BECKHAM v. THE UNITED STATES OF AMERICA

Filing 13

OPINION filed. Signed by Judge Peter G. Sheridan on 9/2/2014. (eaj)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

ANTHONY BECKHAM,
Civil No. 12-48 17 (PGS)
Petitioner,
OPINION
V.

UNITED STATES OF AMERICA,
Respondent.

SHERIDAN, District Judge:
Anthony Beckharn (“Petitioner”), an inmate incarcerated at Northern State Prison in
Newark, New Jersey at the time of filing, filed a Petition for a Writ of Habeas Corpus pursuant to
28 U.S.C.

§

2241.’ For the reasons stated below, the petition will be denied.

I. BACKGROUND
Respondent provides the following undisputed summary of the relevant procedural history:
On March 5, 2006, [Petitioner] was arrested by the Jersey City, New Jersey, Police
Department and charged in state court with possession of a weapon for an unlawful
purpose and other weapons-based offenses. Thereafter, on June 2, 2006,
[Petitioner] was charged with aggravated assault after an incident in which he
assaulted correctional officers at the Hudson County Jail.
On July 20, 2006, while the above state charges were pending, [Petitioner] was
indicted by a grand jury in the District of New Jersey for a violation of 18 U.S.C. §
922(g). On September 6, 2006, the United States Marshals Service took
temporary custody of [Petitioner] (who until that time was in the Hudson County
Jail on the state charges) via a writ of habeas corpus adprosequendunz. On May

Petitioner initially filed this action as one pursuant to 28 U.S.C. § 2255. (ECF No. 1.)
However, since Petitioner is actually challenging the execution of his sentence, it will be construed
as a § 2241 petition. See Coady v. Vaughn, 251 F.3d 480. 485—86 (3d Cir. 2001); Barden v.
Keohane, 921 F.2d 476, 478—79 (3d Cir. 1990).

14, 2007, [Petitioner] pleaded guilty to one count of violating 18 U.S.C. § 922(g),
and on October 31, 2007, [Petitioner] was sentenced in the United States District
Court for the District of New Jersey to a term of imprisonment of 86 months, with
three years of supervised release. The judgment of conviction contains no
statement as to whether the federal sentence should run concurrently with any state
sentence. After the sentencing, [Petitioner] was returned to the custody of the
New Jersey state authorities.
Thereafter, on November 16, 2007, [Petitioner] was sentenced in New Jersey state
court to five years of imprisonment for third-degree aggravated assault, in violation
of New Jersey Statute 2C:12-1(B)(7). The state-court judgment of conviction
provided that the sentence should be “concurrent to federal sentence.” On August
31, 2012, [Petitioner] completed his state sentence and was transferred to federal
custody to begin his federal sentence.
Upon receiving custody of [Petitioner], the [Bureau of Prisons (“BOP”)] computed
his sentence. The BOP determined that [Petitioner]’s federal sentence began on
August 31, 2012 (the day he was transferred from state to federal custody), which
made his projected release date March 16, 2017.2 In calculating this sentence, the
BOP gave [Petitioner] 621 days of credit for the period from March 5, 2006, to
November 15, 2007 (i.e., the date on which he was arrested until the date that he
began to serve his state sentence for aggravated assault).

[Petitioner] filed an administrative grievance challenging the BOP’s sentence
calculation and requesting that the BOP designate him ni/nc pro iiinc to his
state-court prison, which would have had the effect of’ having his sentences run
concurrently rather than consecutively. On March 1, 2013, the BOP denied his
grievance.
(Resp’t’s Answer 2-5) (internal citations omitted).
On July 31, 2012, Petitioner filed the instant petition. (ECF No. 1.) He argues that his
“sentence was not carried out upon adjudication by court. Violating [his] guaranteed right to due
process of law.” (Pet.

¶ 12(A).) He further argues that “U.S. Marshalls [sic] did not take custody

of [him] after state courts [sic] recommendation that 5 year sentence be served concurrently to
2

After the instant petition was filed, the BOP re-calculated Petitioner’s sentence based on updated
intbrmation from the State that it had given Petitioner credit for the time he spent in New Jersey
custody from September 12, 2006 through July 12, 2007, hut it had not credited him from July 13,
2007 through November 15, 2007. (Resp’t’s Answer, n.2.) Therefore, Petitioner’s new
projected release date, assuming he receives all good-conduct credit available to him, is January
14,2018. (Id.)
2

federal sentence in a nunc pro tunc manner on 11-16-07, cruel and unusual punishment shall no
[sic] be inflicted.” (Id. atlJ 12(C).) Respondent filed an answer (ECF No. 8) and on July 8,2014,
this Court conducted a hearing (ECF No. 12).
II. DISCUSSION
A. Legal Standard
“Habeas corpus petitions must meet heightened pleading requirements.” McFarland v.
Scott, 512 U.S. 849, 856 (1994). A petition must “specify all the grounds for relief” and must set
forth “facts supporting each of the gnds thus specified.” See Rule 2(c) of the Rules Governing

§

2254 Cases in the U.S. Distri Courts (amended Dec. 1, 2004), made applicable to

§

2241

petitions through Rule 1(b) of the Habeas Rules.
A habeas corpus petition is the proper mechanism for a prisoner to challenge the “fact or
duration” of his confinement, Preiser v. Rodriguez, 411 U.S. 475. 498-99 (1973). including
challenges to prison disciplinary proceedings that affect the length of confinement, such as
deprivation of good time credits, Muhammad v. Close, 540 U.S. 749 (2004) and Edwards v.

Balisok, 520 U.S. 641 (1997). See also Wilkinson

Dotson, 125 S.Ct. 1242 (2005). Habeas

corpus is an appropriate mechanism, also, for a federal prisoner to challenge the execution of his
sentence. See Coady v. Vaughn, 251 F.3d 480, 485-86 (3d Cir. 2001); Borden v. Keohane. 921
F.2d 476, 478-79 (3d Cir. 1990).
This Court has subject matter jurisdiction under

§

2241 because Petitioner challenges the

BOP’s calculation of his release date on federal grounds and he was incarcerated in New Jersey at
the time he filed the Petition. See Blood v. Bledsoe, 2011 WL 2689050 (3d Cir. July 12, 2011);
Vega v. United States, 493 F.3d 3 10, 313 (3d Cir. 2007); Woodall v. Fed. Bureau o/ Prisons, 432

3

F.3d 235. 241 (3d Cir. 2005). Insofar as the BOP reviewed Petitioners request tbr nunc pro tune
designation, this Court’s review is limited to the abuse of discretion standard. See Galloway v.
Warden ofFC’IFoi-t 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 CK. v. N.J. Dep’! 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 Over/on Park v.
Volpe, 401 U.S. 402, 414 (1971), overruled on other grounds, CalUano 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 ofjudgment.... Although this inquiry into the facts
is to 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.” Over/on Park, 401 U.S. at 416.
Reversal of agency action is warranted

“[ilf 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 (.o. v. Lorion, 470 U.S. 729, 744 (1985)).
B. Analysis

‘The authority to calculate a federal prisoner’s release date for the sentence imposed, and to
provide credit for pre-sentence detention and good conduct, is delegated to the Attorney General,
who acts through the IROP].” Armstrong v. Grondolskv. 341 F. App’x 828. 830 (3d Cir. 2009)

4

(citing United States v. Wilson. 503 U.S. 329, 334—35, 112 S.Ct. 1351, 117 L.Ed.2d 593 (1992)).
“In calculating the sentence, the BOP determines (1) when the federal sentence commenced. and
(2) whether there are any credits to which the prisoner may be entitled.” Nieves v. Scism, 527 F.
App’x 139, 140-41 (3d Cir. 2013) (citing 18 U.S.C.

§ 3585).

A sentence begins when a 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.”

18 U.S.C.

§

3585(a); see also Howardv. Longley, 532 F. App’x 116, 117 (3d Cir. 2013) (“a sentence cannot
start earlier than the day it was imposed

...

‘even if made concurrent with a sentence already being

served”). “[A] prisoner detained pursuant to a writ of habeas corpus adprosequendum remains
in the primary custody of the first jurisdiction unless and until the first sovereign relinquishes
jurisdiction over the prisoner.” Rios v. Wiley, 201 F.3d 257, 274 (3d Cir. 2000) (superseded on
other ground by statute as recognized in United States v. Saintville, 218 F.3d 246 (3d Cir. 2000)).
Once the states primary jurisdiction is relinquished, federal jurisdiction transforms from
secondary to primary. See C’hambers v. Holland, 920 F.Supp. 618, 622 (M.D. Pa. 1996). At that
point, the BOP calculates an inmate’s projected release date by considering the specifics of the
federal sentence and all appropriate credits. See Armstrong, 341 F. App’x at 830. A federal
prisoner cannot receive credit for the time already credited against his state sentence.
U.S. at 337 (in enacting

§ 3585(b).

Wilson. 503

‘Congress made clear that a defendant could not receive a

double credit for his detention time”). However, a federal prisoner is entitled to “prior custody
credit” for the time he spent in detention before his federal sentence began. that is, if that this
period has not already been credited against his other sentence. See 1 8 U.S.C.

§

3585(b) (“prior

custody credit” is proper if the detention resulted either from the offense for which the sentence

5

was imposed or from ‘any other charge for which the defendant was arrested after the commission
of the offense for which the sentence was imposed [provided that such period] has not been
credited against any other sentence”).
Pursuant to Barden. 921 F.2d at 483. the BOP can make a mine pro tune designation of the
state prison as Petitioners place of confinement for his federal sentence.
905586. at

*

Crawford, 2014 WL

2. The BOP has wide discretion in determining whether to designate the state prison

as the place of federal confinement and neither the federal courts nor the BOP are bound in any
way by the state court’s instruction that the state and federal sentences were to run concurrently.
Eceleston v. US., 390 F. App’x 62, 64 (3d Cir. 2010) (citing Barden). Prisoners are entitled to
have their requests for
in 18 U.S.C.

§

nunc pro

tunc designation examined by the BOP utilizing the factors listed

§ 3621(b). Harris v.

Zickefoose, 511 F. App’x 135, 137 (3d

cir. 2013). Pursuant to

3621(b), when determining the appropriateness of a correctional facility, the following factors

are examined: (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; and (5) any pertinent policy statement issued by the Sentencing
commission pursuant to section 994(a)(2) of title 28.

18 U.S.C.

§

3621.

Upon review of the record in this case, this Court finds that Petitioner has not shown that he
is entitled to habeas relief The BOP reviewed his request for
factors listed in

§

nunc pro

tune designation under the

3621(b) and found factors two, three and four to be relevant. With regard to

Factor Two, the BOP noted that Petitioner’s federal offense was Felon in Possession of a Firearm
in and Affecting Interstate Commerce and his state offense was Aggravated Assault. (Resp’t’s
Answer, Johnson Decl., Attach. 14.) Under the third factor, the BOP found that Petitioner has a

6

prior criminal history that includes convictions for Tampering with Witnesses, Robbery.
Manufacturing/Distribution of CDS in a school Zone and Attempting to Knowingly Cause Bodily
Injury. (Id.) Finally, under the fourth factor, the BOP noted that multiple terms of imprisonment
imposed at different times run consecutively unless the court orders them to run concurrently and
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this Court had not responded when contacted about its position on retroactive designation. (Id.)
The BOP properly considered Petitioner’s request, applied the appropriate statutory factors, and
did not act arbitrarily, capriciously, or contrary to law.

See Eccies/on, 390 F. App’x at 62;

Galloway, 385 F. App’x at 59. Therefore, the petition will be denied.
III.

CONCLUSION
For the above-stated reasons, the Petition will be denied. An appropriate order follows.
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Dated:
-

LL

Peter G. Sheridan, U.S.D.J.

The Court notes that if it had responded to the BOP’s letter requesting its position on retroactive
designation, its position would have been that it did not intend for Petitioner’s federal sentence to
run concurrently with the state court sentence. It was the Superior Court judge who issued the
order indicating that Petitioner’s sentence should run concurrently. Therefore, it was Petitioners
responsibility to make certain the state sentence was so imposed and he failed to undertake any
such measures.
As noted above, Petitioner initially filed this action as one pursuant to 28 U.S.C. § 2255.
However, because Petitioner is challenging the execution of his sentence, the Court construed said
petition as one pursuant to 28 U.S.C. § 2241. Though a certificate of appealability is not required
to appeal a denial of a § 2241 petition, see Burkey v. Ivlarherry, 556 F.3d 142, 146 (3d Cir. 2009),
since Petitioner initially filed the instant petition as one pursuant to § 2255, to the extent it is
necessary, the Court will grant a certificate of appealability. See 28 U.S.C. § 2253(c).
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