VALES v. HOLLINGSWORTH

Filing 2

MEMORANDUM OPINION. Signed by Judge Renee Marie Bumb on 1/30/2014. (nz, )N.M.

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
________________________________
:
TIMOTHY MILTON VALES,
:
: Civil Action No. 13-3027 (RMB)
Petitioner,
:
:
v.
:
MEMORANDUM OPINION
:
JORDAN HOLLINGSWORTH et al.,
:
:
Respondents.
:
_______________________________________
:
BUMB, District Judge:
This matter comes before the Court upon Petitioner’s Section
2241 application (“Petition”), see Docket Entry No. 1, which was
followed by his filing fee and eight additional submissions.

See

Docket Entries Nos. 3 to 10.
I.

BACKGROUND
While the Petition is relatively lengthy, and Petitioner’s

post-pleading submissions are as multiple as they are voluminous,
the exact nature of his challenges are not easy to distill.

The

attachments to the Petition provide this Court with his
administrative record shedding some light on this issue. One of
the underlying administrative determinations reads as follows:
[Petitioner] request[ed] jail credit [for the period]
from November 15, 2010, to October 25, 2012. A review
of [Petitioner’s penal record] reveal[ed that,] on
November 15, 2010, [Petitioner was] arrested by the
Pennsylvania State Police on numerous state charges.
[The next day, i.e., on November 16, 2010,] the United
States . . . issued a warrant [based on Petitioner’s

violation of his parole conditions ensuing from his
previous federal term; that parole violation warrant
was issued in light of Petitioner’s] state arrest.
[Petitioner was then convicted on state charges and
sentenced to serve a state term of imprisonment]. On
October 26, 20l2, [Petitioner] completed [that] state
sentence[, and, on the next day, i.e., October 27,
2012, he was placed in federal custody for the purposes
of his federal parole violation proceeding]. On
November 26, 2012, [Petitioner was] sentenced in the
Western District of Pennsylvania [on those parole
violation charges] to a total term of 27 months
incarceration [that is, the sentence he is serving now.
Petitioner was] awarded jail credit toward [that
parole-violation-based] federal sentence [for the
period] from October 27, 2012 to November 25, 2012
[i.e., for the period when, after completing his state
sentence, he was held in federal custody awaiting his
prosecution and sentencing on the parole-violation
charges. Since his] federal sentence commenced on
November 26, 2012 [his 27-month federal term was
reduced by this October 27, 2012 to November 25, 2012,
period (“Granted Jail Credits”). The reduction yielded
Petitioner’s] current release date [of] October 12,
2014, [that is, if his good-conduct-time credits would
vest]. 18 U.S.C. § 3585([b]) states: “a defendant
shall be given credit toward the service of the term of
imprisonment for any time he has spent in official
detention prior to the date the sentence [unless that
time was already] credited against [the defendant’s]
another sentence.” The [period of time Petitioner is
requesting here as a credit against his federal
sentence] was [already] awarded toward [his] state of
Pennsylvania sentence. Therefore, [he] cannot receive
this credit toward [his] current federal sentence.
Accordingly, [his] request is denied.
Docket Entry No. 1, at 17.
Petitioner appealed that determination administratively.
See id. at 18.

He asserted that the Granted Jail Credits were

insufficient, and recited his position that he was entitled to
the jail credits equal to the sum of his Granted Jail Credits and
the period when he was serving his state Pennsylvania sentence,
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i.e., from November 15, 2010, to October 26, 2012.

See id.

In

support of his position, he appears to allege that the fact that
his state imprisonment being already credited against his state
sentences should be disregarded for the purposes of § 3585(b)
analysis simply because the United States lodged a detainer
against him (by issuing his probation-violation warrant) on the
date following his arrest on the state charges.

See id.

Therefore, he requested a further administrative review.
Addressing that contention, the Regional Office of the BOP
responded with a determination substantively indistinguishable,
in its outcome, from that quoted supra.

See id. at 19.

However,

noting Petitioner’s request for a further review, the Regional
Office stated:
[Petitioner’s] request for additional prior custody
credit has been forwarded to the . . . Computation
Center for further review . . . . [Petitioner] must
continue the administrative remedy process in order to
be advised of [the outcome of that review. Since
Petitioner’s request for additional review is being
granted, it means that his] appeal is partially granted
[but only to that effect, i.e., additional review].
Id. (italicis supplied).
Capitalizing on this italicized phrase (“partially granted”)
and taking it completely out of the context, Petitioner filed an
application with the Central Office of the BOP, stating that he
was “in full agreement” with having his request “granted” by the
BOP, even though that phrase did not promise him anything but a

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further review and an opportunity to be informed of the outcome.
See Docket Entry No. 5, at 2.
The Central Office declined Petitioner’s invitation to
enforce the “grant.”

See id. at 3.

In a detailed and lengthy

reply, the Central Office listed the many charges and sentences
designated in the above-quoted prior administrative decisions
under one collective term, i.e., as Petitioner’s “state
Pennsylvania sentence”; it also pointed out that Petitioner
entered primary federal custody only upon expiration of those
many state sentences.

See id.1

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Records reflect [Petitioner was] arrested on November
15, 2010, by the Pittsburgh Police Department in
Pennsylvania for Forgery and Writing Bad Checks, and
sentenced on June 29, 2011, to Time Served. This
arrest placed [Petitioner] in the exclusive primary
custody of State of Pennsylvania authorities. On
November 30, 2010, while [Petitioner was] being held by
the Pittsburgh Police Department, the Pennsylvania
State Police in Greensburg, Westmoreland County,
Pennsylvania charged you with Theft by Unlawful Taking,
Receiving Stolen Property, Forgery, Access Device
Fraud, and Bad Checks. [Petitioner was] sentenced on
these charges in Westmoreland County on August 3, 2011,
to serve 9 to 23 months, with 129 days credit for time
served. Furthermore, Monroeville, Alleghany County
Police Department in Pennsylvania filed charges of
Forgery, Theft by Deception, Access Device Fraud and
Possession of Access Device Knowing It Was Counterfeit
or Altered, against [Petitioner] on March 28, 2011,
while [Petitioner was] being held in Westmoreland
County awaiting disposition on their charges.
[Petitioner was] subsequently sentenced on March 12,
2012, to serve 5 to 10 months, with time served credit
of 148 days. On May 12, 2011, [Petitioner was] also
charged by Rostraver Township Police, Westmoreland
County, Pennsylvania with Forgery, Identity Theft, and
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In the instant matter, Petitioner also raised these
challenges with a new claim.

Specifically, he stated that he was

alleging
[t]wo things. One, pursuant to applicable federal
sentencing guideline, USSG 5G1.3(b) or (c) [Petitioner
is seeking] “adjustment of sentence” to adjust [his]
current 27—month [federal] sentence [imposed by the
Western District of Pennsylvania so to render it
retroactively concurrent with the multitude of state
Pennsylvania sentences Petitioner was serving between
from November 15, 2010, to October 26, 2012.
Alternatively], based on the [phrase] “partially
granted” [included in the decision issued by the
Regional Office, Petitioner is now seeking an order
directing the BOP] to enforce [the devised-byPetitioner promise of] “705—days” credit . . . .
Docket Entry No. 1, at 10.
In support of his new claim, that is, the claim of
retroactive concurrence, Petitioner asserted that, prior to his
federal sentence by the Western District of Pennsylvania,
[his defense counsel] requested[,] in his Memorandum[,]
. . . “credit for time served” from November 15, 2010
to October 26, 2012. At the . . . sentenc[ing hearing]
. . . , [c]ounsel reiterated the exact same request in
open court and the [presiding federal judge did not

Theft by Deception and sentenced on August 3, 2011, to
serve 23 months, with 8 months credit for time served.
A federal detainer was placed on November 16, 2010.
[Petitioner] finished serving [his] Pennsylvania State
sentences on October 26, 2012, and [was] given all
prior custody credits on [his] Pennsylvania State
sentences from the date of [his] state arrest of
November 15, 2010. [Petitioner was] picked—up by the
United States Marshals Service on October 26, 2012, and
became exclusive primary federal custody at that time.
Docket Entry No. 5, at 3.
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respond. Petition, therefore, prefers to believe that
that the presiding federal judge’s] silence created
[an] “ambiguity” [entitling Petitioner to the very
retroactive concurrence his counsel requested].
Id. at 8.
II.

DISCUSSION
A.

Violation of Habeas Rule 2 Requirement

Here, Petitioner conflates two distinct claims, i.e., one
that the BOP erred in executing his federal sentence as imposed
by the Western District of Pennsylvania, and another that the BOP
erred in calculating his jail credits.
Each of these claims should have been administratively
exhausted, separately, at every level of the BOP.

Had Petitioner

done so, the BOP’s determinations as to each of these claims
would have yielded two distinct rulings.

If these rulings were

not to Petitioner’s satisfaction, he would be obligated to
challenge them in two distinct and different habeas actions.

See

28 U.S.C. § 2254 Rule 2(e) (applicable to § 2241 matters through
Habeas Rule 1(b)); see also Muniz v. Zickefoose, 2011 U.S. Dist.
LEXIS 115766, at *13 (D.N.J. Sept. 30, 2011), aff’d, 460 F. App’x
165 (3d Cir. 2012).
Petitioner, however, exhausted only one of these claims, the
one seeking jail credits (in the amount equal to all his state
sentences, collectively).

His other claim, based on his federal

judge’s silence in response to Petitioner’s counsel’s request (to

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have his federal sentence run retroactively concurrent to all his
state sentences, collectively) was not raised administratively.
Petitioner cannot “stitch” his two different claims, one
exhausted and another not, to each other.

He must litigate them

separately, in two distinct and different habeas matters.
Therefore, this Court will reserve the instant action for
Petitioner’s jail-credit challenges, and will direct the Clerk to
commence a new habeas action for Petitioner’s claims seeking
recalculation of his sentence under retroactive concurrence.
B.

Governing Substantive Tests
1.

Jail-Time Credits

There are three ways that an inmate can accrue federal jail
credit: (1) credit for time spent in custody while actually
serving his federal sentence; (2) credit for prior custody under
18 U.S.C. § 3585(b); and (3) credit for time spent in non-federal
pre-sentence custody during which the inmate was denied bail
solely because of a federal detainer, commonly referred to as
“Willis” credit.

See Willis v. United States, 438 F.2d 923 (5th

Cir. 1971).
Section 3585(b) allows an inmate to use time served in
custody prior to the imposition of a sentence towards the
completion of that sentence when the custody was either “a result
of the offense for which the sentence was imposed” or “a result
of any other charge for which the defendant was arrested after
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the commission of the offense for which the sentence was imposed
. . . that has not been credited against another sentence.”

This

last clause provides that time spent in custody cannot be
credited toward a federal sentence if it was used to satisfy a
non-federal sentence.

The Supreme Court has made clear that

inmates are not allowed to “double count” credit.

See United

States v. Wilson, 503 U.S. 329 (1992).
2.

Downward Sentence Adjustment

While § 3585(b) governs calculation of a sentence by the
BOP, § 3584 gives the federal sentencing court the power to
impose a sentence that runs concurrent to a state sentence.

The

holding of Ruggiano v. Reish, 307 F.3d 121, 132 (3d Cir. 2002),
found that a sentencing court has authority under 18 U.S.C. §
3584 and United States Sentencing Guidelines § 5G1.3(c) to order
a federal sentence to be fully and retroactively concurrent to a
state sentence the defendant was already serving.2

2

In Ruggiano, the Court of Appeals noted that retroactive
concurrence is neither a jail-credit nor a sentence adjustment;
rather, it is a “downward departure” allowed under U.S.S.G. §
5G1.3(c). Notably, the application note 3(E) to § 5G1.3 (U.S.
Sentencing Guidelines Manual § 5G1.3 cmt. N. 3(E) (2003)) is in
conflict with the holding of Ruggiano, since it provides that,
“subsection (c) does not authorize an adjustment of the sentence
for the instant offense for a period of imprisonment already
served on an undischarged term of imprisonment.” Notwithstanding
that note, however, Ruggiano remains the controlling precedent
for the purposes of this Court’s analysis, since the Circuit has
addressed the effect of note 3(E) on the Ruggiano (and found that
the note abrogated Ruggiano) only in a non-precedential United
States v. Destio, 153 F. App’x 888, 893-94 (3d Cir. 2005).
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3.

Primary and Secondary Jurisdiction

In addition, relevant to the foregoing is the concept of
“primary jurisdiction.”

When two different sovereigns have

custody of a criminal defendant over time, the general rule is
that the sovereign who first acquires custody has primary
jurisdiction over the defendant.

See Chambers v. Holland, 920 F.

Supp. 618, 622 (M.D. Pa.), aff’d, 100 F.3d 946 (3d Cir. 1996).
Primary jurisdiction remains vested in the jurisdiction which
first arrested defendant until that jurisdiction relinquishes its
priority by bail release, dismissal of state charges, parole
release, or expiration of sentence.
C.

See id.

Petitioner’s Jail-Time Credit Claims Are Meritless

Here, Petitioner’s duly exhausted challenge, i.e., the
“jail-credit” line of claims, is unavailing.

The record provided

by Petitioner shows that he entered the primary custody of
Pennsylvania upon his state arrest and remained in that custody
until his all state Pennsylvania sentences expired.

The period

of his state confinement was credited against his many
Pennsylvania sentences, and none of his state bail determinations
turned on his lodged federal charges.

Hence, the BOP correctly

construed § 3585(b) under Wilson and denied him “double credit,”
and it duly declined to entertain his Willis challenges, as
lacking the requisite factual predicate.

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Correspondingly, on the face of Petitioner’s allegations,
his jail-credit challenges will be dismissed as meritless.3
D.

Petitioner’s New Downward Departure Claim

Petitioner’s new challenges, will be severed into a new and
separate habeas matter.

In addition, recognizing that the regime

set forth in Ruggiano (which built on Rios v. Wiley, 201 F.3d
257, 264 (3d Cir. 2000)), is quite technical, this Court finds it
warranted to provide Petitioner with the following guidance:
When the federal court sitting in habeas review faces the
task of determining what type of downward departure the
sentencing court intended to apply, if any, “the appropriate
starting point is to ascertain the meaning that . . . should [be]
ascribed to the sentencing court’s directives.”
201 F.3d at 264.

Rios v. Wiley,

When the oral pronouncement of sentence and

written sentence are in conflict, the oral pronounced sentence
prevails.
1991).

See United States v. Chasmer, 952 F.2d 50, 52 (3d Cir.

When there is no conflict, but “only ambiguity” in either

3

Habeas Rule 4 requires a judge to sua sponte dismiss a
petition “[i]f it plainly appears from the petition and any
attached exhibits that the petitioner is not entitled to relief
in the district court.” 28 U.S.C. § 2254 Rule 4, applicable to §
2241 actions through Rule 1(b). “Federal courts are authorized
to dismiss summarily any habeas petition [*7] that appears
legally insufficient on its face.” McFarland v. Scott, 512 U.S.
849, 856 (1994). Dismissal without the filing of an answer has
been found warranted when “it appears on the face of the petition
that petitioner is not entitled to [habeas] relief.” Siers v.
Ryan, 773 F.2d 37, 45 (3d Cir. 1985), cert. denied, 490 U.S. 1025
(1989); see also Mayle v. Felix, 545 U.S. 644, 655 (2005).
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or both sentence pronouncements, the controlling oral sentence
“‘often consists of spontaneous remarks’ that are ‘addressed
primarily to the case at hand and are unlikely to be a perfect or
complete statement of the surrounding law.’”

Ruggiano, 307 F.3d

at 133 (quoting Rios, 201 F.3d at 268) (emphasis supplied).
Paramount here, since the Ruggiano and Rios analyses focused on
oral or written pronouncements, silence cannot create a basis for
the conclusion that the sentencing federal court wished to direct
any sentencing departure.

Accord Elwell v. Fisher, 2012 U.S.

Dist. LEXIS 84823, at *20 (D. Minn. Apr. 25, 2012) (relying on
Setser v. United States, 132 S. Ct. 1463, 1468-69 and n. 3
(2012)).
Therefore, to assert a viable “ambiguity” in his sentence,
Petitioner would have to allege facts based on his federal
judge’s actual oral and/or written pronouncements, not silence.
For the foregoing reasons, the Petition at bar will be
construed as raising solely the challenges to the BOP denial of
Petitioner’s request for jail-time credits.

These challenges

will be dismissed as facially meritless in light of the record
Petitioner provided.
Petitioner’s new claim, asserting that the BOP erred in
executing his sentence as directed by Petitioner’s federal judge,
will be severed in a new and separate habeas matter.

Petitioner

will be allowed an opportunity to prosecute that matter upon
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showing proper exhaustion (or showing cause as to why the
exhaustion requirement shall be excused), stating a viable claim
in light of the guidance provided to him herein and pre-paying
his filing fee (or submitting a complete in forma pauperis
application).
An appropriate Order follows.
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
Dated: January 30, 2014

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