Cobbin v. Odo

Filing 35

ORDER ADOPTING REPORT AND RECOMMENDATION DKT. NO. 26 , GRANTING MOTION TO DISMISS OR FOR SUMMARY JUDGMENT DKT. NO. 15 , AND DENYING AND DISMISSING PETITION WITH PREJUDICE DKT. NO. 1 . Signed by District Judge Irene M. Keeley on 8/12/2015. (Copy counsel of record, copy pro se petitioner via certified mail)(jmm) (Additional attachment(s) added on 8/12/2015: # 1 Certified Mail Return Receipt) (jmm).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

ALONZO COBBIN,
Petitioner,
v.

//

CIVIL ACTION NO. 1:15CV1
(Judge Keeley)

L. ODO, Warden,
Respondent.
ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 26], GRANTING
MOTION TO DISMISS OR FOR SUMMARY JUDGMENT [DKT. NO. 15], AND
DENYING AND DISMISSING PETITION WITH PREJUDICE [DKT. NO. 1]
On January 5, 2015, the pro se petitioner, Alonzo Cobbin
(“Cobbin”), filed a Petition for Writ of Habeas Corpus pursuant to
28 U.S.C. § 2241 (“Petition”)(Dkt. No. 1).1

On March 10, 2015, the

respondent, L. Odo, Warden (“Odo”), filed a motion to dismiss or
for summary judgment (Dkt. No. 15).
On June 1, 2015, the Honorable John S. Kaull, United States
Magistrate Judge, filed a Report and Recommendation (“R&R”), in
which he recommended that the Court grant Odo’s motion to dismiss
or motion for summary judgment and deny and dismiss Cobbin’s
petition with prejudice (Dkt. No. 26 at 9).

On June 19, 2015,

Cobbin filed a timely objection to the R&R (Dkt. No. 28).

For the

following reasons, the Court ADOPTS the R&R, GRANTS Odo’s motion,

1

Cobbin is currently incarcerated at the United States
Penitentiary in Marion, Illinois; when he filed his petition,
however, he was detained at Federal Correctional Institute Hazelton
in Bruceton Mills, West Virginia (Dkt. No. 26 at 1).

COBBIN V. ODO

1:15CV1

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 26], GRANTING
MOTION TO DISMISS OR FOR SUMMARY JUDGMENT [DKT. NO. 15], AND
DENYING AND DISMISSING PETITION WITH PREJUDICE [DKT. NO. 1]
and DENIES and DISMISSES the Petition WITH PREJUDICE.
I.
A.

BACKGROUND

Factual Background
On July 11, 2006, the Genesee County Circuit Court, in Flint,

Michigan, sentenced Cobbin to not less than 18 months and not more
than eight years of imprisonment for possession of cocaine (less
than 25 grams) (Dkt. No. 26 at 2).

On September 25, 2007, the same

court sentenced him to not less than five months and not more than
twenty years of imprisonment for possession with the intent to
deliver cocaine.

Id.

On May 29, 2008, Cobbin was released on

parole for both the July 2006 and September 2007 offenses.

Id.

Cobbin’s original parole was set to expire on November 29, 2009
(Dkt No. 1-2).
One month prior to that, however, on October 29, 2009, Cobbin
was arrested for possession of a firearm by a felon, fleeing and
eluding, violating the Controlled Substances Act, and carrying a
concealed weapon (the “October violation”).

The arresting officer

found marijuana, cocaine, an open beer, and a loaded .38 caliber
weapon in Cobbin’s car; Cobbin nevertheless was released the same
day pending investigation (Dkt. Nos. 1-5 at 2, 22-1 at 4-5).

On

December 1, 2009, he was arrested and charged with “maintaining a
2

COBBIN V. ODO

1:15CV1

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 26], GRANTING
MOTION TO DISMISS OR FOR SUMMARY JUDGMENT [DKT. NO. 15], AND
DENYING AND DISMISSING PETITION WITH PREJUDICE [DKT. NO. 1]
drug vehicle, possession of marijuana, possession of cocaine,
possession of a hand gun,” and possession of a firearm by a felon
(the “December arrest”) (Dkt. No. 1-5 at 2).

After the December

arrest, the Michigan Department of Corrections discovered Cobbin’s
October arrest, and extended his parole until November 29, 2010
(Dkt. No. 34 at 2).
On February 25, 2010, the state charges stemming from Cobbin’s
December arrest were dismissed by the Flint, Michigan, Police
Department in favor of federal prosecution (Dkt. No. 16 at 2-3).
Cobbin remained in state custody for his parole violations stemming
from the December arrest (Dkt. Nos. 16 at 2, 34 at 2).
On February 17, 2010, a federal grand jury indicted Cobbin for
possession of a firearm and possession with intent to deliver
cocaine (Dkt. No. 21 at 3).

On March 2, 2010, the United States

Magistrate Judge in the Eastern District of Michigan detained
Cobbin for trial on his federal charges, and Michigan placed a
parole hold on him one day later (Dkt. No. 21 at 2-3).2

Cobbin,

although temporarily in federal custody for trial and sentencing
purposes, was still in the primary jurisdiction of the state (Dkt

2

Cobbin was not held on a “no bond” status, as he originally
alleged (Dkt. No. 10 at 6).
3

COBBIN V. ODO

1:15CV1

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 26], GRANTING
MOTION TO DISMISS OR FOR SUMMARY JUDGMENT [DKT. NO. 15], AND
DENYING AND DISMISSING PETITION WITH PREJUDICE [DKT. NO. 1]
No. 16 at 3).
On August 13, 2010, Cobbin was sentenced in federal court to
115 months of imprisonment, to run partially concurrent, beginning
on August 13, 2010, with the sentence from his parole violation.
Id.

Although Cobbin was in federal custody awaiting sentencing

from February 25, 2010, until August 13, 2010, that period of
incarceration was credited to his state parole violation sentence,
not his federal sentence (Dkt. No. 16 at 5).

On September 1, 2010,

Cobbin returned to state custody to complete his state sentence; on
November 30, 2010, he was permanently transferred into federal
custody to serve his federal sentence.

Id. at 3.

On December 6,

2010, the Bureau of Prisons granted Cobbin’s request for a nunc pro
tunc designation, making August 13, 2010, the official start date
of his federal sentence. Id.
B.

Procedural Background
On January 5, 2015, Cobbin filed a petition seeking credit for

time served on his federal sentence from February 25, 2010, until
August 13, 2010 (Dkt. No. 1 at 7).

Cobbin argued that he was not

on parole at the time of his December arrest, and actually was in
a federal holdover facility awaiting his federal sentencing between
February 25, 2010, and August 13, 2010 (Dkt. No. 1 at 2-3).

4

COBBIN V. ODO

1:15CV1

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 26], GRANTING
MOTION TO DISMISS OR FOR SUMMARY JUDGMENT [DKT. NO. 15], AND
DENYING AND DISMISSING PETITION WITH PREJUDICE [DKT. NO. 1]
On March 10, 2015, Odo filed a motion to dismiss or motion for
summary judgment, contending that the time Cobbin served between
February 25, 2010 and August 13, 2010 had been credited to his
state parole violation sentence, and thus could not also be
credited to his federal sentence (Dkt. No. 16 at 5-6).
response,

Cobbin

argued

that,

when

the

state

charges

In
were

dismissed, he was actually taken into federal custody on a “no bond
status,” and therefore the time served should have been credited
toward his federal sentence (Dkt. No. 20 at 5).

Odo’s reply makes

clear that, although Cobbin was taken into federal custody on a
writ of habeas corpus ad prosequendum, Michigan had a parole hold
that required him to finish his state parole sentence before
serving his federal sentence (Dkt. No. 21 at 3).
On June 1, 2015, Magistrate Judge Kaull issued his R&R, in
which he recommended that the Court grant Odo’s motion to dismiss
or for summary judgment, and deny and dismiss Cobbin’s petition
with prejudice (Dkt. No. 26 at 9).

On June 19, 2015, Cobbin

objected to the R&R, arguing that (1) his parole had ended on
November 29, 2009; (2) he was not on parole during his December
arrest; and, (3) the period of incarceration from February 25,
2010, to August 13, 2010, should be credited toward his federal

5

COBBIN V. ODO

1:15CV1

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 26], GRANTING
MOTION TO DISMISS OR FOR SUMMARY JUDGMENT [DKT. NO. 15], AND
DENYING AND DISMISSING PETITION WITH PREJUDICE [DKT. NO. 1]
sentence because the state charges stemming from the December
arrest were dismissed (Dkt. No. 28 at 1).
II.

STANDARD OF REVIEW

When reviewing a magistrate judge’s R&R made pursuant to 28
U.S.C. § 636, the Court must review de novo only the portion to
which an objection is timely made.

28 U.S.C. § 636(b)(1)(c).

As

to those portions of a recommendation to which no objection is
made, a magistrate judge's findings and recommendation will be
upheld unless they are “clearly erroneous.”

See Webb v. Califano,

468 F.Supp. 825, 828 (E.D. Cal. 1979).

Because Cobbin filed

objections to the R&R, the magistrate judge's recommendations will
be reviewed de novo as to those portions of the report and
recommendation to which objections were made (Dkt. No. 28 at 1).
III.

APPLICABLE LAW

As a preliminary matter, the Court must construe Odo’s motion
as either a motion to dismiss under Fed. R. Civ. P. 12(b)(6), or as
a motion for summary judgment under Fed. R. Civ. P. 56 (Dkt. No.
15).3

Rule 12(d) mandates that when “matters outside the pleadings
3

The United States Court of Appeals for the Fourth Circuit has
determined that a responsive pleading captioned as “Motion to
Dismiss, or, in the alternative, Motion for Summary Judgment” puts
parties on notice that the Court could construe the motion either
way. Laughlin v. Metro. Washington Airports Auth., 149 F.3d 253,
6

COBBIN V. ODO

1:15CV1

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 26], GRANTING
MOTION TO DISMISS OR FOR SUMMARY JUDGMENT [DKT. NO. 15], AND
DENYING AND DISMISSING PETITION WITH PREJUDICE [DKT. NO. 1]
are presented to and not excluded by the court, the motion must be
treated as one for summary judgment under Rule 56.”

Here, the

Court and Magistrate Judge Kaull have considered material outside
of the pleadings (Dkt. Nos. 15, 20, 21, 22, 26, 28, 34).

The Court

therefore CONSTRUES Odo’s motion as one for summary judgment. Fed.
R. Civ. P. 12(d).
Summary
documents,

judgment

is

appropriate

electronically

declarations,

stipulations

stored
.

.

where

the

information,
.,

admissions,

“depositions,
affidavits

or

interrogatory

answers, or other materials” establish 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), (c)(1)(A).

When ruling on a motion for summary judgment, the Court reviews all
the evidence “in the light most favorable” to the nonmoving party.
Providence Square Assocs., L.L.C. v. G.D.F., Inc., 211 F.3d 846,
850 (4th Cir. 2000). The Court must avoid weighing the evidence or
determining

its

truth

and

limit

its

inquiry

solely

to

a

determination of whether genuine issues of triable fact exist.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct.
2505, 2510 (1986).

260 (4th Cir. 1998).
7

COBBIN V. ODO

1:15CV1

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 26], GRANTING
MOTION TO DISMISS OR FOR SUMMARY JUDGMENT [DKT. NO. 15], AND
DENYING AND DISMISSING PETITION WITH PREJUDICE [DKT. NO. 1]
The moving party bears the initial burden of informing the
Court

of

the

basis

for

the

motion

nonexistence of genuine issues of fact.

and

of

establishing

the

Celotex Corp. v. Catrett,

477 U.S. 317, 323, 106 S. Ct. 2548, 2556 (1986).

Once the moving

party has made the necessary showing, the non-moving party “must
set forth specific facts showing that there is a genuine issue for
trial.”

Anderson, 477 U.S. at 256, 106 S. Ct. at 2510 (internal

quotation marks and citation omitted).

The “mere existence of a

scintilla of evidence” favoring the non-moving party will not
prevent the entry of summary judgment; the evidence must be such
that a rational trier of fact could reasonably find for the
nonmoving party.

Id. at 248–52.
IV.

ANALYSIS

Cobbin first objects to the conclusion in the R&R that he was
on parole at the time of his December 2009 arrest.

He argues that

his parole actually ended on November 29, 2009 (Dkt. No. 28 at 1).
Cobbin’s original parole expiration date was November 29, 2009; as
noted earlier, however, it was extended until November 29, 2010, as
a consequence of his October 2009 violation (Dkt. No. 1-2 at 2;
Dkt. No. 34 at 2).
Cobbin also contends that he did not violate his state parole

8

COBBIN V. ODO

1:15CV1

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 26], GRANTING
MOTION TO DISMISS OR FOR SUMMARY JUDGMENT [DKT. NO. 15], AND
DENYING AND DISMISSING PETITION WITH PREJUDICE [DKT. NO. 1]
because it had expired before his arrest in December 2009 (Dkt. No.
28 at 1).

The record establishes that Cobbin was on active parole

until November 29, 2010, which mandated that he abide by the
curfew, comply with alcohol and drug testing, not possess or
consume alcohol, and not own or possess a firearm (Dkt. Nos. 16 at
4; 28-3 at 1-2).

On September 10, 2010, Cobbin acknowledged that

he had violated his parole on October 29 and December 1, 2009 (Dkt.
No. 28-3 at 2).
According to Mich. Comp. Laws § 791.238 (West 2015), a
prisoner who violates his parole must serve the remainder of the
maximum sentence of his imprisonment. Because Cobbin was on parole
at the time of his December arrest, he was imprisoned in state
custody for the remaining time of his parole, or until November 29,
2010 (Dkt. No. 16 at 2).

Only after he had served his entire state

sentence was Cobbin released and transferred into federal custody
to serve his federal sentence.

Id. at 3.

Finally, Cobbin argues that the time served from February 25,
2010 to August 13, 2010 should be credited to his federal sentence
because the federal offense was the only offense that had not been
dismissed (Dkt. No. 28 at 1).

After his state charges stemming

from the December arrest were dismissed on February 25, 2010,

9

COBBIN V. ODO

1:15CV1

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 26], GRANTING
MOTION TO DISMISS OR FOR SUMMARY JUDGMENT [DKT. NO. 15], AND
DENYING AND DISMISSING PETITION WITH PREJUDICE [DKT. NO. 1]
however, Cobbin was held for the parole violation until his parole
expired on November 29, 2010 (Dkt. No. 16 at 2).

After having

admitted that he had violated his parole, Cobbin was obligated to
serve the sentence stemming from his parole violation even after
his state charges were dismissed (Dkt. No. 28-3 at 2).

See Smith

v. Michigan Parole Bd., 78 Mich. App. 753, 759-60 (Mich. Ct. App.
1977)(stating that even though state charges were dismissed, the
Parole Board may still bring a parole violation against the
defendant).
A

defendant

can

receive

credit

for

time

served

while

officially detained awaiting trial, so long as the time served has
not been credited to another offense.

18 U.S.C.A. § 3585; United

States v. Wilson, 503 U.S. 329, 333, 112 S. Ct.

1351, 1353 (1992).

Here, although Cobbin was temporarily taken into federal custody,
the time he served between February 25 and August 13, 2010, was
credited to his parole violation sentence (Dkt. No. 16 at 2).
People v. Gwinn, Nos. 283362 and 283363, 2009 WL 1710700, at *2
(Mich. App. June 18, 2009) (when a defendant is held in custody on
a parole violation, the time served may not be applied to a new
offense).
For the reasons discussed, the Court ADOPTS the R&R (Dkt. No.

10

COBBIN V. ODO

1:15CV1

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 26], GRANTING
MOTION TO DISMISS OR FOR SUMMARY JUDGMENT [DKT. NO. 15], AND
DENYING AND DISMISSING PETITION WITH PREJUDICE [DKT. NO. 1]
26), GRANTS Odo’s motion for summary judgment (Dkt. No. 15), and
DENIES and DISMISSES WITH PREJUDICE Cobbin’s petition (Dkt. No. 1).
It is so ORDERED.
The Court directs the Clerk to transmit copies of this Order
to counsel of record and the pro se petitioner, certified mail,
return receipt requested, and to enter a separate judgment order.
DATED:

August 12, 2015.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

11