BOWEN v. UNITED STATES OF AMERICA
Filing
17
OPINION. Signed by Judge Noel L. Hillman on 9/1/2011. (dmr)(n.m.)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
NANCY LYNN BOWEN,
:
Civil Action No. 10-2188 (NLH)
Petitioner,
:
v.
:
UNITED STATES OF AMERICA,
Respondent.
OPINION
:
:
APPEARANCES:
Petitioner pro se
Nancy Lynn Bowen
P.O. Box 4004
Clinton, NJ 08809
Counsel for Respondent
Elizabeth A. Pascal
Asst. U.S. Attorney
Camden Federal Building
and U.S. Courthouse
401 Market Street
P.O. Box 2098
Camden, NJ 08101
HILLMAN, District Judge
Petitioner Nancy Lynn Bowen, a prisoner currently confined
at the Bo Robinson Assessment and Treatment Center in Trenton,
New Jersey, has submitted a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2241,1 challenging the calculation of her
sentence.
Based on developments during the pendency of this matter,
the Petition will be dismissed as moot.
I.
BACKGROUND
Petitioner was sentenced on September 16, 2005, in the
Pennsylvania Court of Common Pleas, Lehigh County, to a term of
imprisonment of two-to-six months.
On December 7, 2005,
Petitioner was sentenced in the Pennsylvania Court of Common
Pleas, Lehigh County, to a term of imprisonment of twelve-tosixteen months.
While she was confined on the Pennsylvania state sentences,
Petitioner was sentenced in the U.S. District Court for the
Western District of Pennsylvania to a 51-month term of
imprisonment in Criminal Action No. 06-0210 and to a 51-month
term of imprisonment in Criminal Action No. 04-0318.
These terms
of imprisonment were imposed concurrently to one another and
1
Section 2241 provides in relevant part:
(a) Writs of habeas corpus may be granted by the
Supreme Court, any justice thereof, the district courts
and any circuit judge within their respective
jurisdictions.
(c) The writ of habeas corpus shall not extend to a
prisoner unless-- ... (3) He is in custody in violation
of the Constitution or laws or treaties of the United
States ... .
2
consecutive to the state terms of imprisonment Petitioner was
then serving in Pennsylvania.
Petitioner’s Pennsylvania sentence was completed on December
7, 2008, whereupon she was delivered to Delaware state
authorities pursuant to a writ to answer charges pending there.
Petitioner was sentenced in the New Castle County Superior Court,
Delaware, to a term of probation for forgery.
On January 15, 2009, Petitioner was released to New Jersey
state authorities on outstanding warrants.
On June 26, 2009,
Petitioner was sentenced in the New Jersey Superior Court,
Atlantic County, to serve a collective three-to-seven year term
of imprisonment, concurrently with her federal sentence.
Petitioner remains confined pursuant to the New Jersey sentence.
Petitioner then filed, in the U.S. District Court for the
Western District of Pennsylvania, motions under 28 U.S.C. § 2255
to amend or correct her federal sentences, which the Court there
construed as petitions for writ of habeas corpus under 28 U.S.C.
§ 2241 challenging the execution of her sentences.
In essence,
Petitioner asserted that the Federal Bureau of Prisons should
have calculated her federal sentences as starting to run on
December 7, 2008, because she alleges that she should have been
released to her federal detainer on that date, when she completed
her Pennsylvania sentences.
3
While justifying their calculation that Petitioner’s federal
sentence had not yet begun to run, because she was not yet in
federal custody, Respondents nevertheless advised this Court that
they were treating Petitioner’s challenge to the calculation of
her sentence as a request for a nunc pro tunc designation of a
state facility as a place of serving a federal sentence.
Barden v. Keohane, 921 F.2d 476, 484 (3d Cir. 1990).
See
In response
to this Court’s Order to supplement their response with the
results of that analysis, Respondents advise that the Federal
Bureau of Prisons has determined that such a nunc pro tunc
designation is appropriate.
The designation, and thus the
commencement of the federal sentence, was made effective as of
December 7, 2008, the date Petitioner completed her Pennsylvania
sentences.
Petitioner’s currently projected release date from
her federal sentence is July 14, 2012, assuming she earns all
eligible good conduct time.
Thus, this Court must consider
whether Petitioner has received all requested relief and whether
the Petition has become moot.
II.
ANALYSIS
The Attorney General is responsible for computing federal
sentences for all offenses committed on or after November 1,
1987, United States v. Wilson, 503 U.S. 329 (1992) and 18 U.S.C.
§ 3585, and the Attorney General has delegated that authority to
the Director of the Bureau of Prisons, 28 C.F.R. § 0.96 (1992).
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Computation of a federal sentence is governed by 18 U.S.C.
§ 3585, and is comprised of a two-step determination of, first,
the date on which the federal sentence commences and, second, the
extent to which credit is awardable for time spent in custody
prior to commencement of the sentence.
(a) Commencement of sentence.--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 for prior custody.--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
(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(a), (b).
As Petitioner had not yet been
received into federal custody, the Bureau of Prisons properly
advised Petitioner that her sentence had not yet begun to run.
The BOP, however, in the exercise of its discretion, has
authority to designate as a place of federal confinement, nunc
pro tunc, the facilities in which a federal prisoner such as
Petitioner served an earlier state sentence.
See Barden, 921
F.2d at 480-83 (a defendant is entitled to “fair treatment” on
5
his application for a nunc pro tunc designation); 18 U.S.C.
§ 3621(b).2
The decision of the BOP is subject to judicial
review only for abuse of discretion.
Barden, 921 F.2d at 478.
Pursuant to BOP Program Statement 5160.05, “State
institutions will be designated for concurrent service of a
federal sentence when it is consistent with the intent of the
federal sentencing court or with the goals of the criminal
justice system.”
P.S. 5160.05 ¶ 3(a) (2003).
The BOP’s
authority to designate a state institution for concurrent service
of a federal sentence is delegated to Regional Directors.
The
Program Statement specifically addresses requests by prisoners
for a nunc pro tunc designation.
(4) Inmate Request. Occasionally, an inmate may
request a nun pro tunc (i.e., occurring now as though
it had occurred in the past) designation. As a result
of the decision in Barden v. Keohane, 921 F.2d 476 (3d
Cir. 1990), the Bureau considers an inmate’s request
for pre-sentence credit toward a federal sentence for
time spent in service of a state sentence as a request
for a nunc pro tunc designation.
(a) In Barden, the court held that the Bureau
must consider an inmate’s request for concurrent
service of the state and federal sentences.
•
However, there is no obligation under
Barden for the Bureau to grant the
request by designating a state
2
Section 3621(b) provides that, “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 ... .”
6
institution retroactively as the place
to serve the federal sentence.
(b) This type of request will be considered
regardless of whether the inmate is physically
located in either a federal or state institution.
Information will be gathered, if available, to
include:
•
a copy of the federal and state
J&Cs
•
the State sentence data record to
include jail credit, and
•
any other pertinent information
relating to the federal and state
sentences.
(c) In making the determination, if a
designation for concurrent service may be
appropriate (e.g., the federal sentence is imposed
first and there is no order or recommendation
regarding the service of the sentence in
relationship to the yet to be imposed state term),
the RISA will send a letter to the sentencing
court (either the chambers of the Judge, U.S.
Attorney’s Office, and/or U.S. Probation Office,
as appropriate) inquiring whether the court has
any objections. Regardless of where the original
inquiry is directed, the U.S. Attorney’s Office
and U.S. Probation Office will receive a courtesy
copy.
(d) If, after 60 days, a response is not
received from the sentencing court, the RISA will
address the issue with the Regional Counsel and a
decision will be made regarding concurrency.
(e) No letter need be written if it is
determinated that a concurrent designation is not
appropriate. ...
P.S. 5160.05, ¶ 9(b).
Here, Petitioner’s challenge to the calculation of her
sentence was treated as a request for such a nunc pro tunc
designation.
The BOP has changed Petitioner’s sentence
commencement date to December 7, 2008, as she requested.
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As Petitioner has obtained all the relief she requested, the
Petition will be dismissed as moot.
III.
CONCLUSION
For the reasons set forth above, the Petition will be
dismissed as moot.
An appropriate order follows.
At Camden, New Jersey
/s/ Noel L. Hillman
Noel L. Hillman
United States District Judge
Dated: September 1, 2011
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