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NOT FOR PUBLICATION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
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