Medina-Mar v. Saad

Filing 15

MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING 12 REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE AND GRANTING RESPONDENT'S 8 MOTION TO DISMISS OR FOR SUMMARY JUDGMENT. It is further ORDERED that this case be DISMISSED WITH PREJUD ICE and STRICKEN from the active docket of this Court. The Clerk is DIRECTED to enter judgment on this matter. Signed by Senior Judge Frederick P. Stamp, Jr. on 7/12/17. (copies to Pro Se Petitioner via CM/rrr; counsel via CM/ECF) (lmm) (Additional attachment(s) added on 7/12/2017: # 1 Certified Mail Return Receipt) (lmm).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
FELIPE MEDINA-MAR,
Petitioner,
v.

Civil Action No. 5:16CV142
(STAMP)

WARDEN SAAD,
Respondent.
MEMORANDUM OPINION AND ORDER
AFFIRMING AND ADOPTING REPORT AND
RECOMMENDATION OF MAGISTRATE JUDGE
AND GRANTING RESPONDENT’S MOTION
TO DISMISS OR FOR SUMMARY JUDGMENT
I.

Procedural History

The pro se1 petitioner, Felipe Medina-Mar, filed a petition
for habeas corpus under 28 U.S.C. § 2241 (“§ 2241”).

In his

petition for habeas corpus, the petitioner challenges the manner in
which

the

sentence.
Judge

Bureau

of

Prisons

(“BOP”)

calculated

his

federal

The action was referred to United States Magistrate

James

E.

recommendation

Seibert

pursuant

for
to

initial

Local

Rule

review
of

and

Prisoner

report

and

Litigation

Procedure 2.
Thereafter, the respondent filed a motion to dismiss or, in
the alternative, motion for summary judgment. The magistrate judge
issued a Roseboro Notice to the petitioner, but the petitioner did

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).

not file a response to the respondent’s motion.

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 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.
The

petitioner

was

Facts

arrested

by

local

North

Carolina

authorities on drug related charges on August 10, 1999.
September

22,

1999,

the

petitioner

was

borrowed

by

On

federal

authorities pursuant to a writ of habeas corpus ad prosequendum.
On July 24, 2000, the petitioner was sentenced to a 328-month term
of imprisonment, on multiple drug charges, in the United States
District Court for the Southern District of Texas.

The North

Carolina state charges were dismissed pursuant to the federal
sentence and, on February 10, 2015, the petitioner received a
federal sentence reduction to 263 months. The petitioner’s federal
sentence commenced on July 24, 2000, and he received prior custody
credit from August 10, 1999, the day he was arrested by local North
Carolina authorities, through July 23, 2000, the day prior to the
imposition of his federal sentence.

2

The petitioner’s current

projected release date, with consideration for good conduct time,
is December 17, 2018.
In support of her motion to dismiss or, alternatively, for
summary judgment, the respondent argues that the petitioner’s
federal sentence is correctly calculated and the petition should be
dismissed,

or

summary

judgment

should

be

granted

in

the

respondent’s favor, because the petitioner’s federal sentence
commenced on July 24, 2000, the day he was sentenced, and he is not
entitled to any additional prior custody credit.

The respondent

further notes that she is not asserting the affirmative defense of
failure to exhaust administrative remedies, even though some of the
administrative grievances filed by the petitioner regarding his
sentence calculation were rejected for procedural reasons.
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

Under 28 U.S.C. § 636(b)(1)(C), this Court must conduct a de
novo review of any portion of the magistrate judge’s recommendation
to which objection is timely made.
file

any

objections

to

the

Because the petitioner did not

report

and

recommendation,

the

magistrate judge’s findings and recommendations will be upheld
unless they are “clearly erroneous or contrary to law.”
§ 636(b)(1)(A).

3

28 U.S.C.

IV.
In

his

report

and

Discussion

recommendation,

the

magistrate

judge

explained that, because of the doctrine of “primary jurisdiction,”
the mere fact that a state prisoner is in federal court pursuant to
a federal writ of habeas corpus ad prosequendum does not mean that
the prisoner’s federal sentence has commenced.

See United States

v. Smith, 812 F. Supp. 368, 370 (E.D.N.Y. 1993) (“A federal
sentence does not begin to run . . . when a defendant is produced
for prosecution in federal court pursuant to a federal writ of
habeas corpus ad prosequendum.”).

“Federal custody commences only

when the state authorities relinquish the prisoner on satisfaction
of the state obligation.” Id.; see also Thomas v. Whalen, 962 F.2d
358, 361 n.3 (4th Cir. 1992) (“A prisoner is not even in custody
for purposes of section 3568 when he appears in federal court
pursuant to a writ ad prosequendum; he is merely ‘on loan’ to
federal authorities.”).
Additionally, the magistrate judge explained that, under 18
U.S.C. § 3585(b), a defendant cannot receive double credit for his
detention time.

See United States v. Wilson, 503 U.S. 329, 337

(1992) (holding that, under § 3585(b), “Congress made clear that a
defendant

could

not

receive

double

credit

for

his

detention

time.”).

Thus, 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, 1992

4

WL 237275, at *1 (4th Cir. Sept. 25, 1992) (“[A] defendant may
receive credit against his federal sentence for time spent in
official detention prior to the date his sentence commences unless
it has been credited against another sentence.”); United States v.
Goulden, 54 F.3d 774, 1995 WL 298086, at *2 n.3 (4th Cir. May 17,
1995) (“[S]uch credit is only available for time spent in custody
which has not been credited against another sentence.”).
Although the petitioner contends he was arrested on August 8,
1998, he was actually arrested on August 10, 1999.
amount of “jail time credit” at issue is 348 days.

Thus, the

All of the time

the petitioner spent detained from August 10, 1999, until his
federal sentence commenced on July 24, 2000, has already been
credited towards his federal sentence. Accordingly, the magistrate
judge correctly found that the petitioner has already received all
the prior custody credit he is entitled to.
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
(ECF No. 12) is hereby AFFIRMED and ADOPTED in its entirety.
Accordingly, the petitioner’s petition for writ of habeas corpus
under 28 U.S.C. § 2241 (ECF No. 1) is DENIED.

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Additionally, the

respondent’s motion to dismiss or, in the alternative, for summary
judgment (ECF No. 8) is GRANTED.
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:

July 12, 2017

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

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