ALAZZAM v. HOLLINGSWORTH

Filing 9

OPINION FILED. Signed by Judge Renee Marie Bumb on 10/31/16. (js)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
________________________
MOHAMMED ALAZZAM,
Petitioner,
v.
WARDEN J. HOLLINGSWORTH,
Respondent.
________________________

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Civ. No. 16-3276(RMB)

OPINION

This matter is before the Court upon Petitioner’s Petition
for Habeas Corpus Review pursuant to 28 U.S.C. § 2241 (ECF No.
1); Respondent’s Answer (ECF No. 7); and Petitioner’s Motion to
Join a Necessary Party (ECF No. 3.) For the reasons discussed
below,

the

Court

will

deny

Petitioner’s

motion

to

add

a

necessary party; and grant in part and deny in part the habeas
petition.
I.

BACKGROUND
On May 27, 2009, Petitioner was arrested by the Yonkers,

New

York

Police

Department

for

evading

tobacco

taxes.

(Declaration of Deborah Colston (“Colston Decl.”) ECF No. 7-2;
Attach. 1, ECF No. 7-3 at 1-2.) He was released on bail the next
day.

(Id.)

On

May

18,

2011,

while

on

bail

from

the

state,

Petitioner was arrested by federal authorities, and released on

bond on May 23, 2011. (Colston Decl., Attach. 2 at Section II,
ECF

No.

at

17,

January

7-3

4-5.)

2013,

Petitioner

the

State

fled

the

New

York

of

United

States.

sentenced

him

On
in

absentia to a 1 to 3-year term of confinement. (Colston Decl.,
Attach. 3, ECF No. 7-3 at 7-8.)
Petitioner returned to the United States on September 12,
2013.

He

turned

himself

in

to

federal

authorities,

who

rearrested him and placed him in federal custody until he was
sentenced, on March 25, 2015, on federal charges of conspiracy
to distribute contraband cigarettes and bail jumping. (Colston
Decl., Attach. 4, ECF No. 7-3 at 9-15.) On June 24, 2015, the
federal

sentencing

concurrently

with

court
the

amended

previously

the

sentence

imposed

New

to

York

run
state

sentence. (Colston Decl., Attach. 5, ECF No. 7-3 at 16-22.)
Petitioner’s federal sentence was calculated to commence on
March

25,

2015,

the

date

of

sentencing,

because

he

was

in

primary federal custody on that date. (Colston Decl., ECF No. 72, ¶9; Attach. 7, ECF No. 7-3 at 25-29.) Petitioner was in
federal

custody,

and

the

federal

Bureau

of

Prisons

(“BOP”)

designated a federal institution for service of the sentence.
(Id.)
The

New

York

Department

of

Corrections

and

Community

Supervision lodged a detainer with the BOP on October 28, 2015.
(Colston Decl., Attach. 6, ECF No. 7-3 at 23-24.) According to
2 

the

detainer,

New

York

views

the

state

sentence

as

running

consecutive to the federal sentence. (Id.) The BOP agrees that
the federal sentencing judge in the Southern District of New
York

recommended

that

Petitioner’s

federal

sentence

run

concurrently with the previously imposed state sentence, imposed
in absentia.
II.

ADMINISTRATIVE REMEDIES
Petitioner attached his administrative remedy requests to

his habeas petition as Exhibit F. On the BP-8 Form, at the first
level of the administrative remedy program,1 Petitioner asserted
that he was “overdesignated” and it had been four weeks since he
requested

clarification

warrant.

(ECF

No.

on

1-3

whether
at

21.)

there

was

an

Petitioner’s

outstanding
correctional

counselor responded to the BP-8, stating a detainer had been
lodged by the State, and the time would run consecutively. (Id.)
Petitioner appealed to the next level of the administrative
remedy program. Specifically, he stated “I hereby appeal the
determination that my state sentence is to run consecutive to my
federal

sentence

detainer.”

(Id.

and
at

the

22.)

records

Petitioner

office
argued

placement
that

the

of

a

federal

sentencing judge, in an amended judgment, expressed the intent
for the federal sentence to run concurrently with the state

1

See 28 C.F.R. §§ 542.10-19 (defining administrative remedy
program).
3 

sentence. (Id.) Thus, Petitioner requested that the detainer be
lifted. (Id.)
Warden Hollingsworth responded that the BOP had contacted
the New York State Department of Corrections and the detainer
would remain lodged as a consecutive sentence. (Id. at 23.)
Petitioner should address any concerns to the New York State
Department of Corrections. (Id.)
Petitioner appealed to the Regional Director. (Id. at 24.)
Based on the intent of the federal sentencing judge, and citing
BOP Program Statement 5160.05, Section 7(b), (c)2 and Section

2

PS 5160.05(7)(b), (c) provides:
b. Federal judges have the authority to
order a federal term of imprisonment to run
consecutively to or concurrently with any
other sentence. When there is a previously
imposed sentence (federal or non-federal) in
existence at the time of federal sentencing,
and the federal judge does not state whether
multiple terms of imprisonment are to run
consecutively to or concurrently with one
another, the sentences run consecutively
(see 18 U.S.C. § 3584). (This applies only
to federal offenses committed on or after
November 1, 1987.)
c. When a federal judge orders or recommends
a federal sentence run concurrently with a
state sentence already imposed, the Bureau
implements such order or recommendation,
ordinarily by designating the state facility
as the place to serve the federal sentence.
United States v. Hardesty, 958 F.2d 910 (9th
Cir. 1992).
4 

9(a), (b),3 Petitioner stated:
AS
PER
THIS
PROGRAM
STATEMENT,
my
“CONCURRENT”
federal
sentence
must
be
executed immediately by SURRENDERING ME, AND
RETURNING
ME
to
State
of
New
York
authorities, IMMEDIATELY, TO BEGIN SERVING

3

PS 5160.05(9)(a), (b) provide:
9. CONCURRENT SERVICE OF FEDERAL AND STATE
SENTENCES
a. Concurrent service of federal and
non-federal sentences in a non-federal
institution occurs when the Bureau
designates a non-federal institution
for service of the federal sentence.
Ordinarily, the reason for selecting
the non-federal institution is that
primary custody resided with the nonfederal jurisdiction and the federal
sentencing court intended its sentence
be served concurrently with the nonfederal sentence.
b. When an inmate is sentenced in both
federal and state jurisdictions, care
must be taken to ensure that he or she
is suitable for federal designation.
Normally,
designating
a
non-federal
institution for the inmate is done when
it is consistent with the federal
sentencing court’s intent. Ordinarily,
this intent is made known in one of the
following ways:
(1) Court Order . . .
(2) Court Recommendation
Federal Confinement . . .

of

Non-

(3) Concurrent Service of Sentence
after Imposition . . .
(4) Inmate Request . . .
(5) State Request . . .
5 

MY “CONCURRENT” FEDERAL SENTENCE WITH THE
STATE OF NEW YORK SENTENCE. I ask that State
of New York authorities be contacted, and
notified so that they can come to Fort Dix,
pick me up, and take me to begin to serve my
“CONCURRENT” federal sentence alongside the
State of New York sentence. (“SEE EXHIBIT D,
Program Statement 5160.05”)
(Pet., ECF No. 1 at 25.)
Regional Director J.L. Norwood responded that the Warden
had adequately addressed Petitioner’s concerns by contacting the
New York Department of Corrections about the detainer. (Id. at
26.)

Norwood

added

that

the

BOP

does

not

have

authority

to

remove the state detainer nor to modify or compute Petitioner’s
state sentence. (Id.) Furthermore, Petitioner’s federal sentence
was commenced on the earliest date possible under 18 U.S.C. §
3585(b). (Id.)
Petitioner appealed to the Central Office. (Id. at 27.) He
framed his appeal as follows: “[t]his administrative remedy is
being filed in order to seek my transfer to the custody of the
State of New York in accordance with Program Statement 5160.05
(9)(b)(2) . . .” (Id.) Petitioner explained:
According to New York State Law, the only
way that I can serve my Federal sentence
concurrently with my State sentence is after
I am delivered to the custody of the State
of New York (See: Exhibit 2). Therefore, in
accordance with 18 U.S.C. §3584 and in
conjunction with Program Statement 5160.05
(9)(b)(2) (See: Exhibit 9), which states
that I should be serving my Federal sentence
in State custody, I respectfully request
6 

that I be reclassified and redesignated and
transferred to the custody of the New York
State Department of Corrections, so that I
can
serve
both
my
Federal
and
State
sentences concurrently.
(Id. at 27-28.) The Central Office extended its time to respond
to

Petitioner’s

appeal

until

April

16,

2016.

(Id.

at

30.)

Petitioner never received a response; therefore, he initiated
this action on June 7, 2016. (Pet., ECF No. 1 at 4.) See 28
C.F.R. § 542.18 (“If the inmate does not receive a response
within the time allotted for reply, including extension, the
inmate may consider the absence of a response to be a denial at
that level.”)
III. DISCUSSION
Petitioner asserts the BOP abused its discretion by failing
to

designate

a

state

facility

for

service

of

his

federal

sentence. (Pet., ECF No. 1 at 1.) The BOP has the authority to
designate

“any

penal

or

correctional

institution”

for

imprisonment pursuant to 18 U.S.C. § 3621(b). (Id. at 4.) One
factor the BOP must consider in its designation is the intent of
the federal sentencing judge; here, that the federal and state
sentences run concurrently. (Id. at 6.) For relief, Petitioner
seeks transfer to the custody of the New York Department of
Corrections (“DOC”) (Id. at 6.) He also requests that this Court
transfer this action to his federal sentencing court in the
Southern District of New York. (Id. at 2.)
7 

Petitioner further contends the federal government did not
have

primary

jurisdiction

over

him

at

the

time

of

federal

sentencing. (Pet., ECF No. 1 at 10.) Although Petitioner admits
both the state and federal government relinquished custody over
him when he was released on bail and bond, he argues the State
of New York maintained primary jurisdiction because it arrested
him first. (Id.) Additionally, Petitioner was sentenced by the
State of New York prior to his federal sentencing, (Id. at 11.)
Therefore, Petitioner claims the State of New York should have
commenced

his

undischarged

sentence

and

“loaned”

him

to

the

federal government for prosecution under a writ of habeas corpus
ad prosequendum. (Id.)
Petitioner

asserts

that

he

has

been

in

the

exclusive

custody of the BOP since September 13, 2013, and the State of
New York has made clear it will not grant credit for time served
outside the New York DOC toward his state sentence. (Id. at 11.)
Therefore,

Petitioner

seeks

transfer

to

a

New

York

State

facility. (Id. at 12.)
A.

Primary Jurisdiction

Respondent

argues

the

federal

government

had

primary

jurisdiction at the time of federal sentencing because the State
relinquished jurisdiction when it released Petitioner on bail.
(Answer, ECF No. 7 at 6-8.) Furthermore, New York State’s in
absentia sentencing did not establish primary jurisdiction over
8 

Petitioner. (Id. at 9.)
Respondent

is

correct.

Under

the

doctrine

of

primary

jurisdiction, the sovereign that first arrests an individual has
primary

custody

over

him,

but

that

sovereign

relinquishes

custody by releasing the defendant on bail. Taccetta v. Federal
Bureau of Prisons, 606 F. App’x 661, 663 (3d Cir. 2015)(citing
United States v. Cole, 416 F.3d 894, 897 (8th Cir. 2005)). When
a sovereign arrests an individual who was on bail, and then
retains

custody

over

the

individual,

that

sovereign

retains

primary custody. Id.
Here,

the

federal

authorities

arrested

Petitioner

on

September 13, 2013, while he was on bail from his previous state
and federal arrests. Federal authorities then retained custody
over

Petitioner

correctly

determined

jurisdiction
imposed.

through

over

The

his

that

federal

Petitioner

state

court’s

federal

when
act

of

sentencing.

authorities
his

federal

sentencing

The

had

BOP

primary

sentence
Petitioner

was
in

absentia before his federal arrest on September 13, 2013, did
not establish primary jurisdiction of the State. See generally
U.S. v. Cole, 416 F.3d 894, 897 (8th Cir. 2005)(citing United
States

v.

controlling

Vann,
factor

207
in

F.Supp.

108,

determining

111
the

(E.D.N.Y.
power

to

1962)(“The
proceed

as

between two contesting sovereigns is the actual physical custody
of the accused.”))
9 

B.

Designation

of

State

Facility

under

18

U.S.C.

§

3621(b)
The BOP has discretionary authority to designate a federal
prisoner’s place of incarceration under 18 U.S.C. § 3621(b).
U.S. v. Allen, 124 F. App’x 719, 720-21 (3d Cir. 2005). The
exclusive remedy for a federal prisoner to challenge “the BOP’s
calculation

of

a

federal

sentence

is

a

habeas

corpus

filed

pursuant to 28 U.S.C. § 2241, directed to the district court in
the United States District where the petitioner is incarcerated,
and naming the warden of the federal facility as a respondent.”
Id. at 721 (citing Barden v. Keohane, 921 F.2d 476, 478-79 (3d
Cir. 1990).
Respondent suggests that it is the New York Department of
Corrections

(“DOC”)

that

has

the

power

to

begin

running

Petitioner’s undischarged state sentence. (Answer, ECF No. 7 at
11.)

Therefore,

Respondent

contends

Petitioner’s

relief,

if

Department

of

available, lies with the New York DOC.
While

it

may

be

true

that

the

New

York

Corrections has the power to begin running Petitioner’s state
sentence, the BOP has the authority to designate Petitioner to a
state facility for service of his federal sentence. Therefore,
Petitioner

has

properly

challenged

the

BOP’s

discretionary

designation in this § 2241 petition, properly named his present
custodian, the warden of FCI Fort Dix as the respondent, and
10 

properly

filed

presently

in

the

District

incarcerated.

of

New

Therefore,

Jersey,

the

where

Court

he

will

is

deny

Petitioner’s motion to add the New York DOC as necessary party
and decline to transfer this action to the Southern District of
New York, where Petitioner was sentenced. This does not preclude
Petitioner from seeking any other form of relief that might be
available from the New York DOC, in the proper forum.
In McCauley v. Williamson, the district court in the Middle
District

of

Pennsylvania

addressed

the

same

issues

presented

here. Civ. Action No. 1:08-CV-0528, 2008 WL 2779298 (M.D. Pa.
July 14, 2008). The petitioner sought to be transferred to the
custody of the State of New York Department of Corrections for
the remainder of his federal sentence in order to effectuate the
federal sentencing judge’s intent for Petitioner’s federal and
state sentences to run concurrently. Id. at *1 (citing Shumate
v. United States, No. 304262, 2006 WL 83506, at *4 (M.D. Pa.
Jan. 12, 2006)(“[c]oncurrent service of federal and non-federal
sentences in a non-federal institution occurs when the [BOP]
designates a non-federal institution for service of a federal
sentence”)(quoting BOP PS 5160.05(9)(b)).
Like here, in the BOP’s response to the § 2241 petition in
McCauley,

the

BOP

argued

it

properly

commenced

the

federal

sentence on the date it was imposed, and it was the New York
Department

of

Corrections

that
11 

was

responsible

for

when

the

state sentence commenced. Id. at *2. In McCauley, the district
court aptly noted that this appeared to be why the petitioner
requested the BOP to designate a state facility for service of
his sentence, so the state would commence running the state
sentence to make the two sentences concurrent.
The question before this Court is whether the BOP abused
its

discretion

by

failing

to

honor

Petitioner’s

request

to

designate Petitioner to a state facility for service of his
sentence, pursuant to 18 U.S.C. § 3621(b). In designating the
facility for imprisonment, the BOP is required to consider each
of the factors listed in 18 U.S.C. § 3621(b). Woodall v. Federal
Bureau

of

Prisons,

432

F.3d

235,

245

(3d

Cir.

2005).

“[I]ndividual determinations are required by § 3621(b).” Id. at
247. BOP Program Statement 5160.054 provides, in pertinent part,
“[n]ormally,

designating

a

non-federal

institution

for

the

inmate is done when it is consistent with the federal sentencing
court's intent.” Id. at ¶9(b).
“The Bureau’s authority to designate a state institution
for concurrent service of a federal sentence is delegated to
Regional

Directors.”

BOP

Program

Statement

5160.05(8).

“18

U.S.C. § 3621(b)[] lists five factors that the BOP must consider
in making placement and transfer determinations.” Woodall, 432

4

Available at
https://www.bop.gov/PublicInfo/execute/policysearch?todo=query
12 

F.3d at 237 (3d Cir. 2005). The five factors are:
(1)
the
resources
contemplated;
(2) the
offense;

nature

and

of

the

facility

circumstances

of

the

(3) the history and characteristics of the
prisoner;
(4) any statement by the court that imposed
the sentence-(A) concerning the purposes for which
the
sentence
to
imprisonment
was
determined to be warranted; or
(B) recommending a type of penal or
correctional facility as appropriate;
and
(5) any pertinent policy statement issued by
the
Sentencing
Commission
pursuant
to
section 994(a)(20 of title 28.
In designating the place of imprisonment or
making transfers under this subsection,
there shall be no favoritism given to
prisoners of high social or economic status.
The Bureau may at any time, having regard
for the same matters, direct the transfer of
a prisoner from one penal or correctional
facility to another. . .
18 U.S.C. § 3621(b).
In

Petitioner’s

administrative

remedy

appeal

to

the

Regional Director, he requested designation to a State of New
York facility for service of his sentence to effect the intent
of

the

federal

sentencing

judge

that

the

federal

and

state

sentences run concurrently. (Pet., ECF No. 1-3 at 25.) In the

13 

Regional Director’s response, he made no reference at all to
having made an individual determination of the five factors he
must consider in designating or transferring Petitioner to a
state correctional facility. (Id. at 26.) Therefore, Petitioner
is entitled to habeas relief of requiring the Regional Director
to

make

an

individual

determination,

considering

the

five

factors under 18 U.S.C. § 3621(b), whether to designate and
transfer

Petitioner

to

a

state

facility

for

service

of

his

sentence. See McCauley, 2008 WL 2779298, at *1 (ordering BOP to
exercise discretion in determining whether to designate a New
York state facility for service of the remainder of Petitioner’s
federal sentence).

IV.

CONCLUSION
For the reasons discussed above, in the accompanying Order

filed herewith, the Court will grant in part and deny in part
Petitioner’s request for habeas corpus relief pursuant to 28
U.S.C. § 2241. The Court will deny Petitioner’s motion to add a
necessary party, and deny Petitioner’s request for transfer of
this

action

to

the

United

States

District

Court,

District of New York.

Dated: October 31, 2016
s/ RENÉE MARIE BUMB
14 

Southern

RENÉE MARIE BUMB
United States District Judge

15