Bush v. Warden
Filing
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MEMORANDUM re Mtns for Leave to Proceed ifp 2 and 6 and Petition for Writ of Habeas Corpus 1 filed by Dumont Bush (Order to follow as separate docket entry)Signed by Honorable Sylvia H. Rambo on 04/24/15. (ma)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
DUMONT BUSH,
Petitioner
v.
WARDEN, FCI-SHUYLKILL,
Respondent
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CIVIL NO. 1:15-CV-00238
(Judge Rambo)
MEMORANDUM
On February 3, 2015, Petitioner Dumont Bush, (“Bush”) an inmate currently
confined at Federal Correctional Institution, Shuylkill in Minersville, Pennsylvania,
filed this pro se petition for habeas corpus pursuant to 28 U.S.C. § 2241. (Doc. 1.) In
the petition, Bush challenges the Federal Bureau of Prisons’ (“BOP”) calculation of
his federal sentence. (Id.) For the following reasons, the petition will be dismissed as
successive.
I.
Background
On September 1, 1995, Bush was sentenced in the Court of Common Pleas of
Lehigh County, Pennsylvania, (“Lehigh County court”) to a term of imprisonment of
eighteen to thirty-six months for possession with intent to deliver a controlled
substance and possession of a controlled substance. See Bush v. Warden, USP
Canaan, 09-cv-00819, Doc. 18 at 1–2 (M.D. Pa. Oct. 14, 2009). While serving this
sentence, Bush was turned over to federal authorities on several occasions for federal
criminal proceedings. See id. at 2–3. On January 21, 1997, Bush was sentenced in the
U.S. District Court for the Eastern District of Pennsylvania to a term of imprisonment
of 210 months for conspiracy to commit armed bank robbery and armed bank robbery.
See id. at 3. The Eastern District Court recommended that Bush receive credit for all
federal time served in custody pending disposition of the case, but was silent on
whether the sentence should run concurrent with any undischarged state sentences.
See id.
On June 18, 1997, while he was still serving his state sentence, Bush entered a
guilty plea in the Lehigh County court to a charge of aggravated assault on a prison
guard. See id. Bush was sentenced to twenty-one months to five years imprisonment
for this charge, to be served consecutively to any sentence he was serving at the time
this sentence was imposed. See id. at 3–4. On January 19, 2000, Bush finished
serving his state sentences and was released into primary federal custody. See id. The
BOP calculated Bush’s federal sentence as commencing on that date. See id. The
BOP decided that Bush was not entitled to receive credit toward his federal sentence
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for the time spent in state custody prior to that date because that time had been
credited toward his state sentences. See id.
On November 13, 2008, Bush filed a petition for writ of habeas corpus in the
Eastern District of Pennsylvania in which he challenged the BOP’s calculation of his
sentence. Id., Doc. 1. In that petition, Bush argued that the BOP should have awarded
him credit for the time spent in state custody prior to being taken into primary federal
custody. Id. By order dated March 25, 2009, the petition was transferred to this court
as the district within which Bush was imprisoned. Id., Doc. 4. October 14, 2009, this
court denied Bush’s petition, concluding that Bush was “not entitled to credit toward
his federal sentence,” nor to “nunc pro tunc designation of federal service at a state
facility.” Id., Doc. 18 at 15.
On February 3, 2015, Bush filed the instant petition for writ of habeas corpus.
(Doc. 1.) In the petition, Bush again seeks to have his time spent in state custody
credited toward his federal sentence. (Id.) Pursuant to this court’s screening
procedure for habeas petitions, this court has not yet required ordered the United
States to respond to the petition.
II.
Discussion
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A.
Standard of Review
District courts are required to “promptly examine” each petition for writ of
habeas corpus before serving a copy of the petition on the respondent. Rule 4 of the
Rules Governing Section 2254 Cases (applicable to § 2241 petitions through Rule
1(b)); see also 28 U.S.C. § 2243. When examining the petition, it is the duty of the
court to dismiss the petition sua sponte if “it plainly appears from the petition and any
attached exhibits that the petitioner is not entitled to relief in the district court.” Id.;
see also McFarland v. Scott, 512 U.S. 849, 856 (1994) (“Federal courts are authorized
to dismiss summarily any habeas petition that appears legally insufficient on its
face.”). Such summary dismissal is appropriate “when the petition is frivolous, or
obviously lacking in merit, or where . . . the necessary facts can be determined from
the petition itself without need for consideration of a return.” Allen v. Perini, 424
F.2d 134, 141 (6th Cir. 1970), cert. denied, 400 U.S. 906 (1970).
B.
Successive Petitions Under 28 U.S.C. § 2244(a)
As Bush appears to raise the same claim in the instant petition that he raised in a
previous petition, this court must decide if the instant petition is barred as successive.
The procedure for handling second or successive habeas petitions is governed by 28
U.S.C. § 2244, which provides, in relevant part, as follows:
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No circuit or district judge shall be required to entertain an application for a
writ of habeas corpus to inquire into the detention of a person pursuant to a
judgment of a court of the United States if it appears that the legality of such
detention has been determined by a judge or court of the United States on a
prior application for a writ of habeas corpus, except as provided in section
2255.
28 U.S.C. § 2244(a). This provision prevents petitioners from raising claims in a
petition that were, or could have been, brought in a previous petition. See Queen v.
Miner, 530 F.3d 253 (3d Cir. 2008); see also Perry v. Warden Fort DIX FCI, ___ F.
App’x ___, No. 14-3941 (3d Cir. Apr. 10, 2015) (affirming dismissal under § 2244(a)
of successive petition challenging the BOP’s calculation of a federal sentence).
Section 2244(a) “applies to any application for a writ of habeas corpus filed by a
person who is in detention pursuant to a judgment of a court of the United States.”
Queen, 530 F.3d at 255.
The main thrust of the instant petition is that Bush’s federal sentence should be
calculated to have commenced on September 20, 1996, the date that he alleges he
should have been placed into federal custody. (Doc. 1 at 8.) This very same argument
was advanced in detail in Bush’s petition and traverse in a previous habeas proceeding
in this court. Bush v. Warden, USP Canaan, 09-CV-00819 at Doc. 12. Though Bush
may rely now on slightly different factual allegations or legal arguments to advance
his claim, these do not change the gravamen of his claim. See Sanders v. United
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States, 373 U.S. 1, 16 (1963) (explaining that a the addition of new factual allegations
or legal arguments to a claim previously raised does not transform it into a new
claim). Furthermore, Bush is also barred from bringing any new claim that could have
been brought and resolved in the previous proceeding. Queen, 530 F.3d at 255 (“[A]
petitioner may not raise new claims that could have been resolved in a previous
action.”).
Nonetheless, Bush argues that there are two developments that provide grounds
for this court to revisit his claim. First, Bush argues that an order issued by the
Eastern District disposing of a Motion to Correct Clerical Error provides him with a
new ground to have his sentence recalculated. (Doc. 1 at 11–12.) In that order, the
court stated that Bush asked “that the court amend its judgment to recommend that he
receive credit for time served in federal custody from the September 1996 date when
he was placed in federal custody.” (Doc. 3 at 19–20.) Bush contends that this is an
acknowledgment that Bush was in fact in federal custody at that time, and that such an
acknowledgment is grounds for the recalculation of his federal sentence. (Doc. 1 at
13.) While Bush could not have raised this argument in his original petition, the
Eastern District’s order did not have the effect of providing Bush with a new legal
claim. Rather, it merely deemed his Motion to Correct Clerical Error moot because
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there was no clerical error to correct. (Doc. 3 at 19–20.) Thus, this is simply a new
argument for the same claim that Bush asserted in his previous habeas petition, and is
therefore barred by § 2244(a).1
Bush also claims that the BOP “tried to usurp” the authority of the federal
courts when they claimed to have sent a letter to the sentencing court requesting its
position on whether Bush’s confinement in state prison should be designated as
service of his federal sentence under 18 U.S.C. § 3621(b). (Doc. 1 at 8.) According
to Bush, the BOP “misl[e]d the courts” because it sent that letter to the Honorable
Harvey Bartle III rather than the Honorable Franklin S. Van Antwerpen, who was
Bush’s original sentencing judge. (Id. at 14.) However, the BOP was under no legal
obligation to ask for the sentencing judge’s opinion on the matter to begin with. See,
e.g., Barden v. Keohane, 921 F.2d 476, 482–83 (3d Cir. 1990) (explaining that the
authority to designate state institutional confinement as service of a federal sentence
rests solely with the Attorney General and the BOP). Thus, none of the BOP’s actions
with respect to the sending of that letter gave rise to a new claim for habeas relief.
Rather, the allegation that the BOP “misled” the courts is simply an attempt at a new
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This court also notes that Bush’s argument is based on a fundamental misreading of the relevant
passage in the order, which was clearly only a restatement of the relief that Bush requested, not an
acknowledgment of the truth of Bush’s statements. (See Doc. 3 at 19–20.)
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argument for a claim already adjudicated in Bush’s previous petition. See Bush v.
Warden, USP Canaan, 09-CV-00819, Doc. 18 at 6–7 (discussing the letter and the
BOP’s subsequent decision against nunc pro tunc designation of the state facility for
service of Bush’s federal sentence).
Thus, the issues Bush sets forth as new grounds for relief are merely attempts at
making new arguments for the same claims asserted in his previous petition. As such,
the petition must be dismissed.
III.
Conclusion
The instant petition sets forth the same claims raised in Bush’s petition for writ
of habeas corpus filed in 2009. Accordingly, pursuant to 28 U.S.C. § 2244(a), the
petition will be dismissed as successive.
An appropriate order will issue.
s/Sylvia H. Rambo
United States District Judge
Dated: April 24, 2015.
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