Perkins v. Saad

Filing 25

MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING 23 REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE AND GRANTING RESPONDENT'S 14 MOTION TO DISMISS OR FOR SUMMARY JUDGMENT. The petitioner's 1 petition for writ of habeas corpus under 28 U.S.C. § 2241 is DENIED. It is ORDERED that this case be DISMISSED WITH PREJUDICE 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 12/4/17. (Pro Se Petitioner via CM/rrr; counsel via CM/ECF) (lmm) (Additional attachment(s) added on 12/4/2017: # 1 Certified Mail Return Receipt) (lmm).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
RANDALL K. PERKINS,
Petitioner,
v.

Civil Action No. 5:16CV182
(STAMP)

JENNIFER SAAD, Warden,
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, Randall K. Perkins, 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 Bureau of Prisons (the “BOP”) calculated his federal
sentence.
Judge

The action was referred to United States Magistrate

Robert

recommendation
Procedure

2.

W.

Trumble

pursuant
After

a

for

to

initial

Local

Rule

preliminary

review
of

review

and

Prisoner
of

the

report

and

Litigation
file,

the

magistrate judge entered an order to show cause directing the
respondent to show cause why the writ should not be granted.

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).

Thereafter, the respondent filed a motion to dismiss or, in
the alternative, motion for summary judgment. The magistrate judge
issued a Roseboro2 notice to the petitioner, but the petitioner did
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.

Facts

In May 2008, the pro se petitioner was incarcerated at the
Whitley County Detention Center in Kentucky.

The petitioner had

been arrested and jailed after an individual cooperating with state
law enforcement authorities purchased methamphetamine from him.
While

in

petitioner

the

custody

offered

to

of
pay

the
a

Commonwealth
fellow

of

prisoner

Kentucky,
to

murder

the
the

cooperating witness who had purchased the methamphetamine from him.
Federal authorities then brought murder for hire charges against
the petitioner and borrowed him from state custody, pursuant to a
federal writ of habeas corpus ad prosequendum, from July 28, 2008,

2

Roseboro v. Garrison, 528 F.2d 309, 310 (4th Cir. 1975).
2

through July 17, 2009.

On July 16, 2009, the United States

District Court for the Eastern District of Kentucky sentenced the
petitioner to 92 months in prison, but did not specifically address
whether the petitioner’s federal sentence would run concurrently or
consecutively with his Commonwealth of Kentucky sentence.
On March 1, 2012, the petitioner was released from state
custody on parole and delivered into federal custody to serve his
federal sentence.

The BOP computed the petitioner’s 92-month

federal sentence to begin on March 1, 2012, and did not give the
petitioner credit for the time he was subject to the federal writ.
The petitioner began the administrate grievance process on May 31,
2016.

During

the

administrative

grievance

process,

the

BOP

interpreted the petitioner’s request for additional credit as a
request for a nunc pro tunc3 designation as a result of the ruling
under Barden v. Keohane, 921 F.2d 476 (3d Cir. 1990). Accordingly,
the BOP conducted a retroactive designation review to determine
whether the petitioner’s federal sentence should be deemed to have
started concurrently with his underlying state sentence.

On

December 12, 2016, the BOP denied the petitioner’s request for
additional credit.
In his petition, the petitioner contends that the BOP failed
to award him credit for the time he was in federal custody from

3

“Nunc pro tunc” describes a doctrine that permits acts to be
done after the time they should have been done with a retroactive
effect. Black’s Law Dictionary (10th ed. 2014).
3

about July 28, 2008, to July 17, 2009.

He alleges that he was a

pretrial state detainee during that period and did not receive
state credit for that period.

For relief, the petitioner requests

jail credit plus “gain time credit” for the period from July 7,
2008, until July 2009.
computation

sheet

be

The petitioner also requests that a new
prepared

with

added

time

credited

and

reflecting a new release date.
In support of her motion to dismiss or, alternatively, for
summary judgment, the respondent argues that the petition lacks
merit because the BOP properly calculated the federal sentence.
Specifically, the respondent argues that the petitioner’s federal
sentence did not begin when federal authorities borrowed him from
state custody pursuant to the federal writ.

Additionally, the

respondent contends that the petitioner received credit against his
Commonwealth of Kentucky sentence for the entire duration of his
federal writ and that the BOP properly declined to award him
duplicative credit for this time to reduce his federal sentence.
Lastly, the respondent contends that nunc pro tunc designations are
within the exclusive discretion of the BOP.
For the reasons that follow, this Court finds that the report
and recommendation of the magistrate judge should be adopted in its
entirety.

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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.”

28 U.S.C.

§ 636(b)(1)(A).
IV.
In

his

report

and

Discussion

recommendation,

the

magistrate

judge

explained that the Commonwealth of Kentucky did not lose its
primary jurisdiction over the petitioner when it lent him to
federal authorities pursuant to the federal writ.

See United

States v. Evans, 159 F.3d 908, 912 (4th Cir. 1998) (“A federal
sentence does not begin to run . . . when a prisoner in state
custody is produced in federal court pursuant to a federal writ of
habeas corpus ad prosequendum.”).

Furthermore, the petitioner was

granted jail credit against his state sentence for the 519 days
from his arrest on March 28, 2008, through his sentencing in state
court on August 28, 2009.

ECF No. 15-1 at 11.

Thus, absent a nunc pro tunc designation by the BOP under 18
U.S.C. § 3621(b), the petitioner cannot receive credit against his
federal sentence for the time between July 2008 and July 2009. See
Jefferson v. Berkebile, 688 F. Supp. 2d 474, 487 (S.D. W. Va. 2010)

5

(“[T]he BOP . . . has acquired the power to make a nunc pro
tunc–i.e., retroactive–designation of a state facility as the
official place of imprisonment for a prisoner who has served or is
serving time in state custody.”) (citing Barden, 921 F.2d at 478).
The magistrate judge reviewed the BOP’s nunc pro tunc determination
under the appropriate abuse of discretion standard and found that
the BOP properly considered the required five factors, listed in
§ 3621(b), before denying the petitioner’s request for additional
credit.

See id. (“A nunc pro tunc designation, like any other

designation, must be made in accordance with § 3621(b).”) (citing
Trowell v. Beeler, 135 F. App’x 590, 594 (4th Cir. 2005)); Trowell,
135 F. App’x at 593 (“We review [the] BOP’s decision to grant or
deny a prisoner’s nunc pro tunc designation request for abuse of
discretion.”).
Accordingly, the magistrate judge concluded that the BOP did
not abuse its discretion and, thus, that the petition should be
dismissed with prejudice.
determinations

of

the

This Court finds no error in the

magistrate

judge

and

thus

upholds

his

recommendation.
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

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(ECF No. 23) 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.

Additionally, the

respondent’s motion to dismiss or, in the alternative, for summary
judgment (ECF No. 14) 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:

December 4, 2017

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

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