Jamison v. Ormond
Filing
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MEMORANDUM OPINION & ORDER: 1. Petitioner Andrew Jamison's motion for leave to file an amended complaint [R. 6 ] is GRANTED; 2. Petitioner Jamisons petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 [R. 1] is DENIE D; 3. This action is DISMISSED and STRICKEN from the Courts active docket; 4. Judgment shall be entered contemporaneously herewith; and5. The Court CERTIFIES that any appeal from this Order would not be taken in good faith. Signed by Judge Gregory F. VanTatenhove on 04/14/2016.(KJA)cc: COR, mailed paper copy to pro se filer
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
LONDON
ANDREW JAMISON,
Petitioner,
v.
J. RAY ORMOND, WARDEN,
Respondent.
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Civil No. 6:16-cv-56-GFVT
MEMORANDUM OPINION
&
ORDER
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Petitioner Andrew Jamison, who is currently confined at the United States Penitentiary –
McCreary in Pine Knot, Kentucky, seeks federal habeas relief from this Court. Proceeding pro
se, Jamison filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 [R. 1], a
motion to waive payment of the $5.00 filing fee [R. 2], and a motion for relief pursuant to 28
U.S.C. § 2243. [R. 3.] The Court previously denied Jamison’s motions to waive the filing fee
and for relief under § 2243, instructing Jamison that, among other things, the Court must screen
his § 2241 petition before the lawsuit may proceed. [See R. 5.] Jamison has now filed a motion
for leave to file an amended complaint, seeking to add a fact which was not included in his
original petition. [R. 6.] After a thorough review of Jamison’s petition and his proposed
amendment, his requests for relief do not survive the Court’s initial screening and, as explained
below, the pending § 2241 motion must therefore be DENIED.
I
In November 2012, Petitioner Andrew Jamison was indicted in Memphis, Tennessee, for
being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). A superseding
indictment filed in September 2013 also charged Jamison with robbery in violation of 18 U.S.C.
§ 1951. Although Jamison was represented by counsel appointed under the Criminal Justice Act,
he filed numerous documents pro se in his case. The Court eventually granted Jamison’s request
to represent himself at trial, arranging for a federal public defender to serve as “elbow counsel.”
On November 5, 2013, a jury found Jamison guilty of both of the counts charged against him.
The trial court entered judgment on April 8, 2014, sentencing Jamison to two concurrent eightyeight (88) month sentences, “to be served consecutively to undischarged DeSoto County,
Mississippi sentence.” Jamison, who had been arrested by federal authorities in December 2012,
was in continuous federal custody throughout his federal trial and sentencing, and he has
remained exclusively in federal custody at all times.
Jamison subsequently appealed his case and sought post-conviction relief. While
Jamison’s direct appeal was pending, the trial court denied Jamison’s motions to vacate his
conviction for lack of jurisdiction. On March 24, 2016, the Sixth Circuit Court of Appeals
affirmed Jamison’s conviction and sentence in all respects, rejecting Jamison’s argument that the
trial court’s imposition of a federal sentence consecutive to, rather than concurrent with, his state
sentence was unreasonable under 18 U.S.C. §§ 3553(a), 3584(a), and U.S.S.G. § 5G1.3. See
United States v. Jamison, No. 2:12-CR-20323-STA-1 (W.D. Tenn. 2012).
One week after the Sixth Circuit issued its mandate in the appeal, Jamison filed the
instant § 2241 petition for habeas corpus relief in this Court. [See id. at R. 144, therein.] [See
also R. 1.] In his petition, Jamison makes several arguments. First, he maintains the Bureau of
Prisons (“BOP”) improperly refused to order a nunc pro tunc designation of the state prison as
the facility to serve his federal sentence pursuant to Barden v. Keohane, 921 F.2d 476 (3d Cir.
1990), and Program Statement 5160.05, because the trial court erred in ordering his federal
sentence to run consecutively to his not-yet-imposed state sentence rather than concurrently with
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it. [Id. at 6-7.] Next, he claims 18 U.S.C. § 3584 does not permit the imposition of consecutive
sentences under the circumstances of his case, and he contends the BOP erred in calculating his
sentence based upon the consecutive sentence ordered by the trial court. [Id. at 7.] Also,
Jamison claims that when the State of Mississippi filed a detainer against him with the BOP, the
BOP Warden became an “agent” of Mississippi. Jamison therefore alleges that he may challenge
Mississippi judicial proceedings in this Court. [See id.] Finally, Jamison argues he is entitled to
federal habeas review of his 2005 Mississippi convictions for attempted armed robbery and
possession of a stolen firearm, because he was “in custody” for those offenses when the federal
court sentenced him in 2014. He seeks relief from both his 2005 Mississippi state convictions on
the basis that his counsel was constitutionally ineffective at both the trial and the appellate levels.
[See id. at 8-10; R. 1-1.]
II
This Court conducts an initial review of all habeas corpus petitions. See 28 U.S.C. §
2243; Alexander v. Northern Bureau of Prisons, 419 F. App’x 544, 545 (6th Cir. 2011). A
habeas petition will be denied “if it plainly appears from the petition and any attached exhibits
that the petitioner is not entitled to relief.” See Rule 4 of the Rules Governing § 2254 Cases in
the United States District Courts. 1 Because Jamison is not represented by an attorney, the Court
evaluates his petition under a more lenient standard. See, e.g., Erickson v. Pardus, 551 U.S. 89,
94 (2007). Further, at this stage of the proceedings, the Court accepts all of the petitioner’s
factual allegations as true and construes the legal claims in his favor. See Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555-56 (2007).
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This standard applies to Jamison’s § 2241 petition pursuant to Rule 1(b) of the Rules Governing § 2254
Cases in the United States District Courts.
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Having thoroughly reviewed the petition and the factual information set forth in
Jamison’s motion to amend his complaint, it is plain that Jamison’s claims are procedurally
improper, substantively meritless, or both. Jamison’s extensive history of frivolous litigation has
rendered him subject to the “three strikes” bar of 28 U.S.C. § 1915(g) long ago. See Jamison v.
Federal Transfer Center, No. 5:15-cv-278-W (W.D. Okla. 2015). Moreover, the federal courts
have repeatedly denied Jamison habeas relief from his 2005 Mississippi state convictions under
28 U.S.C. § 2254. See Jamison v. Mississippi, No. 4:08-cv-137-WAP-DAS (N.D. Miss. 2008);
Jamison v. Byrd, No. 2:07-cv-8-MPM-SAA (N.D. Miss. 2007); Jamison v. Parker, No. 2:06-cv73-NBB-SAA (N.D. Miss. 2006).
In this case, Jamison’s challenge to the BOP’s refusal to grant a nunc pro tunc
designation under Barden v. Keohane, 921 F.2d 476 (3d Cir. 1990), is legally meritless. The
purpose of a nunc pro tunc designation is to give practical effect to a state court’s legally
unenforceable order that its sentence should run concurrently with a previously imposed but notyet-commenced federal sentence. See, e.g., Watkins v. Holland, No. 13-12-DCR, 2013 WL
5676231 (E.D. Ky. Oct. 18, 2013); Pitman v. U.S. Bureau of Prisons, No. 09-383-GFVT, 2011
WL 1226869 (E.D. Ky. Mar. 30, 2011); Simms v. United States, No. 08-cv-43-HRW, 2009 WL
3061994 (E.D. Ky. Sept. 21, 2009). Jamison was arrested on December 4, 2012, by federal, not
state, officials. Therefore, the federal government had primary jurisdiction over him. As noted
above, Jamison has been in continuous, uninterrupted federal custody ever since the December
2012 arrest. Significantly, Jamison is not currently subject to a state sentence at all—while the
State of Mississippi arrested Jamison in June 2012 for burglary, those charges were dropped in
September 2012. While the arrest may give Mississippi grounds to revoke Jamison’s probation
for prior state offenses committed in 2005, the State has not yet done so and has not imposed any
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sort of sentence or term of incarceration for that alleged offense. [See R. 1-2 at 6, 8.] Because
there is no state sentence with which Jamison’s federal sentence could run concurrently, Barden
has no application here. Jamison is plainly not entitled to relief based on this argument. See
Rule 4 of the Rules Governing § 2254 Cases in the United States District Courts.
As for Jamison’s second claim for relief, the United States Supreme Court has
conclusively rejected the premise underpinning Jamison’s argument that the BOP was required
by 18 U.S.C. § 3584 to deem his sentences concurrent, notwithstanding the trial court’s express
direction otherwise. By its terms, § 3584 governs when a trial court may impose consecutive or
concurrent sentences. It does not authorize the BOP to make this decision, let alone allow the
BOP to disregard a trial court’s order regarding consecutive sentencing:
The placement of § 3584 does indeed suggest that it is directed at district courts—
but that is likely because Congress contemplated that only district courts would
have the authority to make the concurrent-vs.-consecutive decision, not because
Congress meant to leave the Bureau unfettered. Indeed, the Bureau already follows
the other directives in § 3584(a). For example, if the district court imposes multiple
terms of imprisonment at the same time, but fails to address the concurrent-vs.consecutive issue, the terms “run concurrently,” § 3584(a), and the Bureau is not
free to use its “place of imprisonment” authority to achieve a different result. . . .
When § 3584(a) specifically addresses decisions about concurrent and consecutive
sentences, and makes no mention of the Bureau’s role in the process, the
implication is that no such role exists.
Setser v. United States, 132 S. Ct. 1463, 1469-70 (2012) (internal citations omitted).
Furthermore, this Court cannot entertain Jamison’s challenges to his 2005 Mississippi
convictions. Apart from the fact that these § 2254 claims are wholly unrelated to Jamison’s
challenge to the manner in which the BOP is carrying out his sentence under § 2241, he has
thrice before sought habeas relief under 28 U.S.C. § 2254 without success. As a consequence,
Jamison must seek and obtain permission from the Fifth Circuit Court of Appeals before he can
properly pursue this relief. See 28 U.S.C. § 2244(a)(3)(A). And even if Jamison’s request was
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granted by the Fifth Circuit, the proper venue for his petition is not this Court but rather the
United States District Court for the Northern District of Mississippi. See Rumsfeld v. Padilla,
542 U.S. 426, 435 (2004). Ultimately, Jamison’s § 2241 petition provides no basis for federal
habeas relief in this Court. Upon initial screening of the petition, therefore, it must be denied.
As a final matter, a district court may certify either before or after an appeal is taken that
any appeal would not be taken in good faith. Fed. R. App. P. 24(a)(3)(A). Such a certification is
appropriate in this case. To assess whether an appeal is taken in good faith, the Court makes an
objective inquiry. Coppedge v. United States, 369 U.S. 438, 445 (1962). In the matter at hand,
reasonable jurists could not differ in concluding that Jamison’s petition fails to present any viable
claim for relief. The Court will, therefore, certify that any appeal is not taken in good faith.
Jamison will be assessed the full $505.00 appellate filing fee should he choose to file a notice of
appeal from this Order.
III
Accordingly, and the Court being otherwise sufficiently advised, it is hereby ORDERED
as follows:
1. Petitioner Andrew Jamison’s motion for leave to file an amended complaint [R. 6] is
GRANTED;
2. Petitioner Jamison’s petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241
[R. 1] is DENIED;
3. This action is DISMISSED and STRICKEN from the Court’s active docket;
4. Judgment shall be entered contemporaneously herewith; and
5. The Court CERTIFIES that any appeal from this Order would not be taken in good
faith.
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This the 14th day of April, 2016.
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