Moore v. Bureau of Prisons
Filing
8
MEMORANDUM OPINION & ORDER: 1. The Clerk of the Court shall SUBSTITUTE Sandra Butler in place of J.C. Holland as the respondent on the CM/ECF cover sheet. 2. Freddie B. Moore's 28 U.S. C. § 2241 petition for a writ of habeas corpus [R. 1 ] is DENIED. 3. The Court will enter a Judgment contemporaneously with this order. Signed by Judge David L. Bunning on 01/08/2015.(KJA)cc: COR, mailed paper copy to pro se filer
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
AT LONDON
CIVIL ACTION NO. 14-178-DLB
FREDDIE B. MOORE
vs.
PETITIONER
MEMORANDUM OPINION AND ORDER
WARDEN SANDRA BUTLER1
RESPONDENT
*** *** *** ***
Freddie B. Moore is an inmate confined by the Bureau of Prisons (“BOP”) in the FCIManchester. Proceeding without counsel, Moore has filed a petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2241, challenging the manner in which the BOP has
calculated his federal sentence. [R. 1] Moore contends that the BOP erroneously refuses
to credit his federal sentence with over two years of prior custody credit for time that he
spent in state detention between February 10, 2010, and February 28, 2012.
In conducting an initial review of habeas corpus petitions under 28 U.S.C. § 2243,
the Court must deny the petition “if it plainly appears from the petition and any attached
exhibits that the petitioner is not entitled to relief.” Rule 4 of the Rules Governing § 2254
Cases in the United States District Courts (applicable to § 2241 petitions pursuant to Rule
1(b)). The Court evaluates Moore’s petition under a more lenient standard because he is
not represented by an attorney. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Burton v.
1
Sandra Butler is the current warden of the Federal Correctional Institution (“FCI”)Manchester located in Manchester, Kentucky. The Clerk of the Court will be instructed to substitute
Sandra Butler as the respondent to this action on the CM/ECF cover sheet.
1
Jones, 321 F.3d 569, 573 (6th Cir. 2003), overruled on other grounds, Jones v. Bock, 549
U.S. 199 (2007). Thus, at this stage of the proceedings, the Court accepts Moore’s factual
allegations as true, and liberally construes his legal claims in his favor. Having reviewed
the § 2241 petition, however, the Court must deny it because Moore has not set forth
grounds entitling him to the credit he requests be applied to his federal sentence.
BACKGROUND
1.
Moore’s State and Federal Sentences
The following is a chronological summary of Moore’s state and federal convictions,
based on information contained in his § 2241 petition and attachments thereto, and
information contained in the federal judiciary’s PACER online database.
February 10, 2010: Moore was arrested by the Monroe Police Department in
Louisiana and charged with Domestic Abuse, Case No. 09M4329-M, and Distribution,
Manufacture and Possession of CDS, Illegal Weapons, Distribution, Manufacture and
Possession of Schedule 1 Drugs and Possession of a Firearm by a Felon, Case No.
10F0400-5. He was remanded to the Ouachita Parish Correctional Center.
September 24, 2010: Moore was indicted in a Louisiana federal court and charged
with four counts of Possession with Intent to Distribute Marijuana, Felon in Possession of
a Weapon and Possession of a Weapon during a Drug Trafficking Crime. United States
v. Freddie B. Moore, No. 3:10-CR-295-RGJ-KLH-1 (E.D. La. 2010) (“the Federal Action”).
[R. 1, therein] The Indictment in the Federal Action alleged that the offenses occurred
between February 5, 2010 and February 10, 2010. [Id.]
2
October 19, 2010: Moore appeared at his arraignment in the Federal Action and
pleaded “Not Guilty.” See Docket Sheet from the Federal Action [R. 11, therein].
April 21, 2011: Moore pled guilty to being a Felon in Possession of a Firearm and
Possession of a Firearm during a Drug Trafficking Crime. Id. [R. 21-23, therein].
August 15, 2011: Moore was sentenced in the Federal Action to a 117-month
prison term. [R. 30, therein] The Criminal Judgment was silent regarding concurrency, but
the district court recommended that Moore “be given credit for all the time in custody since
your arrest on February 10, 2010, since his detention on the state charges involves the
same incident that gave rise to these charges.” [Id., p. 2, therein].
August 26, 2011: Moore was returned to Ouachita Parish Correctional Center in
satisfaction of the writ of habeas corpus ad prosequendum, and federal officials filed a
detainer with the Louisiana state authorities as to his federal sentence.
October 28, 2011: Moore was sentenced in Case No. 09-M4329 for Domestic
Abuse Battery, receiving 180 days custody with credit for time served, to run concurrently
to any other sentence. At sentencing, Moore had already served more than 180 days;
therefore, the BOP’s staff contacted Louisiana Court officials who confirmed that Moore’s
sentence “would have ended” on August 8, 2010, and the time considered had been
calculated from Moore’s arrest on February 10, 2010. Moore remained confined in
Ouachita Parish based on his charges in the Narcotics and Weapons offenses in Case No.
10F0400-5.
February 28, 2012: Moore’s state charges were dismissed, and he was released
to the custody of the United States Marshal Service based on the federal detainer.
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2.
Moore’s Administrative Appeals
Moore administratively exhausted his sentencing credit claims in compliance with
the BOP’s administrative remedy procedures, 28 C.F.R. § 542.14-15.2 The Court notes,
however, that in his appeal to the BOP Central Office, Moore requested sentencing credit
only for the six-month period between February 10, 2010, and August 8, 2010. [See R. 1-1,
p. 1] (“The 180 days credit should have been credit [sic] to Mr. Moore [sic] federal
sentence like his sentencing judge clearly states in his J&C order.”) (emphasis added). In
its Response, the BOP Central Office stated, “…you request the application of credit toward
your federal sentence for time spent in detention from February 10, 2010, through
August 8, 2010.” [R. 1-2, p. 1] (emphasis added).
On June 11, 2014, Harrell Watts, Administrator of the National Inmate Appeals,
denied Moore’s final (BP-11) appeal. [R. 1-2, pp. 1-3] Watts concluded that the time which
Moore spent in state custody between February 10, 2010, and August 8, 2010, had already
been credited to the State Sentence, and that applying the requested credit would be
contrary to 18 U.S.C. § 3585(b), which prohibits the credits which have been applied to
another sentence. [Id., p. 2] Watts further advised Moore that the BOP was considering
Moore’s request for a retroactive designation under Barden using the five factors set forth
in 18 U.S.C. § 3621(b), and that once that review was completed, Moore would be notified.
[Id.] Watts acknowledged that the district court recommended that Moore receive certain
sentencing credits, but explained that the final authority for making decisions related to
sentencing credits rested with the BOP, not the district court. [Id.]
2
Moore did not attach his administrative responses from either the Warden or the BOP
Regional Office, but since he appealed to the BOP Central Office in March 2014, it is logical to
assume that his was unsuccessful at both the institutional and regional levels.
4
On July 17, 2014, Marcus Boudreaux, Management Analyst, notified Moore that
after reviewing his request for a Barden retroactive designation and considering the
relevant factors under 18 U.S.C. § 3621(b), the BOP had determined that Moore did not
qualify for a retroactive designation of the facility where he served his state sentence. [R.
1-3, p.1] Boudreaux noted that under the second factor, Moore’s federal offenses were
being a Felon in Possession of a Firearm and Possession of a Firearm during a Drug
Trafficking Crime. [Id.] Applying the third factor, Boudreaux noted Moore’s criminal history,
see id., which has been previously described herein. Finally, as to the fourth factor,
Boudreaux explained that Moore was ineligible for consideration because the district court
did not specify that his federal sentence was to run concurrently with his previously
imposed state sentence, and that according to 18 U.S.C. § 3584(a), multiple terms of
imprisonment imposed at different times run consecutively unless the court orders that the
terms are to run concurrently. [Id.] On that issue, Boudreaux further advised that the
district court had been contacted to determine its position on a retroactive designation, and
that “[i]n responding, the Court advised that you should not be given a retroactive
designation.” [Id.]
Moore filed his § 2241 petition on August 1, 2014.
CLAIMS ASSERTED IN THE § 2241 PETITION
In his § 2241 petition, Moore seeks credit on his federal sentence for over two years
of time that he served in state custody between February 10, 2010, and February 28,
2012.3 Moore claims that the BOP is erroneously refusing to credit his federal sentence
3
According to the BOP’s website, Moore’s projected release date is June 30, 2019. See
http://www.bop.gov/inmateloc/ (last visited on January 8, 2015).
5
with this two-year time period, and that he is entitled to this credit because the district court
recommended that result when sentencing him in the Federal Action, and because his
detention on the state charges stemmed from the same February 10, 2010, incident which
led to the federal charges being filed against him. Moore contends that the BOP has
ignored the federal court’s intention and incorrectly concluded that between February 10,
2010, and February 28, 2012, he was in the primary custody of state officials and only
secondarily in the custody of federal officials.
Moore further asserts that the BOP should treat the place where he served his state
sentence between February 10, 2010, and February 28, 2012, as the place where he
served his federal sentence during that same period of time. Such a request falls under
the ruling set forth Barden v. Keohane, 921 F.2d 476 (3d Cir. 1990), in which the Third
Circuit held that § 3621(b) authorizes the BOP to retroactively designate a state prison as
the place where a federal defendant will serve his or her sentence. The practical effect of
such a designation is to grant the federal prisoner credit against his or her federal sentence
for all of the time spent in state custody, in effect serving the two sentences concurrently.
Id. at 480. Moore claims that as a result of the BOP’s refusal to properly credit his
sentence, he is being required to serve a longer than necessary sentence, in violation of
his right to due process of law guaranteed under the Fifth Amendment of the U.S.
Constitution.
DISCUSSION
The BOP refuses to credit Moore’s sentence with time between February 10, 2010,
and February 28, 2012, because: (1) Moore did not begin serving his federal sentence until
February 28, 2012, the date on which he completed service of his state sentence from
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Louisiana, and on which he came into the BOP’s official custody; (2) Moore is not entitled
to “double” credit on his federal sentence for time which has already been credited to his
state sentences; and (3) Moore does not qualify for a retroactive Barden designation based
on the criteria set forth in 18 U.S.C. § 3621(b). As explained below, the BOP has correctly
denied Moore’s request to credit his sentence with any time which he served in state
custody between February 10, 2010, and February 28, 2012.
As for the six-month period between February 10, 2010, and August 8, 2010, the
time period Moore addressed in his administrative remedy requests, Moore received full
credit for this entire period of time on his state court domestic abuse criminal sentence,
Case No. 09M4329-M, which was imposed on October 28, 2011. That sentence was for
180-days with credit for time served, and as the Louisiana state court officials explained to
the BOP, that 180-day period would have expired on August 8, 2010. Since Moore was
confined in state custody between February 10, 2010, and August 8, 2010, he therefore
received an immediate 180-day credit on his domestic abuse sentence on the day it was
imposed (October 28, 2011).
As the BOP also explained during the administrative remedy process, 18 U.S.C. §
3585(b) permits credit against a federal sentence only for time “that has not been credited
against another sentence,” which means that time which has previously been credited
towards service of a state sentence may not be “double counted” in credit against a federal
sentence. Therefore, crediting Moore’s federal sentence with 180 days of time which he
spent in primary state custody between February 10, 2010, and August 8, 2010, and for
which he received credit on his state court domestic abuse sentence, would result in the
award of improper double credit, a result which § 3585(b) prohibits. See Broadwater v.
7
Sanders, 59 F. App’x 112, 113-14 (6th Cir. 2003); Garrett v. Snyder, 41 F. App’x 756, 757
(6th Cir. 2002); Huffman v. Perez, 230 F.3d 1358, 2000 WL 1478368, at *2 (6th Cir. Sept.
27, 2000); McClain v. Bureau of Prisons, 9 F.3d 503, 505 (6th Cir. 1993).
The larger issue is, of course, whether the BOP has properly refused to credit
Moore’s federal sentence with the period of time he served in state custody between
August 8, 2010, and February 28, 2012. Again, the BOP has correctly determined that this
time should not be credited to Moore’s federal sentence. First, the same result set forth
above applies to this larger time period: Moore received credit on his state sentences for
all of the time which he served in state custody between August 8, 2010, and February 28,
2012. Second, under 18 U.S.C. §3585(a), a federal sentence for a term of imprisonment
begins on the date the defendant is received into official federal custody, which in this case
was February 28, 2012, the date on which Moore completed service of his last remaining
state sentence stemming from his conviction for narcotics and weapons offenses, which
was imposed in Case No. 10F0400-5.
Admittedly, between October 19, 2010, and August 26, 2011, Moore was in federal
custody, but he was only secondarily in federal custody pursuant to the writ of habeas
corpus ad prosequendum. As the BOP correctly explained, during this 10-month period,
Moore was primarily in the custody of the State of Louisiana, and was only temporarily
borrowed by federal officials to secure his presence for court proceedings in the Federal
Action. As the BOP further correctly noted, Moore was sentenced in the Federal Action on
August 15, 2011, and just eleven days later, on August 26, 2011, the United States
Marshals Service returned Moore to the primary custody of the State of Louisiana to
continue serving his previously imposed state sentences.
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In Ponzi v. Fessenden, 258 U.S. 254, 260-262 (1922), the Supreme Court first
recognized the doctrine of primary custody, to provide an orderly method of prosecuting an
individual who has violated the law of more than one sovereign. Under this doctrine, the
sovereign that first arrests an individual has primary control or custody over him; its claim
over him has priority over all other sovereigns that subsequently arrest him; it is entitled to
have him serve a sentence that it imposes, before he serves any sentence imposed by
another sovereign; and it retains this priority, unless and until it has relinquished its
jurisdiction to some other sovereign. Id.; see also United States v. Cole, 416 F.3d 894, 897
(8th Cir. 2005); United States v. Collier, 31 F. App'x 161, 162 (6th Cir. 2002); Bowman v.
Wilson, 672 F.2d 1145, 1153-54 (3d Cir. 1982); In re Liberatore, 574 F.2d 78, 88-89 (2d
Cir. 1978); Rambo v. Hogsten, Case No. 10-116, 2010 WL 4791970 at *4 (E.D. Ky. Nov.17,
2010) (“When a defendant violates the laws of two different sovereigns, the rule is that the
sovereign which first arrests him acquires the right to prior and exclusive jurisdiction over
him.”) (internal quotations omitted).
Primary custody continues until the sovereign that first arrested an individual has
relinquished its jurisdiction in some way. See Banks v. United States, Case No. 12-2175,
2013 WL 3564135, at *2 (W.D. Tenn. July 11, 2013) (citing United States v. Warren, 610
F.2d 680, 684–85 (9th Cir. 1980)); accord Jones v. Farley, Case No. 12-0671, 2012 WL
4506002, at *3 (N.D. Ohio Sept.28, 2012). If state authorities have primary jurisdiction over
a prisoner, federal custody will not commence until state authorities relinquish the prisoner
on satisfaction of his state obligation. Rios v. Wiley, 201 F.3d 257, 274 (3d Cir. 2000); Jake
v. Herschberger, 173 F.3d 1059, 1067 (7th Cir. 1999).
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Here, the State of Louisiana was the first sovereign to arrest Moore and charge him
with domestic abuse, drug, and firearm offenses, and it did not relinquish primary custody
over him until February 28, 2012, the date on which Moore satisfied his last sentence for
narcotics and weapons offenses, in Case No. 10F0400-5. Moore broadly contends that he
was not in the primary custody of the State of Louisiana prior to February 28, 2012, but the
facts refute his allegation. Under the doctrine of primary custody, Moore could not have
begun serving his federal sentence until he completely served his last remaining state
sentence; again, that did not occur until February 28, 2012.
Third, when a prisoner is taken into federal custody pursuant to a writ of habeas
corpus ad prosequendum, the state retains primary jurisdiction over him, and primary
jurisdiction is not transferred to federal authorities. Huffman v. Perez, 230 F.3d 1358, 2000
WL 1478368, at *2 (6th Cir. Sept. 27, 2000) (unpublished decision); United States v. Evans,
159 F.3d 908, 911-12 (4th Cir. 199); Wardell v. Wilson, Case No. 10-294, 2011 WL
6027072, at *3 (E.D. Ky. Dec. 5, 2011).
Thus, between October 19, 2010, and August 26, 2011, Moore was only “borrowed”
by federal authorities while in their custody under writ of habeas corpus ad prosequendum,
and he remained in the primary custody of the State of Louisiana. When the Federal
Sentence was imposed on August 15, 2011, the United States Marshals Service was
required to and did return Moore to state custody, because the imposition of the federal
sentence did not discharge Moore of his obligation to satisfy the remaining, or
“undischarged,” portion of his state sentence for narcotics and weapons offenses. See
Nguyen v. Department of Justice, 173 F.3d 429, 1999 WL 96740 (6th Cir. Feb. 3, 1999)
(unpublished decision) (holding that time spent in federal custody pursuant to a writ of
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habeas corpus ad prosequendum, while serving a state sentence, cannot be applied to a
federal sentence because the time has been credited to the state sentence); Broadwater
v. Sanders, 59 F. App’x 112, 113-14 (6th Cir. 2003).
Fourth, the district court’s recommendations about sentencing credits were not and
are not binding on the BOP. Moore next alleges that by denying him sentencing credit
between February 10, 2010, and February 28, 2012, the BOP has ignored the express
recommendation of the district court set forth in the Criminal Judgment imposed in the
Federal Action, but again, the BOP reached the right result on this issue. The district judge
who sentenced Moore, although presumably well-meaning, lacked authority to dictate what,
if any, sentencing credits should or would be applied to Moore’s federal sentence. Under
18 U.S.C. § 3585(b), the award of “credit” against a federal sentence lies within the
exclusive authority of the BOP. United States v. Wilson, 503 U.S. 329, 333-35 (1992);
Castro v. Sniezek, 437 F. App’x 70, 71 (3d Cir. 2011); Everett v. Ives, Case No. 11-180,
2012 WL 2179097, at *2 (E.D. Ky. June 13, 2012) (explaining that the authority to calculate
presentence credits “is vested exclusively with the BOP as the delegate of the Attorney
General.”).4
Fifth and finally, under the rule set forth in Barden as implemented by BOP Program
Statement 5160.05, the BOP did not abuse its discretion when it denied Moore’s request
for a retroactive designation of the state facility as the place where he served his federal
4
In contrast, a sentencing court has authority, under Guidelines § 5G 1.3(c), to fashion a
sentence that accounts for time already served, and “credit for time served on a pre-existing state
sentence is within the exclusive power of the sentencing court.” The Guidelines caution sentencing
courts that, “[t]o avoid confusion with the Bureau of Prisons’ exclusive authority provided under 18
U.S.C. § 3585(b) to grant credit . . . any downward departure under application note [3(E) in §
5G1.3] be clearly stated ... as a downward departure pursuant to § 5G 1.3(c), rather than as a credit
for time served.” United States v. Gaskins, 393 F. App’x 910, 914 (3d Cir. 2010) (internal citations
and quotation marks omitted).
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sentence between February 10, 2010, and February 28, 2012. In appropriate cases, the
BOP may exercise its discretion to effectuate a state court order regarding concurrent
sentencing by retroactively designating the state prison as a prisoner’s place of federal
confinement. See, e.g., McCarthy v. Doe, 146 F.3d 118, 123 (2d Cir. 1998); Barden, 921
F.2d at 478.
Under 18 U.S.C. § 3621(b), five factors are considered by the BOP when reviewing
a request for retroactive designation: (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 sentencing court concerning the purposes warranting a sentence
of imprisonment or recommending a type of penal or correctional facility as appropriate;
and (5) any pertinent policy statement of the Sentencing Commission. The relevant BOP
program statement provides that “[a] designation for concurrent service of sentence will be
made only when it is consistent with the intent of the federal sentencing court or the goals
of the criminal justice system.” BOP Program Statement 5160.05(8). It further states that
in making a retroactive, or nunc pro tunc designation determination, the Regional Director
will review the inmate’s disciplinary history and institutional adjustment, recommendations
of the wardens at both the federal and state institutions, the recommendation of the federal
prosecutor, and the intent of the sentencing court, if available. Id.
In determining whether the BOP has abused its discretion, “[t]he test is not whether
a reviewing court would weigh the factors differently. The writ may issue only where an
error is fundamental and carries a serious potential for a miscarriage of justice.” Eccleston
v. United States, 390 F. App’x 62, 64-65 (3d Cir. 2010); see also Taylor v. Eichenlaub,
Case No. 08-13418, 2009 WL 2849131, at *4-5 (E.D. Mich. Sept. 1, 2009). Moore argues
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that the BOP has abused its discretion by refusing to effectuate a Barden retroactive
designation. However, on July 17, 2014, the BOP considered all relevant criteria under 18
U.S.C. § 3621(b) in a manner that was not patently inconsistent with the rule established
in Barden. The BOP explained that under the framework of § 3621(b), Moore had a
criminal history; that he had been convicted of serious federal weapons and drug offenses;
and that the federal judge who sentenced Moore, when contacted by BOP and/or probation
officials, did not recommend that Moore receive a retroactive designation. The BOP fully
complied with its obligation to consider Moore’s Barden request under the criteria set forth
in § 3621(b). See Harris v. Zickefoose, Case No. 11-7472, 2012 WL 4120537, at *5 (D.N.J.
Sept. 18, 2012); Everett v. Ives, Case No. 11-180, 2012 WL 2179097, at *3 (E.D. Ky. June
13, 2012). The BOP’s refusal to effectuate a Barden designation of the facility where
Moore served his state sentence between February 10, 2010, and February 28, 2012, was
not an abuse of discretion.
Therefore, the Court will deny Moore’s habeas petition because he is not entitled to
the sentencing credit which he seeks in this § 2241 proceeding.
CONCLUSION
Accordingly, IT IS ORDERED that:
1. The Clerk of the Court shall SUBSTITUTE Sandra Butler in place of J.C. Holland
as the respondent on the CM/ECF cover sheet.
2.
Freddie B. Moore’s 28 U.S. C. § 2241 petition for a writ of habeas corpus [R.
1] is DENIED.
3.
The Court will enter a Judgment contemporaneously with this order.
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4.
This matter is STRICKEN from the Court’s docket.
This 8th day of January, 2015.
G:\DATA\ORDERS\ProSe\Moore 14-178 MOO CKS.wpd
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