise the
claims regarding his sentence calculation, but he failed to fully pursue those remedies.
Gholson failed to properly exhaust his available administrative remedies prior to filing
this Petition. Consequently, the Court should DISMISS without prejudice Gholson’s Petition.
II.

Merits of Gholson’s Claims
The Court need not address the merits of Gholson’s claims due to his failure to exhaust

his available administrative remedies. However, if the Court does reach the substance of his
arguments, it should deny the overwhelming majority of Gholson’s Petition for the following
reasons. The only potentially viable claim Gholson makes is his entitlement to six (6) days’

8

credit for custody served prior to the commencement of his federal sentence. To resolve this
claim, the Court would need additional briefing and perhaps evidence from the parties.
A.

Whether the BOP Miscalculated Gholson’s Sentence

It is the duty of the United States Attorney General, acting through the BOP, to determine
the date a defendant’s sentence commenced and the amount of credit due for the time served by
the defendant prior to that commencement. United States v. Alexander, 609 F.3d 1250, 1259
(11th Cir. 2010). “A federal district court reviews for abuse of discretion the BOP’s decision
under [18 U.S.C.] § 3585 regarding commencement of a federal sentence and the grant of credit
for prior custody.” Paradis v. Keller, No. 1:10-CV-2354-TWT-AJB, 2011 WL 2790480, at *4
(N.D. Ga. June 13, 2011), report and recommendation adopted, 2011 WL 2790472 (N.D. Ga.
July 14, 2011). To determine whether the BOP properly calculated Gholson’s sentence, the
Court must begin with the plain language of the statute itself. Harris v. Garner, 216 F.3d 970,
972 (11th Cir. 2000) (en banc) (“We begin our construction of [a statutory provision] where
courts should always begin the process of legislative interpretation, and where they often should
end it as well, which is with the words of the statutory provision.”). For sentences imposed
under the Sentencing Reform Act of 1984, Section 3585 controls questions of sentence
commencement and credits for prior custody. This statute provides:
(a) Commencement of sentence. B A sentence to a term of imprisonment
commences on the date the defendant is received in custody awaiting
transportation to, or arrives voluntarily to commence service of sentence at, the
official detention facility at which the sentence is to be served.
(b) Credit of Prior Custody. B A defendant shall be given credit toward the service
of a term of imprisonment for any time he has spent in official detention prior to
the date the sentence commences —
(1) as a result of the offense for which the sentence was imposed; or

9

(2) as a result of any other charge for which the defendant was arrested
after the commission of the offense for which the sentence was imposed;
that has not been credited against another sentence.
18 U.S.C. § 3585 (emphasis added).
The following facts regarding Gholson’s criminal history make the computation of his
sentence less straightforward than most petitioners:
•

On August 3, 1992, State of Florida authorities arrested Gholson. (Doc. 12-1, p. 2.)

•

On August 7, 1992, the United States Marshals Service removed Gholson from Florida
state custody on a federal writ of habeas corpus ad prosequendum. (Id.)

•

On February 4, 1993, the United States District Court for the Middle District of Florida
(“District Court”) sentenced Gholson in Case Number 92-251-CR-T-23C to 188 months’
confinement for bank robbery, in violation of 18 U.S.C. § 2113(a)(d). (Id. at pp. 2, 11–
15.) The District Court did not specify whether this federal sentence was to be served
concurrently with or consecutively to any other sentence. (Id.)

•

Gholson was returned to Florida state custody on February 5, 1993. (Id. at p. 2.)

•

On May 24, 1993, the Circuit Court of Hillsborough County, Florida, sentenced Gholson
to a thirty-year term of confinement for felony uttering forgery, petit theft, grand theft,
kidnapping, and robbery in Case Number 92-10179. (Id. at pp. 2, 17–58, 72.) 3

•

On March 4, 1997, the Circuit Court of Jackson County, Florida, sentenced Gholson in
Case Number 97-0097 to a two-year term of confinement for battery of a law

3

The Hillsborough County Circuit Court also sentenced Gholson to a total term of imprisonment of
twenty-five (25) years in five other cases, but those sentences ran concurrently with his sentence in Case
Number 92-10179. (Doc. 12-1, p. 71.) Thus, these sentences had no effect on his aggregate state term of
imprisonment.
10

enforcement officer. (Id. at pp. 2, 64–65, 72.) This term ran consecutively to his
sentence in Case Number 92-10179. (Id.)
•

On May 1, 2007, Gholson was sentenced in the Circuit Court of Gulf County, Florida, in
Case Number 03-120, to a five-year term of confinement, concurrent to any active
sentence, for battery of a law enforcement officer. (Id. at pp. 2, 67–69.)

•

Gholson received a combined total term of thirty-two (32) years’ confinement from
Florida state courts. (Id. at pp. 2, 71–73.) The Florida Department of Corrections gave
Gholson credit toward his state sentences for 288 days of time he spent in jail between his
arrest on August 3, 1992, and prior to the imposition of his state sentence on May 24,
1993. (Id. at pp. 71–72.)

•

On November 10, 2016, Gholson was paroled from his state sentences and was
transferred to federal custody to commence serving his 188-month sentence from the
Middle District of Florida. (Id. at pp. 3, 75.)
1.

Whether the BOP Abused its Discretion in Calculating the
Commencement of Gholson’s Federal Sentence

In determining the proper credit, the Court must first determine when Gholson’s sentence
commenced.

A sentence “‘cannot begin prior to the date it is pronounced, even if made

concurrent with a sentence already being served.’” Coloma v. Holder, 445 F.3d 1282, 1284
(11th Cir. 2006) (quoting United States v. Flores, 616 F.2d 840, 841 (5th Cir. 1980)). Gholson’s
federal sentence “commence[d] on the date [Gholson was] received in custody awaiting
transportation to, or arrive[d] voluntarily to commence service of sentence at, the official
detention facility at which the sentence is to be served.” 18 U.S.C. § 3585(a). On November 10,
2016, Gholson entered federal custody to commence serving his 188-month sentence from the
Middle District of Florida. (Id. at pp. 3, 75.) Thus, his federal sentence began on that date.

11

In his pleadings, Gholson emphasizes that, though he was arrested by state authorities on
August 3, 1992, federal authorities were present at his arrest, and he was soon transferred to
federal custody to answer for his federal bank robbery charges in the Middle District of Florida.
(Docs. 1, 14.) Thus, he appears to contend that his federal sentence should have commenced on
the date of his arrest because he was in federal custody. (Id.) Alternatively, he argues that his
federal sentence commenced on the date the Middle District of Florida pronounced sentence,
February 4, 1993. (Id.) However, Gholson’s lines of reasoning ignore the plain language of
Section 3585(a). On August 3, 1992, and February 4, 1993, Gholson was not “received in
custody awaiting transportation to” the official detention facility where his federal sentence was
to be served, and he did not “arrive voluntarily to commence service of sentence” at the facility
where that sentence was to be served. Rather, on February 5, 1993, he was transferred back to a
local facility to answer his state charges. (Doc. 12-1, p. 2.)
Moreover, while Gholson was in federal custody from August 7, 1992, to February 4,
1993, that custody was only secondary custody pursuant to a writ of habeas corpus ad
prosequendum. “‘[I]if a defendant is in state custody and he is turned over to federal officials for
federal prosecution, the state government’s loss of jurisdiction is only temporary. The prisoner
will be returned to state custody at the completion of the federal proceedings or the federal
sentence if the federal government wishes to execute it immediately.’” Powell v. Jordan, 159
F. App’x 97, 99–100 (11th Cir. 2005) (quoting Causey v. Civiletti, 621 F.2d 691, 693 (5th Cir.
1980)). “A writ of habeas corpus ad prosequendum is only a loan of the prisoner to another
jurisdiction for criminal proceedings in the receiving jurisdiction.” Civiletti, 621 F.2d at 693.
Gholson also argues that the BOP miscalculated the commencement date of his federal
sentence because the state sentence and federal sentence should have run concurrently, not

12

consecutively. “Multiple terms of imprisonment imposed at different times run consecutively
unless the court orders that the terms are to run concurrently.” United States v. Ballard, 6 F.3d
1502, 1505 (11th Cir. 1993); see also 18 U.S.C. § 3584(a). It appears that the Circuit Court of
Hillsborough County ordered Gholson’s sentence in Case Number 92-10179 to run concurrently
with his federal sentence. (Doc. 12-1, p. 71.) However, the authority to order a federal sentence
to run concurrently with or consecutively to any other sentence rests solely with the federal
sentencing court. See United States v. Andrews, 330 F.3d 1305, 1307 n.1 (11th Cir. 2003);
Finch v. Vaughn, 67 F.3d 909 (11th Cir. 1995) (“We specifically have held that a federal court is
authorized to impose a federal sentence consecutive to a state sentence, although the state court
explicitly made its sentence concurrent with the federal sentence.”) (citing United States v.
Adair, 826 F.2d 1040, 1041 (11th Cir. 1987)). Thus, only the Middle District of Florida could
have ordered that Gholson’s federal sentence run concurrently with the service of his state
sentence. This is true even though Gholson’s state sentences had not yet been imposed. The
United States Supreme Court has held that a district court has authority to order that a federal
sentence be consecutive to an anticipated state sentence that has not yet been entered. Setser v.
United States, 566 U.S. 231 (2012). 4
Because the Middle District of Florida did not order Gholson’s federal sentence to run
concurrently with his state sentence, the sentences must run consecutively. Ballard, 6 F.3d at
1505 (“Multiple terms of imprisonment imposed at different times run consecutively unless the
court orders that the terms are to run concurrently.”); see also 18 U.S.C. § 3584(a). Gholson
remained in state custody until he was transferred to federal custody on November 10, 2016,

4

Even before Sester, the United States Court of Appeals for the Eleventh Circuit, while recognizing a
split of opinions from other Circuits, held that a federal court has the authority to impose a consecutive
sentence to an unimposed, future state sentence. Andrews, 330 F.3d at 1307 (citing Ballard, 6 F.3d at
1502).
13

which is the date was he received in custody awaiting transportation to the official detention
facility where his federal sentence would be served. Therefore, his state sentence was served
while he was in state custody, and the Florida state court’s order has no influence over the
operation of Gholson’s federal sentence.
The BOP committed no error, much less abused its discretion, when determining that
Gholson’s federal sentence commenced on November 10, 2016. Thus, should the Court reach
the merits of Gholson’s arguments, it should DENY this portion of his Petition.
2.

Whether the BOP abused its Discretion in Denying Gholson Credit
for Time Served Prior to Commencement of his Federal Sentence

Section 3585(b) states that, in some circumstances, a defendant is entitled to credit for
time served prior to sentence commencement unless that time has been credited against another
sentence. However, a defendant can only receive such credit for time that “has not been credited
against another sentence.” 18 U.S.C. § 3585(b). As laid out above and detailed in documents
attached to Respondent’s brief, the Florida Department of Corrections credited the 8,571 days
Gholson spent in custody from the date of his state sentencing to the date he was received in
federal custody (May 24, 1993, to November 10, 2016) against his thirty-two (32) years of state
sentences. (Doc. 12-1, p. 71–72.) 5 Thus, that time obviously cannot be credited toward his
federal sentence under Section 3585(b).

Gholson cannot receive credit against his federal

sentence for these dates, because to do so would be to give him “double credit”, which is
prohibited by statute. Thus, should the Court reach the merits of Gholson’s arguments, it should
DENY this portion of his Petition.

5

Gholson spent less than thirty-two (32) years in incarceration on his state sentences because he accrued
an aggregate of 3,333 days of “gain-time” during his incarceration in state facilities. (Doc. 12-1, p. 72.)
He actually accrued 4,406 days of gain-time, but he forfeited 1,073 of those days due to disciplinary
actions. (Id.)
14

Less clear is whether Gholson should get credit toward his federal sentence for any of the
time that he spent in custody before his state sentence was imposed. On this point, Respondent
states, “the Florida Department of Corrections credited the 288 days Petitioner was in custody,
between his August 3, 1992[,] arrest and his May 24, 1993[,] state sentencing in Hillsborough
County[] toward his state sentence.” (Doc. 12, p. 12.) Indeed, documents from the Florida
Department of Corrections indicate that the state gave Gholson “288 days jail credit.” (Doc. 121, p. 71.) Thus, the state credited 288 days, including dates that Gholson was in federal custody
pursuant to the writ of habeas corpus ad prosequendum, toward Gholson’s state sentences. Thus,
he cannot receive credit toward his federal sentence for these 288 days. Again, should the Court
reach the merits of Gholson’s Petition, it should DENY the portion of his Petition seeking credit
for these 288 days.
However, August 3, 1992, to May 24, 1993, spanned 294 days, not 288. Thus, assuming
that the State of Florida did not credit the remaining six (6) days of custody toward any state
sentence and that these days satisfy the language of Sections 3585(b)(1) or (2), Gholson may be
entitled to have those six (6) days credited toward his federal sentence. However, should the
Court reach the merits of Gholson’s arguments, the Court would need additional documentation
to make this determination. If the Court dismisses Gholson’s Petition for his failure to exhaust
his available administrative remedies, it appears that the BOP must take a closer look at a more
fully established record to assess whether Gholson actually served six (6) days of detention
without receiving credit toward any sentence prior to the commencement of his federal sentence.
Gholson’s administrative grievance process will provide the BOP with that opportunity.

15

B.

Whether the BOP Abused its Discretion in Denying Gholson Nunc Pro Tunc
Designation

Gholson also argues that the BOP erred in determining he was not entitled to nunc pro
tunc designation of his federal sentence to run concurrently with his state sentence. As explained
above, Gholson’s federal sentence was silent as to whether it was to run consecutively to or
concurrently with his state sentence, so his federal sentence was to run consecutively to his state
sentence.
The BOP has the authority to designate the place of a prisoner’s imprisonment.
18 U.S.C. § 3621(b). In exercising that authority, the BOP may, in its “sound discretion”
“designate a state prison as a place of federal confinement nunc pro tunc.” Roman v. Nash, 184
F. App’x 277, 279 (3d Cir. 2006) (citing Barden v. Keohane, 921 F. 2d 476, 481 (3d Cir. 1991)).
In other words, the BOP can designate the state prison where Gholson was detained on his
Florida charges as the place of imprisonment for his federal sentence, thereby effectively
allowing his state and federal sentences to run concurrently. However, the BOP has broad
discretion in making this determination, and a defendant is not legally entitled to nunc pro tunc
designation. Barden, 921 F.2d at 483.
BOP implements nunc pro tunc designations under Program Statement 5160.05,
Designation of State Institution for Service of Federal Sentence. (Doc. 12-1, pp. 91–102.) This
Program Statement provides an inmate with the opportunity to request a nunc pro tunc
designation based on an inmate’s request for pre-sentence credit for time spent in service of a
state sentence. While the BOP must consider an inmate’s request, the BOP has no obligation to
grant the request “by designating a state institution retroactively as the place to serve the federal
sentence.” (Id. at p. 96.) The BOP will gather and review certain information, such as the
federal and state judgments and commitments, the state sentence data record to include jail

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credit, and “any other pertinent information” relating to the sentences.

(Id.)

Under BOP

Program Statement 5160.05, the Regional Directors are delegated the authority to designate a
non-federal facility for concurrent service of a federal sentence and may make such a designation
“when it is consistent with the intent of the federal sentencing court or the goals of the criminal
justice system.” (Id. at p. 91.)
The BOP reviewed Gholson’s nunc pro tunc designation request under the factors set
forth in Section 3621(b). (Id. at pp. 105–12.) Section 3621(b) provides, in pertinent part, as
follows:
The Bureau of Prisons shall designate the place of the prisoner’s imprisonment.
The Bureau may designate any available penal or correctional facility that meets
minimum standards of health and habitability established by the Bureau, whether
maintained by the Federal Government or otherwise and whether within or
without the judicial district in which the person was convicted, that the Bureau
determines to be appropriate and suitable, considering:
(1)

the resources of the facility contemplated;

(2)

the nature and circumstances of the offense;

(3)

the history and characteristics of the prisoner;

(4)

any statement by the court that imposed the sentence –
(A)

(B)

(5)

concerning the purposes for which the sentence to
imprisonment was determined to be warranted; or
recommending a type of penal or correctional facility as
appropriate; and

any pertinent policy statement issued by the Sentence Commission
pursuant to section 944(a)(2) of title 28.

18 U.S.C. § 3621(b).
On March 1, 2017, the BOP’s Designation and Sentence Computation Center (“DSCC”)
reviewed Gholson’s request that the BOP retroactively designate the Florida state institution

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where he was incarcerated as the place he served his federal term of imprisonment. (Doc. 12-1,
p. 105.) On May 22, 2017, the DSCC sent a letter to the Middle District of Florida soliciting the
District Court’s position as to retroactively designating the Florida state institution for the service
of Gholson’s federal sentence. (Id. at pp. 107–08.) On May 25, 2017, the Honorable Steven D.
Merryday, Chief Judge of the Middle District of Florida, replied to the DSSC and stated that
there was no material discussion of the federal and state sentences running concurrently at
Gholson’s federal sentencing. (Id. at p. 110.) Judge Merryday further noted that the state
sentence arose from different facts than the federal sentence and that he saw “nothing, legal or
factual entitling Jeffrey Gholson to concurrency.” (Id.) However, Judge Merryday perceived no
reason to oppose the retroactive designation, unless Gholson’s conduct as an inmate suggested
otherwise. (Id.)
Ultimately, the BOP denied Gholson’s request for nunc pro tunc designation. (Id. at
p. 112.) Gholson was informed of that denial by letter dated May 26, 2017. (Id.) In that letter,
the BOP explained that nunc pro tunc designation was not appropriate for Gholson because:
under factor (2) of Section 3621(b), his federal offense was bank robbery; under factor (3), his
criminal history weighed against such designation; and under factor (4), the federal court had the
opportunity to order that Gholson’s federal sentence run concurrently with his state sentence but
did not, and when contacted for a position on retroactive designation, the court acknowledged
that the state and federal offenses arose from different facts, and the court saw nothing legally or
factually entitling Gholson to concurrency. 6 (Id.) Gholson was further informed that Section
3585(b) prohibits credit toward his federal sentence for time spent in state custody. (Id.)

6

Judge Merryday perceived no reason to oppose the retroactive designation, unless Gholson’s conduct as
an inmate suggested otherwise. (Doc. 12-1, p. 110.) Respondent points out that Gholson received sixteen
(16) disciplinary infractions for offenses including assault, disorderly conduct, and participating in a riot
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Whether this Court can review the BOP’s nunc pro tunc denial appears to be an open
question. Compare Dupree v. Warden-FCI Miami, No. 13-24413-CIV, 2014 WL 11456077, at
*8 (S.D. Fla. Sept. 9, 2014) (“Petitioner has failed to allege any facts that would support a
conclusion that the BOP abused its discretion in determining that a nunc pro tunc designation to
the Georgia State facility would not be appropriate in Petitioner’s case.

Regardless, even

assuming that he had, Petitioner’s claim would be foreclosed by the plain language of 18 U.S.C.
§ 3625. . . . Federal courts thus lack jurisdiction to review BOP individualized determinations
made pursuant to § 3621 and, as such, the BOP’s substantive determination to deny Petitioner
retroactive designation is not subject to judicial review in this case.”); and Paradis, 2011 WL
2790480, at *4 (“[I]t appears that a nunc pro tunc designation under § 3621 (which includes a
determination under § 3585 of the effective date that the federal sentence will begin) is subject to
review for abuse of discretion.”). The Court need not resolve this question in this case. Even if
the Court has authority to review the BOP’s denial of Gholson’s request for a nunc pro tunc
designation, Gholson has failed to show that the BOP committed any error, much less abused its
discretion, in denying his request. As laid out above, the BOP properly assessed Gholson’s
request under the applicable statutes and policies, including Program Statement 5160.05.
Gholson’s arguments only show disagreement with the result of the BOP’s assessment and fail to
demonstrate any error or abuse of discretion in the BOP’s decision making process.
Gholson is not entitled to his requested relief as to nunc pro tunc designation. Thus,
should the Court reach the merits of Gholson’s arguments, it should DENY this portion of his
Petition.

while incarcerated in the Florida Department of Corrections, and he was twice convicted of battery of a
law enforcement officer for assaulting a correctional officer. (Doc. 12, p. 11.)
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III.

Leave to Appeal in Forma Pauperis
The Court should also deny Gholson leave to appeal in forma pauperis. Though Gholson

has, of course, not yet filed a notice of appeal, it would be appropriate to address these issues in
the Court’s order of dismissal. Fed. R. App. P. 24(a)(3) (trial court may certify that appeal of
party proceeding in forma pauperis is not taken in good faith “before or after the notice of appeal
is filed”). An appeal cannot be taken in forma pauperis if the trial court certifies that the appeal
is not taken in good faith. 28 U.S.C. § 1915(a)(3); Fed. R. App. P. 24(a)(3). Good faith in this
context must be judged by an objective standard. Busch v. Cty. of Volusia, 189 F.R.D. 687, 691
(M.D. Fla. 1999). A party does not proceed in good faith when he seeks to advance a frivolous
claim or argument. See Coppedge v. United States, 369 U.S. 438, 445 (1962). A claim or
argument is frivolous when it appears the factual allegations are clearly baseless or the legal
theories are indisputably meritless. Neitzke v. Williams, 490 U.S. 319, 327 (1989); Carroll v.
Gross, 984 F.2d 392, 393 (11th Cir. 1993). Stated another way, an in forma pauperis action is
frivolous and, thus, not brought in good faith, if it is “without arguable merit either in law or
fact.” Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002); see also Brown v. United States,
Nos. 407CV085, 403CR001, 2009 WL 307872, at *1–2 (S.D. Ga. Feb. 9, 2009).
Based on the above analysis of Gholson’s Petition and the related pleadings, there are no
non-frivolous issues to raise on appeal, and an appeal would not be taken in good faith. Thus,
the Court should DENY in forma pauperis status on appeal.
CONCLUSION
For the reasons and the manner set forth above, I RECOMMEND that the Court
DISMISS without prejudice Gholson’s Petition for Writ of Habeas Corpus and DISMISS as
moot all pending Motions. I also RECOMMEND the Court DIRECT the Clerk of Court to

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CLOSE this case and enter the appropriate judgment of dismissal and DENY Gholson leave to
proceed in forma pauperis.
The Court ORDERS any party seeking to object to this Report and Recommendation to
file specific written objections within fourteen (14) days of the date on which this Report and
Recommendation is entered. Any objections asserting that the Magistrate Judge failed to address
any contention raised in the pleading must also be included. Failure to do so will bar any later
challenge or review of the factual findings or legal conclusions of the Magistrate Judge. See 28
U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140 (1985). A copy of the objections must be
served upon all other parties to the action. The filing of objections is not a proper vehicle
through which to make new allegations or present additional evidence.
Upon receipt of objections meeting the specificity requirement set out above, a United
States District Judge will make a de novo determination of those portions of the report, proposed
findings, or recommendation to which objection is made and may accept, reject, or modify in
whole or in part, the findings or recommendations made by the Magistrate Judge. Objections not
meeting the specificity requirement set out above will not be considered by a District Judge. A
party may not appeal a Magistrate Judge’s report and recommendation directly to the United
States Court of Appeals for the Eleventh Circuit. Appeals may be made only from a final
judgment entered by or at the direction of a District Judge.

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The Court DIRECTS the Clerk of Court to serve a copy of this Report and
Recommendation upon Gholson and Respondent.
SO ORDERED and REPORTED and RECOMMENDED, this 20th day of October,
2017.

R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

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