Donald v. Hudgins

Filing 16

ORDER requiring additional information from respondent responsive to petitioner Donald's claim he has wrongfully been excluded from the BOP's RDAP program. Signed by US Magistrate Judge Veronica L. Duffy on 06/29/18. (Duffy, Veronica)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
EDWARD DONALD,

4:18-CV-04017-KES

Petitioner,

ORDER

vs.
WARDEN HUDGINS, F.P.C.
YANKTON;
Respondent.

INTRODUCTION
This matter is before the court on the pro se petition of Edward Donald, a
federal inmate at the Federal Prison Camp at Yankton, South Dakota. See
Docket No. 1.1 Mr. Donald alleges the federal Bureau of Prisons (“BOP”) has
failed to correctly calculate his sentence because it has improperly aggregated
the judgment of conviction for the revocation of his supervised release for his
1999 federal criminal case (the Illinois conviction) and and the judgment of
conviction for his 2010 federal criminal case (the Missouri conviction) Id.
Mr. Donald argues that because the BOP has aggregated these two sentences,
he has been improperly denied eligibility for the possibility of early release

This court refers to documents filed in this, Mr. Donald’s civil habeas action,
as well as documents in his underlying 1999 and 2010 criminal cases out of
Illinois and Missouri, respectively. Documents in this habeas action are
referred to simply by citing the appropriate docket number in the court’s
docket. Documents from the underlying criminal cases will be cited to “CR”
followed by the appropriate case and docket number.
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through the Residential Drug Abuse Treatment Program (RDAP) provided for
through 18 U.S.C. § 3621(e). See Mr. Donald’s supporting memorandum,
Docket 2, p. 3, ¶ 13.
Respondent now moves to dismiss Mr. Donald’s petition, or in the
alternative, for summary judgment, arguing Mr. Donald’s two sentences were
properly aggregated and that it has properly calculated Mr. Donald’s sentence.
See Docket No. 12. This matter was referred to this magistrate judge pursuant
to 28 U.S.C. § 636(b)(1)(A) and (B) and the October 16, 2014, standing order of
the Honorable Karen E. Schreier, United States District Judge.
FACTS
Mr. Donald is currently incarcerated at the Federal Prison Camp in
Yankton, South Dakota. He is serving an aggregated term of imprisonment,
related to two judgments of conviction.
In 1999, Mr. Donald was sentenced in the United States District Court
for the Southern District of Illinois with distribution and possession with intent
to distribute cocaine base. See 3:99CR30193-001 (S.D. Ill). Mr. Donald was
sentenced to 100 months’ imprisonment and 4 years of supervised release on
this conviction. On January 5, 2007, Mr. Donald was released from
imprisonment via good time release and began to serve his 4-year term of
supervised release.
On April 22, 2010, Mr. Donald was arrested in Missouri for conspiracy to
possess with intent to distribute in excess of five kilograms of cocaine and
marijuana. He was held in federal custody until he was sentenced on the
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Missouri federal indictment (4:10-CR49-CDP (E.D. Mo.)). Mr. Donald was
sentenced in the Missouri case on December 22, 2010. For the Missouri case,
Mr. Donald was sentenced to 144 months’ imprisonment and 5 years of
supervised release.
Also as a result of his arrest and subsequent Missouri drug conviction,
on January 11, 2011, Mr. Donald’s supervised release from his Illinois
conviction was formally revoked via a judgment of conviction for revocation of
supervised release in 3:99CR30193-001 (S.D. Ill.). On this revocation,
Mr. Donald was ordered to serve 24 months’ imprisonment, to be served
concurrently with the 144 months’ imprisonment he was by then already
serving on his Missouri conviction.
In this case, the respondent has submitted the affidavit of Deborah
Colston, who is employed by the BOP as a Management Analyst at the
Designation and Sentence Computation Center (DSCC) located in Grand
Prairie, Texas. See Docket 15. Ms. Colston explains that Mr. Donald’s
144-month sentence from the Missouri case and his 24-month sentence from
the Illinois supervised release revocation have been aggregated, and that as a
result, the 24-month sentence has been completely “absorbed” into the
144-month sentence. Id. at ¶ 16.
Ms. Colston has also explained that, as to his aggregated sentences,
Mr. Donald has received credit for the time he spent in federal custody after his
arrest on federal drug charges on April 22, 2010, until the date he began to
serve his sentence on the Missouri conviction. Id. at ¶ 19. Ms. Colston has
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also explained that, including good time credit, Mr. Donald’s current projected
release date is October 4, 2020.

Id. at ¶ 20.

Missing from Ms. Colston’s affidavit, however, is any mention of the
substance of the claim made in Mr. Donad’s petition/memorandum—that the
BOP has wrongfully denied him the opportunity to participate in RDAP, and
that the reason the BOP has wrongfully denied him such an opportunity is that
it has aggregated his “current” Missouri judgment of conviction with the
judgment of conviction for his revocation of supervised release in the Illinois
case. This court, therefore, is unable to rule upon Mr. Donald’s petition
without further information from the respondent.
Therefore, it is ORDERED that Ms. Colston or some other individual on
behalf of the respondent who has knowledge of the claims in Mr. Donald’s
petition and supporting memorandum shall, on or before July 31, 2018,
submit an affidavit to this court:
1. Responding to Mr. Donald’s claim that he has been wrongfully denied
the opportnunity to participate in the RDAP program under 18 U.S.C.
§ 3621(e); and
2. Responding to Mr. Donald’s claim that aggregating his sentences
resulted in the wrongful denial of his ability to participate in RDAP
under 18 U.S.C. § 3621(e).
DATED this 29th day of June, 2018.
BY THE COURT:
VERONICA L. DUFFY
United States Magistrate Judge

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