EDWARDS v. HOLLINGSWORTH et al
Filing
10
OPINION FILED. Signed by Judge Renee Marie Bumb on 2/27/14. (js)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
________________________________
:
MARK EDWARDS, JR.,
:
: Civil Action No. 13-3153 (RMB)
Petitioner,
:
:
v.
:
OPINION
:
JORDAN HOLLINGSWORTH, et al.,
:
:
Respondents.
:
_______________________________________
:
BUMB, District Judge:
This matter, being commenced as a § 2241 habeas proceeding,
raised the issues that, while legally straightforward, have been
mired by Petitioner’s confusing allegations.
Petitioner’s
allegations conflate three wholly distinct and different habeas
claims: (a) a § 2241 claim implicating the so-called Willis
credit; (b) a § 2241 claim implicating the so-called Barden
designation; and (c) a de facto § 2255 claim seeking downward
departure of Petitioner’s federal sentence.
For the reasons
detailed below, Petitioner’s Willis claim will be dismissed as
meritless.
Petitioner’s Barden claim will be severed into a new
and separate § 2241 habeas matter and dismissed for failure to
show a violation of his federal rights.
Finally, the claim
seeking a downward departure of his federal sentence will be
dismissed for lack of jurisdiction.
No new and separate matter
will be commenced in connection with this last claim, since such
measure is not in the interests of justice.
I.
BACKGROUND
Petitioner has an extensive criminal history.
Prior to his
state and federal offenses detailed below, he had also committed
and been convicted of numerous other offenses such as “aggravated
robbery with a deadly weapon, distribution of methamphetamine,
aiding and abetting [a criminal conduct], assault on a federal
officer with a dangerous weapon, . . . resisting arrest,” etc.
Docket Entry No. 8, at 2 (capitalization removed).
After the foregoing, on July 16, 2000, he was arrested in
Tennessee on new state charges, such as aggravated assault,
possession of cocaine, etc.
Moreover, at the time of his
Tennessee arrest, he was already under an investigation by the
federal authorities of the Virginia vicinage of the Drug
Enforcement Administration.
Ten days after his Tennessee arrest,
that federal investigation concluded, and the Government filed a
criminal complaint against him in the United States District
Court for the Western District of Virginia (“W.D. Va.”).1
1
Petitioner’s federal criminal complaint filed with the
W.D. Va. charged him with nineteen various counts of violations.
In addition to Petitioner (who proceeded as Mark Edwards, Jr.),
other individuals, i.e., Mark Edwards, Sr., Donald Allen Edwards,
Antoine Washington, Latisha Smith, Amy Childress and Marlon Craig
Heath were named as defendants. See USA v. Edwards, Crim. Action
No. 00-0087 (JPJ) (W.D. Va.), Docket Entry No. 1.
2
In light of that federal prosecution, the W.D. Va.: (a)
lodged a detainer against him with the Tennessee officials; and
(b) eventually directed Petitioner’s production in federal forum
under a writ of habeas corpus ad prosequendum (“WHCAP”) for the
purposes of his federal arraignment.
After that arraignment took
place, and the WHCAP expired, Petitioner was returned to
Tennessee custody and remained there until his next federal WHCAP
was issued, this time for the purposes of his federal trial.
After he was found guilty of various offenses (such as conspiracy
and distribution of crack cocaine), various firearm offenses and
other offenses, the W.D. Va. sentenced him to a 308-month term,
which was later reduced to 241 months.
Nothing in his federal
judgment of conviction indicated the sentencing court’s intention
to impose a concurrent term.
After Petitioner’s W.D. Va. sentencing, his second federal
WHCAP expired, and he was returned to Tennessee custody for the
purposes of his state prosecution.
On September 14, 2001, he was
sentenced to a 72-month state term.
The state court ordered it
to run concurrently to Petitioner’s W.D. Va. term.
Since Petitioner was first arrested by Tennessee, he
proceeded to serve his state term, which expired on August 8,
2003.
On that date, Petitioner was placed into federal custody
for the purposes of serving his W.D. Va. sentence.
At that
point, the Bureau of Prisons (“BOP”) calculated Petitioner’s W.D.
3
Va. term as commencing on August 8, 2003, and awarded him prior
custody credit for July 16, 2000 (the date of his initial arrest)
and July 17, 2000, since his Tennessee state term was credited
with jail credits only starting from July 18, 2000.
Petitioner then sought a Bargen designation, which the BOP
denied.
That initial denial factored, inter alia, an error
contained in Petitioner’s pre-sentence investigation report
(“PSIR”), which indicated that his Tennessee sentence was imposed
on July 18, 2000, i.e., prior – rather than after – his W.D. Va.
sentence.
Petitioner then filed the Petition at bar, asserting
that: (a) he should have been granted what he defined as “Willis
credit” on the grounds that a federal detainer was lodged against
him while he was held in Tennessee custody; and (b) such “Willis
credit” should have been equal to the entire period of his
Tennessee sentence; or, in alternative (c) his federal term
should be downwardly adjusted by the amount of his Tennessee
term.
In sum, Petitioner raised two different claims
substantively arguing the same point, i.e., that his Tennessee
term should have been used to offset his W.D. Va. term.
Addressing this panoply of challenges, the BOP reviewed
Petitioner’s record and detected the above-mentioned error in his
PSIR.
Upon realizing that its prior Barden analysis was
compounded by that PSIR error, the BOP conducted its Barden
analysis anew, and concluded that no Barden designation was
4
warranted.
That second Barden determination was reached already
after Respondents filed their answer in the instant matter
(noting, in passim, that the new Barden analysis was underway).
See Docket Entries Nos. 7 and 8.
Shortly after filing its
answer, Respondents supplemented the docket by notifying this
Court that the BOP denied Petitioner’s second Barden review.
Petitioner traversed to Respondents’ answer and supplement, reraising his “Willis credit” claims and now litigating the outcome
of the BOP’s second Barden finding.
See Docket Entry No. 9.
Essentially, his traverse alleged that: (a) the BOP violated his
rights by concluding that no Barden designation was warranted;
and (b) Petitioner’s initial reference to Willis was meant to
implicate Willis not directly but “by analogy.”
II.
See id.
CONFLATION OF CLAIMS
No habeas petitioner can challenge different determinations,
regardless of whether they were judicial or administrative, in a
single action.
“Habeas Rules do not envision . . . a lump-sum
challenge to the circumstances which a litigant might find
[himself] in.
Rather, [under] Habeas Rule 2(e), [every]
petitioner is obligated to submit a separate habeas application
challenging each particular determination . . . .
Therefore,
[the] petitioner shall select, for the purposes of each . . .
habeas action, [a] particular [administrative or judicial]
determination . . . he wishes to challenge, and then file an
5
individual petition with regard to each specific challenge.”
Alou v. Holder, 2010 U.S. Dist. LEXIS 113717, at *2-3 (D.N.J.
Oct. 22, 2010) (citing 28 U.S.C. § 2254 Rule 2(e), applicable to
§§ 2241 and 2255 petitions through Habeas Rule 1(b))
(capitalization removed); see also Muniz v. Zickefoose, 2011 U.S.
Dist. LEXIS 115766, at *13 (D.N.J. Sept. 30, 2011) (noting the
same as “axiomatic”), aff’d, 460 F. App'x 165 (3d Cir. 2012).
It
follows that, where a litigant raises different habeas challenges
in a single action, the court either dismisses his claims for
failure to comply with Habeas Rule 2(e) or severs each line of
challenges into its own, new and separate, habeas matter in order
to address its procedural or substantive properties.
See Izac v.
Norwood, 2010 U.S. Dist. LEXIS 129520 (D.N.J. Dec. 7, 2010).
III. CALCULATION OF SENTENCE
A.
Governing Legal Principles
“The authority to calculate a federal prisoner’s release
date for the sentence imposed, and to provide credit for presentence detention and good conduct, is delegated to the Attorney
General, who acts through the [BOP].”
Armstrong v. Grondolsky,
341 F. App’x 828, 830 (3d Cir. 2009) (citing United States v.
Wilson, 503 U.S. 329, 334-35 (1992)).
“In calculating the
sentence, the BOP determines[:] (1) when the federal sentence
commenced, and (2) whether there are any [de jure or de facto]
credits to which the prisoner may be entitled.”
6
Nieves v. Scism,
2013 U.S. App. LEXIS 10989, *3 (3d Cir. 2013) (citing 18 U.S.C. §
3585).
Technically, a sentence commences on the date when a
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); see also Howard v. Longley, 2013
U.S. App. LEXIS 17905, at *4 (3d Cir. Aug. 27, 2013) (“a sentence
cannot [technically] start earlier than the day it was imposed .
. . ‘even if made concurrent with a sentence already being
served’”) (quoting United States v. Flores, 616 F.2d 840, 841
(5th Cir. 1980)).
It follows that a federal sentence does not
begin to run when a defendant is placed in federal custody under
a WHCAP, see generally, Ruggiano v. Reish, 307 F.3d 121 (3d Cir.
2002), since primary jurisdiction remains vested in the state if
it is the sovereign arrested the defendant first.
In fact,
primary jurisdiction remains with the state until it relinquishes
its priority, which the state can do only by one of four ways:
(a) bail release; (b) dismissal of all charges; (c) parole
release; or (d) expiration of sentence.
See Rios v. Wiley, 201
F.3d 257, 274 (3d Cir. 2000), superseded on other grounds, as
stated in, United States v. Saintville, 218 F.3d. 246, 248-49 (3d
Cir. 2000); Davis v. Sniezek, 403 F. App’x 738, 740 (3d Cir.
2010) (same, relying on United States v. Cole, 416 F.3d 894, 897
(8th Cir. 2005)); see also Chambers v. Holland, 920 F. Supp. 618,
7
622 (M.D. Pa.) (“Primary jurisdiction over a state prisoner ends
and federal custody over him commences only when the state
authorities relinquish him on satisfaction or extinguishment of
[his] state obligation[s]”), aff’d, 100 F.3d 946 (3d Cir. 1996);
accord Carmona v. Williamson, No. 05-0022, 2006 U.S. Dist. LEXIS
77201 (M.D. Pa. Oct. 23, 2006) (since the state holds primary
jurisdiction over the defendant, the federal officials assume
secondary jurisdiction while he is serving his state sentence).
Once the state’s primary jurisdiction is relinquished,
federal jurisdiction transforms from secondary to primary.
Chambers, 920 F. Supp. at 622.
See
If, at that juncture, an inmate
enters the BOP custody, the BOP calculates his projected release
date by factoring in the specifics of his federal sentence and
all appropriate credits.
See Armstrong, 341 F. App’x at 830.
The key point of this calculative process is the well-settled
legal principle that a federal prisoner cannot receive a socalled “double credit,” i.e., a credit for the time already
credited against his state sentence.
See Wilson, 503 U.S. at 337
(in enacting § 3585(b), “Congress made clear that a defendant
could not receive a double credit for his detention time”).
However, a federal prisoner is entitled to a so-called “prior
custody credit” for the time he spent in detention before his
federal sentence technically began if this period has not already
been credited against his other sentence.
8
See 18 U.S.C. §
3585(b) (a “prior custody credit” is proper in the event that
detention resulted either from the offense for which the sentence
was imposed or from “any other charge for which the defendant was
arrested after the commission of the offense for which the
sentence was imposed [if that period] has not been credited
against any other sentence”).
The § 3585(b) rule detailed in Wilson is, arguably subject
to two narrow exceptions.
See Rios, 201 F.3d at 272 n.13
(reflecting on Kayfez v. Gasele, 993 F.2d 1288 (7th Cir. 1993),
and Willis v. United States, 438 F.2d 923 (5th Cir. 1971)).
However, both Kayfez and Willis require that an inmate’s state
and federal sentences were ordered concurrent by both state and
federal courts.1
1
In Willis, while being free on bail with regard to his
federal charges, the petitioner was arrested by state
authorities, and that state arrest caused revocation of his
federal bail and filing of a federal detainer against him. That
federal detainer was, in turn, the sole basis for denial of
Petitioner’s release on bail for the purposes of his state
charges. The state court tried to give the petitioner credit for
the brief period when he was denied bail on his state charges.
However, this did not help the petitioner since his federal term
was due to expire long after his state terms. Correspondingly, he
claimed that he was entitled to the same credit against his
federal sentence, i.e., the credit for the brief period when he
was denied bail on his state charges. The Fifth Circuit agreed
finding that, if petitioner was in fact denied release on bail
solely because his federal detainer, then the time he spent in
custody in connection with that detainer was the time that had to
be factored into his federal term under 18 U.S.C.S. § 3568. See
Elwell v. Fisher, 716 F.3d 477, 485 (8th Cir. 2013) (“[T]he
theory of Willis [was that,] when a federal detainer was in
place, a defendant could receive credit for time in custody
associated with the federal proceedings (seemingly regardless of
9
In addition to granting prior custody credits, as well as
Willis credits and Kayfez credits, the BOP may take an
administrative action creating a credit-like effect.
See, e.g.,
Barden v. Keohane, 921 F.2d 476, 483 (3d Cir. 1990).
The Barden analysis could be summarized this way:
Under Section 3621(b), the BOP has discretion – i.e.,
the BOP may but not must – designate, [either
prospectively] or nunc pro tunc, a state facility where
a prisoner [is serving or] served his state sentence as
a facility where the prisoner [is or] was serving his
federal sentence. . . . The BOP may exercise such
discretion only if the state court clearly indicated
its intention to have the prisoner’s state sentence run
concurrently with the prisoner’s already imposed
federal sentence. Once the BOP determines such clear
intent on behalf of the state court, the BOP: (1) is
obligated to exercise its discretion by considering the
prisoner’s application in light of the factors stated
in § 3621(b); but (2) is not obligated to grant the
prisoner’s request if, upon considering the prisoner’s
application in light of the factors stated in §
3621(b), the BOP concludes, in good faith, that such
nunc pro tunc designation is not warranted.
Galloway v. Warden of F.C.I., 2009 U.S. Dist. LEXIS 9293, at *1011 (D.N.J. Feb. 9, 2009) (emphasis supplied), aff’d, 385 F. App’x
59 (3d Cir. 2010) (where the BOP effectively frustrated the
express wishes of the state judge who wrote, “It is difficult to
comprehend [why the petitioner’s] sentence, against [my] clear
primary jurisdiction) unless the government met the burden of
proving that the defendant would have remained in state custody
even in the absence of the federal detainer”). Willis credit
cannot exceed the “time spent in presentence state custody up to
the date of the state sentence.” Zwick v. Holt, 2011 U.S. Dist.
LEXIS 142381, at *9 (M.D. Pa. Dec. 12, 2011) (emphasis in
original).
10
direction, should not run concurrent with [his f]ederal
sentence,” the BOP did not abuse its discretion in denying a
Barden designation, since the agency did not abdicate its
responsibility to independently decide the issue.
A habeas
review does not turn on what is “difficult to comprehend”: it is
“limited to whether the BOP abused its discretion”).
In addition, a prisoner’s federal term could be reduced as a
result of a downward departure granted by his sentencing federal
court; with regard to that decision, the BOP has no authority but
to execute it faithfully.
Accord Setser v. United States, 132 S.
Ct. 1463, 1470 (2012) (“3621(b) . . . does not confer [upon the
BOP] authority to choose between concurrent and consecutive
sentences”).2
That being said, if the federal court does not address the
issue of concurrence expressly, the BOP is obligated to presume
an implied consecutiveness, not concurrence, of the federal term.
See 18 U.S.C. § 3584(a) (“Multiple terms of imprisonment imposed
2
For instance, if the federal court directs a prisoner’s
federal term to run in prospective concurrence to his
undischarged (either already running or yet-to-be imposed) state
sentence, or if the federal court orders retroactive concurrence
to an already-running state term, the BOP can neither secondguess nor alter that judgment. See 18 U.S.C. § 3584(a)
(expressly allowing prospective concurrence to an undischarged,
already-running state term); accord Setser v. United States, 132
S. Ct. 1463 (distilling the power of federal courts to order
prospective concurrence to a yet-to-be-imposed state term); see
also Ruggiano, 307 F.3d 121 (articulating the power of federal
courts to order retroactive concurrence to an undischarged,
already-imposed state sentence).
11
at different times run consecutively unless the court orders that
the terms are to run concurrently”) (emphasis supplied).
B.
Petitioner’s Willis Claim Is Without Merit
Here, the Petition asserted that the BOP failed to grant him
Willis credit, and Petitioner’s traverse – seemingly prompted by
Respondents’ answer pointing out that Willis was inapposite to
Petitioner’s circumstances – alleged that Petitioner meant to
invoke Willis not directly but “by analogy.”
The best this Court can surmise, Petitioner posed the
following five-step hypothesis: (a) first, he alleged his belief
that, had the Government not lodged a federal detainer in
Tennessee, the state court might have released him on bail on his
Tennessee charges; (b) if so, Tennessee’s primary jurisdiction
over Petitioner would be relinquished upon that bail; (c) had the
United States arrested Petitioner after his release on state bail
but prior to the point in time when that bail had to be revoked
(for the purposes of his state prosecution, sentencing and state
prison term) and, in addition, had the W.D. Va. denied Petitioner
release on federal bail, primary jurisdiction over Petitioner
would have vested and remained with the federal authorities,
while Tennessee’s jurisdiction would become and remain secondary;
(d) if so, Petitioner would have to serve his federal sentence
prior to returning to Tennessee for the purposes of serving his
state term; and (e) if so, his state judge’s order (directing his
12
state sentence to run concurrent to his federal term) would have
a practical effect.
See generally, Docket Entries Nos. 1 and 9.
Since: (a) the first step in Petitioner’s five-step hypothesis
derived from the fact that the W.D. Va. lodged a federal detainer
against him; and (b) the Willis decision addressed a scenario
where a federal detainer affected the calculation of an inmate’s
federal term, Petitioner invited this Court to apply Willis “by
analogy” and to expand Willis so it would: (a) apply to the
prison terms that are not concurrent on both federal and state
sides; and (b) cover not only the brief presentencing period but
the entire period of an inmate’s state prison term.
See id.
This Court declines to adapt Petitioner’s approach.
First,
Petitioner’s exponential layers of self-serving speculations
and hypotheticals cannot support any claim.
Accord Salyer
Land Co. v. Tulare Lake Basin Water Storage Dist., 410 U.S.
719, 731 (1973) (legal “adjudication cannot rest on any such
‘house that Jack built’ foundation”).
Here, Petitioner
offered this Court nothing but his speculation that
Tennessee would have released him on bail had it not been
for his federal detainer.3
3
Petitioner’s federal detainer was issued ten days after
Petitioner’s Tennessee arrest and entered in the record eleven
days after that arrest, i.e., long after the point in time when
he had to be availed to a bail hearing on his state charges. If
Petitioner had his Tennessee bail prior to the date of entry of
the detainer, the detainer could not have been a basis of that
decision. Moreover, even if Petitioner’s Tennessee bail hearing
13
In addition, even if this Court were to presume, arguendo,
that Willis is still good law, nothing in Willis permits the
enlargement Petitioner argues for: the Fifth Circuit’s ruling
covered only the presentencing period, not the prison term.4
Finally, and paramount here, the record is unambiguous that
Petitioner’s term imposed by the W.D. Va. was wholly silent as to
any concurrence (which, under § 3584(a), necessarily implied
consecutiveness) and, moreover, Petitioner’s W.D. Va. judge
expressly verified so in his latest communication to the BOP.
See Docket Entry No. 8.
Therefore, the core prerequisite of
Willis is not satisfied in this matter, and both other elements
of Willis are also not met.
Thus, Willis is wholly inapposite
here, either directly or by the baseless “analogy” Petitioner
posed.
C.
Therefore, his Willis claim is without merit.
Petitioner’s Barden Claim Is Without Merit
As detailed supra, Respondents’ answer to the Petition
indicated that, after Petitioner filed his Petition at bar, the
BOP conducted its Barden analysis anew.
Reflecting on Section
took place after the detainer was entered, his extensive criminal
record (accrued prior to his Tennessee arrest) suggests that his
denial of bail in Tennessee was reached not solely on the grounds
of his federal detainer.
4
Willis is a narrow exception to the Wilson rule, and the
value of it has been called into question under the provision
upon which the Fifth Circuit relied, i.e., § 3568 (which did not
expressly preclude double credit) and, especially, under the
superceding provision, § 3585, which expressly precluded double
credit. See Rios, 201 F.3d at 273 n.14.
14
3621(b) factors, the BOP assessed, inter alia, Petitioner’s W.D.
Va. and Tennessee offenses, his prior offenses, the pertinent
agency policy and the statement from Petitioner’s W.D. Va. judge.
With regard to this last factor, the BOP noted:
The sentencing court was contacted to obtain [its]
opinion regarding the granting of [Barden] designation
on June 15, 2013. A response was received from the
sentencing court on June 19, 2013. In [connection with
the issue raised, the sentencing court] respond[ed] “I
do not think a [Barden] designation would be
appropriate in this case . . . .”
Docket Entry No. 8.
Thus, the BOP duly exercised its discretion and concluded
that, under Section 3621(b) factors, no Barden designation was
warranted.
The BOP determination was issued on June 20, 2013,
and sent to Petitioner.
Although the record is silent as to the
exact date when that determination reached Respondents’ counsel,
the docket shows that, by August 1, 2013, Respondents’ counsel
learned of the same and filed a supplement to the answer
informing the Court of that agency finding.5
See id.
This Court, sitting in habeas review, has no basis to find
5
From the facts that: (a) Respondents’ answer was filed on
July 1, 2013, and asserted that the BOP was still in the process
of re-analyzing Petitioner’s Barden designation; while (b) the
W.D. Va. responded to the BOP inquiry eleven days prior, i.e., on
June 19, 2013, and the BOP reached its decision on June 20, 2013,
i.e., ten days prior to Respondents’ filing of their answer,
Petitioner deduced that “Respondent[s’] counsel lied, fabricated,
masterminded and created a scheme [under which the W.D. Va. came
to be] of opinion not to recommend a nunc pro tunc designation to
the Bureau of Prisons.” Docket Entry No. 9, at 1-2.
15
an error in the BOP determination.
Nothing in the record
suggests that the BOP failed to exercise its independent
discretion or abused its discretion.
Therefore, Petitioner’s
Barden challenges will be dismissed for failure to show a
violation of his federal rights.6
Had Petitioner’s state court wished to ensure that its
directive (as to concurrence of Petitioner’s state and federal
sentences) would be enforceable, it could have simply released
him on bail or modified his Tennessee sentence.
IV.
CHALLENGES TO THE FEDERAL SENTENCE
28 U.S.C. §§ 2241 and 2255 confer jurisdiction over the
petitions filed by federal inmates.
Since “[t]he exact interplay
between § 2241 and § 2255 is complicated, [and] an explication of
that relationship is unnecessary for resolution of this
6
Since Petitioner’s Barden claim is attacking a finding
made by the BOP in the midst of this litigation, this claim
cannot be litigated in the instant matter, which challenged a
wholly different BOP determination (responding to Petitioner’s
Willis claim). Thus, under Habeas Rule 2(e), the Court will
sever Petitioner’s Barden claim into a new and separate § 2241
action. Petitioner will be directed to submit his $5 filing fee
or in forma pauperis application in that action. See Hairston v.
Gronolsky, 348 F. App’x 716, at *5 (3d Cir. Oct. 15, 2009)
(citing Hall v. Stone, 170 F.3d 706, 707 (7th Cir. 1999), for the
observation that the prisoner’s legal obligation to pay the
filing fee or obtain in forma pauperis status is automatically
incurred by the very act of raising a legal claim). Respondents
will be directed to enter an appearance and supplement the record
by filing the response received from the W.D. Va. Finally, while
the Court notes its uncertainty as to whether Petitioner’s Barden
claim was duly exhausted, the Court finds it warranted to excuse
Petitioner’s failure to exhaust (if such failure was present).
16
[matter],” Cardona v. Bledsoe, 681 F.3d 533, 535 (3d Cir. 2012)
(citing In re Dorsainvil, 119 F.3d 245, 249 (3d Cir. 1997)), it
should be enough to state that “[m]otions pursuant to 28 U.S.C. §
2255 are the presumptive means by which federal prisoners can
challenge their convictions or sentences that are allegedly in
violation of the Constitution.”
Okereke v. United States, 307
F.3d 117, 120 (3d Cir. 2002).7
Here, Petitioner asserts that his W.D. Va. term should have
been subject to a downward departure.
However, neither the BOP
nor this Court, sitting in § 2241 review, has the mandate to
direct such departure.8
Therefore, Respondents are correct that
this claim is a mislabeled § 2255 challenge and should have been
raised before the W.D. Va. by means of a timely § 2255 motion.
Here, Petitioner already filed a § 2255 motion and: (a) had
it denied by the W.D. Va.; (b) had his motion for reconsideration
denied by the W.D. Pa.; (c) had his appeal dismissed by the
Fourth Circuit; and (d) had his petition for certiorari denied by
7
An attack of one’s sentence or conviction cannot be
converted into a § 2241 claim by one’s reference to his federal
detainer, since a detainer is not a jurisdiction-supplying order.
See, e.g., Bayard v. Hufford, 2011 U.S. Dist. LEXIS 153245, at
*13 (M.D. Pa. Sept. 13, 2011); Ryan v. Dep’t of Homeland Sec.,
2010 U.S. Dist. LEXIS 34951, at *2-3 (N.D. Fla. Mar. 8, 2010).
8
While the court sitting in § 2241 review has the power to
enforce the downward departure directed by the federal sentencing
court, see Setser, 132 S. Ct. 1463; Ruggiano, 307 F.3d 121,
nothing in the record suggests that the W.D. Va. directed such
departure.
17
the Supreme Court.
See United States v. Edwards, 131 F. App’x
963 (4th Cir. 2005), cert. denied, 546 U.S. 923 (2005).
Thus, it
would not be in the interest of justice to commence a new § 2255
action for Petitioner and direct its transfer to the W.D. Va.9
In light of the foregoing, Petitioner’s downward departure
attack will be dismissed for lack of jurisdiction, without more.
V.
CONCLUSION
For the foregoing reasons, Petitioner’s Willis claim will be
dismissed as meritless.
Petitioner’s Barden claim will be
severed into a new action and dismissed for failure to show a
violation of Petitioner’s federal rights.
Respondents will be
directed to enter an appearance in that new action and file the
response received by the BOP from the W.D. Va. as to Petitioner’s
Barden designation.
Petitioner will be directed to pay his
filing fee in that new matter or obtain in forma pauperis status.
Petitioner’s mislabeled § 2255 downward-departure claim will be
dismissed for lack of jurisdiction.
The Clerk will be directed
to amend the docket by correcting Petitioner’s inmate number.10
9
However, no statement in this Opinion or in the Order
filed herewith prevents Petitioner from seeking Fourth Circuit’s
leave to file a second/successive § 2255 motion out of time.
This Court, however, stresses that it expresses no opinion as to
substantive or procedural validity or invalidity of such motion.
10
The Petition indicated that Petitioner’s inmate number
was 06581-084. See Docket Entry No. 1, at 1. However, that
inmate number belonged to another individual, Dennis Harold Reed,
who was released on December 1, 2005. See http://www.bop.gov/
inmateloc/. The Court’s sua sponte review of the BOP’s records
online determined that Petitioner’s inmate number was 06851-084.
18
An appropriate Order follows.
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
Dated: February 27, 2014
See id. It is, therefore, not surprising that all Clerk’s
mailings were returned as undeliverable. See Docket Entries Nos.
5 and 6.
19
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