Bates v. Saad

Filing 26

MEMORANDUM OPINION AND ORDER REJECTING REPORT AND RECOMMENDATIONDKT NO. 20 , DENYING RESPONDENTS MOTION TO DISMISS OR MOTION FOR SUMMARY JUDGMENT DKT. NO. 13 , AND GRANTING IN PART PETITIONERS § 2241 PETITION DKT. NO. 1 . Signed by Senior Judge Irene M. Keeley on 3/26/2019. (copy pro se petitioner via certified mail)(jmm) (Additional attachment(s) added on 3/26/2019: # 1 Certified Mail Return Receipt) (jmm).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
RICHARD LEE BATES,
Petitioner,
v.

CIVIL ACTION No. 1:17cv143
CRIMINAL ACTION No. 4:11cr32
(Judge Keeley)

JENNIFER SAAD,
Respondent.
MEMORANDUM OPINION AND ORDER
REJECTING REPORT AND RECOMMENDATION
[DKT NO. 20], DENYING RESPONDENT’S MOTION TO
DISMISS OR MOTION FOR SUMMARY JUDGMENT [DKT. NO. 13], AND
GRANTING IN PART PETITIONER’S § 2241 PETITION [DKT. NO. 1]
On

August

16,

2017,

the

petitioner,

Richard

Lee

Bates

(“Bates”), filed a petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2241 (Dkt. No. 1). In his petition, he alleges that,
following its decision to grant in part his request for a nunc pro
tunc1

designation,

the

Federal

Bureau

of

Prisons

(“BOP”)

miscalculated his credit for time spent in state prison. Id. After
the respondent, Jennifer Saad (“Saad”), filed a motion to dismiss
or, in the alternative, motion for summary judgment (Dkt. No. 13),
the Honorable Michael J. Aloi, United States Magistrate Judge,
issued a Report and Recommendation (“R&R”), recommending that the
Court grant Saad’s motion and dismiss Bates’s petition (Dkt.

1
Here, nunc pro tunc refers to the BOP’s exclusive power, under 18
U.S.C. § 3621(b), to retroactively designate a state facility as the official
place of imprisonment for a federal prisoner who has served time in state
custody. See Jefferson v. Berkebile, 688 F. Supp. 2d 474, 487 (S.D. W. Va.
2010).

BATES V. SAAD

1:17cv143

MEMORANDUM OPINION AND ORDER
REJECTING REPORT AND RECOMMENDATION
[DKT NO. 20], DENYING RESPONDENT’S MOTION TO
DISMISS OR MOTION FOR SUMMARY JUDGMENT [DKT. NO. 13], AND
GRANTING IN PART PETITIONER’S § 2241 PETITION [DKT. NO. 1]
No. 20).
Following de novo review of the R&R,2 the Court concludes that
the BOP abused its discretion by selecting July 1, 2013, as the
retroactive start date for Bates’s federal sentence. Accordingly,
it DENIES Saad’s motion (Dkt. No. 13), and GRANTS IN PART Bates’s
§ 2241 Petition (Dkt. No. 1).
I. BACKGROUND
A.

Factual Background3
In November 2011, in Martinsville, Virginia, the Henry County

Sheriff’s Office arrested Bates and charged him with possession of
a firearm and ammunition by a felon in the Commonwealth of Virginia
(Dkt. No. 20). After a federal grand jury named Bates in a sixcount indictment, Virginia loaned him to the United States District
Court for the Western District of Virginia pursuant to a Writ of
Habeas Corpus Ad Prosequendum (Dkt. No. 13-3 at 1-2).

2

Bates’s timely objections are sufficiently specific to warrant de
novo review. See 28 U.S.C. § 636(b)(1)(B)(2012)(“A judge of the court shall
make a de novo determination of those powers of the report or specified
proposed findings or recommendations to which objection is made.”).
3

The Addendum of Relevant Dates attached to this memorandum opinion and
order sets forth a chronology of the relevant dates discussed by the Court.

2

BATES V. SAAD

1:17cv143

MEMORANDUM OPINION AND ORDER
REJECTING REPORT AND RECOMMENDATION
[DKT NO. 20], DENYING RESPONDENT’S MOTION TO
DISMISS OR MOTION FOR SUMMARY JUDGMENT [DKT. NO. 13], AND
GRANTING IN PART PETITIONER’S § 2241 PETITION [DKT. NO. 1]
Pursuant to a plea agreement, Bates pleaded guilty to Counts
Three and Four of the six-count federal indictment, charging him
with distribution of oxycodone, in violation of 21 U.S.C. §
841(a)(1), and possession of a firearm during and in relation to a
drug trafficking offense, in violation of 18 U.S.C. § 924(c)(1)(A)
(Dkt. No. 13-3 at 5). He received a sentence of 46 months of
imprisonment on Count 3, and a consecutive sentence of 60 months of
imprisonment on Count 4, for a total sentence of 106 months. Id. at
6.
The Western District of Virginia returned Bates to the custody
of Virginia and lodged the federal judgment as a detainer. The
Henry Circuit Court, in Henry County, Virginia, sentenced Bates to
a 10-year term of imprisonment, with 5 years suspended and credit
for time served in pretrial custody (Dkt. No. 13-3 at 11-12).
Notably, the time Bates served in pretrial custody ran from
November 13, 2011 (the date of his arrest), until August 30, 2012
(the day his state sentence officially commenced), for a total of
291 days. Id. at 13. When Bates completed his state sentence on
March 9, 2016, Virginia transferred him to the custody of the

3

BATES V. SAAD

1:17cv143

MEMORANDUM OPINION AND ORDER
REJECTING REPORT AND RECOMMENDATION
[DKT NO. 20], DENYING RESPONDENT’S MOTION TO
DISMISS OR MOTION FOR SUMMARY JUDGMENT [DKT. NO. 13], AND
GRANTING IN PART PETITIONER’S § 2241 PETITION [DKT. NO. 1]
United

States

Marshals

Service

to

begin

serving

his

federal

sentence of 106 months. Id. at 14.
In May 2016, while serving his federal sentence, Bates sought
a two level reduction of his 46-month sentence for distribution of
oxycodone pursuant to the newly enacted, so-called “Drugs Minus
Two” law, 28 U.S.C. § 994(u). Id. at 15. The Western District of
Virginia

granted

Bates’s

motion

and

reduced

his

term

of

imprisonment on Count 3 from 46 to 37 months, effectively reducing
his total federal sentence from 106 to 97 months. Id.
In June 2016, the BOP sent a letter to his federal sentencing
court inquiring whether it would oppose a potential nunc pro tunc
designation of Bates’s sentence as to Count 3. Id. at 16-17. The
court interposed no objection, and the BOP, utilizing the five
factors outlined in 18 U.S.C. § 3621(b), concluded that a nunc pro
tunc designation was appropriate “insofar as it related to Count 3”
(Dkt. Nos. 13-2 at 3; 13-3 at 18-19; 20).
To effectuate the nunc pro tunc designation, the BOP selected
a retroactive start date for Bates’s 37-month sentence on Count 3
that would allow his federal sentence to run partially concurrent
to his state sentence (Dkt. No. 13-2 at 3). According to the BOP’s

4

BATES V. SAAD

1:17cv143

MEMORANDUM OPINION AND ORDER
REJECTING REPORT AND RECOMMENDATION
[DKT NO. 20], DENYING RESPONDENT’S MOTION TO
DISMISS OR MOTION FOR SUMMARY JUDGMENT [DKT. NO. 13], AND
GRANTING IN PART PETITIONER’S § 2241 PETITION [DKT. NO. 1]
calculation, Bates would have satisfied his 37 months on Count 3 on
March 8, 2016, the day before Virginia released him to federal
custody to begin serving his federal sentence. Id. Based on this,
the BOP contends that Bates began serving his consecutive 60-month
sentence on Count 4 on March 9, 2016. Id.
Whether the BOP correctly determined that “a 37-month term of
imprisonment commencing on July 1, 2013 would be satisfied on March
8, 2016, the day prior to the state sentence’s satisfaction date,”
id., is, as Bates has aptly pointed out in his memorandum, “the
crux of the matter” (Dkt. No. 22). Notably, the span of time
between July 1, 2013, and March 8, 2016, is not 37 months, but only
32 months and 8 days.
B.

Procedural Background
Saad’s motion argues that Bates is not entitled to any

additional credit for time spent in state custody because all of
the time he spent in pretrial custody has already been credited
against his state sentence (Dkt. Nos. 13, 13-1 at 5-6).
Bates concedes that he cannot receive credit for any time
spent in state custody against his 60-month sentence on Count 4
because,

under

§

924(c)(1)(A),

5

that

sentence

must

be

served

BATES V. SAAD

1:17cv143

MEMORANDUM OPINION AND ORDER
REJECTING REPORT AND RECOMMENDATION
[DKT NO. 20], DENYING RESPONDENT’S MOTION TO
DISMISS OR MOTION FOR SUMMARY JUDGMENT [DKT. NO. 13], AND
GRANTING IN PART PETITIONER’S § 2241 PETITION [DKT. NO. 1]
consecutively to any other sentence (Dkt. No. 19). But he insists
that,

when

the

BOP

granted

his

nunc

pro

tunc

request,

it

erroneously credited him with only 31 months in state custody. Id.
According to his reasoning, by subtracting 31 months from 97 months
(his total federal sentence), 66 months, or 6 months more than the
60-month sentence on Count 4, remain, and the BOP therefore must
credit him with an additional 6 months of time served on his 37month sentence for Count 3. Id. Tellingly, Saad has never responded
to this argument, whether in her motion to dismiss or supporting
brief. Nor has she filed a reply brief justifying the BOP’s
calculations.
In

October

2018,

Magistrate

Judge

Aloi

issued

a

R&R,

recommending that the Court grant Saad’s motion and deny Bates’s
§ 2241 petition (Dkt. No. 20). The R&R adopted the BOP’s argument
that Bates was not entitled to six additional months of credit
against his federal sentence because all of the time he spent in
pretrial custody (from November 13, 2011, the date of his arrest,
to

August

30,

2012,

the

day

his

state

sentence

officially

commenced) was credited against his state sentence. Id. at 10-11.
The R&R, however, failed to explain how a 37-month sentence

6

BATES V. SAAD

1:17cv143

MEMORANDUM OPINION AND ORDER
REJECTING REPORT AND RECOMMENDATION
[DKT NO. 20], DENYING RESPONDENT’S MOTION TO
DISMISS OR MOTION FOR SUMMARY JUDGMENT [DKT. NO. 13], AND
GRANTING IN PART PETITIONER’S § 2241 PETITION [DKT. NO. 1]
beginning on July 1, 2013, could be “satisfied” 32 months and 8
days later on March 8, 2016. Nor did it explain how Bates could
have received pretrial credit for the time he spent in state
custody through July 1, 2013, in as much as, at that time, he was
no longer in pretrial custody, which had ended on August 30, 2012.
After reviewing the record, the Court directed Saad to provide
Bates’s projected release date (without good conduct time), as well
as the amount of good conduct time Bates had earned to date (Dkt.
No. 23). In her submission, Saad calculated that, as of February
11, 2019, Bates’s projected release date, without good conduct
time, would be July 31, 2021 (Dkt. No. 24). With the 270 days of
good conduct time Bates had accumulated to date, and the potential
to earn a total of 380 days of good conduct time, Bates could be
released, at the earliest, on or about July 16, 2020. Id.
II. STANDARD OF REVIEW
When considering a magistrate judge’s R&R pursuant to 28
U.S.C. § 636(b)(1), the Court must review de novo those portions to
which objection is timely made. Otherwise, “the Court may adopt,
without explanation, any of the magistrate judge’s recommendations
to which the [petitioner] does not object.” Dellacirprete v.

7

BATES V. SAAD

1:17cv143

MEMORANDUM OPINION AND ORDER
REJECTING REPORT AND RECOMMENDATION
[DKT NO. 20], DENYING RESPONDENT’S MOTION TO
DISMISS OR MOTION FOR SUMMARY JUDGMENT [DKT. NO. 13], AND
GRANTING IN PART PETITIONER’S § 2241 PETITION [DKT. NO. 1]
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 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. APPLICABLE LAW
The BOP “typically enjoys broad discretion in analyzing nunc
pro tunc requests in the first instance.” Mangum v. Hallembaek, 910
F.3d 770, 779 (4th Cir. 2018). Nevertheless, courts maintain the
authority to review the BOP’s ultimate decision to grant or deny a
nunc pro tunc request. Mangum v. Hallembaek, 824 F.3d 98, 103 (4th
Cir. 2016). Likewise, when the BOP grants a prisoner’s nunc pro
tunc request, courts have the authority under § 2241 to review its
computation of the sentence. See Rickman v. Maye, 196 F. Supp. 3d
1197, 1200-02 (D. Kan. 2016) (reviewing prisoner’s claim “that the
BOP, to the extent it granted his request for a retroactive
concurrent designation, erred when it calculated the start and
release dates for his federal sentence”); cf. Atkins v. Garcia, 816
F. Supp. 2d 1108, 1110 (D. Col. 2011) (“‘A motion pursuant to §
2241 generally . . . [includes] such matters as the administration

8

BATES V. SAAD

1:17cv143

MEMORANDUM OPINION AND ORDER
REJECTING REPORT AND RECOMMENDATION
[DKT NO. 20], DENYING RESPONDENT’S MOTION TO
DISMISS OR MOTION FOR SUMMARY JUDGMENT [DKT. NO. 13], AND
GRANTING IN PART PETITIONER’S § 2241 PETITION [DKT. NO. 1]
of

parole,

computation

of

a

prisoner's

sentence

by

prison

officials, prison disciplinary actions, prison transfers, type of
detention and prison conditions.’” (emphasis added) (alteration in
original) (quotation omitted)).
Because the BOP is an administrative agency, the Court must
determine

which

deferential

standard

to

apply

to

the

BOP’s

determination that July 1, 2013, is the correct retroactive start
date for Bates’s federal sentence. See Hogge v. Wilson, 648 Fed.
App’x

327,

330

(4th

Cir.

2016)

(noting

that

the

BOP’s

interpretations are not always entitled to Chevron deference). This
determination

depends

on

what

manual,

program

statement,

regulation, or statute was used to choose Bates’s retroactive start
date.4 Although the BOP did not include this information in the
record,5 the Court concludes that the BOP’s decision fails to
4

If the BOP’s determination was based on its interpretation of a
statute, its determination may be entitled to Chevron deference. Hogge, 648
Fed. App’x at 330. But if its determination was based on its interpretation of
a BOP program statement, its determination would only be entitled to Skidmore
deference, which requires courts only to defer to the BOP “to the extent it
has the ‘power to persuade.’” Id. (quoting Knox Creek Coal Corp. v. Sec'y of
Labor, Mine Safety & Health Admin., 811 F.3d 148, 160 (4th Cir. 2016) (quoting
Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944))). In Hogge, the Fourth
Circuit applied Skidmore deference to the BOP’s calculation of a prisoner’s
release date under BOP Program Statement 5880.28. 648 Fed. App’x at 330.
5

Although the BOP likely interpreted a BOP program statement when it
selected July 1, 2013, as the retroactive start of Bates’s federal, nothing in
the record identifies which program statement was used, if any. Accordingly,

9

BATES V. SAAD

1:17cv143

MEMORANDUM OPINION AND ORDER
REJECTING REPORT AND RECOMMENDATION
[DKT NO. 20], DENYING RESPONDENT’S MOTION TO
DISMISS OR MOTION FOR SUMMARY JUDGMENT [DKT. NO. 13], AND
GRANTING IN PART PETITIONER’S § 2241 PETITION [DKT. NO. 1]
persuade under any deferential standard because the BOP clearly
abused its discretion when it selected July 1, 2013, as the start
of Bates’s 37-month term of imprisonment.
IV. DISCUSSION
Contrary to both Saad’s argument and the R&R’s conclusion,
Bates received no credit for time spent in pretrial custody through
July 1, 2013. This is because he was only in pretrial custody from
November 13, 2011, the date of his arrest, through August 30, 2012,
the day his state sentence officially commenced (Dkt. 13-3 at 13).
Because Bates was no longer in pretrial custody on August 30, 2012,
the BOP was free to select a date prior to July 1, 2013 to
retroactively calculate the beginning of his 37-month sentence on
Count 3.
The accuracy of the BOP’s selection of July 1, 2013, as the
retroactive

start

date

is

undermined

by

its

own

reasoning.

According to the BOP, its stated goal was to select a retroactive
start date that would assure that Bates’s 37-month sentence on
Count 3 “would be satisfied on March 8, 2016,” the day before being
released to federal custody (Dkt. No. 13-2 at 3). Indeed, the BOP
the Court cannot definitively conclude which deferential standard applies
here.

10

BATES V. SAAD

1:17cv143

MEMORANDUM OPINION AND ORDER
REJECTING REPORT AND RECOMMENDATION
[DKT NO. 20], DENYING RESPONDENT’S MOTION TO
DISMISS OR MOTION FOR SUMMARY JUDGMENT [DKT. NO. 13], AND
GRANTING IN PART PETITIONER’S § 2241 PETITION [DKT. NO. 1]
explained that “[t]his calculation would allow [Bates]’s 37-month
term to run concurrent with his state sentence while also allowing
for [Bates]’s 60-month consecutive portion of the sentence to
commence on the actual release date of the state sentence . . . .”
Id. at 3-4.
Notably, there are not 37 months between July 1, 2013, and
March 8, 2016, but only 32 months and 8 days. Neither Saad’s
memorandum nor the R&R attempts to explain how Bates’s 37-month
sentence could have been satisfied in 32 months and 8 days (Dkt.
Nos. 13-1, 20).
The BOP’s decision to select July 1, 2013, as the retroactive
start date also is contradicted by the additional information
regarding Bates’s projected release date, both with and without
good conduct time, submitted by Saad (Dkt. No. 23). Although Saad
claims that a retroactive start date of Bates’s federal sentence on
July 1, 2013, satisfied his 37-month sentence on March 8, 2016, and
allowed his 60-month sentence to begin on March 9, 2016 (Dkt. No.
13-2 at 3-4), Bates’s projected release date, without good conduct
time, is July 31, 2021 (Dkt. No. 24), which is 64-plus months

11

BATES V. SAAD

1:17cv143

MEMORANDUM OPINION AND ORDER
REJECTING REPORT AND RECOMMENDATION
[DKT NO. 20], DENYING RESPONDENT’S MOTION TO
DISMISS OR MOTION FOR SUMMARY JUDGMENT [DKT. NO. 13], AND
GRANTING IN PART PETITIONER’S § 2241 PETITION [DKT. NO. 1]
later. Critically, a 60-month sentence beginning on March 9, 2016,
should be satisfied, at the latest, on March 8, 2021.
The foregoing establishes that the BOP abused its discretion
when, after granting Bates’s nunc pro tunc request, it selected
July 1, 2013, as the retroactive start date for his sentence on
Count 3. That calculation effectively extends Bates’s total 60month

term

of

imprisonment

by

four-plus

months,

and

thus

constitutes a miscarriage of justice well within the Court’s power
to correct. See

Taylor v. Warden Allendale Corr. Inst., No.

0:14–2032–TMC, 2015 WL 1730813, at *2 (D.S.C. Apr. 14, 2015)
(“Habeas corpus proceedings are the proper mechanism for a prisoner
to challenge the . . . duration of his custody.”).
IV. CONCLUSION
For the reasons discussed, the Court REJECTS the Report and
Recommendation of the Magistrate Judge (Dkt. No. 20), DENIES Saad’s
Motion to Dismiss or, in the Alternative, Motion for Summary
Judgment (Dkt. No. 13), and GRANTS IN PART Bates’s 28 U.S.C. § 2241
petition (Dkt. No. 1). Accordingly, it ORDERS as follows:
(1)

The BOP shall recalculate the retroactive start
date of Bates’s 37-month federal sentence, so that
12

BATES V. SAAD

1:17cv143

MEMORANDUM OPINION AND ORDER
REJECTING REPORT AND RECOMMENDATION
[DKT NO. 20], DENYING RESPONDENT’S MOTION TO
DISMISS OR MOTION FOR SUMMARY JUDGMENT [DKT. NO. 13], AND
GRANTING IN PART PETITIONER’S § 2241 PETITION [DKT. NO. 1]
it commences on or before February 8, 2013, and
concludes on or before March 8, 2016; and
(2)

The BOP shall recalculate the start date of Bates’s
60-month sentence, so that it commences on March 9,
2016, and concludes on or before March 8, 2021.

The Clerk is directed to mail a copy of this Order to Bates
by certified mail, return receipt requested, and to counsel of
record and all appropriate agencies by electronic means.
DATED: March 26, 2019
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

13

BATES V. SAAD

1:17cv143
ADDENDUM
CHRONOLOGY OF RELEVANT DATES

November 13, 2011:

Bates arrested by the Henry County Sheriff’s
Office, beginning his time spent in pretrial
custody;

August 30, 2012:

Bates commences his state sentence, ending his
time spent in pretrial custody;

July 1, 2013:

Bates

retroactively

starts his federal

sentence of 37 months on Count 3;
March 8, 2016:

Bates ostensibly satisfies his retroactive 37month sentence on Count 3;

March 9, 2016:

Bates

satisfies

his

state

sentence and is

transferred into federal custody to begin his
consecutive, 60-month sentence on Count 4; and
July 13, 2021:

The date Bates is projected to be released
without good conduct time (the latest date he
could be released).

i