Rodriguez-Leon v. Rechtenwald
MEMORANDUM (Order to follow as separate docket entry)Signed by Honorable James M. Munley on 07/7/14. (sm)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
: No. 3:13cv1382
: (Judge Munley)
: (Magistrate Judge Schwab)
Before the court for disposition is Magistrate Judge Susan E.
Schwab’s report and recommendation (hereinafter “R&R”). (Doc. 16). The
R&R proposes denying Petitioner Jesus Rodriguez-Leon’s (hereinafter
“petitioner”) petition for a writ of habeas corpus (Doc. 1) and motion for
summary judgment (Doc. 13). Petitioner filed objections to the R&R (Doc.
17), and they are ripe for disposition.
Petitioner is a federal inmate presently confined at the United States
Penitentiary in Allenwood, White Deer, Pennsylvania. In February 2010, the
Superior Court for Coffee County, Georgia sentenced petitioner to a twoyear term of imprisonment for a state court burglary conviction. (Doc. 9-1,
Resp. to Pet., Ex. A ¶ 10). Two months later, the Superior Court for Telfair
County, Georgia sentenced petitioner to a two-year term of imprisonment for
a state probation violation. (Id. ¶ 11). On July 13, 2010, while serving his
state sentences, petitioner was indicted in the United States District Court
for the Southern District of Georgia on the charge of Reentry of a Removed
Alien. (Id. ¶ 12).
On May 10, 2011, Chief Judge Lisa Godbey Wood of the United States
District Court for the Southern District of Georgia (hereinafter “sentencing
judge” or “Judge Wood”) sentenced petitioner to a forty-six (46) month term
of imprisonment. On July 18, 2011, the state of Georgia paroled petitioner
and he was released to the exclusive custody of the United States Marshal
Service to begin serving his federal sentence. (Id. ¶ 16).
On May 21, 2013, petitioner filed a pro se petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2241 (hereinafter “Section 2241”),
challenging the United States Bureau of Prisons’ (hereinafter “BOP”)
calculation of his federal sentence. (Doc. 1). He seeks a credit of 370 days
applied to his federal sentence to account for time he spent in state prison
after the date of his federal indictment. On January 21, 2014, petitioner filed
a motion for summary judgment. (Doc. 13). The parties then briefed their
respective positions, bringing the case to its present posture.
Because this case is brought under 28 U.S.C. § 2241 (“Section 2241”),
the court has jurisdiction pursuant to 28 U.S.C. § 1331. (“The district courts
shall have original jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United States.”). Section 2241 “confers
jurisdiction on district courts to issue writs of habeas corpus in response to a
petition from a state or federal prisoner who ‘is in custody in violation of the
Constitution or laws or treaties of the United States.’” Coady v. Vaughn, 251
F.3d 480, 484 (3d Cir. 2001). The federal habeas statute also requires that
the petitioner be in custody “under the conviction or sentence under attack
at the time his petition is filed.” Lee v. Stickman, 357 F.3d 338, 342 (3d Cir.
2004) (quoting Maleng v. Cook, 490 U.S. 488, 490-91 (1989)).
Section 2241, unlike other federal habeas statutes, “confers habeas
jurisdiction to hear the petition of a federal prisoner who is challenging not
the validity but the execution of his sentence.” Coady, 251 F.3d at 485.
(quoting 28 U.S.C. §§ 2241(a) and (c)(3)). Although the Third Circuit Court
of Appeals has yet to clearly define the meaning of “execution” in this
context, it has cited approvingly holdings from other circuits finding that a
Section 2241 motion properly challenges “such matters as the administration
of parole, computation of a prisoner’s sentence by prison officials, prison
disciplinary actions, prison transfers, type of detention and prison
conditions.” Woodall v. Fed. Bureau of Prisons, 432 F.3d 235, 242 (3d Cir.
Standard of Review
Petitioner objects to the R&R. In disposing of objections to a magistrate
judge’s report and recommendation, the district court must make a de novo
determination of those portions of the report against which objections are
made. 28 U.S.C. § 636(b)(1)(c); see also Sullivan v. Cuyler, 723 F.2d 1077,
1085 (3d Cir. 1983). The court may accept, reject, or modify, in whole or in
part, the findings or recommendations made by the magistrate judge.
Henderson v. Carlson, 812 F.2d 874, 877 (3d Cir. 1987). The district court
judge may also receive further evidence or recommit the matter to the
magistrate judge with instructions. Id.
Additionally, a pro se pleading is held to less stringent standards than
more formal pleadings drafted by lawyers. Estelle v. Gamble, 429 U.S. 97,
106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972). A habeas petition
and any supporting submissions filed pro se must be construed liberally and
with a measure of tolerance. See Royce v. Hahn, 151 F.3d 116, 118 (3d
Cir. 1998); Lewis v. Att’y Gen., 878 F.2d 714, 721-22 (3d Cir. 1989). A
federal district court, however, can dismiss a habeas petition if it appears
from the face of the petition that the petitioner is not entitled to relief. See
Lonchar v. Thomas, 517 U.S. 314, 320 (1996); Siers v. Ryan, 773 F.2d 37,
45 (3d Cir. 1985), cert. denied, 490 U.S. 1025 (1989). See also 28 U.S.C.
§§ 2243, 2255.
Furthermore, granting summary judgment is proper “‘if the pleadings,
depositions, answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to any material
fact and that the moving party is entitled to judgment as a matter of law.’”
See Knabe v. Boury, 114 F.3d 407, 410 n.4 (3d Cir. 1997) (quoting FED. R.
CIV. P. 56(c)). “[T]his standard provides that the mere existence of some
alleged factual dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment; the requirement is that
there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247-48 (1986) (emphasis in original).
In considering a motion for summary judgment, the court must examine
the facts in the light most favorable to the party opposing the motion. Int’l
Raw Materials, Ltd. v. Stauffer Chem. Co., 898 F.2d 946, 949 (3d Cir. 1990).
The burden is on the moving party to demonstrate that the evidence is such
that a reasonable jury could not return a verdict for the non-moving party.
Anderson, 477 U.S. at 248. A fact is material if it might affect the outcome
of the suit under the governing law. Id. Where the non-moving party will
bear the burden of proof at trial, the party moving for summary judgment
may meet its burden by establishing that the evidentiary materials of record,
if reduced to admissible evidence, would be insufficient to carry the nonmovant’s burden of proof at trial. Celotex v. Catrett, 477 U.S. 317, 322
(1986). Once the moving party satisfies its burden, the burden shifts to the
non-moving party, who must go beyond its pleadings, and designate specific
facts within affidavits, depositions, admissions, or answers to interrogatories
demonstrating that there is a genuine issue for trial. Id. at 324.
Magistrate Judge Schwab recommends denying petitioner’s habeas
corpus petition and motion for summary judgment. Petitioner has filed three
objections. Petitioner objects to the recommendations that the BOP: 1)
correctly implemented his federal sentence; 2) appropriately ran petitioner’s
federal sentence consecutive to his state court sentences; and 3) properly
designated a United States Penitentiary as the location for petitioner to
serve his federal sentence. We will address each objection in seriatim.
A. Did the BOP correctly implement petitioner’s federal sentence?
In his first objection, petitioner argues that the magistrate judge erred
in finding that the BOP properly implemented his federal sentence.
Specifically, he asserts that the sentencing court’s written judgment states
that petitioner’s federal sentence be adjusted to account for the period of
time he served in state custody after the date of his federal indictment.
Petitioner’s contention, however, is without merit because the record does
not demonstrate that the sentencing judge intended such a result.
United States Sentencing Guideline 5G1.3(c) (hereinafter “Section
5G1.3(c)”) provides that a sentencing court may adjust a defendant’s federal
sentence to receive credit for time served on a state court sentence. In
pertinent part, Judge Wood’s written judgment provides as follows:
The court makes the following recommendations to the
Bureau of Prisons: Designation to the facility in Jesup,
Georgia, is recommended. It is further recommended that
the defendant receive credit for time served since the date
of Indictment (July 13, 2010) toward the instant sentence.
(Doc. 9-1, Resp. to Pet., Ex. A at 21).
Based on Judge Wood’s judgment, petitioner relies on a Third Circuit
Court of Appeals decision to support his contention that he is to receive
credit for time served on his state conviction. See Ruggiano v. Reish, 307
F.3d 121 (3d Cir. 2002) (hereinafter “Ruggiano”). In Ruggiano, while serving
a sentence on an unrelated state gambling conviction, the defendant was
sentenced to a 112-month term of imprisonment in federal prison after
pleading guilty to federal charges of racketeering. The Third Circuit held that
the BOP failed to implement the sentence imposed by the sentencing court
because the written judgment, although failing to explicitly reference Section
5G1.3(c), specifically ordered that defendant’s sentence run concurrent with
his state sentence. In short, petitioner now argues that although Judge
Wood failed to explicitly reference Section 5G1.3(c) in the written judgment,
she nevertheless intended petitioner’s sentence be adjusted pursuant to
In her report and recommendation, Magistrate Judge Schwab
determined that the BOP properly calculated petitioner’s sentence in
accordance with the judgment of the sentencing court. Moreover, she noted
that the extent to which Ruggiano remains the law is not clear and that
petitioner’s case is nevertheless distinguishable from Ruggiano.1 Petitioner
In her report and recommendation, Magistrate Judge Schwab stated:
“Recently, the Third Circuit cited Ruggiano, but in a
footnote, the Court noted that “§ 5G1.3 was amended in
2003 to clarify that subsection (c) does not authorize such
an adjustment unless the court grants a downward
departure.” Blood v. Bledsoe, 648 F.3d 203, 207 n.4 (3d
Cir. 2011)(citing U.S.S.G. § 5G1.3 app. Note 3(E) (“To
avoid confusion with the Bureau of Prisons’ exclusive
authority provided under 18 U.S.C. 3585(b) to grant credit
for time served under certain circumstances, the
Commission recommends that any downward departure
under this application note be clearly stated on the
Judgment in a Criminal Case Order as a downward
departure pursuant to § 5G1.3(c), rather than as a credit
for time served.”). And the Third Circuit noted that if the
sentencing court “had intended to invoke the provision, it
would have indicated as much.” Id.
now argues that “Ruggiano . . . . is still good law,” and that his case is
“slightly stronger” than Ruggiano.” (Doc. 17, Objs. to Rep. & Rec. at 1-2).
Petitioner is correct in asserting that the Third Circuit Court of Appeals
recognized in Ruggiano that a sentencing court can apply Section 5G1.3(c)
without explicitly referring to it in the judgment. The written judgment in the
instant case, however, is significantly distinguishable from the judgment in
Ruggiano. In Ruggiano, the sentencing court did not specifically reference
Section 5G1.3(c), however, the judgment explicitly ordered that defendant’s
federal sentence run concurrent with the state sentence. Here, not only
does the judgment fail to reference Section 5G1.3(c), it is silent regarding
running petitioner’s federal sentence concurrent to his state sentences.
It is well settled that “[m]ultiple terms of imprisonment imposed at
different times run consecutively unless the court orders that the terms are
to run concurrently.” 18 U.S.C. § 3584(a) (emphasis added). Moreover, as
the magistrate judge noted, Judge Wood specifically phrased the part of the
judgment regarding credit for time served as a recommendation to the BOP,
not as a “mandatory direction.” (Doc. 16, R&R at 8). As such, the
magistrate judge determined that the judgment was merely a non-binding
recommendation for the BOP to award credit, if appropriate, under 18 U.S.C.
§ 3585(b), which allows for the granting of credit in certain circumstances.2
Id. at 9; see also Blood v. Bledsoe, 648 F.3d 203, 206-07 (3d Cir. 2011)(“We
(Doc. 16, at 7, n.1).
Section 3585(b) is discussed more fully below.
believe that if the Delaware court intended to fashion a sentence that would
effectively “credit” Blood with the disputed time, it would have explicitly
granted a downward departure in accordance with § 5G1.3(c) of the United
States Sentencing Guidelines.).
After careful review of the record, we find that the BOP was precluded
from awarding petitioner credit for the 370 days from July 13, 2010 to July
18, 2011 he spent in state custody after the date of his federal indictment
because that period had already been credited toward his state sentences.
(Doc. 9-1, Ex. 1, declaration of BOP Management Analyst Alan Ray, ¶ 18).
Accordingly, petitioner’s objection will be overruled.
B. Did the BOP Properly Impose Petitioner’s Federal Sentence to
Run Consecutive to his State Sentences?
Similar to his first objection, petitioner’s second objection argues that
the BOP failed to run his federal sentence concurrent with his state
sentences. He asserts that although the sentencing judge did not
specifically state that his federal sentence was to run concurrent to his state
sentences, the court should find that the effect of the judgment was to
impose concurrent sentences. We disagree with petitioner and find that the
BOP properly calculated the petitioner’s sentence.
Computation of a federal sentence is governed by 18 U.S.C. § 3585.
To calculate a petitioner’s sentence, the BOP must make the following twostep determination: “(1) when [Petitioner’s] federal sentence commenced,
and (2) any credits to which Petitioner may be entitled.” Lerario v. United
States, 371 F.Supp.2d 633, 635 (M.D. Pa. 2005). In light of petitioner’s
objection, we will examine each step in turn.
1. Commencement of Sentence
Federal law provides that a federal sentence 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.” 18 U.S.C. § 3585(a). In determining
the commencement of a sentence, it is therefore clear that “[a] sentence to a
term of imprisonment commences on the date the defendant is received in
custody . . . .” 18 U.S.C. § 3585(a).
Here, the state of Georgia paroled petitioner and released him to the
exclusive custody of the United States Marshal Service on July 18, 2011.
Thus, it is clear that petitioner was received into federal custody on this date.
While petitioner was temporarily transferred to federal custody pursuant
to a writ of habeas corpus ad prosequendum from September 23, 2010 to
May 17, 2011, he nevertheless remained in the primary custody of the state
of Georgia. See Rios v. Wiley, 201 F.3d 257, 274 (3d Cir. 2000) (“[A]
prisoner detained pursuant to a writ of habeas corpus ad prosequendum
remains in the primary custody of the first jurisdiction unless and until the
first sovereign relinquishes jurisdiction over the prisoner”). Accordingly, the
BOP correctly calculated that petitioner’s federal sentence did not begin to
run until the date he was received in federal custody, July 18, 2011.
2. Sentence Credit
A federal defendant is entitled under certain circumstances to “jail time
credit,” or credit for custody prior to the sentence’s commencement or
imposition. Prior custody credit is governed by 18 U.S.C. § 3585(b), which
(b) 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
(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(b).
The purpose of the last clause of 18 U.S.C. § 3585(b) (hereinafter
“Section 3585(b)”) is to prohibit the award of double credit to a defendant for
his detention time. United States v. Wilson, 503 U.S. 329, 337 (1992)
(stating that the statutory language in Section 3585(b) made clear that a
defendant could not receive double credit for his detention time). As such,
“a federal defendant is not entitled to double credit, that is, to credit against
his current federal sentence based on a term of imprisonment that is
credited to another sentence.” Rios v. Wiley, 201 F.3d 257, 274-75 (3d Cir.
The prohibition on double credit includes when a state prisoner is
temporarily removed to federal custody pursuant to a writ of habeas corpus
ad prosequendum. Hawkins v. Holt, CIV.A. 1:05-CV-2662, 2007 WL
2022091 at *3 (M.D. Pa. July 10, 2007). In that instance, the federal
defendant may not receive credit for the time he was in federal custody
pursuant to the writ against the federal sentence imposed as a result of that
prosecution. Rios, 201 F.3d at 274-75. Under the primary jurisdiction
principle, the federal defendant in fact continues to serve his state sentence
while he is in federal custody. Id. “[T]he writ merely ‘loans’ the prisoner to
federal authorities” without affecting the term of his prior state sentence. Id.
In the present matter, there is no indication that the State of Georgia
relinquished primary custody at any time. Rather, it is clear that, as
evidenced by the return of petitioner to state custody after being sentenced
in federal court, Georgia state authorities maintained primary custody of
petitioner while he was in the secondary custody of federal authorities. As
set forth in Ruggiano, “time spent in federal custody pursuant to a writ ad
prosequendum is credited toward [a] state sentence, not [a] federal
sentence.” Ruggiano, 307 F.3d at 125 n.1. Here, the time spent in
secondary federal custody was credited toward petitioner’s state sentences.
(Doc. 9-1, Ex. 1, declaration of BOP Management Analyst Alan Ray, ¶ 18).
Thus, petitioner is not entitled to receive this credit toward his federal
sentence. Rios, 201 F.3d at 272; see also Vega v. United States, 493 F.3d
310, 314 (3d Cir. 2007) (stating that time allotted toward a defendant’s state
term of imprisonment is not available to be credited toward his unrelated
Petitioner now argues that the sentencing judge intended to impose a
partial concurrent sentence, so that he would be credited for time served in
prison prior to the date of his federal sentencing. The record fails to
establish that the sentencing judge intended such a sentence. In fact, the
sentencing judge did not explicitly direct that the defendant was to receive
credit for such time.
The evidence that the petitioner presents in support of his position is
the minute sheet from the sentencing hearing found in the docket of his
underlying criminal case. See Docket Sheet in United States v. RodriguezLeon, 2:10-cr-00023-LGW-JEG-1at Doc. 34. The minute sheet provides that
petitioner’s defense counsel requested that the sentencing judge impose a
partial concurrent sentence to credit for his undischarged term of
imprisonment in Georgia state custody. As the magistrate judge noted,
however, the minute sheet also provides in relevant part: “BOP will calculate
consecutive-Court does not make recommendation as to how to calculate;
request for FCI Jesup to be made to the extent that space and security
allow; request for time served-BOP will calculate.” Id. Thus, it is clear from
both a plain reading of Judge Wood’s written judgment as well as the minute
sheet from petitioner’s sentencing hearing, that Judge Wood did not order
concurrent sentences but rather left the calculation to the sole discretion of
the BOP. As stated previously, 18 U.S.C. § 3584(a) provides that “[m]ultiple
terms of imprisonment imposed at different times run consecutively unless
the court orders that the terms run concurrently.” Accordingly, we find that
the BOP properly calculated petitioner’s sentence as commencing on July
18, 2011 with a projected release date of November 22, 2014.
C. Should the Court Direct the BOP to Make a Nunc Pro Tunc
Designation of the Georgia State Prison as The Place Of Service
of Petitioner’s Federal Sentence?
In his third and final objection, petitioner asserts that the magistrate
judge erred by not directing the BOP to exercise its discretion to make a
nunc pro tunc designation of the Georgia state prison as the place of service
of his federal sentence. The magistrate judge noted, however, that
petitioner did not claim in either his petition for habeas relief or his motion for
summary judgment that the BOP failed to exercise its discretion to make this
designation. As such, we find that the magistrate judge properly affirmed
the BOP’s location of petitioner’s sentence.
The law provides that the BOP has statutory authority to designate a
state prison as the place of service of a federal sentence, and it may make
that designation nunc pro tunc. 18 U.S.C. § 3621(b); Barden v. Keohane,
921 F.2d 476, 482 (3d Cir. 1990). “Thus, when a person subject to a federal
sentence is serving a state sentence, the Bureau may designate the state
prison as the place of imprisonment for the federal sentence-effectively
making the two sentences concurrent-or decline to do so-effectively making
them consecutive.” Setser v. United States, 132 S. Ct. 1463, 1467-68
Here, petitioner claims that the BOP failed to comply with Judge
Wood’s sentencing order. He does not claim that the BOP failed to exercise
its discretion under 18 U.S.C. § 3621(b) regarding the location of where to
serve his federal sentence. Moreover, even if petitioner had specifically
requested that the BOP make this nunc pro tunc designation, the decision to
do so nevertheless remains the sole discretion of the BOP. Accordingly, we
find that the magistrate judge did not err in failing to direct the BOP to
exercise its discretion to make a nunc pro tunc designation.
For the reasons stated above, the court will overrule petitioner’s
objections and adopt the report and recommendation. The court finds that
the BOP did not fail to comply with the sentencing order and properly
concluded that petitioner was not entitled to sentence credit for the period of
time that was credited toward his state sentences. Therefore, petitioner’s
motion for summary judgment and his petition for a writ of habeas corpus
will be denied. An appropriate order follows.
Date: July 7, 2014
s/ James M. Munley
JUDGE JAMES M. MUNLEY
United States District Court
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