HARRIS v. ZICKEFOOSE
Filing
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OPINION. Signed by Judge Noel L. Hillman on 9/18/2012. (bdk, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
JIMMY HARRIS,
Petitioner,
v.
DONNA ZICKEFOOSE,
Respondents.
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Hon. Noel L. Hillman
Civil No. 11-7472 (NLH)
OPINION
APPEARANCES:
JIMMY HARRIS, #30032-050
FCI Fort Dix
P.O. Box 2000
Fort Dix, New Jersey 08640
Petitioner Pro Se
JOHN ANDREW RUYMANN, ASSISTANT UNITED STATES ATTORNEY
PAUL J. FISHMAN, UNITED STATES ATTORNEY
402 E. State Street, Suite 430
Trenton, New Jersey 08608
Attorney for Respondents
HILLMAN, District Judge:
Petitioner Jimmy Harris, an inmate at FCI Fort Dix in New
Jersey, filed a Petition for Writ of Habeas Corpus pursuant to 28
U.S.C. § 2241 challenging the calculation of his projected
release date by the Bureau of Prisons (“BOP”).
The BOP filed an
Answer seeking dismissal of the Petition, together with
declarations and several exhibits.
Petitioner filed a Reply.
This Court will dismiss the Petition because Petitioner has not
shown that the BOP abused its discretion or violated federal law
in calculating his projected release date.
I.
BACKGROUND
Petitioner argues that the BOP abused its discretion,
violated due process, and violated the New Jersey court’s
judgment of conviction in denying his request to nunc pro tunc
designate a state facility as the place of federal incarceration
during the 15-month period from May 29, 2009, through August 23,
2010.
Petitioner was arrested by New Jersey on May 29, 2009.
On
June 3, 2009, the United States Marshal Service took temporary
custody of Petitioner pursuant to a writ of habeas corpus ad
prosequendum.
See United States v. Harris, Crim. No. 09-0736-01
(DMC) (D.N.J. filed Sept. 28, 2009).
On September 28, 2009,
Petitioner entered a guilty plea to a one-count information
charging him with conspiracy to commit fraud in connection with
access devices, contrary to 18 U.S.C. § 1029(a)(5) & (b)(2).
On
January 25, 2010, Judge Cavanaugh imposed a 58-month term of
imprisonment, and the Marshal returned Petitioner to New Jersey
custody.
See United States v. Harris, Crim. No. 09-0736-01(DMC)
judgment (D.N.J. Jan. 26, 2010).
On March 26, 2010, the Superior Court of New Jersey imposed
a three-year sentence for possession of a controlled dangerous
substance.
On August 23, 2010, New Jersey released Petitioner on
parole to federal custody.
(Dkt. 6-1 at 15.)
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In December 2010, Petitioner filed an administrative remedy
request seeking prior custody credit for the time he served in
the custody of New Jersey.
December 21, 2010.
The warden denied the request on
Petitioner appealed, and on March 31, 2011,
C. Eicherlaub, Regional Director of the BOP’s Mid-Atlantic
Region, denied the appeal, but forwarded Petitioner’s request to
the Designation and Sentence Computation Center for review under
Program Statement 5160.05, Designation of State Institution for
Service of Federal Sentence.
(Dkt. 6-2 at 14.)
Petitioner
appealed to the Central Office.
On June 29, 2011, Jose A. Santana, Chief of the BOP’s
Designation and Sentence Computation Center, sent a letter to
Judge Cavanaugh stating that Petitioner had requested nunc pro
tunc designation of the New Jersey facility for service of his
federal sentence and giving Judge Cavanaugh an opportunity to
indicate his position with respect to retroactive designation.
(Dkt. 6-1 at 21-22.)
In the absence of a response from Judge
Cavanaugh, on September 1, 2011, the BOP denied Petitioner’s
request for nunc pro tunc designation based on the nature and
circumstances of Petitioner’s federal offense, his history and
characteristics, and the absence of a statement by Judge
Cavanaugh supporting nunc pro tunc designation.
24.)
(Dkt. 6-1 at
On September 26, 2011, Harrell Watts, Administrator of the
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BOP’s National Inmate Appeals, denied Petitioner’s administrative
appeal:
This is in response to your Central Office
Administrative Remedy Appeal, wherein you request a
nunc pro tunc or retroactive concurrent designation to
the State of New Jersey for service of your federal
sentence. You make this request to effectuate the
application of custody credit for time spent in state
custody, contending the state intended its sentence to
run concurrent to the federal term.
Relevant documentation was reviewed regarding your
state and federal sentences . . . in accord with the
1990 decision in Barden v. Keohane. That is, we
contemplated the factors delineated in 18 U.S.C. §
3621(b) to include your instant federal offense,
multiple and repetitive state convictions for
possession for Controlled Dangerous Substance with
Intent to Distribute and Possession of a Weapon.
Additionally, § 3584 requires multiple terms of
imprisonment imposed at different times run
consecutively unless the court stipulates otherwise.
We note the federal judgment order was silent and the
sentencing court was contacted regarding its position
on a retroactive designation. However, the court
maintains its silence.
Lastly, Program Statement 5160.05, Designation of State
Institution for Service of Federal Sentence, permits
designations effecting concurrent service of state and
federal sentences only when doing so is consistent with
the intent of the sentencing federal court or the goals
of the criminal justice system. Following our review,
we determined commencement of your federal sentence by
way of a concurrent designation would be inconsistent
with the foregoing. Accordingly your request for a
nunc pro tunc designation would not be[]appropriate.
Your appeal is denied.
(Dkt. 6-2 at 17.)
Harris filed this § 2241 Petition on December 19, 2011.
He
contends that the BOP abused its discretion and violated federal
law in denying his request to nunc pro tunc designate a state
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facility as the place of federal confinement for the 15-month
period from his arrest on May 29, 2009, until New Jersey released
him on parole on August 23, 2010.
The BOP filed an Answer, two
declarations, and numerous exhibits, seeking dismissal of the
Petition because the BOP did not abuse its discretion or violate
federal law.
Petitioner filed a Reply, which included the
judgment of conviction entered in the Superior Court of New
Jersey on March 26, 2010 in State v. Harris, Ind. No. 1954-11-09
judgment (N.J. Super. Ct., Law Div., Mar. 26, 2010), which
imposes a three-year term of imprisonment for possession of CDS
“to be served concurrently with Federal Sentence.”
(Dkt. 7 at
9.)
II.
A.
DISCUSSION
Jurisdiction
Under 28 U.S.C. § 2241(c), habeas jurisdiction “shall not
extend to a prisoner unless . . . [h]e is in custody in violation
of the Constitution or laws or treaties of the United States.”
28 U.S.C. § 2241(c)(3).
A federal court has subject matter
jurisdiction under § 2241(c)(3) if two requirements are
satisfied:
(1) the petitioner is “in custody” and (2) the
custody is “in violation of the Constitution or laws or treaties
of the United States.”
28 U.S.C. § 2241(c)(3); Maleng v. Cook,
490 U.S. 488, 490 (1989).
This Court has subject matter
jurisdiction under § 2241 to consider the instant Petition
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because Petitioner challenges the calculation of his sentence on
federal grounds and he was incarcerated in New Jersey at the time
he filed the Petition.
See Blood v. Bledsoe, 648 F. 3d 203 (3d
Cir. 2011); Vega v. United States, 493 F. 3d 310, 313 (3d Cir.
2007); Woodall v. Fed. Bureau of Prisons, 432 F.3d 235, 241
(3d
Cir. 2005).
B.
Standard of Review
Insofar as the BOP reviewed Petitioner’s request for nunc
pro tunc designation, this Court’s review is limited to the abuse
of discretion standard.
See Galloway v. Warden of FCI Fort Dix,
385 Fed. App’x 59, 61 (3d Cir. 2010); Barden, 921 F. 2d at 478.
Under this standard, a reviewing court must find that the actual
choice made by the agency was neither arbitrary nor capricious.
See C.K. v. N.J. Dep’t of Health & Human Services, 92 F.3d 171,
182 (3d Cir. 1996).
“[A]gency action must be set aside if the
action was ‘arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law’....” Citizens to Preserve
Overton Park v. Volpe, 401 U.S. 402, 414 (1971), overruled on
other grounds, Califano v. Sanders, 430 U.S. 99 (1977) (quoting 5
U.S.C. § 706(2)(A)).
To make a finding that agency action was
not arbitrary or capricious, or an abuse of discretion, a court
must review the administrative record that was before the agency,
and “must consider whether the decision was based on a
consideration of the relevant factors and whether there has been
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a clear error of judgment. . . .
Although this inquiry into the
facts is to be searching and careful, the ultimate standard of
review is a narrow one.
The Court is not empowered to substitute
its judgment for that of the agency.”
416.
Overton Park, 401 U.S. at
Reversal of agency action is warranted “[i]f the record
before the agency does not support the agency action, if the
agency has not considered all relevant factors, or if [the court]
simply cannot evaluate the challenged agency action on the basis
of the record before [it].”
C.K., 92 F.3d at 184 (quoting
Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985)).
D.
Analysis
The United States Code specifies when a federal sentence
commences, see 18 U.S.C. § 3585(a), and requires the BOP to award
prior custody credit for time served prior to commencement of the
sentence which has not been credited against another sentence,
see 18 U.S.C. § 3585(b).
Specifically, § 3585 provides, in
relevant part:
(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–
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(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.A. § 3585 (a), (b).
Section 3621(b) gives the BOP the authority to designate the
place of imprisonment once a federal sentence commences:
(b) Place of imprisonment.-- 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. . . . , 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 [that articulated the purpose behind the
sentence or offered a recommendation for placement]
. . .
(5) any pertinent policy statement issued by the
Sentencing Commission pursuant to section 994(a)(2) of
title 28.
18 U.S.C. § 3621(b).
The question is whether the BOP abused its discretion under
Barden in denying nunc pro tunc designation for 15 months from
May 29, 2009 (date of state arrest) through August 23, 2010 (date
of state parole), where all of this time was credited to
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Petitioner’s New Jersey sentence and § 3585(b) prohibits the BOP
from granting prior custody credit for time credited against a
state sentence.
In Barden, the state arrested Barden on April 28, 1975; on
October 21, 1975, the federal court imposed a 20-year sentence;
on November 12, 1975, the state court imposed a sentence of 11 to
30 years to run concurrently with the federal sentence; on
December 15, 1986, the state paroled Barden to federal officials;
and on February 12, 1987, Barden arrived at the federal facility.
See Barden, 921 F. 2d at 478.
The BOP denied Barden’s request
for double credit on the ground that it lacked the statutory
authority to do so.
The Third Circuit granted Barden a writ of
habeas corpus and remanded to the BOP, holding that the BOP
mistakenly failed to recognize its discretion to nunc pro tunc
designate a state facility under 18 U.S.C. § 3621(b) as a place
of federal confinement where the inmate could gain credit against
his federal sentence for time which Barden served in the state
facility.
The Third Circuit explained its reasoning:
We agree with Barden that the federal government has
the statutory authority to make the nunc pro tunc
designation Barden desires. On this record, Barden is
entitled to a writ of habeas corpus to compel the
Bureau to consider his case. We do not pass upon
Barden’s contention that he is entitled to a favorable
exercise of the broad discretion the Federal Bureau of
Prisons (Bureau) has in acting on his request.
Instead, we hold only that the federal authorities have
an obligation . . . to look at Barden’s case and
exercise the discretion [18 U.S.C. § 3621(b)] grants
the Bureau to decide whether the state prison in which
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he served his sentence should be designated as a place
of federal confinement nunc pro tunc. The answer to
that question will depend on the Bureau’s practice in
making such designations, as well as its assessment of
Barden’s conduct in custody, the nature of his crime
and all the other factors that govern penal
authorities’ consideration of a prisoner’s request for
relief from the strict enforcement of his sentence.
Barden, 921 F. 3d at 478 (footnote omitted).
“In calculating a federal sentence, the BOP first determines
when the sentence commenced and then determines whether the
prisoner is entitled to any credits toward his sentence.”
648 F. 3d at 207.
Blood,
Pursuant to § 3585(a), “[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.”
18 U.S.C. § 3585(a).
In United States v. Wilson, 503 U.S. 329, 333 (1992),
decided two years after Barden, the Supreme Court emphasized that
“the final clause of § 3585(b) allows a defendant to receive
credit only for detention time ‘that has not been credited
against another sentence.’”
Similarly, in Rios v. Wiley, 201
F.3d 257 (3d Cir. 2000), the Third Circuit ruled that § 3585(b)
does not permit the BOP to grant credit against a federal
sentence for time that has been credited against defendant’s
state sentence, even though the defendant was writted to the
control of federal authorities while awaiting federal trial.
Id.
at 274 (“[A]s the BOP correctly argues, the law on this point is
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clear: a prisoner detained pursuant to a writ of habeas corpus ad
prosequendum remains in the primary custody of the first
jurisdiction unless and until the first sovereign relinquishes
jurisdiction over the prisoner").
Upon review of the record in this case, this Court finds
that Petitioner has not shown that he is entitled to habeas
relief.
The BOP reviewed his request for nunc pro tunc
designation under the factors listed in § 3621(b), relied on §
3621(b)(2), the nature of his federal crime; § 3621(b)(3)
Petitioner’s history and characteristics; and § 3621(b)(4),
silence of the sentencing court.
(Dkt. 6-1 at 24.)
The BOP
considered Petitioner’s request, applied the appropriate
statutory factors, and did not act arbitrarily, capriciously, or
contrary to law.
See Eccleston v. United States, 390 Fed. App’x
62 (3d Cir. 2010); Galloway v. Warden of F.C.I. Fort Dix, 385
Fed. App’x 59 (3d Cir. 2010).
In his Reply, Petitioner argues that the BOP abused its
discretion in failing to consider the New Jersey court’s order
that the New Jersey sentence run concurrently to the federal
sentence.
Specifically, he maintains:
“While the state judge’s
ruling is not binding on the Bureau of Prisons, the Petitioner
asserts that by failing to consider the state judge[’]s ruling,
the Bureau of Prisons abused its discretion.”
(Dkt. 7 at 5.)
However, the record shows that the BOP did consider the New
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Jersey court’s determination that its sentence run concurrently
with the federal sentence.
The final administrative decision
issued by Harrell Watts expressly references that argument:
“You
make this request to effectuate the application of custody credit
for time spent in state custody, contending the state intended
its sentence to run concurrent to the federal term.”
at 17.)
(Dkt. 6-2
Moreover, Barden does not require the BOP to give any
particular weight to the state judge’s intention.
See Barden,
921 F.2d 478 n.4 (“[N]either the federal courts nor the Bureau
are bound in any way by the state court’s direction that the
state and federal sentences run concurrently”).
Petitioner further argues that the BOP abused its discretion
in failing to mention that the possession of a weapon offense
occurred 25 years ago and five of his six controlled substance
offenses occurred over 14 years ago.
(Dkt. 7 at 6.)
However,
the failure to mention the specific dates of Petitioner’s prior
convictions does not constitute an abuse of discretion,
particularly since the BOP’s worksheet applying the § 3621(b)
factors does mention his clear conduct record during his federal
incarceration and accurately states that his “criminal history
includes convictions for:
possession of a weapon, and possession
of a controlled substance (6 times).”
(Dkt. 6-1 at 24.)
Harris has not shown that the BOP abused its discretion in
denying his request for nunc pro tunc designation.
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This Court
will accordingly dismiss the Petition.
See Eccleston v. United
States, 390 Fed. App’x 62 (3d Cir. 2010); Galloway v. Warden of
F.C.I. Fort Dix, 385 Fed. App’x 59 (3d Cir. 2010).
III.
CONCLUSION
For the reasons set forth above, the Court dismisses the
Petition.
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
Dated:
September 18
, 2012
At Camden, New Jersey
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