Thomas v. Meeks

Filing 36

ORDER RULING ON REPORT AND RECOMMENDATION: This Court ADOPTS the Report and Recommendation (Dkt. No. 22 ) as the Order of the Court, GRANTS RESPONDENT'S MOTION FOR SUMMARY JUDGMENT (Dkt. No. 16 ), DENIES THE PETITION FOR WRIT OF HABEAS CORPUS, AND DISMISSES THE PETITION WITH PREJUDICE AND WITHOUT AN EVIDENTIARY HEARING. AND IT IS SO ORDERED. Signed by Honorable Richard M Gergel on 1/17/2017. (mcot, )

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH CAROLINA

CHARLESTON DIVISION

Michael Scott Thomas
Petitioner,

v.
BJ. Meeks, Warden,

Respondent.

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Case No. 5:16·cv·01067-RMG

ORDER

This matter is before the Court on the Report and Recommendation ("R&R") of the
Magistrate Judge. Michael Scott Thomas ("Petitioner"), proceeding pro se, is a federal prisoner
incarcerated at FCI-Williamsburg in Salters, South Carolina. He seeks a writ of habeas corpus
under 28 U.S.C. § 2241, alleging that the Bureau of Prisons ("BOP") has not properly calculated
his federal sentence. Specifically, Petitioner alleges that he has not received sufficient credit
toward his federal sentence to account for 1) the time he spent in federal custody under a writ of
habeas corpus from August 19,2009 through September 1,2010 and 2) the time he spent in state
custody following revocation of his state parole on September 2,2010 until August 18,2013.
Respondent filed a Motion to Dismiss or, in the alternative, a Motion for Summary
Judgment on June 15, 2016. (Dkt. No. 16.) The court advised Petitioner of the summary
jUdgment and dismissal procedures that apply to this case. (Dkt. No. 18.) Petitioner filed his
Response on June 22, 2016 and later filed objections to the R&R. (Dkt. Nos. 20 and 33.) The
Magistrate Judge recommended that this court grant Respondent's Motion for Summary
Judgment, deny the Petition for Writ of Habeas Corpus, and dismiss the Petition with prejUdice
and without an evidentiary hearing.

This court adopts the following facts as outlined in the R&R:
1. On August 19, 2009, Petitioner was arrested by local authorities in Toombs

County, Georgia for the crime of "prohibited activities" and a parole violation.
(Dkt. No. 16-2 at 8 (Toombs County Arrest and Booking Report).)
2. On August 21, 2009, the United States District Court for the Southern District of
Georgia issued a writ of habeas corpus ad prosequendum, asking the state of
Georgia to transfer Petitioner to the custody of the United States Marshals Service
("USMS") for prosecution on federal charges. (Dkt No. 16-2 at 10)
3. On August 31, 2009, based on the writ ad prosequendum and a pre-existing arrest
warrant from June 5, 2009, the USMS took Petitioner into federal custody. (Dkt
No. 16-2 at 12, 14 (Federal Warrant executed, USMS Prisoner Tracking Sheet).)
4. About a year later, on September 1, 2010, Petitioner pleaded guilty to federal drug
charges. (Dkt. No 16-2 at 17).
5. On September 2, 2010, the state of Georgia revoked Petitioner's state parole
based on his federal conviction. (Dkt. No. 16-2 at 24-26 (Georgia Board of
Pardons and Parole Documents).)
6. The Georgia Department of Corrections completed a Sentence Computation
Report, listing Petitioner's maximum release date as March 23, 2014. (Dkt No.
16-2 at 28 (Georgia DOC Sentence Computation Report).) Petitioner's maximum
state sentence was not adjusted outward for the time he spent in federal custody
on the writ ad prosequendum. March 23,2014 is exactly seven years from March
23, 2007, the date Petitioner began serving his seven-year state sentence. This

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means the state of Georgia credited the entire four-year period at issue here, from
August 19,2009 to August 18,2013, toward Petitioner's state sentence.
7. On October 4, 2010, Petitioner was returned to the Georgie Department of
Corrections to complete his state sentence. (Dkt. No. 16-2 at 16 (USMS prisoner
tracking sheet).)
8. On August 19, 2013, after he finished serving his state sentence, the Georgia
Department of Corrections paroled Petitioner to the custody of the USMS to begin
serving his federal sentence. (Dkt. No. 16-2 at 16, 50 (USMS prisoner tracking
sheet, Georgia Department of Correction Offender Finder).)
9. While in federal custody, Petitioner applied to have his time spent in state custody
completing his state sentence credited toward his federal sentence (also referred to
as nunc pro tunc designation). (Dkt. No. 16-2 at 53-54.) Petitioner has not
specifically objected to the BOP's denial of that request, but the record shows that
the BOP fully considered all required factors under 18 U.S.C. § 3621(b) before it
denied Petitioner's request for nunc pro tunc designation due to his extensive
criminal record and a letter from the federal sentencing judge confirming that the
judge intended for Petitioner to serve his federal sentence "consecutively to any
undischarged state term imposed for prior unrelated conduct."] (Dkt. No. 16-2 at
56,58.)
Discussion

The opinion of the federal sentencing court alone does not control the BOP's determination
about whether to grant nunc pro tunc relief. See Trowell v. Beeler, 135 F. App'x 590, 596 (4th
Cir.2005).
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Petitioner alleges that his federal sentence has not been properly calculated because he
has not been credited for the time he spent in federal custody under a writ of habeas corpus ad
prosequendum from August 19,2009 through September 1, 2010 and the time he spent in state

custody following revocation of his state parole on September 2, 2010 through completion of his
state sentence on August 18,2013.
The computation of a federal sentence is governed by 18 U.S.C. § 3585. The statute
contains a two-step determination: 1) what date did the federal sentence commence2 and 2) will
any credit be awarded for time spent in custody before the federal sentence commenced. 18
U.S.C. § 3585.
Petitioner's federal sentence commenced when the state of Georgia relinquished
jurisdiction over him to federal authorities on April 19, 2013; his federal sentence did not begin
when he was in federal custody on the writ adprosequendum. See 18 U.S.C. § 3585(a) ("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."); United States v. Evans, 159 F.3d 908,
912 (4th Cir. 1998) ("A federal sentence does not begin to run, however, when a prisoner in state
custody is produced for prosecution in federal court pursuant to a federal writ of habeas corpus
adprosequendum. Rather, the state-retains primary jurisdiction over the prisoner, and federal

custody commences only when the state authorities relinquish the prisoner on satisfaction of the
state obligation."); see also Thomas v. Whalen, 962 F.2d 358,361 n.3 (4th Cir. 1992) (stating
that "[a] prisoner is not even in custody for purposes of [beginning a federal sentence] when he

2 The BOP has the authority to determine when a federal sentence commences. United States v.
Hayes, 535 F.3d 907, 10 (8th Cir. 2008).

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appears in federal court pursuant to a writ adprosequendum; he is merely 'on loan' to federal
authorities").
Petitioner claims that federal authorities obtained primary jurisdiction over him on
August 19, 2009 and later, following his federal conviction on September I, 2010, mistakenly
released him to state authorities on a state parole violation. (Dkt. No. 20 at 5.) Petitioner has
provided no factual basis for this claim. Primary jurisdiction is established by the sovereign that
first arrests the defendant and continues until that sovereign relinquishes it by bond, acquittal,
dismissal of charges, parole, probation, or discharge of sentence. See United States v. Cole, 416
F.3d 894,897 (8th Cir. 2005). All available records indicate that Petitioner was arrested by local
authorities on August 19,2009. (Dkt. No. 16-2 at 8 (Toombs County Arrest and Booking
Report).)
Petitioner is not entitled to credit toward his federal sentence for his time spent in federal
custody on the writ adprosequendum from August 19, 2009 through September 1, 2010 or from
September 2,2010 (when the state revoked his parole) through August 18,2013 when he
finished serving his state sentence because this four-year period was already credited toward his
state sentence. Under 18 U.S.C. § 3585(a), "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 ofthe
offense for which the sentence was imposed; that has not been credited against another
sentence." The Supreme Court has held that under Section 3585(b), "Congress made clear that a
defendant could not receive double credit for his detention time." Wilson, 503 U.S. at 337; see

also United States v. Mojabi, 161 F. Supp. 2d 33, 36 (D. Mass. 2001) (holding that "[s]ection

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3885(b) prohibits 'double credit,' i.e. awarding credit for presentence time served against one
sentence if that time has already been credited against another sentence"). Additionally, a
prisoner is not entitled to prior custody credit for time spent in federal detention pursuant to a
writ of habeas corpus ad prosequendum when the time period was credited against his state
sentence. Williamson v. Pettiford, CIA No. 8:07-3739,2008 WL 2076664, at *4 (D.S.C. May 9,

2008); Jimenez v. Warden, FDIC, Fort Devens Massachusetts, 147 F. Supp. 2d 24, 29 (D. Mass.
2001).
The Magistrate Judge treated Respondent's Motion (Dkt. No. 16) as one for summary
judgement because Respondent presented matters outside the pleadings that the Magistrate did
not exclude from consideration. This court will do the same. Under Rule 56, summary judgment
is appropriate "if the movant shows that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). There is no genuine
dispute of material fact regarding whether Petitioner started serving his federal sentence on
August 19, 2013 because petitioner has provided no evidence from which a reasonable jury
could conclude otherwise. Likewise, there is no genuine dispute of material fact regarding
whether Petitioner already received credit toward his state sentence for the four year period he
was in custody from August 19, 2009 to August 18, 2013 because Petitioner has provided no
evidence from which a reasonable jury could conclude otherwise.
For the reasons stated above, this Court ADOPTS the Report and Recommendation (Dkt.
No. 22) as the Order of the Court, GRANTS RESPONDENT'S MOTION FOR SUMMARY
JUDGMENT, DENIES THE PETITION FOR WRIT OF HABEAS CORPUS, AND
DISMISSES THE PETITION WITH PREJUDICE AND WITHOUT AN EVIDENTIARY

HEARING.

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AND IT IS SO ORDERED.

United States District Court Judge
January /7,2017
Charleston, South Carolina

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