Wahid v. Merlak

Filing 16

Opinion & Order signed by Judge James S. Gwin on 8/19/19. The Court, for the reasons set forth in this Order, overrules petitioner's objections, adopts the Report and Recommendation of the Magistrate Judge, and denies Wahid's petition for a writ of habeas corpus under 28 U.S.C. § 2241. (Related Docs. 14 and 15 ) (D,MA)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
-----------------------------------------------------------------ISHMAEL A WAHID,
Petitioner,
vs.
WARDEN STEVEN MERLAK,
Respondent.

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Case No. 1:17-cv-1900

OPINION & ORDER
[Resolving Docs. 14, 15]

-----------------------------------------------------------------JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:
Ishmael Wahid petitions the Court for a writ of habeas corpus under 28 U.S.C. § 2241,
claiming that the Bureau of Prisons (the “BOP”) erroneously calculated his sentence.1
In June 2014, an Ohio court sentenced Wahid to eighteen months incarceration for
community control violations.2 About a week later, a federal grand jury indicted Wahid for
drug offenses.3 On June 26, 2014, the Court issued a writ of habeas corpus ad prosequendum
to secure Wahid’s appearance in the federal case,4 which was executed on July 3, 2014.
On March 16, 2015, Wahid pled guilty in the federal case and the Court sentenced
Wahid to 120 months incarceration “with credit for time served in federal custody.”5 The
Court did not specify whether this sentence would run concurrently or consecutively with
Wahid’s ongoing state sentence.
Petitioner Wahid then returned to state prison.6 The state authorities counted

1

Doc. 1.
Doc. 12-2.
3 Indictment, United States of America v. Markupson, No. 1:14-cr-214 (N.D. Ohio June 18, 2014), ECF No. 1.
4 Writ of Habeas Corpus, No. 14-cr-214 (N.D. Ohio June 26, 2014), ECF No. 39.
5 Plea Hearing Minutes, No. 14-cr-214 (N.D. Ohio December 1, 2014), ECF No. 433.
6 Doc. 12-2.
2

Case No. 1:17-cv-1900
Gwin, J.

Wahid’s time facing federal prosecution towards his state sentence. On June 5, 2015, Wahid
completed his state sentence and began his federal sentence.
Wahid then asked the BOP to credit the time he served while facing federal
prosecution towards his federal sentence. The BOP denied his request, prompting this
petition.
Magistrate Judge Greenberg issued a report and recommendation (“R&R”)
recommending that the Court deny Wahid’s petition.7 Petitioner objects.8 Because Wahid
has objected, the Court reviews the R&R de novo.9
For the following reasons, the Court OVERRULES Petitioner’s objections, ADOPTS the
R&R, and DENIES Wahid’s petition.
Discussion
Under several theories, Wahid argues that the BOP should have counted the time he
served while facing federal prosecution towards his federal sentence.10
First, at sentencing the Court ordered that Wahid receive credit for any time spent in
federal custody. Wahid seems to argue that he was in federal custody during the time he
was subject to the federal writ of habeas corpus ad prosequendum. Not so. Wahid was in
state custody, merely loaned to the federal system for prosecution.11
Second, Wahid seems to argue that 18 U.S.C. § 3585 required the BOP to credit his
time spent facing federal prosecution. However, § 3585 only requires the BOP to credit time

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Doc. 14.
Doc. 15.
9 28 U.S.C. § 636(b)(1).
10 In truth, it is somewhat difficult to determine the precise contours of Wahid’s arguments. However, because he
is proceeding pro se, the Court construes his arguments liberally. E.g., Martin v. Overton, 391 F.3d 710, 712 (6th Cir. 2004).
11 United States v. White, 874 F.3d 490, 507 (6th Cir. 2017).
8

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Case No. 1:17-cv-1900
Gwin, J.

that has not already been credited towards another sentence.12 Because the state
authorities already credited Wahid’s time facing federal prosecution towards his state
sentence, Wahid is not entitled to a double count.13
Finally, under 18 U.S.C. § 3621, the BOP may effectively run a prisoner's federal and
state sentences concurrently by retroactively designating a state prison as a prisoner’s place
of federal confinement.14 Wahid asked the BOP to do just that.
While the BOP considers a variety of factors in making a retroactive designation,
Wahid primarily disputes the BOP’s handling of two: relevant statements by the sentencing
court and relevant policy statements by the Sentencing Commission. The Court will only
reverse the BOP’s decision for fundamental error.15
Wahid argues that, because the Court did not specify whether his sentences would
run concurrently or consecutively, the BOP should have sought clarification. Not so. Under
18 U.S.C. § 3584(a), sentences are presumed to run consecutively unless the sentencing
court states otherwise. And, in any event, the failure to seek clarification falls far short of
fundamental error.
Petitioner also argues that the BOP failed to adequately consider Sentencing
Commission Policy Statement 5G1.3(d), which states that, in a “case involving an
undischarged term of imprisonment, the sentence for the instant offense may be imposed
to run concurrently, partially concurrently, or consecutively.” However, this does not
express a preference for concurrent sentences, it merely articulates their possibility.

12

18 U.S.C. 3585(c).
E.g., United States v. Lytle, 565 F. App’x 386, 392 (6th Cir. 2014).
14 Barden v. Keohane, 921 F.2d 476, 478 (3d Cir. 1990); Miller v. Federal Bureau of Prisons, No. 1:13-cv-2633, 2014 WL
2722343, at *3 (N.D. Ohio June 16, 2014). See Ruff v. Butler, No. 16-5565, 2017 WL 5135545, at *2 (6th Cir. June 16, 2017).
15 Id.
13

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Case No. 1:17-cv-1900
Gwin, J.

For the foregoing reasons, the Court OVERRULES Petitioner’s objections, ADOPTS
the R&R, and DENIES Wahid’s petition.
IT IS SO ORDERED.

Dated: August 19, 2019

s/
James S. Gwin
JAMES S. GWIN
UNITED STATES DISTRICT JUDGE

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