Wheelock v. Wilson

Filing 12

MEMORANDUM OPINION. Signed by District Judge T. S. Ellis, III on 1/30/14. (copy mailed)(gwalk, )

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division

Wayne Wheelock,
Petitioner,
I:13cv400 (TSE/JFA)

V.

Eric Wilson,
Respondent.
MEMORANDUM OPINION

Wayne Wheelock, a federal inmate housed in the Eastern District of Virginia and

proceeding pro sq, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241,
challenging the calculation of his sentence by the Bureau of Prisons ("BOP"). Respondent has
filed a motion for summary judgment, with a supporting memorandum and exhibits. Petitioner was
given the opportunity to file responsive materials, pursuant to Roseboro v. Garrison. 528 F.2d 309

(4th Cir. 1975), and he filed a reply. Thereafter, respondent filed a reply memorandum of law.

Because the facts and legal arguments are fully set forth in the existing pleading and record
oral argument is not necessary. Accordingly,the matter is now ripe for disposition. For the reasons
that follow, respondent's motion for summaryjudgment must be granted, and thus judgment will
be entered in respondent's favor.
I. Background

The following material facts are uncontroverted. Pet.'r's Reply 1 ("Petitioner, Wayne

Wheelock, hereby adopts and accepts the respondents statement of the case as his own."). On

October 2, 2009, petitioner was arrested by the U.S. Marshals Service ("USMS") for failing to

register and update a registration as a sex offender. Resp. Mot. Summ. J. attach 1. On October 5,

2009, after petitioner's federal detention hearing was held, petitioner was turned overto tribal

custody to address outstanding tribal warrants. Id attach 3. On October 7,2009, a writ of habeas

corpus ad proseauendum was issued to the Warden of the Menominee Tribal Jail, for petitioner's
appearance at his federal preliminary hearing set for October 15,2009. Id at 3. The USMS picked
petitioner up on October 15,2009, transported him to federal court for his hearing, and returned
him to the tribal jail that same day. Id attach 5. On October 16,2009, the Menominee Indian Tribal
Court revoked petitioner's probation and ordered that his stayed sentence of 150 days would go
into effect immediately, presumably for his failure to register as a sex offender.

id attach. 6.

On October 27,2009, petitioner was indicted on one count of sexual abuse of a minor and
one count of failing to register and update registration in the United States District Court for the
Eastern District of Wisconsin. Id attachs. 7, 8. Pursuant to a writ of habeas corpus ad

proseauendum issued October 28, 2009, petitioner appeared for his arraignment hearing on

October 29, 2009 and was returned to the tribal jail that same day. Id attach. 9. On October 30,

2009, petitioner escaped from the custody of tribal authorities. Id at 4. He was apprehended the

following day and returned to the Menominee Tribal Jail. Id
On November 2,2009, petitioner completed his 150 day sentence that was imposed when
he violated his probation and continued to be held in the Menominee Tribal Jail on pending tribal

charges ofdisorderly conduct, three counts ofassault, battery, abduction,and a violation ofthe Sex
Offender Registration and Notification Program. That same day, the USMS picked up petitioner,
again pursuant to a writ of habeas corpus ad prosequendum. and kept him in temporary custody

pending the outcome of his federal criminal case. On March 19, 2010, petitioner plead guilty to
sexual abuse ofa minor, failure to register as a sex offender, and conspiracy to assault a federal law
enforcement officer and was sentenced to 96 months in prison. Id attach. 15.

Petitioner was then returned to tribal authorities on March 25,2010, and the federal

judgment was lodged as a detainer. Id. attachs. 16,17. On June 2,2010, petitioner was sentenced to
serve twenty days in jail for violating the Sex Offender Registration and Notification Program. Id.
attach. 12. On June 30, 2010, petitioner plead guilty to two counts of assault and one count of

battery. Id attach. 13. He was sentenced to a 20-day term on one count of assault; a 30-day term on
the other count of assault; and a 6-month term on the battery count, including three months stayed.

Id Petitioner received credit for time served on his tribal sentence. On July 2,2010, petitioner
completed service of his tribal sentences and was transferred to the primary custody of the USMS
for service of his 96-month federal sentence. Id. at 5.

Petitioner received a prior custody credit offour days on his federal sentence, for the time
he was held in primary federal custody from October 2-5, 2009, prior to his release to the custody
of tribal authorities. Id Petitioner was not granted prior custody credit for any of the time he spent

in USMS custody pursuant to the writs of habeas corpus M oroseauendum. approximately four
and a half months. Id at 6. He was also not given prior custody credit for the time during which he

escaped from tribal custody, from October 30 through October 31,2009. Id The Bureau ofPrisons
("BOP") also considered and ultimately rejected petitioner's request for a nunc pro tune

designation of his tribal jail as his place of imprisonment for purposes of his federal sentence,
"after considering all of the relevant factors under 18 U.S.C. § 3621(b)." Id at 6-7.

Petitioner and respondent agree that petitioner exhausted his administrative remedies

through BOP's Administrative Remedy Program.' Petitioner then turned to the federal forum and

1 In the context of federal habeas petitions challenging sentence computations, parole determinations, or goodtime
credits calculations, courtshave uniformly required petitioners firstto exhausttheir administrative remedies. See
UnitedStates v. Wilson.503 U.S.329,335-36 (1992)(holdingthat Congressional changesto 18U.S.C.§ 3568 did not
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filed the instant petition for habeas corpus relief under § 2241, requesting that this Court enter an
Order directing BOP to grant him credit for time spent in "official detention from October 5,2009

to January 4,2011Typed Pet. 1. Accordingly, this matter is now ripe for review on the merits.
IL Standard of Review

Summary judgment "shall be rendered forthwith 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." Fed. R. Civ. P. 56(c). The moving party bears the burden of proving that judgment on

the pleadings is appropriate.

Celotex Corp. v. Catrett. 477 U.S. 317, 323 (1986) (moving

party bears the burden of persuasionon all relevant issues). To meet that burden, the moving

party must demonstrate that no genuine issues of material fact are present for resolution. Id at
322. Oncea moving party has met its burden to showthat it is entitled to judgment as a matterof
law, the burden then shifts to the non-moving party to point out the specific facts which create

disputed factual issues. Anderson v. Liberty Lobby. Inc.. 477 U.S. 242,248 (1986); Matsushita
Electrical Industrial Co. v. Zenith Radio Corp.. 475 U.S. 574, 587 (1986). In evaluating a motion

for summary judgment, a district court should consider the evidence in the lightmost favorable
divest the Federal Bureau of Prisons ("BOP") of the authority to compute federal prisoners' sentences and noting that

federal prisoners may seek judicial review of these computations after exhaustion of their administrative remedies);
United States v. Bavless. 940 F,2d 300,304-305 (8th Cir. 1991)(refiisingto reach petitioner's challenge to

computation of hissentence because petitioner had failed to exhaust his administrative remedies with BOP); United
States V. Lucas. 898 F.2d 1554, 1555-56 (11th Cir. 1990) (holding that a dissatisfied prisonermay only avail himself

ofjudicial review after anadverse administrative decision by BOP regarding hissentence calculation); United States
V. Woods. 888F.2d653,654 (10thCir. 1989) (concluding that because BOPhasthe initial discretion to credita prison
term with time spent incustody before commencement ofthe sentence, a defendant must exhaust his administrative
remedies before seeking judicial review). Although the Fourth Circuit has yet to provide binding authority
addressing this issue, it has required exhaustion in several unpublished opinions: Crosson v. South Carolina. No.
93-6720, 1994 WL 12032, at »1 (4th Cir. Jan. 20, 1994) (holding thata petitioner "mustexhaust administrative
remedies before bringing a § 2241 action" challenging denial of parole); United States v. Bailey. No. 92-5592, 1991
WL 359485, at »1 (4th Cir. Sept. 16, 1993) (noting that thechallenged sentence computation was properly under
BOP'S authority, and concluding that "[o]nly after prisoners have exhausted the administrative remedies available to
them through the [BOP] can they seekjudicial review").
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to the non-moving party and draw all reasonable inferences from those facts in favor of that

party. United States v. Diebold. Inc.. 369 U.S. 654, 655 (1962). Those facts for which the

moving party bears the burden of proving are facts which are material. "[T]he substantive law
will identify which facts are material. Only disputes over facts which might affect the outcome of
the suit under the governing law will properly preclude the entry of summary judgment."
Anderson. 477 U.S. at 248. An issue of material fact is genuine when, "the evidence ... create[s]
[a] fair doubt; wholly speculative assertions will not suffice." Ross v. Communications Satellite

Corp.. 759 F.2d 355, 364 (4th Cir. 1985). Thus, summary judgment is appropriate only where no

material facts are genuinely disputed and the evidence as a whole could not lead a rational fact
finder to rule for the non-moving party. Matsushita. 475 U.S. at 587.
III. Analysis

"Challenges to the execution of a federal sentence are properly brought under 28 U.S.C. §

2241." U.S. V. Little. 392 F.3d 671,679 (4th Cir. 2004). As such, a "request for sentencing credit is
properly brought under § 2241. Id,
Petitioner seeks to have the time he spent in detention from October 5, 2009 to January 4,
2011, credited toward his federal sentence. Typed Compl. 1. Additionally, he is challenging

BOP's decision to deny his request for nunc pro tune designation, arguing BOP abused its
discretion because it misapplied factor one and failed to consider the fifth factor listed in

3621(b). Respondent is entitled to the summary judgment he seeks because, as other courts have
held in considering similar facts, petitioner is entitled to no additional credit and BOP did not
abuse its discretion. S^ Alls v. Stansberrv. 2010 WL 723034 (E.D. Va. Mar. 1, 2010), affd, 396

Fed. App'x 932 (4th Cir. 2010); Nale v. Stansberrv. 2009 WL 1321507 (E.D. Va. May 11,
2009).
A. Time Served Credit

The first question raised by this petition is whether BOP abused its discretion in deciding
not to give petitioner credit on his federal sentence for the time he spent in tribal custody prior to
the imposition of his federal sentence. It is well established that after a district court imposes a
sentence, the Attorney General, through BOP, is responsible for administering the sentence.
Wilson. 503 U.S. at 335. The authority to determine when a federal sentence commences is

uniquely BOP's, subject to federal judicial review under a "deferential abuse-of-discretion
standard.'' See United States v. Haves. 535 F.3d 907,909-10 (8th Cir. 2008), cert, denied. 129

S.Ct. 1983 (2009). In this case, BOP concluded that petitioner's federal sentence commenced on
July 2,2010, when petitioner was released from his tribal sentences and taken into the primary

custody of the United States Marshals Service. This decision was fully consistentwith federal
law, which holds that "[a] sentenceto 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." 18

U.S.C. § 3583(a). As discussed below, BOP credited petitioner'ssentence with all the time he
was entitled to under § 3585(b). 18 U.S.C. § 3585(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.").

In his reply brief, docket# 10, petitioner contends that the period from October 5, 2009

until January 4,2011 should be credited against his current sentence because he was "in official

detention." Although petitioner concedes that during this time period he was serving a sentence

imposed by the tribal court, he argues that federal authorities had "primary jurisdiction," and, as
such, he is entitled to have the time he spent in tribal custody credited towards his federal
sentence. In his assertion that federal authorities had primary jurisdiction, petitioner is simply
mistaken.

A sovereign obtains primary jurisdiction over an individual by being the "first arresting

sovereign and retain[ing] legal custody at all relevant times."

Trowell v. Beeler. 135 F.

App'x 590, 594 n.2 (4th Cir. 2005); Rash v. Stansberrv. No. 3:10CV836,2011 WL 2982216 *4
(E.D. Va. Jul. 22,2011). A sovereign is deemed to have relinquished primary jurisdiction
through release on bail, dismissal of charges, parole, and expiration of a sentence.
Paoadapoulous v. Johns. No. 5:09-HC-2009-FL, 2011 WL 1104136, at *5 n. 4 (E.D.N.C. Mar.

22, 2011) (citing United States v. Cole. 416 F.3d 894, 896-97 (8th Cir.2005); McCollough v.
O'Briea No. 7:06-CV-712,2007 WL 2029308, at *1 (W.D.Va. July 10, 2007)). Further, a

sovereign may voluntarily relinquish primary jurisdictionand permit anothersovereign to obtain

primary jurisdiction. Hernandez v. U.S. Attomev General. 689 F.2d 915, 918 (10th Cir. 2002);
United States v. Cole. 416 F.3d 894, 897 (8th Cir.2005); Parks v. Stansberrv. No. I:10cvl217,
2011 WL 3895298 (E.D. Va. Sept. 1, 2011).

Temporary release of an offenderpursuant to a writ of habeas corpusM proseauendum
does not relinquish primaryjurisdiction. S^ United States v. Evans. 159 F.3d 908, 912 (4th

Cir.1998) (rejecting inmate's argument that a writ of habeas corpus ad proseauendum effectuates

a change in custody whereby the sending jurisdiction loses ... jurisdiction and the receiving

jurisdiction gains it);

al^ U.S. v. Lemus-Rodriguez. 495 Fed.Appx. 723 *726 (7th Cir. 2012)

(holding the inmate was not entitled to credit for the forty-two months he spent in federal custody
because he was in "the physical custody of federal authorities pursuant to the ad prosequendum
writ."); U.S. v. Kellv. 661 F.3d 682,686 (1st Cir. 2011) (recognizing that the sending jurisdiction
retains full jurisdiction over the prisoner); Causev v. Civiletti. 621 F.2d 691, 693 (5th Cir. 1980);
Butler V. Warden. FCC Coleman-Medium. 451 Fed.Appx. 811,812 (11th Cir. 2011).

"This rule derives from the fact that the federal writ of habeas corpus ad prosequendum
merely loans the prisoner to federal authorities." Evans. 159 F.3d at 912 (citing Crawford v.
Jackson. 589 F.2d 693, 695 (D.C.Cir.l978) ("When an accused is transferred pursuant to a writ
of habeas corpus ad prosequendum he is considered to be 'on loan' to the federal authorities so

that the sending state's jurisdiction over the accused continues uninterruptedly. Failure to release
a prisoner does not alter that 'borrowed' status, transforming a state prisoner into a federal
prisoner.")).

Tribal authorities had primary custody of petitioner from October 5,2009 until July 2,

2010,^ because the federal court relinquished primary jurisdiction onOctober 5,2009 when it
ordered petitioner returned to tribal custody. Giddings Decl. Attach. 3 (summarizing petitioner's
detention hearing where the Court ordered petitioner be returned to tribal custody and ordered a
federal detainer be issued). He remained in tribal custody until July 2,2010, the date on which
his tribal sentence was fully served. Giddings Decl. Attach. 18. Federal authorities accepted

primary custody of him that day. Id That tribal authorities had primary custody is only bolstered
by the fact that a federal detainer was issued on October 5, 2009, and that the petitioner was

always taken into custody by the USMS via writs of habeas corpus M prosequendum. See Evans.
159 F.3d at 912. Petitioner's being taken into federal custody pursuant to writs of habeas corpus
2 Excluding October 30,2009, and October 31,2009, the days petitioner escaped from tribal authorities.
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ad prosequendum demonstrates that he was merely "on loan" from tribal authorities and that
primary custody did not transfer to federal authorities. Id.; Kellv. 661 F.3d at 682;

Lemus-Rodriguez. 495 Fed.Appx. at *726; Causey. 621 F.2d at 693; Butler. 451 Fed.Appx. at 812.
As such, petitioner is not entitled to time served credit for the time he spent in tribal jail
as the tribal authorities retained primary custody of petitioner. Further BOP has already credited
petitioner for the time he has served from July 2,2012 until January 4, 2011, the remainder of

the time petitioner seeks to have credited. Giddings Decl. ^ 19. Thus, respondent's Motion for
Summary Judgment regarding the calculation of petitioner's sentence must be granted.
B. Nunc Pro Tune Designation

BOP has the authority, pursuant to 18 U.S.C. § 3621(b), to designate the facility at which

a prisoner is to serve a federal sentence, and in this regard it has "wide discretion." Barden v.
Keohane. 921 F.2d 476,476 (3rd Cir. 1990). While it is within BOP's discretion to designate a
state facility where an inmate previously served a state sentence as the place of his federal
incarceration nunc pro tune, there is no requirement that it must grant such a request. Id at 483.
Federal habeas review of BOP's decision in such an instance is highly deferential, Taylor v.

Sawyer. 284 F.3d 1143,1149 (9th Cir. 2002), and once BOP has considered the request, judicial
consideration is limited to whether an abuse of discretion occurred. Barden. 921 F.2d at 478. So

long as BOP undertakes an individualized review of an inmate's case and makes a decision to
deny a request for designation nunc pro tune after analyzing the five relevant factors prescribed
by § 3621, habeas corpus relief from its determination is unavailable. Nale. 2009 WL 1321507
at *5.

Here, pursuant to § 3621(b), BOP could have designatedthe tribal institution where

petitioner served his tribal sentence for violating the Sex Offender Registration and Notification
Program, assault, and battery as the place of his federal incarceration nunc pro tune, such that

petitioner's federal and tribal sentences would have run concurrently. There is no authority,
however, which compelled it to grant such a request. Instead, under Barden. BOP was obligated
only to consider the request pursuant to the five factors required under § 3621. Specifically, §
3621 directs BOP to consider five factors in making this determination:
(1) the resources of the facility contemplated;
(2) the nature and circumstances of the offense;
(3) the history and characteristics of the prisoner;
(4) any statement by the court that imposed the sentence(A) concerning the purposes for which the sentence to imprisonment was
determined to be warranted; or

(B) recommending a type of penal or correctional facility as appropriate; and
(5) any pertinent policy statement issued by the Sentencing Commission pursuant to
section 994(a)(2) of title 28.
18 U.S.C.§ 3621(b).

Petitioner argues that BOP abused its discretion because it failed to take into account all
factors listen in § 3621, as petitioner argues is required under Trowell v. Beeler. No. 04-6531,
135 Fed. Appx. 590 (4th Cir. 2005). Specifically, petitioner argues that BOP misapplied factor
one and failed to consider the fifth factor when it "failed to consider United States sentencing

guideline 5G1.3(b)(1)." Typed Pet. 2. Respondent concedes that it misapplied factor one but

argues that the error was harmless and that a proper application of factor one would weigh
further against granting nunc pro tune designation. Resp't's Mot. Summ. J. at 16.
In Trowell v. Beeler. the court held that BOP abused its discretion when it applied only

the fourth factor - any statement by the court that imposed the sentence - to deny the Trowell's
request for nunc pro time designation because in solely relying on the sentencing court BOP

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"abdicated its statutory responsibility to bring its independent judgment to bear on the matter." 135
Fed. Appx. at 594. Here, BOP did not abdicate its statutory responsibility in deciding to deny

petitioner's request. Rather, it weighed the relevant factors and sought input from petitioner's
sentencing court in making its determination. Giddings decl.

24, 25.

Specifically, BOP took into consideration petitioner's offense of sexual abuse of a minor,
failure to register as a sex offender, his disciplinary record while in BOP custody and his extensive
criminal history in deciding to deny petitioner's request for nunc pro tune designation. Id. attch.
23. While BOP did misapply the first factor, this error alone does not show that BOP abused its
discretion, especially when viewed in light of the highly deferential review a federal habeas court

must give BOP's decision.

Taylor. 284 F.3d at 1149. This conclusion is only further

supported by respondent's assertion that factor one would only weigh against granting nunc pro

tune designation because PCI Petersburg has more resources than his tribal institution.^
Petitioner's argument that BOP failed to consider the fifth factor by not considering the

sentencing guidelines is without merit as United States Sentencing Guideline § 5G1.3 is an
advisory guideline to be applied by the sentencing judge, not by BOP. Indeed, § 3621 does not

permit BOPto consider those sentencing guidelines. 18 U.S.C. § 3621(b)(5). Accordingly, no
abuse of BOP's discretion has been shown, and habeas corpus relief from its decision to deny

petitioner nunc pro tune designation is unavailable. Nale. 2009 WL 1321507 at *5.

3 While Robin Barneshas retiredsincehis initial analysis of petitioner's nunc pro tune designation requestand is,

thus, unavailable to provide a declaration to a proper application of factor one, a remand would befutile because in
viewing BOP's decision it is clear that "the agency would reach thesame decision" upon a second review. See
Grimmett v. Arch of West Vireinia/Apogee Coal Co.. 7 F. App'x 207. 207-08 (4th Cir. 2001).
11

IV. Conclusion

For the foregoing reasons, respondent's motion for summary judgment must be granted,
and summary final judgment will be entered in his favor. An appropriate Order shall issue.

Entered this

ay of

2014.

Alexandria, Virginia

T.S.Ellis, 111

United States iPistrict Judge

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