Pought v. Samuels et al

Filing 26

MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE: 24 Report and Recommendation is hereby AFFIRMED and ADOPTED in its entirety. Petitioners 1 petition for writ of habeas corpus under 28 U.S.C. § ; 2241 is DENIED. The respondents 10 motion to dismissor, in the alternative, for summary judgment is GRANTED and thepetitioners 18 motion for summary judgment is DENIED. This case is DISMISSED WITH PREJUDICE and STRICKEN from the active docket of this Court. Clerk directed to enter judgment. Signed by Senior Judge Frederick P. Stamp, Jr on 12/8/14. (c to pro se petitioner by cert mail)(cc) (Additional attachment(s) added on 12/8/2014: # 1 Certified Mail Return Receipt) (cc).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
ALONZO D. POUGHT,
Petitioner,
v.

Civil Action No. 5:14CV16
(STAMP)

CHARLES F. SAMUELS, JR.,
and R.A. PERDUE, Warden,
Respondents.
MEMORANDUM OPINION AND ORDER
AFFIRMING AND ADOPTING REPORT AND
RECOMMENDATION OF MAGISTRATE JUDGE
I.

Procedural History

On February 6, 2014, the pro se1 petitioner, Alonzo D. Pought
(“Pought”), initiated this 28 U.S.C. § 2241 habeas corpus action.
In his petition for habeas corpus, Pought challenges the execution
of his federal sentence in relation to a sentence imposed by the
State of Michigan.

The action was referred to United States

Magistrate Judge Robert W. Trumble for initial review and report
and recommendation pursuant to Local Rule of Prisoner Litigation
Procedure 2.
Thereafter, the respondent filed a motion to dismiss, or in
the alternative, motion for summary judgment.

In response to the

motion to dismiss, the petitioner filed a response and motion for
summary judgment. The magistrate judge then ordered the respondent

1

“Pro se” describes a person who represents himself in a court
proceeding without the assistance of a lawyer.
Black’s Law
Dictionary 1416 (10th ed. 2014).

to file a supplemental memorandum to which the petitioner filed a
reply. The magistrate judge then filed a report and recommendation
recommending that this Court grant the respondent’s motion to
dismiss or, in the alternative, motion for summary judgment; deny
the petitioner’s motion for summary judgment; and deny and dismiss
with prejudice the § 2241 petition.

The magistrate judge informed

the parties that if they objected to any portion of the report and
recommendation, they were required to file written objections
within 14 days after being served with copies of the report.
Neither party filed objections.
II.

Facts

In early 2011, the petitioner was on state parole in Michigan
after serving part of a 40-year sentence and an eight-year sentence
imposed by the Saginaw, Michigan Tenth Circuit Court.

In March

2011, he was arrested for drug charges and violation of his state
parole.

The petitioner was then returned to state custody.

Thereafter, the petitioner was charged with possession with intent
to distribute cocaine in violation of 21 U.S.C. § 841(a)(1) and
felon

in

possession

of

a

firearm

in

violation

of

18

U.S.C.

§ 922(g)(1) in the United States District Court for the Eastern
District of Michigan.
Federal authorities then borrowed the petitioner from the
state via writs of habeas corpus ad prosequendum for several
preliminary criminal hearings and, ultimately, for the petitioner’s

2

plea hearing and sentencing hearing.

The petitioner was sentenced

to a term of 188 months for the intent to distribute charge to be
served concurrently to his state court sentence.

The petitioner

remained in state custody until he was released from state custody
on parole to a federal detainer.
Throughout his briefings, the petitioner argues that the
Federal Bureau of Prisons (“BOP”) has violated his rights by
erroneously refusing to grant him a 21-month credit toward his
federal sentence for the time he spent in state custody.

The

petitioner contends that he was in federal custody the entire time
before his federal sentence was imposed and that he was never resentenced

by

the

state

court

for

his

parole

violation.

Additionally, he asserts that the federal judge incorrectly found
him to be a career offender.
The respondent asserts that the petitioner is not entitled to
prior custody credit because he was always in state custody until
his state sentence was completed.

The respondent cited Michigan

parole regulations and Michigan state law which provides that a
defendant shall remain incarcerated pending a hearing regarding a
parole violation.

Additionally, the respondent contends that a

§ 2241 petition is not the appropriate forum to challenge the
enhancement as a career offender.

3

For the reasons that follow, this Court finds that the report
and recommendation of the magistrate judge should be adopted in its
entirety.
III.

Applicable Law

As there were no objections filed to the magistrate judge’s
recommendation, the findings and recommendation will be upheld
unless they are “clearly erroneous or contrary to law.”

28 U.S.C.

§ 636(b)(1)(A).
IV.

Discussion

The petitioner was sentenced in the Eastern District of
Michigan on September 27, 2012.

Further, the BOP made a nunc pro

tunc designation and deemed his sentence to have commenced on
September 27, 2012, rather than on December 5, 2012.

Thus, the

magistrate judge correctly found that the issue before this Court
is whether the petitioner is entitled to credit for time he spent
in custody prior to September 27, 2012, as he was given credit for
more than two months that had elapsed before he was transferred to
federal custody.
The petitioner contends that he should be given credit from
March 9, 2011, the date he was taken into state custody for the
violation of his parole, to September 27, 2012, his federal
sentencing date.

The petitioner argues that this period of time

was not applied to his state sentence, as he was not re-sentenced

4

in state court, and thus did not otherwise benefit his state
sentence.
This Court finds that the magistrate judge correctly found
that

pursuant

to

the

doctrine

of

primary

jurisdiction,

the

petitioner was not entitled to credit for the time served before
September 27, 2012.

As the magistrate judge noted and this Court

has recognized, primary jurisdiction remains vested in a sovereign
until that sovereign relinquishes its primary jurisdiction through
dismissal

of

the

charges,

bail

satisfaction of the sentence.

release,

parole

release,

or

Coles v. DeBoo, No. 2:10cv70, 2010

WL 3767113 (N.D. W. Va. Sept. 27, 2010).
In this case, petitioner was not indicted until July 2011,
well

after

the

decision

was

made

by

State

of

Michigan

incarcerate the petitioner following his parole violation.

to
As

noted by the magistrate judge, under Michigan state law, when an
offender is release on parole, parole is a conditional release and
not a completion of the original sentence.

MI ST 791.237 § 38(6).

Thus, when the petitioner was arrested and incarcerated by the
State of Michigan, he was then serving the remainder of his
original state sentences.

As such, he was in primary custody of

the State of Michigan and the time period before September 27, 2012
cannot be credited toward his federal sentence.
§ 3585(b).

5

See 18 U.S.C.

Finally, if the petitioner was attempting to raise a claim
that he should not have been considered a career offender, this
claim should have been brought pursuant to a 28 U.S.C. § 2255
petition

because

it

involves

the

imposition

execution of the petitioner’s sentence.

rather

than

the

The petitioner has not

shown that a § 2255 petition is inadequate and ineffective to test
the legality of his conviction pursuant to In re Jones, 226 F.3d
328 (4th Cir. 2000), because the crime underlying his federal
conviction is still a criminal offense.2
V.

Conclusion

Because the parties have not objected to the report and
recommendation of the magistrate judge, and because this Court
finds that the magistrate judge’s recommendation is not clearly
erroneous, the report and recommendation of the magistrate judge is
hereby AFFIRMED and ADOPTED in its entirety.

Accordingly, the

petitioner’s petition for writ of habeas corpus under 28 U.S.C.
§ 2241 is DENIED. Additionally, the respondent’s motion to dismiss
or, in the alternative, for summary judgment is GRANTED and the
petitioner’s motion for summary judgment is DENIED.

2

In order to show that bringing a claim pursuant to § 2255
would be ineffective, a petitioner must show that: (1) at the time
of the 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 gate-keeping provisions of § 2255 because the new rule
is not one of constitutional law. Jones, 226 F.3d 328.
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It is further ORDERED that this case be DISMISSED WITH
PREJUDICE and STRICKEN from the active docket of this Court.
Finally, this Court finds that the petitioner was properly
advised by the magistrate judge that failure to timely object to
the report and recommendation in this action would result in a
waiver of appellate rights.

Because the petitioner has failed to

object, he has waived his right to seek appellate review of this
matter.

See Wright v. Collins, 766 F.2d 841, 844-45 (4th Cir.

1985).
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein and to the pro se
petitioner by certified mail.

Pursuant to Federal Rule of Civil

Procedure 58, the Clerk is DIRECTED to enter judgment on this
matter.
DATED:

December 8, 2014

/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE

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