BIEAR v. HOLLINGSWORTH
Filing
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OPINION. Signed by Judge Noel L. Hillman on 8/2/2016. (tf,n.m.)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
JAMES STEVEN BIEAR,
Petitioner,
v.
JORDAN HOLLINGSWORTH,
Respondent.
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Hon. Noel L. Hillman
Civil No. 13-3501 (NLH)
OPINION
APPEARANCES:
JAMES STEVEN BIEAR, #62930-054
FCI Fort Dix
P.O. Box 2000
Fort Dix, NJ 08640
Petitioner Pro Se
DAVID VINCENT BOBER, ASSISTANT UNITED STATES ATTORNEY
PAUL J. FISHMAN, UNITED STATES ATTORNEY
402 East State Street - Suite 430
Trenton, New Jersey 08608
Attorney for Respondent
HILLMAN, District Judge:
James Biear 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, together with a declaration and several
exhibits.
Biear filed a Reply.
After reviewing the arguments
of the parties, the Court finds that the BOP did not abuse its
discretion and will dismiss the Petition.
I.
BACKGROUND
Federal authorities in the Southern District of New York
arrested Biear on November 23, 2009.
He was released on bail
the same day to New York state authorities to answer to state
criminal charges and was taken into state custody.
See United
States v. Biear, Crim. No. 09-1185 (PKC) (S.D.N.Y. filed Dec.
15, 2009).1
Pursuant to a writ of habeas corpus ad prosequendum,
Biear appeared on January 4, 2010 before a United States
Magistrate Judge in the Southern District of New York for a
detention hearing; the Magistrate Judge revoked the previous
bail conditions and ordered Biear detained.
Biear remained in
the physical custody of the U.S. Marshal pursuant to the writ of
habeas corpus ad prosequendum through early April 2012,
appearing before the District Court on numerous occasions.
More
specifically, trial began on November 8, 2010, before U.S.
District Judge P. Kevin Castel.
On November 22, 2010, the jury
found Biear guilty on all ten counts of a third superseding
The indictment and superseding indictments charged Biear with
crimes stemming from a scheme to defraud Kenward Elmslie, the
heir to the Pulitzer fortune, for whom Biear worked as a driver
and personal assistant, of his artwork, money, and other
property, and further charged that Biear then profited by
defrauding other victims with the proceeds of the crimes
committed against Elmslie. See United States v. Biear, 2011 WL
336383 (S.D.N.Y. Jan. 31, 2011).
1
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indictment.
On March 29, 2012, Judge Castel sentenced Biear to
120 months in prison and four years of supervised release.
judgment was entered on March 30, 2012.2
The
The record indicates
that on or about April 2, 2012, the U.S. Marshal returned Biear
to the physical custody of New York State authorities. (ECF No.
12-1 at 11.)
On August 16, 2012, Biear was convicted in the New York
Supreme Court, Westchester County, of the Class A misdemeanor of
Falsely Reporting an Incident in the Third Degree and sentenced
the same day to a term of “time served.”
30.)
(ECF Nos. 12-1 at 23,
New York discharged him from state custody also on the
same day and federal authorities took Biear into federal custody
for service of his federal sentence.
On February 8, 2013, Biear filed an administrative remedy
request with the Warden of FCI Fort Dix challenging the failure
to give him credit against his federal sentence from November
24, 2009, through August 15, 2012.
Warden Hollingsworth denied
Biear appealed, and on March 11, 2014, the Second Circuit
affirmed. See United States v. Biear, 558 F. App’x 61 (2d Cir.
2014). On November 10, 2014, the Supreme Court denied
certiorari. See United States v. Biear, 135 S.Ct. 500 (2014).
On or about November 6, 2015, Biear filed a motion to vacate his
sentence, see 28 U.S.C. § 2255, arguing that counsel was
constitutionally ineffective. See Biear v. United States, Civ.
No. 8761 (PKC) (S.D.N.Y. filed Nov. 6, 2015). The matter is
pending. Id.
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administrative relief on March 1, 2013.
Biear appealed to the
Regional Director who granted relief to the extent of forwarding
Biear’s request to the Designation and Sentence Computation
Center for review and determination as to whether he should be
granted nunc pro tunc designation pursuant to Program Statement
5160.05, Designation of State Institution for Service of Federal
Sentence.
Biear appealed to the Central Office.
By letter to the BOP’s Designation and Sentence Computation
Center dated April 8, 2013, Westchester County Assistant
District Attorney Brian F. Fitzgerald confirmed that on August
16, 2012, Biear was convicted of the Class A misdemeanor of
Falsely Reporting an Incident in the Third Degree and sentenced
to a term of “time served.”
(ECF No. 12-1 at 30.)
Fitzgerald
stated that, pursuant to New York State Penal Law Section
70.15(1), a sentence of imprisonment for a class A misdemeanor
in the State of New York “... shall not exceed one year.” Id.
On April 8, 2013, the Designation and Sentence Computation
Center recalculated Biear’s prior custody credit and release
date, finding that his sentence commenced on August 16, 2012,
and that he was entitled to prior custody credit of 632 days,
i.e., credit for the day of November 23, 2009, and credit from
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November 24, 2010, through August 15, 2012.
(ECF No. 12-1 at
28.)
On May 10, 2013, Harrell Watts, Administrator, National
Inmate Appeals, issued a final decision on Biear’s
administrative appeal.
Watts found that, because Biear’s New
York conviction was a misdemeanor punishable by a term not to
exceed one year, only “the time [Biear] spent in custody from
November 24, 2009, through November 23, 2010, was included in
[his] ‘time served’ sentence[.]” (ECF No. 1 at 24.)
Thus, Watts
granted Biear’s appeal to the extent that he received prior
custody credit for the time from November 24, 2010 (the day
after the New York sentence of one year expired), through August
15, 2012 (the day before his federal sentence commenced).
Watts denied credit for the period from November 24, 2009,
through November 23, 2010.
Watts found that, because that one
year was credited to Biear’s New York sentence, 18 U.S.C. §
3585(b) prohibited the BOP from giving him double credit for
that time against his federal sentence.
(ECF No. 1 at 24-26.)
Watts stated that the BOP exercised its discretion to deny
credit for this period by nunc pro tunc designation, pursuant to
18 U.S.C. § 3621(b) and BOP Program Statement 5160.05,
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Designation of State Institution for Service of Federal
Sentence. Id.
Biear, who is incarcerated at FCI Fort Dix in New Jersey,
filed the present § 2241 Petition (under the mailbox rule) on
June 1, 2013.
He claims that the BOP erred and abused its
discretion in failing to give him prior custody credit against
his 120-month federal sentence for all the time he was detained
since his federal arrest on November 23, 2009.3
Biear argues
that the BOP improperly denied nunc pro tunc designation,
improperly interpreted his state sentence of “time served” as
running from November 24, 2009, through November 23, 2010,
failed to recognize that he was under the primary jurisdiction
of federal authorities during his pretrial detention period
because federal authorities took him into custody first, and
failed to recognize that U.S. Sentencing Guideline § 5G1.3(b)
permits adjustment of the sentence if the time in state
detention is related to the federal offense.
The government argues that the BOP correctly calculated
Biear’s federal release date, the BOP did not abuse its
Since the BOP’s final administrative decision granted Biear
prior custody credit for November 23, 2009, and from November
24, 2010, through August 15, 2012, the only time in controversy
is the one year (November 24, 2009 - November 23, 2010) that was
credited to Biear’s New York sentence.
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discretion in refusing to nunc pro tunc designate the New York
prison facility of the place for service of Biear’s federal
sentence during this one-year period, and there is no evidence
that the federal sentencing judge intended to adjust Biear’s
federal sentence under U.S. Sentencing Guideline § 5G1.3.
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
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
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(3d Cir. 2005); Barden v. Keohane, 921 F.2d 476, 478-79 (3d Cir.
1991).
B.
Standard of Review
Insofar as the BOP reviewed Petitioner’s request
challenging the calculation of his sentence, this Court’s review
is limited to the abuse of discretion standard.
See Galloway v.
Warden of FCI Fort Dix, 385 F. 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 a clear error
of judgment. . . .
Although this inquiry into the facts is to
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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.” Overton Park, 401 U.S. at 416.
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)).
C.
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
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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).
In addition, 18 U.S.C. § 3621(b) requires the BOP 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).
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In this case, the BOP found that Biear’s federal sentence
commenced on August 16, 2012, the date on which New York
sentenced Biear to “time served,” discharged him from New York
custody, and federal authorities took permanent custody.
(Sentence Monitoring Computation Data for James Biear dated Nov.
25, 2013, ECF No. 12-1 at 28.)
This determination complies with
18 U.S.C. § 3585(a), which provides that “[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.”
Accordingly, the BOP
did not abuse its discretion in determining that the 120-month
sentence commenced on August 16, 2012.
The next step in calculating an inmate’s release date is to
determine “whether the prisoner is entitled to any credits
toward his sentence [pursuant to] 18 U.S.C. § 3585.” Blood, 648
F.3d at 207.
In its final decision, the BOP granted Biear prior
custody credit for November 23, 2009 (the date federal
authorities arrested him and released him on bail), and from
November 24, 2010 (the day after his New York sentence expired),
through August 15, 2012 (the day before his federal sentence
commenced).
The dispute in this case focuses on whether the BOP
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abused its discretion in determining that Biear was not entitled
to prior custody credit under § 3585(b)(2) for the one year
(November 24, 2009 - November 23, 2010) that was credited to his
New York sentence.
First, Biear argues that this one year period should be
credited against his federal sentence because federal
authorities had primary jurisdiction over him due to the fact
that federal authorities arrested him on November 23, 2009, the
day before state authorities arrested him.4
The BOP found that
the federal court relinquished primary jurisdiction over Biear
when it released him on November 23, 2009, on bail; that New
York state had primary jurisdiction over Biear as a result of
his November 24, 2009, arrest; and that New York state did not
relinquish jurisdiction over Biear until August 16, 2012.5
Biear is correct that, where a defendant faces prosecution
by both state and federal authorities, under the primary
Biear argues that the “BOP fails to recognize the sovereign
which first arrested the offender has primary jurisdiction over
the offender.” (Petition, ECF No. 1 at 12.)
4
Watts found that “on November 23, 2009, you were arrested by
federal officials, made your initial appearance in federal court
and then released on bond. On November 24, 2009, you were taken
into local custody on charges related to False Sworn Statements.
This arrest placed you under the primary jurisdiction of the
state.” (ECF No. 1 at 24.)
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jurisdiction doctrine, the first sovereign to arrest the
defendant has primary jurisdiction and is entitled to have the
defendant serve that sovereign’s sentence before service of the
sentence imposed by the other sovereign. See Taccetta v. Fed.
Bur. of Prisons, 606 F. App’x 661, 663 (3d Cir. 2015); Bowman v.
Wilson, 672 F.2d 1145, 1153 (3d Cir. 1982).
However, a
sovereign relinquishes primary jurisdiction by releasing an
arrestee on bail. See Taccetta, 606 F. App’x at 663 (citing
United States v. Cole, 416 F.3d 894, 897 (8th Cir. 2005)); Davis
v. Sniezek, 403 F. App’x 738, 740 (3d Cir. 2010).
In this case,
although federal authorities arrested Biear first, the federal
court relinquished primary jurisdiction over Biear by releasing
him on bail on November 23, 2009. Id.
New York took primary
jurisdiction when New York authorities arrested him on November
24, 2009.
Although Biear was in the physical custody of federal
officials from approximately January 4, 2010, through April 2,
2012, this temporary transfer of Biear to federal authorities
pursuant to a writ of habeas corpus ad prosequendum did not
constitute relinquishment of primary jurisdiction by New York.
See Rios v. Wiley, 201 F.3d 257, 274-75 (3d Cir. 2000),
superseded on other grounds, see United States v. Saintville,
218 F.3d 246, 249 (3d Cir. 2000).
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Thus, the BOP correctly found that New York obtained
primary jurisdiction on November 24, 2009, and did not
relinquish primary jurisdiction over Biear until August 16,
2012, the date on which New York sentenced him to “time served”
and discharged him from state custody.
Next, Biear challenges the BOP’s determination that the New
York sentence of “time served” was a one-year term of
imprisonment from November 24, 2009, through November 23, 2010.
The record shows that a New York state prosecutor informed the
BOP’s Designation and Sentence Computation Center that Biear was
found guilty of a Class A misdemeanor and that a class A
misdemeanor sentence was limited to a one-year term.
As the
sentence of “time served” was imposed on August 16, 2012, and
New York had primary jurisdiction over Biear from November 24,
2009, through August 15, 2012, the BOP did not abuse its
discretion in considering Biear’s state sentence to be one year,
which ran from November 24, 2009, through November 23, 2010.
Third, Biear argues that the BOP abused its discretion in
refusing to give him prior custody credit for this one year by
nunc pro tunc6 designating the place for service of his federal
“The Latin phrase ‘nunc pro tunc’ means ‘now for then’ and
‘permits acts to be done after the time they should have been
done with a retroactive effect.’” Sarango v. Attorney General of
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sentence.
Biear asserts that the BOP “incorrectly allege[d] a
Civil Contempt of Court issue, being part of Biear’s criminal
history,” and improperly relied on a single pretrial code
violation. (ECF No. 1 at 11-12.)
Although the BOP has the power under 18 U.S.C. § 3621 to
effectively give an inmate double credit by nunc pro tunc
designating the place of confinement for a federal sentence, see
Setser v. United States, 132 S.Ct. 1463, 1467-68 (2012), the BOP
did not have the power to do so for the time period Biear seeks,
i.e., from November 24, 2009, through November 23, 2010.
This
is because Biear’s federal sentence commenced on August 16,
2012; the time period for which Biear seeks nunc pro tunc credit
is from November 24, 2009, through November 23, 2010; but 18
U.S.C. § 3585(b) prohibits the BOP from giving a prisoner double
credit through a nunc pro tunc designation for time served prior
to commencement of the federal sentence.7
Even if the BOP had
found that Biear’s federal sentence commenced on the date it was
U.S., 651 F.3d 380, 382 n.2 (3d Cir. 2011) (quoting Barden v.
Keohane, 921 F.2d 476, 478 n.2 (3d Cir. 1990)).
See United States v. Wilson, 503 U.S. 329, 333 (1992) (“[T]he
final clause of § 3585(b) allows a defendant to receive credit
only for detention time ‘that has not been credited against
another sentence.’”).
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imposed – March 29, 2012 – and then nunc pro tunc designated the
place of federal confinement, it would not help Biear.
The BOP
had already given him prior custody credit for the time between
March 29, 2012, and August 15, 2012 (because this time was not
credited to his state sentence), and a federal sentence can not
commence under 18 U.S.C. § 3584(a) before it was imposed.8
Finally, Biear argues that the BOP “fail[ed] to recognize
[that] the present version of 5G1.3 permits ‘adjustment’ if the
time in State detention is related to the Federal offense
(5G1.3(b)), which is the case in this matter.”
12.)
(ECF No. 1 at
However, the sentencing court, not the BOP, has the power
to determine whether to run a federal sentence concurrently or
See, e.g., Blood, 648 F.3d at 208 (holding that the BOP’s
interpretation of § 3585 – that “[i]n no case can a federal
sentence of imprisonment commence earlier than the date on which
it is imposed” - is entitled to deference); Prescod, Jr. v.
Schuykill, 630 F. App’x 144, 147 (3d Cir. 2015)(holding that the
BOP did not abuse its discretion in denying nunc pro tunc
designation because “a federal sentence cannot commence before
it is imposed, 18 U.S.C. § 3585(a), and Prescod points to no
authority that holds that a nunc pro tunc designation would
operate to commence a sentence earlier.”); Rashid v. Quintana,
372 F. App’x 260 (3d Cir. 2010)(holding that the BOP properly
denied nunc pro tunc designation for time served in state
custody prior to commencement of federal sentence because the
federal sentence could not commence under § 3584(a) before it
was imposed and because § 3585(b) prohibits double credit
through a nunc pro tunc designation for time served prior to
commencement of the federal sentence where that time was
credited against a state sentence).
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consecutively to a state sentence, see Setser, 132 S.Ct. at
1469, and Biear does not allege that the District Judge who
imposed his sentence adjusted it pursuant to U.S. Sentencing
Guideline § 5G1.3(b)(1).
III.
CONCLUSION
To summarize, Biear has not shown that the BOP abused its
discretion in denying his request for credit against his federal
sentence for the period from November 24, 2009, through November
23, 2010.
The Court will dismiss the Petition for a writ of
habeas corpus.
An appropriate Order accompanies this Opinion.
s/Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
Dated:
August 2, 2016
At Camden, New Jersey
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