Banks v. Federal Bureau of Prisons et al

Filing 16

MEMORANDUM (Order to follow as separate docket entry. Signed by Honorable Christopher C. Conner on 11/17/2021. (mw)

Case 1:21-cv-00807-CCC-CA Document 16 Filed 11/17/21 Page 1 of 8

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
FREDERICK BANKS,
Petitioner
v.
M. THOMPSON, WARDEN FCI
ALLENWOOD LOW,
Respondent

:
:
:
:
:
:
:
:
:
:

CIVIL ACTION NO. 1:21-CV-807
(Judge Conner)

MEMORANDUM
Petitioner Frederick Banks (“Banks”), an inmate in the custody of the
Federal Bureau of Prisons (“BOP”), currently serving a sentence of 104 months’
imprisonment, commenced this action by filing a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2241 challenging the BOP’s prior custody computation
pursuant to 18 U.S.C. § 3585(b). (Doc. 1). Presently before the court is Banks’
motion (Doc. 13) for reconsideration of the court’s October 5, 2021 Memorandum
and Order (Doc. 11, 12) dismissing his habeas petition for failure to exhaust
administrative remedies. For the reasons set forth below, the court will deny the
motion.
I.

Factual Background & Procedural History
On June 12, 2020, Banks was sentenced in the United States District Court

for the Western District of Pennsylvania to an aggregate 104-month term of
imprisonment for wire fraud and aggravated identity theft in case number 2:15-CR168. (Doc. 8-2 at 2 ¶ 11, Declaration of Gail Crowe, BOP Correctional Management
Analyst at the Designation and Sentence Computation Center (“Crowe Decl.”); Doc.

Case 1:21-cv-00807-CCC-CA Document 16 Filed 11/17/21 Page 2 of 8

8-2 at 5-8, Public Information Inmate Data; United States v. Banks, No. 2:15-CR-168
(W.D. Pa.)). His projected release date is February 4, 2023, via good conduct time.
(Doc. 8-2 at 2 ¶ 12; Doc. 8-2 at 5-8). Before this sentence, Banks received two,
relevant federal sentences in the United States District Court for the Western
District of Pennsylvania. See United States v. Banks, No. 2:03-CR-245 (W.D. Pa.);
United States v. Banks, No. 2:04-CR-176 (W.D. Pa.). In those cases, Banks was
sentenced to an aggregate 123-month term of imprisonment. See id. He satisfied
that sentence on May 24, 2013 and began serving a 3-year term of supervised
released. (Doc. 8-2, Crowe Decl., at 1 ¶ 6). While on supervised release, Banks
committed the crimes of wire fraud and aggravated identity theft. See Banks, No.
2:15-CR-168. As a result, his supervised release was revoked and, on October 23,
2013, he was arrested by the United States Marshals Service (“USMS”). (Doc. 8-2,
Crowe Decl., at 1-2 ¶ 7; Doc. 8-2 at 18-19, Individual Custody/Detention Report).
On November 25, 2013, the United States District Court for the Western
District of Pennsylvania sentenced Banks to a 14-month term of imprisonment for
violating the conditions of his supervised release. See Banks, No. 2:04-CR-176, Doc.
715. Because Banks remained in custody from the date of his arrest on October 23,
2013, through November 24, 2013, the day before sentencing, he received jail credit
for that time. (Doc. 8-2, Crowe Decl., at 2 ¶ 8). He satisfied this sentence on October
28, 2014. (Id.) Due to the pending supervised release violation in case number 2:03CR-245, Banks remained in federal custody. (Id.) Two days later, on October 30,
2014, his supervised release was revoked in case number 2:03-CR-245. See Banks,

2

Case 1:21-cv-00807-CCC-CA Document 16 Filed 11/17/21 Page 3 of 8

No. 2:03-CR-245, Doc. 675. Also on October 30, 2014, the Western District of
Pennsylvania sentenced Banks to time-served in case number 2:03-CR-245, to run
concurrent to the term of imprisonment imposed in case number 2:04-CR-176. Id.,
Doc. 676. The time-served sentence consisted of two days—October 29, 2014 and
October 30, 2014—because that custodial time had not been credited to another
sentence. (Doc. 8-2, Crowe Decl., at 2 ¶ 9). On October 30, 2014, Banks satisfied this
sentence and was released from federal custody. (Id.)
On August 7, 2015, Banks was taken into USMS custody in relation to the
charges in case number 2:15-CR-168 and has remained in federal custody since that
time. (Id. at 2 ¶ 10; Doc. 8-2 at 40, Order of Temporary Detention).
Gail Crowe, BOP Correctional Management Analyst at the Designation and
Sentence Computation Center, audited Banks’ sentence calculation and certified
that his sentence calculation was correct. (Doc. 8-2, Crowe Decl., at 1 ¶¶ 1, 3, 4).
Based on the 104-month term of imprisonment, the BOP calculated Banks’
sentence as commencing on June 12, 2020, the date he was sentenced in the
Western District of Pennsylvania. (Id. at 2 ¶ 12; Doc. 8-2, at 5-8, Public Information
Inmate Data). Banks received prior custody credit from August 7, 2015, the day he
was placed into USMS custody, through June 11, 2020, the day before his current
federal sentence was imposed. (Id.) Banks received a total of 1,771 days of prior
custody credit. (Id.)
In the habeas petition, Banks challenges his sentence computation. (Doc. 1).
He argues that he is entitled to 20 to 32 months of prior custody credit that was not

3

Case 1:21-cv-00807-CCC-CA Document 16 Filed 11/17/21 Page 4 of 8

applied toward his current federal term. (Id. at 2, 6-7). For relief, Banks seeks
release from custody and “at least 20 months prior jail credit.” (Id. at 8).
On October 5, 2021, the court issued a Memorandum and Order dismissing
Banks’ habeas petition based on his failure to exhaust administrative remedies.
(Docs. 11, 12). Banks seeks reconsideration. (Doc. 13).
II.

Discussion
A.

Motion for Reconsideration

The purpose of a motion for reconsideration is to correct manifest errors of
law or fact or to present newly discovered evidence. Harsco Corp. v. Zlotnicki, 779
F.2d 906, 909 (3d Cir. 1985). A judgment may be altered or amended if the party
seeking reconsideration shows at least one of the following grounds: (1) an
intervening change in the controlling law; (2) the availability of new evidence that
was not available previously; or (3) the need to correct clear error of law or fact or to
prevent manifest injustice. Howard Hess Dental Labs., Inc. v. Dentsply Int’l Inc.,
602 F.3d 237, 251 (3d Cir. 2010). Because of the court’s interest in the finality of
judgments, “motions for reconsideration should be granted sparingly,” Continental
Casualty Co. v. Diversified Indus., Inc., 884 F. Supp. 937, 943 (E.D. Pa. 1995), and
may not be used to give a litigant a “second bite at the apple,” Bhatnagar v.
Surrendra Overseas Ltd., 52 F.3d 1220, 1231 (3d Cir. 1995).
Banks seeks of reconsideration of the court’s Memorandum and Order
dismissing his petition for writ of habeas corpus for failure to exhaust
administrative remedies. In the October 5, 2021 Memorandum, we found that

4

Case 1:21-cv-00807-CCC-CA Document 16 Filed 11/17/21 Page 5 of 8

Banks failed to exhaust his administrative remedies because he did not seek
Central Office review, as evidenced by the record. Banks’ Administrative Remedy
Generalized Retrieval report indicates that, on November 20, 2020, he filed
Administrative Remedy Number 1057800-F1 requesting prior custody credit. (Doc.
8-2 at 67; see also Doc. 1-1 at 2). On December 15, 2020, the institution denied the
request. (Doc. 8-2 at 67; Doc. 1-1 at 3). On December 21, 2020, Banks appealed the
denial to the Regional Office, and, on February 26, 2021, the appeal was denied.
(Doc. 8-2 at 67; Doc. 1-1 at 1). The record reveals that Banks did not appeal the
denial to the Central Office and did not take any further action with respect to this
Administrative Remedy. In rendering our prior decision, the court considered
Banks’ argument that the BOP did not provide a response from the Regional Office
and that his unit manager failed to provide the memorandum necessary for his
appeal to the Central Office. (Doc. 11 at 7).
In the motion for reconsideration, Banks again argues that he attempted to
exhaust this Administrative Remedy, but never received the Regional Office
response and his unit manager refused to provide the appropriate memorandum
necessary for his appeal to the Central Office. (Doc. 13). Banks set forth the same
allegations in his habeas petition and traverse. (Doc. 1 at 3; Doc. 9 at 1). Banks has
not presented the court with any new precedent, facts, or error of law or fact.
Instead, he simply disagrees with the court’s determination that he failed to exhaust
his administrative remedies prior to initiating suit in federal court. See Waye
v. First Citizen’s Nat’l Bank, 846 F. Supp. 310, 314 (M.D. Pa. 1994) aff’d, 31 F.3d 1175

5

Case 1:21-cv-00807-CCC-CA Document 16 Filed 11/17/21 Page 6 of 8

(3d Cir. 1994) (finding that “[a] motion for reconsideration is not to be used to
reargue matters already argued and disposed of.”); see also Database Am., Inc. v.
Bellsouth 4 Advert. & Publ’g Corp., 825 F. Supp. 1216, 1220 (D.N.J. 1993) (citations
omitted) (holding “[a] party seeking reconsideration must show more than a
disagreement with the Court’s decision, and ‘recapitulation of the cases and
arguments considered by the court before rendering its original decision fails to
carry the moving party’s burden.’”). Because Banks is inappropriately using his
motion for reconsideration to reargue the same claims, the motion will be denied.
However, assuming arguendo that BOP staff improperly obstructed Banks’
administrative remedy process and exhaustion was excused, his claims are without
merit. We will address the merits of Banks’ habeas petition.
B.

Merits of the Habeas Petition

A habeas petition under § 2241 is the proper vehicle for an inmate to
challenge “the fact or length of confinement”, Preiser v. Rodriguez, 411 U.S. 475,
494 (1973), or the “execution” of his confinement, Woodall v. Fed. BOP, 432 F.3d
235, 241-42 (3d Cir. 2005). A federal habeas court may only extend a writ of habeas
corpus to a federal inmate if he demonstrates that “[h]e is in custody in violation of
the Constitution or laws or treaties of the United States[.]” 28 U.S.C. § 2241(c)(3).
Section 3585 of Title 18, which governs prior custody credit, 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.

6

Case 1:21-cv-00807-CCC-CA Document 16 Filed 11/17/21 Page 7 of 8

(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
(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.
18 U.S.C. § 3585. Thus, under § 3585(b), prior custody credit cannot be granted if
the prisoner has received credit toward another sentence. The United States
Supreme Court has made clear that a defendant cannot receive a “double credit”
for his detention time. United States v. Wilson, 503 U.S. 329, 337 (1992).
As stated, Banks is currently serving an aggregate 104-month term of
imprisonment for wire fraud and aggravated identity theft imposed on June 12,
2020. (Doc. 8-2, Crowe Decl. at 2 ¶ 11; Doc. 8-2 at 5-8). Banks received prior custody
credit toward his current federal sentence from August 7, 2015, the date of his
arrest, through June 11, 2020, the day before his federal sentence was imposed.
(Doc. 8-2, Crowe Decl. at 2 ¶ 12; Doc. 8-2 at 5-7). Thus, Banks received a total of
1,771 days of prior custody credit. (Id.) Banks now seeks additional prior custody
credit of 20 to 32 months based on the “same 2013 conduct.” (Doc. 1 at 6). Pursuant
to 18 U.S.C. § 3585(b), Banks is prohibited from receiving this prior custody credit
because the jail credit was already applied to his previous revocation sentences in
case numbers 2:03-CR-245 and 2:04-CR-176. (Doc. 8-2, at 18-22, Individual

7

Case 1:21-cv-00807-CCC-CA Document 16 Filed 11/17/21 Page 8 of 8

Custody/Detention Report; Doc. 8-2 at 29, 34, Sentence Monitoring Computation;
see also 18 U.S.C. § 3585(b) (precluding an inmate from receiving double credit);
Wilson, 503 U.S. at 337 (explaining that with the enactment of § 3585(b), “Congress
made it clear that a defendant could not receive a double credit for his detention
time.”)).
Based on the foregoing, the court concludes that the BOP properly granted
Banks 1,771 days of prior custody credit from August 7, 2015, the date of his arrest,
through June 11, 2020, the last day before the imposition of his federal sentence.
See 18 U.S.C. § 3585(b). Banks has been afforded all credit due pursuant to 18
U.S.C. § 3585. Thus, even if exhaustion was excused, the court would nonetheless
deny the habeas petition on the merits.
III.

Conclusion
We will deny Banks’ motion (Doc. 13) for reconsideration. An appropriate

order shall issue.
/S/ CHRISTOPHER C. CONNER
Christopher C. Conner
United States District Judge
Middle District of Pennsylvania
Dated:

November 17, 2021