NICHOLSON v. KIRBY
Filing
7
OPINION. Signed by Judge Renee Marie Bumb on 9/20/2018. (tf, n.m.)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
JONATHAN NICHOLSON,
Petitioner
v.
MARK KIRBY,
Respondent
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Civ. Action No. 17-3221 (RMB)
OPINION
BUMB, District Judge
Petitioner, Jonathan Nicholson, a prisoner confined in the
Federal Correctional Institution in Fairton, New Jersey (“FCI
Fairton”), filed a petition for writ of habeas corpus under 28
U.S.C.
§
2241,
challenging
the
Bureau
of
Prison’s
(“BOP”)
calculation of his sentence. (Pet., ECF No. 1, ¶17.) Respondent
filed an Answer, opposing habeas relief. (Response, ECF No. 3.)
For the reasons discussed below, the Court will deny the petition.
I.
BACKGROUND
Petitioner is presently serving a 57-month sentence imposed
on March 3, 2010 in the United States District Court for the
Eastern District of Pennsylvania, for possession of a firearm by
a
convicted
felon
in
violation
of
18
U.S.C.
§
922(g)(1).
(Declaration of Patricia Kitka1 (“Kitka Decl.”) ECF No. 4-1, ¶4k;
Ex. 1r, ECF No. 4-2 at 23.) If he receives all good conduct time
available, his projected release date is November 11, 2019. (Id.,
¶5(z); Ex. 1r, ECF No. 4-2 at 22.)
The following facts are relevant to the BOP’s calculation of
Petitioner’s federal sentence. On July 1, 1991, in Court of Common
Pleas of Philadelphia Case No. CP-51-CCR-1234311-1989, Petitioner
was convicted of aggravated assault and carrying a firearm in
public,
arising
out
of
his
arrest
on
September
20,
1989
in
Philadelphia. (Kitka Decl., ¶¶4c, 5a.) He was sentenced on March
9, 1992, to a term of imprisonment for seven to twenty years, from
which he was paroled on November 17, 2000. (Id., ¶¶5c, 5d.) On
August 3, 2007, his parole was revoked and he was remanded to serve
a parole violation term. (Id., ¶5e.) He was paroled again on April
8, 2008. (Id.)
On July 11, 2009, Petitioner was arrested while on state
parole. (Id., ¶5f.) He was charged under Pennsylvania state law,
in Criminal Case Nos. CP-51-CR-0009303-2009 and CP-51-CR-000930492009, with aggravated assault, firearms not to be carried without
a
license,
carrying
a
firearm
1
in
public,
possession
of
an
Patricia Kitka is a Correctional Programs Specialist employed by
the Federal Bureau of Prisons, Designations and Sentence
Computation Center (“DSCC”). (Kitka Decl., ECF No. 4-1, ¶1.) In
her official capacity, Kitka has access to documents maintained in
the ordinary course of business at DSCC and records maintained by
the BOP computerized database. (Id.)
2
instrument of crime, simple assault and recklessly endangering
another person. (Kitka Decl., ECF No 4-1, ¶5f; Exs. 1d, 1e, ECF
No. 3-3.) On August 18, 2009, while detained in the custody of the
Commonwealth
of
Pennsylvania,
Petitioner
was
indicted
in
the
United States District Court, Eastern District of Pennsylvania for
possession of a firearm by a convicted felon. U.S. v. Nicholson,
No. 09-cr-555 (E.D. Pa. Aug. 18, 2009) (Indictment, ECF No. 1.)2
The conduct underlying this federal criminal charge was the same
conduct underlying the state law charges in Criminal Case Nos. CP51-0009303-2009 and CP-51-CR-0009304. (Kitka Decl., ECF No. 4-1,
¶5g; Ex. 1f, ECF No. 6-1 at 2.)
On August 29, 2009, the United States District Court, Eastern
District of Pennsylvania issued a federal writ of habeas corpus ad
prosequendum, directing the United States Marshals Service to
produce Petitioner from state prison for processing his federal
criminal charge. (Id., ¶5h; Ex. 1g, ECF No. 6-1 at 5.) Petitioner
was borrowed by federal authorities pursuant to the writ of habeas
corpus ad prosequendum on September 23, 2009. (Id., ¶5i, Ex. 1h,
ECF No. 6-1 at 7-8.) On November 17, 2009, Petitioner pled guilty
to felon in possession of a firearm in violation of 18 U.S.C. §
922(g)(1). (Kitka Decl., ECF No. 4-1, ¶5j); U.S. v. Nicholson, No.
09-cr-555 (E.D. Pa. Nov. 17, 2009) (Plea Document, ECF No. 13.)
2
Available at www.pacer.gov
3
On March 15, 2010, Petitioner was sentenced in federal court
to 57-month term of imprisonment followed by a three-year term of
supervised release. (Federal Sentencing Transcript, ECF No. 5-1 at
67.) The federal sentencing order was silent as to whether the
sentence was concurrent or consecutive to any other sentence or
parole violator term to which Petitioner may be subjected. (Id.)
Petitioner
was
then
returned
to
Pennsylvania
law
enforcement
authorities on April 28, 2010, in satisfaction of the federal writ
of habeas corpus ad prosequendum. (Kitka Decl., ECF No. 4-1, ¶5l;
Ex. 1h, ECF No. 6-1 at 7-8.)
On May 25, 2010, Petitioner entered a plea of nolo contendere
to aggravated assault in Pennsylvania state court Case No. CP-51CR-0009303-2009, and he was sentenced to a two to four-year term
of imprisonment, and Case No. CP-51-CR-0009304-2009 was dismissed.
(Id., ¶5m, n; Exs. 1e, 1j, ECF Nos. 3-3 at 13-21, 6-1 at 17-18.)
The state sentencing court directed that Petitioner receive credit
for time served and that the state sentence run concurrently with
“any other sentence given.” (Id., ¶5m; Ex. 1j, ECF No. 6-1 at 1718.) Petitioner was returned to custody on August 26, 2010,
pursuant to the state parole violation charge. (Id., Ex. 1k, ECF
No. 4-2 at 2.)
On March 29, 2011, Petitioner wrote to the BOP, requesting
that it consider him for retroactive designation of the state
prison as the place of service for his federal sentence. (Kitka
4
Decl., Ex. 1l, ECF No. 4-2 at 5.) If this request was granted,
Petitioner’s federal sentence would have been computed as running
concurrently with the state sentence he was serving as of March
15, 2010, the date his federal sentence was imposed. (Answer, ECF
No. 3 at 6-7.)
On April 29, 2011, the BOP sent a letter to Petitioner’s
federal sentencing court, asking for the court’s position on
Petitioner’s request. (Id., Ex. 1m, ECF No. 4-2 at 7-8.) The BOP
advised the sentencing court that Petitioner was subject to a 57month federal sentence imposed on March 15, 2010, a two to fouryear state sentence for aggravated assault, and a 3584-day state
parole violator term. (Id.) The BOP explained that pursuant to
Barden v. Keohane, 921 F.2d 476 (3d Cir. 1990), because Petitioner
was in primary state custody when his federal sentence was imposed,
Petitioner could request that the BOP run his federal sentence
concurrently with his state terms of imprisonment by retroactively
designating the state institution for service of the federal
sentence. (Id.) One of the factors the BOP must consider in making
such a retroactive designation is the intent of the federal
sentencing court. (Id.) If the BOP did not receive a response from
the sentencing court within sixty days, it would not calculate his
federal sentence until he was released from state custody. (Kitka
Decl., Ex. 1m, ECF No. 4-2 at 7-8.)
5
On April 29, 2011, the federal prosecutor wrote a letter to
the federal sentencing court objecting to Petitioner’s request for
a retroactive designation because his federal offense involved a
loaded firearm, physical assault and threat of physical violence.
(Id., Ex. 1n, ECF No. 4-2 at 10-11.) The prosecutor advocated for
consecutive sentences. (Id.) The BOP did not receive a response to
its letter from the federal sentencing court. (Kitka Decl., ¶5s.)
On July 11, 2011, the Pennsylvania Board of Probation and
Parole rescinded Petitioner’s state parole and recommitted him to
a maximum term of nine years, nine months and 24 days for violating
parole in Case No. 2631W. (Kitka Decl., Ex. 1k, ECF No. 4-2 at 2.)
This made his state maximum release date June 18, 2020. (Id.)
On July 25, 2011, the BOP conducted a review under 18 U.S.C.
§ 3621(b) to determine whether Petitioner was appropriate for
retroactive designation of the state institution for service of
his federal sentence. (Id., Ex. 1o, ECF No. 4-2 at 13.) The BOP
determined
that
Petitioner
was
not
appropriate
for
such
a
designation based on his criminal history, his related state and
federal sentences for conduct of taking an arresting officer’s gun
and threatening to shoot the officer, and the failure of the
federal sentencing court to respond to the BOP’s request for the
sentencing court’s position regarding a nunc pro tunc designation.
(Kitka Decl., Ex. 1o, ECF No. 4-2 at 13.))
6
In a letter to Petitioner on July 27, 2011, the BOP advised
him that the federal sentencing order was silent as to whether the
federal sentence was consecutive or concurrent with any other
sentence to which he was subject. (Id., Ex. 1p, ECF No. 4-2 at 1516.) Pursuant to 18 U.S.C. § 3584(a) multiple terms of imprisonment
imposed at different times are presumed to run consecutively unless
directed by the federal sentencing court to run concurrently. (Id.)
The federal sentencing court did not respond to the BOP’s inquiry.
(Id.) Therefore, the BOP considered Petitioner’s circumstances and
determined his federal sentence would be computed as commencing
upon his release from his state sentence. (Id.)
On August 27, 2013, Petitioner commenced service of his two
to four-year state sentence imposed in Case No. CP-51-CR-00093032009. (Id., Ex. 1q, ECF No. 4-2 at 18.) The state gave Petitioner
jail credit against his state sentence for all time served from
July 11, 2009 (date of his arrest) through August 25, 2010 (day
before he was recommitted for service of state parole violator
term). (Id.) Additionally, the state granted credit for 284 days.
(Id.) Petitioner was paroled from his two to four-year state
sentence and taken into custody by the U.S. Marshals Service for
service of his federal sentence on September 22, 2015. (Kitka
Decl., ECF No. 4-1, ¶5y; Ex. 1h, ECF No. 6-1 at 7-8.)
The
BOP
computed
Petitioner’s
57-month
federal
sentence
commencing on September 22, 2015, and he was not granted any prior
7
custody credit because all time served from the date of his arrest
until his federal sentence commenced was credited against his state
sentence and state parole violator term. (Kitka Decl., ECF No. 41, ¶5z; Ex. 1r, ECF No. 4-2 at 22-24.) The BOP concedes that
Petitioner exhausted his administrative remedies. (Answer, ECF No.
3 at 11.)
In his habeas petition, Petitioner seeks credit for time
served in state and federal prison against his federal sentence.
(Pet., ECF No. 1, ¶17.) Petitioner attached his administrative
remedy forms to his petition, indicating that his request for
relief is based on his claim that:
my state sentence is concurrent with my
federal sentence, and its [sic] for the same
criminal conduct as the federal sentence case.
I am requesting you consider a retroactive
nunc pro tunc designation under U.S.S.G.
5G1.3(b)(2) for relevant conduct.
(Exhibit, ECF No. 1-1 at 2, 5, 9.)
In answer to the petition, Respondent contends (1) the BOP
properly computed Petitioner’s sentence; (2) the BOP’s denial of
a nunc pro tunc designation of a state facility for service of
Petitioner’s federal sentence was not an abuse of discretion; and
(3) Petitioner’s invocation of U.S.S.G. §5G1.3(b)(2) is unavailing
because such relief must be raised in the sentencing court.
(Answer, ECF No. 3 at 2.)
8
II.
DISCUSSION
A.
Legal Standard
28 U.S.C. § 2241 provides, in relevant part:
(a) Writs of habeas corpus may be granted by
the Supreme Court, any justice thereof, the
district courts and any circuit judge within
their respective jurisdictions . . .
(c) The writ of habeas corpus shall not extend
to a prisoner unless—
. . .
(3) He is in custody in violation of the
Constitution or laws or treaties of the
United States; . . .
The BOP is charged with computing federal sentences, which
requires
two
determinations,
when
the
sentence
commences
and
whether the prisoner is entitled to credit toward his sentence.
Blood v. Bledsoe, 648 F.3d 203, 207 (3d Cir. 2011). 18 U.S.C. §
3585 provides:
(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 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
9
(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.
The computation of a federal sentence is complicated when the
inmate is subject to sentences imposed by more than one sovereign,
and the courts must determine where and in what order the inmate
will serve his sentences. See Setser v. U.S., 566 U.S. 231, 234
(2012) (“someone must answer the consecutive versus concurrent
question … and decide how the state and federal sentences will fit
together.”
(internal
quotation
omitted).
The
primary
custody
doctrine provides the sovereign that first arrests an individual
is entitled to have that individual serve a sentence imposed by
that sovereign before he serves a sentence imposed by another
sovereign. Harris v. Bureau of Prisons (BOP) Federal, 787 F.Supp.2d
350, 355 (W.D. Pa. April 4, 2011) (citing e.g. Bowman v. Wilson,
672 F.2d 1145, 1153-54 (3d Cir. 1982)). The arresting sovereign
retains primary jurisdiction until it relinquishes jurisdiction by
release on bail; dismissal of charges, parole or expiration of the
sentence. Id. (quoting Chambers v. Holland, 920 F.Supp. 618, 621
(M.D. Pa.) aff’d, 100 F.3d 946 (3d Cir. 1996)).
18 U.S.C. § 3584(a) provides in relevant part:
(a) Imposition of concurrent or consecutive
terms.-- … Multiple terms of imprisonment
imposed at different times run consecutively
10
unless the court orders that the terms are to
run concurrently.
If the inmate was in primary state custody when the federal
sentence was imposed (regardless of whether the federal sentence
was imposed before the state sentence) the BOP must determine
whether the federal sentencing court expressed an intent as to
whether
the
federal
sentence
should
run
concurrently
or
consecutively with the non-federal sentence. Setser, 566 U.S. at
244. If the federal sentencing court is silent, the BOP construes
the court’s silence as an intent to impose a consecutive sentence.
See e.g. Galloway v. Warden of F.C.I. Fort Dix, 385 F. App’x 59,
60 (3d Cir. 2010) (citing BOP Program Statement 5160.05).3 In such
a case, the federal sentence commences only upon the state’s
relinquishment of primary jurisdiction over the petitioner. Id. at
62 n.3 (citing Rios v. Wiley, 201 F.3d 257, 274 (3d Cir. 2000)).
A state court’s direction that the state and federal sentences run
concurrently does not bind the Federal Bureau of Prisons or federal
3
If the federal sentencing court indicated its intent to run the
federal sentence concurrent to a yet to be imposed state sentence,
the BOP can achieve concurrent state and federal sentences by nunc
pro tunc designating the state facility as the location for service
of the federal sentence. Barden, 921 F.2d at 483. A court reviews
denial of the nunc pro tunc designation for abuse of discretion.
Barden, 921 F.2d at 483. In this case, Petitioner does not
challenge the BOP’s denial of a nunc pro tunc designation pursuant
to Barden but instead seeks an adjustment to his federal sentence
under U.S.S.G. §5G1.3(b)(2).
11
courts in any way. Barden v. Keohane, 921 F.2d 476, 478 n.4 (3d
Cir. 1991) (citing U.S. Const. art. VI, cl. 2.)
Under § 3585(b), a defendant cannot receive double credit for
his detention time. United States v. Wilson, 503 U.S. 329, 337
(1992); Bueno v. United States, 537 F. App’x 18, 19 (3d Cir. 2013)
(“The BOP’s authority . . . is limited by 18 U.S.C. § 3585(b),
which expressly prohibits the BOP from crediting a federal sentence
with time that has already been credited toward another sentence”).
A sentencing court may, however, adjust a federal sentence under
U.S.S.G. §5G1.3(b) to effectively give credit against the federal
sentence for time served which was credited against a state
sentence. The version of U.S.S.G. §5G1.3 in effect when Petitioner
was sentenced in the Eastern District of Pennsylvania on March 3,
2010, provided:
§5G1.3. Imposition of a Sentence on a
Defendant Subject to an Undischarged Term of
Imprisonment4
(a) If the instant offense was committed while
the
defendant
was
serving
a
term
of
imprisonment
(including
work
release,
furlough,
or
escape
status)
or
after
sentencing for, but before commencing service
4
In the Guidelines Manual effective November 1, 2014, §5G1.3 was
amended to read “Imposition of a Sentence on a Defendant Subject
to an Undischarged Term of Imprisonment or Anticipated State Term
of Imprisonment.” (emphasis added). In the Background section of
the Application Notes, the Guidelines Manual provides: “Federal
courts also generally have discretion to order that the sentences
they impose will run concurrently with or consecutively to other
state sentences that are anticipated but not yet imposed. See
Setser, 132 S. Ct. at 1468.”
12
of, such term of imprisonment, the sentence
for the instant offense shall be imposed to
run consecutively to the undischarged term of
imprisonment.
(b) If subsection (a) does not apply, and a
term of imprisonment resulted from another
offense that is relevant conduct to the
instant offense of conviction under the
provisions of subsections (a)(1), (a)(2), or
(a)(3) of §1B1.3 (Relevant Conduct) and that
was the basis for an increase in the offense
level for the instant offense under Chapter
Two (Offense Conduct) or Chapter Three
(Adjustments), the sentence for the instant
offense shall be imposed as follows:
(1) the court shall adjust the sentence
for any period of imprisonment already
served on the undischarged term of
imprisonment if the court determines that
such period of imprisonment will not be
credited to the federal sentence by the
Bureau of Prisons; and
(2) the sentence for the instant offense
shall be imposed to run concurrently to
the remainder of the undischarged term of
imprisonment.
(c) (Policy Statement) In any other case
involving
an
undischarged
term
of
imprisonment, the sentence for the instant
offense may be imposed to run concurrently,
partially concurrently, or consecutively to
the prior undischarged term of imprisonment to
achieve a reasonable punishment for the
instant offense.
2009 Federal Sentencing Guidelines Manual (effective Nov. 1, 2009)
(available at www.ussc.gov/guidelines/archive).
13
B.
Analysis
After contacting the federal sentencing court to obtain its
position on a nunc pro tunc designation of the state facility for
service of the federal sentence and receiving no response, the BOP
properly
applied
the
factors
under
18
U.S.C.
§
3621(b)
in
determining not to designate the state facility for service of
Petitioner’s federal sentence, in accordance with Barden, 921 F.2d
at 483-84. (Kitka Decl., Ex. 1o, ECF No. 4-2 at 13.) The BOP
appropriately commenced Petitioner’s federal sentence on March 10,
2015, the date of imposition. 18 U.S.C. § 3585(a). The BOP complied
with 18 U.S.C. § 3585(b) by not awarding prior custody credit for
time
served
that
was
credited
against
Petitioner’s
state
sentences.
Finally, it is the federal sentencing court, not the BOP,
that has the authority to grant a downward departure under U.S.S.G.
§5G1.3(b), (c) to run Petitioner’s federal sentence concurrently
with anticipated state sentences at the time of federal sentencing.
See e.g. Ruggiano v. Reish, 307 F.3d 121 (3d Cir. 2002); Williams
v. Zickefoose, 504 F. App’x 105, 107-8 (3d Cir. 2012). Because the
question of whether the federal sentencing court intended to grant
a downward departure under §5G1.3 was not presented in the instant
petition,5
denial
of
the
petition
5
is
without
prejudice
to
Petitioner may wish to seek clarification from the federal
sentencing court regarding whether his sentence is concurrent to
14
Petitioner
raising
such
a
claim
after
exhausting
his
administrative remedies with the BOP.
III. CONCLUSION
For
the
reasons
discussed
above,
the
Court
denies
Petitioner’s petition for a writ of habeas corpus under 28 U.S.C.
§ 2241.
An appropriate Order follows.
Dated:
September 20, 2018
s/Renée Marie Bumb
Renée Marie Bumb
United States District Judge
the anticipated state sentences at the time of sentencing, pursuant
to U.S.S.G. §5G1.3.
15
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