Pumphrey v. Coakley

Filing 26

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION 23 , GRANTING RESPONDENTS MOTION FOR SUMMARY JUDGMENT 12 , AND DENYING AND DISMISSING § 2241 PETITION WITH PREJUDICE 1 : The Court OVERRULES Pumphreys objections 25 ; ADOPTS the R&R in its entirety 23 ; GRANTS the respondents motion for summary judgment 12 ; GRANTS Pumphreys motion requesting ruling 20 ; GRANTS Pumphreys motion to amend 21 ; and DENIES and DISMISSES WITH PREJUDICE the Petition 1 . The Court DIRECTS the Clerk to enter a separate judgment order Signed by District Judge Irene M. Keeley on 6/21/17. (Attachments: # 1 Certified Mail Return Receipt)(jss)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
WILLIAM C. PUMPHREY,
Petitioner,
v.

CIVIL ACTION NO. 1:16CV199
(Judge Keeley)

JOE COAKLEY,
Respondent.
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 23], GRANTING RESPONDENT’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 12], AND DENYING
AND DISMISSING § 2241 PETITION WITH PREJUDICE [DKT. NO. 1]
On October 1, 2016, the petitioner, William C. Pumphrey
(“Pumphrey”), filed the pending Petition for Habeas Corpus Pursuant
to 28 U.S.C. § 2241 (“Petition”), contending that the Bureau of
Prisons (“BOP”) unlawfully calculated his sentence. Pursuant to 28
U.S.C. § 636 and LR PL P 2, the Court referred the Petition to the
Honorable Michael J. Aloi, United States Magistrate Judge, for
initial review. Now pending for review is the magistrate judge’s
report and recommendation (“R&R”) recommending that the Court deny
and dismiss the Petition (Dkt. No. 23). For the reasons that
follow, the Court ADOPTS the R&R.
I. BACKGROUND
Pumphrey’s Petition challenges the BOP’s calculation of his
sentence

with

regard

to

two

separately

imposed

terms

of

PUMPHREY V. COAKLEY

1:16CV199

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 23], GRANTING RESPONDENT’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 12], AND DENYING
AND DISMISSING § 2241 PETITION WITH PREJUDICE [DKT. NO. 1]
incarceration.1 On August 28, 2009, the United States Marshals
Service (“USMS”) arrested Pumphrey in Salt Lake City, Utah, in
connection with an indictment returned against him in the District
of New Mexico (D.N.M., Crim. Action No. 1:09cr01746). On May 5,
2010, Pumphrey pleaded guilty in the District of New Mexico to one
count of Receipt of Visual Depiction of Minors Engaged in Sexually
Explicit

Conduct,

in

violation

of

18

U.S.C.

§§

2252(a)(2),

2252(B)(1), and 2256 (D.N.M., Crim. Action No. 1:09cr01746, Dkt.
No. 43). Thereafter, on January 20, 2011, the district court
sentenced Pumphrey to a 120-month term of incarceration (D.N.M.,
Crim. Action No. 1:09cr01746, Dkt. No. 64).
While Pumphrey was serving that sentence, a grand jury in the
District of Utah returned an indictment on November 9, 2011,
charging him with additional child pornography offenses (D. Utah,
Crim. Action No. 2:11cr937, Dkt. No. 1). On March 18, 2013, the
district court in Utah dismissed that indictment without prejudice
based on a violation of the Speedy Trial Act (D. Utah, Crim. Action
No. 2:11cr937, Dkt. No. 56).

1

The R&R contains a thorough discussion of the facts relevant
to the entirety of Pumphrey’s sentence calculation (Dkt. No. 23 at
2-4).
2

PUMPHREY V. COAKLEY

1:16CV199

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 23], GRANTING RESPONDENT’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 12], AND DENYING
AND DISMISSING § 2241 PETITION WITH PREJUDICE [DKT. NO. 1]
Shortly thereafter, on March 27, 2013, another grand jury in
the District of Utah returned an indictment against Pumphrey, and
also a superseding indictment on May 22, 2013 (D. Utah, Crim.
Action No. 2:13cr197, Dkt. Nos. 1; 25). Pumphrey eventually pleaded
guilty

to

one

count

of

Distribution

and

Receipt

of

Child

Pornography, in violation of 18 U.S.C. §§ 2252A(a)(2), (b) on June
6, 2013. He waived the preparation of a presentence report and
requested that the district court sentence him that same day (D.
Utah, Crim. Action No. 2:13cr197, Dkt. No. 54). The district court
sentenced Pumphrey to a 120-month term of imprisonment, to run
concurrently with the 120-month term previously imposed in the
District of New Mexico (D. Utah, Crim. Action No. 2:13cr197, Dkt.
No. 57 at 1-2). The district court also recommended to the BOP that
Pumphrey receive credit for time served in connection with the
matter, including the related case that had been dismissed. Id. at
2.
Pursuant to 18 U.S.C. § 3584, the BOP aggregated Pumphrey’s
two sentences into a single term of 12 years, 4 months, and 17
days, finding it began to run when the District of New Mexico
imposed its sentence on January 20, 2011 (Dkt. No. 13-1 at 2). The

3

PUMPHREY V. COAKLEY

1:16CV199

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 23], GRANTING RESPONDENT’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 12], AND DENYING
AND DISMISSING § 2241 PETITION WITH PREJUDICE [DKT. NO. 1]
BOP also gave Pumphrey credit for the time he spent in official
custody prior to that date, including from August 28, 2009, the
date of his arrest on charges in the District of New Mexico, until
January 19, 2011, the day prior to his sentencing in the District
of New Mexico. Assuming that Pumphrey is eligible to receive good
time credit, the BOP projects he will be released on April 30,
2020. Id. at 2-3.
Pumphrey

argues

that

the

BOP

calculated

his

sentence

incorrectly (Dkt. No. 1 at 6). He contends that, because the
District of Utah intended its sentence to run concurrently with the
sentence imposed by the District of New Mexico, the term of
incarceration imposed in 2013 should have begun on the date when
his term of incarceration in New Mexico was first imposed in 2011.
This would result in a ten-year aggregate term, rather than the
longer twelve-year plus term calculated by the BOP, and would be
further reduced by prior custody credit from Pumphrey’s initial
arrest in August 2009. Based on this, Pumphrey maintains that his
sentence would be fully discharged in 2019. Id. According to the
respondent warden, Joseph Coakley (“Coakley”), the BOP properly

4

PUMPHREY V. COAKLEY

1:16CV199

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 23], GRANTING RESPONDENT’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 12], AND DENYING
AND DISMISSING § 2241 PETITION WITH PREJUDICE [DKT. NO. 1]
calculated Pumphrey’s aggregate term of imprisonment (Dkt. Nos. 12;
13).
In

an

R&R

dated

May

11,

2017,

Magistrate

Judge

Aloi

recommended that the Court grant Coakley’s motion for summary
judgment and dismiss the Petition (Dkt. No. 23). Beginning with the
well-settled principle that a federal sentence cannot commence
earlier than the date on which it is imposed, he further reasoned
that 18 U.S.C. § 3585(b) precludes the BOP from applying the same
prior time credit to more than one sentence. Id. at 8-9. Therefore,
Magistrate Judge Aloi concluded that, regardless of the District of
Utah’s

intent,

the

BOP

properly

calculated

the

beginning

of

Pumphrey’s second 120-month term of incarceration on June 6, 2013,
the date it was imposed, and properly applied prior custody credit
to Pumphrey’s aggregate term of incarceration. Id. at 11. Pumphrey
timely objected to the R&R on May 18, 2017. A discussion of those
objections follows.
II. STANDARD OF REVIEW
When reviewing a magistrate judge’s R&R pursuant to 28 U.S.C.
§ 636, the Court must review de novo only those portions of the R&R
to which an objection is timely made. 28 U.S.C. § 636(b)(1)(C).

5

PUMPHREY V. COAKLEY

1:16CV199

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 23], GRANTING RESPONDENT’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 12], AND DENYING
AND DISMISSING § 2241 PETITION WITH PREJUDICE [DKT. NO. 1]
Otherwise, “the Court may adopt, without explanation, any of the
magistrate judge’s recommendations to which the prisoner does not
object.” Dellaciprete v. Gutierrez, 479 F. Supp. 2d 600, 603-04
(N.D.W. Va. 2007) (citing Camby v. Davis, 718 F.2d 198, 199 (4th
Cir. 1983)). Courts will uphold those portions of a recommendation
to which no objection has been made unless they are “clearly
erroneous.” See Diamond v. Colonial Life & Accident Ins. Co., 416
F.3d 310, 315 (4th Cir. 2005).
III. DISCUSSION
Pumphrey argues that the BOP improperly calculated his term of
imprisonment despite the fact that “[p]etitioner’s attorney, the
judge, and the A.U.S.A. went to extraordinary lengths to put on
record the intent of the plea agreement that Petitioner’s time was
to [be] served concurrent [sic] with that of New Mexico and that he
was to be given credit for the time he spent in detention in Utah”
(Dkt. No. 25 at 2). “[H]e cannot agree that the BOP has some power
above and beyond a judge’s intentions when sentencing to completely
go against said intentions.” Id.
Although Pumphrey may disagree, Magistrate Judge Aloi fully
and fairly addressed this argument. Even though the District of

6

PUMPHREY V. COAKLEY

1:16CV199

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 23], GRANTING RESPONDENT’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 12], AND DENYING
AND DISMISSING § 2241 PETITION WITH PREJUDICE [DKT. NO. 1]
Utah ordered its sentence to run concurrently with the sentence
imposed in the District of New Mexico, the District of Utah’s
sentence

could

concurrently,

not

begin,

until

the

and

date

thus

it

could

was

not

imposed.

begin
See

18

to

run

U.S.C.

§ 3585(a). Moreover, because the BOP is responsible for computing
the length of Pumphrey’s sentence, the District of Utah’s intent
regarding

credit

for

time

served

simply

is

not

controlling.

Statutory law precludes the BOP from applying prior custody credit
to more than one sentence in the manner asserted by Pumphrey (Dkt.
No. 23 at 8-9). See 18 U.S.C. § 3585(b).
In the face of this reasoning, Pumphrey asserts, for the first
time, that his “plea was not voluntarily, intelligently, and
knowingly entered into,” and that he should be permitted to
withdraw it (Dkt. No. 25 at 3). This Court lacks the authority to
consider such a request, however. After sentencing, such relief may
be sought only on direct appeal or collateral attack. United States
v. Battle, 499 F.3d 315, 319 (4th Cir. 2007) (citing Fed. R. Crim.
P. 11(e)). Thus, the proper avenue for collaterally attacking one’s
conviction is a motion pursuant to 28 U.S.C. § 2255. Rice v.

7

PUMPHREY V. COAKLEY

1:16CV199

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 23], GRANTING RESPONDENT’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 12], AND DENYING
AND DISMISSING § 2241 PETITION WITH PREJUDICE [DKT. NO. 1]
Rivera, 617 F.3d 802, 807 (4th Cir. 2010); In re Vial, 115 F.3d
1192, 1194 (4th Cir. 1997).
Only in limited circumstances, when § 2255 is an “inadequate
or

ineffective

remedy,”

does

§

2255's

savings

clause

permit

petitioners to bring a collateral attack pursuant to § 2241. In re
Vial, 115 F.3d at 1194 n.5; In re Jones, 226 F.3d 328, 333 (4th
Cir. 2000). In the Fourth Circuit, a petitioner may establish “that
§ 2255 is inadequate or ineffective to test the legality of a
conviction” if he can prove the following:
(1) [A]t the time of conviction, settled law of this
circuit or the Supreme Court established the legality of
the conviction; (2) subsequent to the prisoner's direct
appeal and first § 2255 motion, the substantive law
changed such that the conduct of which the prisoner was
convicted is deemed not to be criminal; and (3) the
prisoner cannot satisfy the gatekeeping provisions of
§ 2255 because the new rule is not one of constitutional
law.
In re Jones, 226 F.3d at 333-34. Essentially, a prisoner must have
“had no opportunity to utilize a § 2255 motion to take advantage of
a change in the applicable law.” Rice, 617 F.3d at 807. Because
Pumphrey does not rely on a change in the law, much less one that
meets the criteria articulated in In re Jones, he cannot seek to
withdraw his plea under § 2241.

8

PUMPHREY V. COAKLEY

1:16CV199

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 23], GRANTING RESPONDENT’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 12], AND DENYING
AND DISMISSING § 2241 PETITION WITH PREJUDICE [DKT. NO. 1]
IV. CONCLUSION
For

the

reasons

discussed,

following

de

novo

review

of

Pumphrey’s specific objections, and finding no clear error in those
portions of the R&R not specifically objected to, the Court:
1)

OVERRULES Pumphrey’s objections (Dkt. No. 25);

2)

ADOPTS the R&R in its entirety (Dkt. No. 23);

3)

GRANTS the respondent’s motion for summary judgment (Dkt.
No. 12);

4)

GRANTS Pumphrey’s motion requesting ruling (Dkt. No. 20);

5)

GRANTS Pumphrey’s motion to amend (Dkt. No. 21); and

6)

DENIES and DISMISSES WITH PREJUDICE the 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 and
return receipt requested, to enter a separate judgment order, and
to remove this case from the Court’s active docket.
DATED: June 21, 2017.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE
9