Thomas v. FCI Berlin, Warden

Filing 44

///ORDER granting 21 Motion to Dismiss; denying 42 Motion to Stay and Appoint Counsel. Thomas's § 2241 Petition is denied. Clerk is directed to enter judgment and close the case. So Ordered by Judge Landya B. McCafferty.(gla)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Robert Thomas
v.

Civil No. 13-cv-259-LM
Opinion No. 2014 DNH 231

Warden, Federal Correctional
Institution, Berlin, New Hampshire
O R D E R
Before the court is respondent’s motion to dismiss (doc.
no. 21) Robert Thomas’s petition for a writ of habeas corpus
brought pursuant to 28 U.S.C. § 2241.

Thomas objects (doc. nos.

32 and 38), and respondent has filed a response (doc. no. 39) to
that objection.
On September 24, 2014, the court held a hearing on the
motion to dismiss, at which counsel for each side appeared.
Thomas appeared, via audio link, from the prison.

Subsequent to

the hearing, Thomas filed a motion to “Stay the Proceedings and
Reconsider Petition and to Appoint Substitute Counsel” (doc. no.
42), which is also pending before the court.
Background and Prior Proceedings1
Petitioner Robert Thomas was arrested in Illinois on a
state armed robbery charge on October 1, 2000, and was detained
The proceedings described herein do not constitute an
exhaustive review of Thomas’s post-conviction litigation. The
proceedings described and discussed in this order are those
relevant to the issues presently before the court.
1

pretrial at the Cook County Jail in Chicago, Illinois.

On March

21, 2001, Thomas was “borrowed” by the United States Marshals
Service (“USMS”) pursuant to a writ of habeas corpus ad
prosequendum and detained at the Metropolitan Correctional
Center, a federal facility in Chicago, to answer federal drug
charges, unrelated to the state charges, in the United States
District Court for the Northern District of Illinois.

See

United States v. Thomas, No. 01-cr-03 (N.D. Ill.) (“federal
criminal case”).

On September 14, 2001, Thomas was sentenced on

his federal charges to 360 months imprisonment.

See id., ECF

No. 243.
On October 21, 2001, Thomas was sentenced in the state
court to a twenty-year prison term on the armed robbery charge.
The state sentencing court ordered that, per an agreement
between Thomas and the state prosecutor, the sentence was to run
concurrently with the already-imposed federal sentence, and
would be served in the federal prison where Thomas would be
serving his federal sentence.

Thomas believed at the time that

the State of Illinois had waived and relinquished its primary
jurisdiction to the federal authorities.
On December 5, 2001, the USMS assumed custody of Thomas,
without having first obtained a writ of habeas corpus ad
prosequendum, and placed Thomas at the Federal Correctional
Institution in Pollock, Louisiana (“FCI Pollock”).
2

Shortly

thereafter, the Illinois Department of Corrections (“IDOC”)
lodged a detainer with the federal prison, so that if Thomas
were released prior to the expiration of his state sentence, he
would be returned to the IDOC to complete his state sentence.
On April 11, 2002, however, the Bureau of Prisons (“BOP”)
determined that Thomas had been erroneously taken into federal
custody, and, without requiring the IDOC to obtain a writ of
habeas corpus ad prosequendum, returned Thomas to the IDOC to
serve his state sentence.
Thomas remained in IDOC custody until November 19, 2008,
when he was paroled from his state sentence, and returned to
federal custody to serve the remainder of his federal sentence.
After his November 2008 return to federal custody, Thomas
learned that he was not going to be credited for any of the time
he had spent in custody, since his October 1, 2000, arrest,
until he was returned to federal custody on November 19, 2008,
as all of that time had been credited toward his state sentence.
Thomas requested that the BOP recalculate his sentence to give
him credit against his federal sentence for the time he spent in
the IDOC, as the Illinois state sentencing court had intended.
The BOP denied his request.

3

On November 13, 2009, Thomas was incarcerated at the
Federal Correctional Institution in Gilmer, West Virginia (“FCI
Gilmer”).

On that date, Thomas filed a petition for a writ of

habeas corpus, pursuant to 28 U.S.C. § 2241, in the United
States District Court for the Northern District of West
Virginia, challenging the BOP’s calculation of his sentence.
See Pet., Thomas v. Deboo, No. 2:09cv134 (N.D. W. Va. Nov. 13,
2009), ECF No. 1.

Specifically, Thomas asserted claims alleging

that the State of Illinois had waived and relinquished primary
jurisdiction over him at the time of his state court sentencing,
and that, therefore, his designation to a federal facility in
2001 was proper.

He argued that his return to the IDOC in 2002

was erroneous and caused him not to receive credit against his
federal sentence for the time he had served prior to his
November 2008 return to federal custody.

He also asserted that

his return to the IDOC caused him to serve his federal sentence
in installments.

See id.

On April 8, 2010, the West Virginia court granted the
United States’ motion to dismiss or, in the alternative, for
summary judgment, and denied Thomas’s § 2241 petition.

See

Thomas v. Deboo, No. 2:09cv134, 2010 WL 1440693, at *7 (N.D. W.
Va. Apr. 8, 2010), adopting report and recommendation, 2010 WL
1440465 (N.D. W. Va. Mar. 8, 2010), aff’d, 403 F. App’x 843 (4th
Cir. Nov. 30, 2010) (per curiam).
4

In its order, the West

Virginia federal court expressly found that whatever the
intention of the parties and court at the time of Thomas’s state
court sentencing, the executive of the State of Illinois did not
expressly or affirmatively waive primary jurisdiction over
Thomas at any time until it paroled Thomas from his state
sentence in November 2008.
5.

See Thomas, 2010 WL 1440465, at *3-

The court, therefore, denied Thomas relief.

See id. at *7.

On April 26, 2011, Thomas filed a “Motion for Retroactive
Designation” in his federal criminal case.

See Mot. for

Retroactive Designation, United States v. Thomas, No. 01-cr-03
(N.D. Ill. Apr. 26, 2011), ECF No. 428.

On July 15, 2011, that

court denied his motion without prejudice to his renewing the
claim in a § 2241 petition brought in the federal court in the
district of Thomas’s incarceration at the time of such filing.
Id., ECF No. 437.2
Thomas again sought relief, as he had in 2008, through the
BOP’s administrative grievance system, by requesting, again,
that the BOP retroactively designate the IDOC as the place at
which he was to serve his federal sentence.

In its response to

Thomas’s request, the BOP found that Illinois had not waived its
primary jurisdiction over Thomas, and that the USMS’s assumption

Thomas did not inform the Illinois federal court of his
prior § 2241 petition in West Virginia and it is unclear from
the record whether the court was aware of that petition.
2

5

of custody over Thomas on December 5, 2001, was erroneous, and
that the error was corrected by returning Thomas to the IDOC in
2002 to serve his state sentence.

Further, the BOP determined

that Thomas had received credit against his state sentence for
all of the time he had served in state custody, from his October
1, 2000, arrest until his November 19, 2008, parole to federal
custody, and that Thomas therefore could not be given credit
against his federal sentence for that time, pursuant to 18
U.S.C. § 3585(b).
Thomas then filed this action asserting that his due
process rights had been violated by the BOP, asserting the same
claims raised in his § 2241 petition in federal court in West
Virginia, in his administrative grievances to the BOP, and in
his 2011 motion for retroactive designation filed in the federal
criminal case in Illinois.

Thomas further contends in this

action that this court should address his petition on the merits
based on documentary evidence, attached to the instant petition,
of the State of Illinois’s intention to relinquish primary
jurisdiction over Thomas at the time his state sentence was
imposed, which was not available to the West Virginia federal
court at the time it made its decision.

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Discussion
I.

Motion to Dismiss
In his motion to dismiss (doc. no. 21) and the memorandum

of law (doc. no. 22) filed in support thereof, respondent argues
that, under the “abuse of the writ” doctrine, Thomas is barred
from relitigating his claims here, as each of those claims was,
or could have been, litigated in his § 2241 action in West
Virginia.

Thomas objects.

Under the “abuse of the writ” doctrine, a district court
has discretion to dismiss a § 2241 habeas petition that is
premised on mere “repetition of a previously asserted claim.”
Esposito v. Ashcroft, 392 F.3d 549, 550 (2d Cir. 2004) (per
curiam).

“[A] petitioner can abuse the writ by raising a claim

in a subsequent petition that he could have raised in his
first.”

McCleskey v. Zant, 499 U.S. 467, 489 (1991).

The court

can, however, consider the merits of a claim raised in a
previous habeas petition if the failure to raise the claim at
the time of the previous habeas proceeding was caused by the
unavailability of the legal or factual basis for the claim,
where petitioner can show “‘actual prejudice’ resulting from the
errors of which he complains.”

McCleskey, 499 U.S. at 494

(applying “cause and prejudice” analysis used in procedural
default cases to “abuse of the writ” inquiries); see also Agoro

7

v. United States, No. 11 Civ. 1818(SAS), 2011 WL 1330771, at *2
(S.D.N.Y. Apr. 4, 2011) (“A successive petition is an abuse of
the writ unless the petitioner is able to show cause for failing
to raise the earlier claim (or seeking to raise the same claim
twice) and any resulting prejudice.”).
The burden to plead abuse of the writ rests with the
government.

See McCleskey, 499 U.S. at 494.

disprove abuse then falls to the petitioner.

The burden to
See id.

To

disprove abuse, the petitioner must either demonstrate cause and
prejudice for the failure to previously raise a claim, or must
show that a “fundamental miscarriage of justice would result
from a failure to entertain the claim.”

Id. at 495.

Thomas presents two “repeat” claims in this petition, both
of which he asserted in his § 2241 petition before the West
Virginia federal court: (1) that the State of Illinois
relinquished primary jurisdiction to the federal correctional
authorities following his sentencing in Illinois in 2001; and
(2) that his return to state custody in 2002 was erroneous and
resulted in his serving his federal sentence in installments.
He asserts that both claims survive the respondent’s motion to
dismiss.

In addition, Thomas asserts that this court should

consider his petition, even if it involves “repeat” claims,
because a fundamental miscarriage of justice would result were
the court to dismiss his petition.
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A. Primary Jurisdiction Claim
Thomas does not dispute that he previously raised (or could
have raised) in his prior § 2241 petition the primary
jurisdiction claims he asserts in the instant § 2241 action.
Rather, Thomas argues that the instant petition survives the
abuse of the writ doctrine because of the unavailability to him
at that time of two documents that, he asserts, conclusively
establish the intention of the State of Illinois to relinquish
primary jurisdiction over him to the federal authorities in
2001.
The doctrine of primary jurisdiction is central to the
determination of priority of custody and service of sentence
between state and federal sovereigns.

A defendant sentenced by

both a state and federal sovereign will first serve the sentence
of the sovereign with primary jurisdiction.
v. Warren, 610 F.2d 680, 684 (9th Cir. 1980).

See United States
And, primary

jurisdiction resides with the sovereign that first arrests a
defendant.
Mass. 2008).

See Stephens v. Sabol, 539 F. Supp. 2d 489, 493 (D.
The arresting sovereign “retains that jurisdiction

until it takes a specific act to relinquish it, such as release
on bail, parole, or the dismissal of pending charges.”

Id.

In Thomas’s prior § 2241 action, the question before the
West Virginia federal court was whether the state of Illinois
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“relinquished primary jurisdiction of him to federal authorities
on December 5, 2001.”

Thomas, 2010 WL 1440465, at *3.

Answering that question in the negative, the West Virginia
federal court noted the following undisputed facts relative to
Thomas’s primary jurisdiction argument:


The State of Illinois obtained primary custody of
Thomas upon Thomas’s October 1, 2000, arrest.



On December 5, 2001, the USMS took custody of Thomas
and requested designation to a BOP facility.



Thomas was subsequently placed at FCI Pollock to serve
his federal sentence.



After Thomas’s arrival at FCI Pollack, the BOP
determined that Illinois had not actually relinquished
primary jurisdiction over Thomas, and therefore
Thomas’s designation to FCI Pollock was a mistake.



On April 11, 2002, the error was corrected when Thomas
was returned to the IDOC, where he stayed until he was
paroled to his federal sentence on November 19, 2008.

See Thomas, 2010 WL 1440465, at *3-4.

In addition, the West

Virginia federal court made the following specific findings
concerning primary jurisdiction:
Despite what the petitioner may believe, it is clear
from the undisputed facts that the state did not
expressly relinquish[] primary jurisdiction of the
petition[er] until November 19, 2008, when he was

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paroled from his state sentence. Prior to that date,
the executive of the State of Illinois took no
affirmative act to waive or relinquish primary
jurisdiction. Specifically, prior to November 19,
2008, there had been no release to parole, grant of
bail, dismissal of the charges or any written waiver
of primary jurisdiction. Nor did the state court
effectively relinquish custody of the petitioner so
that the BOP had an obligation to take him into
federal custody and keep him there.
Id. at *4.
Here, the government has met its initial burden to show
that Thomas’s instant § 2241 petition is comprised of claims
that were raised or could have been raised in the West Virginia
§ 2241 petition.

The question is whether Thomas can establish

cause and prejudice.

Thomas points to two documents he has

attached to his petition in an attempt to establish a “factual
unavailability” argument.

The court considers each document.

1. D. L. Heady Memo (Doc. No. 1-1, p. 7)
The first document is a memorandum to Thomas from D. L.
Heady, a Unit Manager at FCI Gilmer.

In the memo, Heady states

that on August 28, 2012, he had a conversation with Ms. Becky
Williams, an IDOC records supervisor, and that Ms. Williams
stated that the USMS erroneously returned Thomas to the IDOC in
April 2002, and that Thomas should have remained in federal
custody at that time.

Thomas argues that the memo provides

evidence that corrections officials in Illinois understood that

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the State had relinquished primary jurisdiction over him to
federal authorities.
Nothing in the memo, or elsewhere in the record, however,
demonstrates that the legal and factual basis of any claim
asserted here was unavailable to Thomas at the time he litigated
his § 2241 claims in West Virginia.

Indeed, the West Virginia

federal court explicitly rejected Thomas’s claims arising out of
what he asserted were the subjective beliefs of state officials,
when that court found that, despite the intentions or beliefs of
those involved, no Illinois official with the authority to waive
primary jurisdiction over Thomas had actually effected such a
waiver.

Nothing in the Heady memorandum suggests that Ms.

Williams had such authority, or that her opinion rested on a
decision of any official with such authority.

Moreover, the

document itself contains no reference to any specific facts
supporting Thomas’s theory of the relinquishment of primary
jurisdiction that were not known to Thomas, or the West Virginia
federal court, at the time that court denied Thomas’s § 2241
petition.

This court cannot find that if the Heady memo had

been available to the West Virginia federal court, the result of
the proceedings before that court would likely have been
different.

Thus, Thomas has failed to meet his burden to

demonstrate cause and prejudice relating to the Heady memo and
its contents.
12

2. Harrell Watts Response (Doc. No. 1-1, pp. 19-20)
The second document presented by Thomas in support of his
petition in this court is the April 30, 2013, response from
Harrell Watts, a BOP official, denying Thomas’s March 13, 2013,
appeal of his request that the BOP either retroactively
designate the IDOC as the location where Thomas would serve his
federal sentence, or release him due to the interruption of his
federal sentence created by his placement at the IDOC.

That

April 30, 2013, document references a prior appeal, which was
decided on June 18, 2009.

In addition to the fact that none of

the statements in Watts’s response support Thomas’s position
here, the information contained in that document was apparently
in Thomas’s possession in June 2009, five months prior to his
November 2009 filing of his § 2241 petition in West Virginia.
Accordingly, Thomas can demonstrate neither cause for failing to
present the information in the document to the federal court in
West Virginia, nor prejudice resulting from that court’s lack of
consideration of the document.
In sum, neither document provides Thomas any refuge from
the abuse of the writ doctrine.

There has never been any

dispute that the Illinois state court intended Thomas’s state
court sentence to run concurrently with Thomas’s federal
sentence, and that the Illinois corrections officials attempted
to effectuate that by releasing Thomas to federal custody
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following the state sentencing hearing.
available to Thomas all along.

These facts have been

Nothing in either of the two

documents sheds additional (or previously unavailable) light on
those undisputed facts.

The only question before this court is

whether the Illinois court order and the act of releasing Thomas
to federal custody pursuant to that order caused Illinois to
relinquish its primary jurisdiction over Thomas.

That question

was answered by the West Virginia federal court and the Fourth
Circuit in the negative.

Those rulings preclude the matter from

being relitigated here.
B.

Installment Sentence Claim

The second “repeat” claim Thomas asserts here is that his
return to the IDOC in 2002 was erroneous, resulting in his
improperly being made to serve his federal sentence in
installments.

Although the West Virginia federal court found

that Thomas’s federal sentence had been properly calculated by
the BOP, it does not appear that the instant “installment” claim
was expressly addressed by that court.

The West Virginia

federal court’s finding, however, that Thomas’s federal sentence
was properly calculated as commencing on November 19, 2008,
rendered discussion of the installment claim unnecessary, as it
was undisputed that Thomas has been serving his federal sentence
continuously since that date.

And, Thomas asserts no basis upon

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which this court can find that manifest injustice would result
if this court does not make explicit findings and rulings
concerning his installment claim.

Accordingly, the court finds

that Thomas has not met his burden of showing that the
installment sentence claim survives the abuse of the writ
doctrine.
C.

Fundamental Miscarriage of Justice

Although undeveloped, Thomas’s final argument is that a
fundamental miscarriage of justice results from the BOP’s
decision to deny him the eight years of confinement credit to
which he was entitled pursuant to the order of the Illinois
state court at his state sentencing in October 2001.

At first

glance, there is some appeal to Thomas’s argument that the BOP
committed a fundamental miscarriage of justice if, indeed, it
forced him to be incarcerated for eight years more than his
sentence required.3

For the “fundamental miscarriage of justice”

exception to apply, however, a petitioner must show “‘a

Significant federalism issues are raised in a case such as
this, where the BOP’s calculation of an inmate’s release date
appears to contravene a sentencing order of a state court.
After expressly considering this issue, however, the West
Virginia federal court upheld the BOP’s decision not to credit
Thomas’s time spent in state custody. See Thomas, 2010 WL
1440465, at *5-6.
3

15

constitutional violation [that] has probably resulted in the
conviction of someone who is actually innocent.’”

Schlup v.

Delo, 513 U.S. 298, 327 (1995) (quoting Murray v. Carrier, 477
U.S. 478, 496 (1986)).

The purpose of this exception is to

provide “an additional safeguard against compelling an innocent
man to suffer an unconstitutional loss of liberty.”

See

McCleskey, 449 U.S. at 495 (quoting Stone v. Powell, 428 U.S.
465, 492-93, n.31).

Thomas is not claiming that he is innocent;

he claims only that the BOP has erroneously calculated the
duration of his sentence.

Thus, to the extent he is relying on

the miscarriage-of-justice exception, his reliance is misguided.
The doctrine does not apply here.
D.

Conclusion

Having carefully considered the entire record in this case,
the court finds that Thomas has failed to meet his burden to
disprove the applicability of the abuse of the writ doctrine.
Accordingly, this § 2241 petition is barred by the abuse of the
writ doctrine.

The court does not, therefore, address the

merits of the claims asserted therein.
II.

Motion to Stay the Proceedings, Reconsider Petition, and
Appoint Substitute Counsel (Doc. No. 42)
Thomas has filed a motion (doc. no. 42), asking the court

to consider the facts and documents before it, as well as to

16

consider the law presented by both Thomas and his attorney.

In

his motion, Thomas also highlights certain points of law that
have been previously presented to the court orally or in the
written record of this case.

The court assures Thomas that it

has fully considered all of the arguments of law and fact in the
record.

To the extent Thomas is seeking reconsideration of any

decision this court has previously issued, the motion is denied.
Thomas also seeks a stay in this action and the appointment
of substitute counsel on the basis of a breakdown in the
relationship between himself and Attorney Vogelman.

Nothing in

the motion, however, suggests that Attorney Vogelman failed to
do anything in this case that would have worked to Thomas’s
benefit.

Nor does the motion indicate that there is any

information that Thomas was unable to bring to the court’s
attention.

Accordingly, there is no basis to stay this matter,

or appoint substitute counsel, and those requests are denied.
Conclusion
For the foregoing reasons, the court issues the following
order:
1.

Petitioner’s “Motion to Stay the Proceedings and

Reconsider Petition, and to Appoint Substitute Counsel” (doc.
no. 42) is DENIED.

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2.

Respondent’s Motion to Dismiss (doc. no. 21) is

GRANTED, and Thomas’s § 2241 Petition (doc. no. 1) is DENIED.
The clerk is directed to enter judgment and close the case.
SO ORDERED.

__________________________
Landya McCafferty
United States District Judge
February 5, 2015
cc:

Larry Vogelman, Esq.
Seth R. Aframe, Esq.

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