Sherley v. Saad

Filing 32

ORDER ADOPTING REPORT AND RECOMMENDATION: ORDERED that the Report and Recommendation 28 is ORDERED ADOPTED. The petitioners Objections 31 are OVERRULED. The respondents Motion to Dismiss or for Summary Judgment 19 is GRANTED. Ordered that t he petitioners § 2241 petition 1 is DENIED and DISMISSED WITHOUT PREJUDICE. This Court further DIRECTS the Clerk to enter judgment in favor of the respondent and to STRIKE this case from the active docket of this Court. This Court hereby DENIES the petitioner a certificate of appealability on the dismissed claims. Signed by District Judge John Preston Bailey on 4/18/17. (Attachments: # 1 Certified Mail Return Receipt)(jss)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
ELKINS
VINCENT PATRICK SHERLEY,
Petitioner,
v.
CIVIL ACTION NO. 2:16-CV-61
(BAILEY)
JENNIFER SAAD,
Respondent.
ORDER ADOPTING REPORT AND RECOMMENDATION
On this day, the above-styled matter came before this Court for consideration of the
Report and Recommendation of United States Magistrate Judge Michael John Aloi [Doc.
28]. Pursuant to this Court’s Local Rules, this action was referred to Magistrate Judge Aloi
for submission of a proposed report and a recommendation (“R&R”). Magistrate Judge Aloi
filed his R&R on March 27, 2017, wherein he recommends this Court deny and dismiss
without prejudice the 28 U.S.C. § 2241 petition.
Pursuant to 28 U.S.C. § 636(b)(1)(c), this Court is required to make a de novo
review of those portions of the magistrate judge’s findings to which objection is made.
However, the Court is not required to review, under a de novo or any other standard, the
factual or legal conclusions of the magistrate judge as to those portions of the findings or
recommendation to which no objections are addressed. Thomas v. Arn, 474 U.S. 140,
150 (1985). In addition, failure to file timely objections constitutes a waiver of de novo
review and the right to appeal this Court's Order. 28 U.S.C. § 636(b)(1); Snyder v.
Ridenour, 889 F.2d 1363, 1366 (4th Cir. 1989); United States v. Schronce, 727 F.2d 91,

94 (4th Cir. 1984). Here, objections to Magistrate Judge Aloi’s R&R were due within
fourteen (14) days of receipt, pursuant to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b).
The docket reflects that service was accepted on March 29, 2017 [Doc. 29]. The petitioner
timely filed his Objections on April 17, 2017 [Doc. 31]. Accordingly, this Court will review
the portions of the R&R to which objection was filed under a de novo standard of review.
This Court will review the remaining portions of the R&R for clear error.
Discussion
Petitioner was arrested on September 20, 2005, in Kentucky on several state
charges. He was on parole at the time and remained in the custody of the State of
Kentucky. Petitioner’s parole was revoked in October of 2005.
On November 8, 2005, petitioner was indicted in the United States District Court for
the Western District of Kentucky, for Felon in Possession of a Firearm. On January 12,
2006, the United States Marshals Service took temporary custody of the petitioner pursuant
to a writ of habeas corpus ad prosequendum to be federally prosecuted. Petitioner was
released from his parole sentence on April 10, 2006, while in the temporary custody of the
Marshals; however, a state detainer remained in place for the state charges incurred on
September 20, 2005. On October 6, 2008, the Western District of Kentucky sentenced
petitioner to a term of 180 months’ imprisonment for being a Felon in Possession of a
firearm.
On October 28, 2008, petitioner was returned to state custody with the federal
sentence lodged as a detainer. On December 7, 2009, petitioner was sentenced in state
court to 5 years’ imprisonment. The state court ordered this sentence to run concurrent
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with petitioner’s federal sentence. Petitioner was credited with time served from September
29, 2005, through December 7, 2009. Accordingly, the state ordered that petitioner had
completed his five year sentence, and on December 8, 2009, petitioner was turned back
over to the Marshals pursuant to the federal detainer. The only days petitioner spent in
state custody which were not credited toward his state sentence were September 20, 2005,
through September 28, 2005, which days were credited toward his federal sentence.
Petitioner maintains that the Bureau of Prisons (“BOP”) has not credited him the
correct amount of time served in computing his federal sentence. A federal sentence,
however, 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. § 3585(a). And the
mere fact that a state prisoner is in federal court on a federal writ of habeas corpus ad
prosequendum does not mean the prisoner’s federal sentence has commenced. Rather,
the state retains primary jurisdiction over the prisoner, and federal custody commences
only when the state authorities relinquish the prisoner on satisfaction of the state obligation.
See Thomas v. Whalen, 962 F.2d 358, 361 n.3 (4th Cir. 1992). Additionally, prior custody
credit cannot be awarded to a prisoner if the prisoner has already received credit towards
another sentence. See United States v. Brown, 977 F.2d 574 (4th Cir. 1992). Finally, it
is the province of the BOP to calculate a prisoner’s sentence. See United States v.
Wilson, 503 U.S. 329 (1992).
Here, petitioner was in the custody of the State of Kentucky until his state sentence
was completed on December 7, 2009. Subsequently, he was released to the custody of
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the United States Marshals Service on December 8, 2009, pursuant to the federal detainer
that had been lodged. As such, his federal sentence commenced December 8, 2009.
At the outset, petitioner states that he strongly objects to the entire R&R. Such
blanket objections need not be addressed by this Court. Petitioner proceeds to refine his
objection to argue his position that with educational and vocational programs and good time
conduct his five year state sentence would really only have been two years. While this may
be a common practice in the state penal system, this Court is not going to speculate as to
why the defendant was in state custody until December of 2009. This Court is only
concerned with the date his federal sentenced commenced.
Further, as the R&R notes, the BOP computation center sought the sentencing
judge’s opinion regarding a retroactive designation for the defendant’s sentences to run
concurrent, but he did not respond. As such, in the absence of the sentencing judge
issuing an order for a nunc pro tunc designation, the BOP was within its discretion not to
designate the state prison nunc pro tunc. Therefore, the R&R correctly concluded that the
petitioner has received the maximum credit to which he is entitled under 18 U.S.C.
§ 3585(b). Accordingly, the petitioner’s Objections are OVERRULED.
Conclusion
Upon careful review of the above, it is the opinion of this Court that the Report and
Recommendation [Doc. 28] should be, and is, hereby ORDERED ADOPTED for the
reasons more fully stated in the magistrate judge’s report. The petitioner’s Objections
[Doc. 31] are OVERRULED. The respondent’s Motion to Dismiss or for Summary
Judgment [Doc. 19] is GRANTED. Accordingly, the petitioner’s § 2241 petition [Doc. 1]
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is hereby DENIED and DISMISSED WITHOUT PREJUDICE. This Court further DIRECTS
the Clerk to enter judgment in favor of the respondent and to STRIKE this case from the
active docket of this Court.
As a final matter, upon an independent review of the record, this Court hereby
DENIES the petitioner a certificate of appealability on the dismissed claims, finding that he
has failed to make “a substantial showing of the denial of a constitutional right” on these
claims. See 28 U.S.C. § 2253(c)(2).
It is so ORDERED.
The Clerk is directed to transmit copies of this Order to any counsel of record and
to mail a copy to the pro se petitioner.
DATED: April 18, 2017.

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