Franklin v. Craig
Filing
15
MEMORANDUM OPINION AND ORDER: The Court ADOPTS and incorporates herein the findings and recommendation of the Magistrate Judge as contained in the 9 Proposed Findings and Recommendation. The Court ORDERS that Petitioner's 1 Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. Section 2241 be DISMISSED. The Court further ORDERS that this matter be REMOVED from the Court's docket. Signed by Judge Irene C. Berger on 6/30/2011. (cc: attys; any unrepresented party) (mls)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
BECKLEY DIVISION
KENYARDA DAMOND FRANKLIN,
Petitioner,
v.
CIVIL ACTION NO. 5:08-cv-00312
T. R. CRAIG,
Respondent.
MEMORANDUM OPINION AND ORDER
The Court has reviewed Petitioner’s application for 28 U.S.C. § 2241 relief and the
attachments thereto [Docket 1], filed May 14, 2008. By Standing Order [Docket 2] entered on May
14, 2008, this action was referred to the Honorable R. Clarke VanDervort, United States Magistrate
Judge, for submission to this Court of Proposed Findings and Recommendation for disposition
(“PF&R”), pursuant to 28 U.S.C. § 636. On May 18, 2010, the Magistrate Judge submitted findings
of fact and recommended that the Court deny Petitioner’s application with prejudice and remove this
matter from the Court’s docket [Docket 9]. Petitioner filed his objections to the PF&R on July 2,
2010.
Rule 4 of the Rules Governing Habeas Cases “requires the district courts to examine each
habeas petition, and ‘if it plainly appears from the face of the petition and any attached exhibits that
the petitioner is not entitled to relief in the district court, the judge must dismiss the petition’ without
requesting an answer from the respondent.” Eriline Co. S.A. v. Johnson, 440 F.3d 648, 656 n.11 (4th
Cir. 2006) (citing 28 U.S.C. foll. § 2254)(applicable in § 2241 cases by virtue of Rule 1(b)). This
Court “shall make a de novo determination of those portions of the report or specified proposed
findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1)(C). 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, this Court need
not conduct a de novo review when a party “makes general and conclusory objections that do not
direct the Court to a specific error in the magistrate's proposed findings and recommendations.”
Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir.1982). When reviewing portions of the PF&R de
novo, the Court will consider the fact that Plaintiff is acting pro se, and his pleadings will be
accorded liberal construction. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Loe v. Armistead, 582
F.2d 1291, 1295 (4th Cir.1978).
The background of this petition is more fully set forth in the PF&R. Petitioner is an inmate
at FCI Beckley in Beaver, West Virginia, with a projected release date of December 9, 2014. He
was arrested on federal charges on January 6, 2004, and released on bond on January 16, 2004. He
was arrested by Michigan State authorities on August 5, 2004. The district court for the Eastern
District of Michigan entered an Order of Detention Pending Trial on November 8, 2004, declaring
Petitioner to have been federally detained as of August 6, 2004, nunc pro tunc. He was sentenced
on his state charges on December 14, 2004, to two (2) years in state custody. He was sentenced on
his federal charges on November 22, 2005, to one hundred thirty (130) months, to be served
concurrently to his state sentence.1 He was given credit against his federal sentence for the ten (10)
1
Petitioner filed a motion in his federal case after he was sentenced, requesting the judge
“correct” his judgment to reflect that he had been in federal custody since August 6, 2004.
(continued...)
2
days he spent in custody before he was released on bond, January 6, 2004, to January 16, 2004. He
was also given credit against his federal sentence for the time he spent in custody prior to his state
court sentencing, August 6, 2004, through December 14, 2004. Petitioner now seeks credit for the
eleven (11) months he spent in custody between his state court sentencing and his federal court
sentencing, December 15, 2004, through November 22, 2005.
Petitioner sought resolution of his claims through the Bureau of Prisons (“BOP”)
administrative process. He filed an informal resolution form on October 2, 2007, which was denied
on October 25, 2007. He appealed that denial to the Warden, to the Regional Director and to the
Central Office to no avail. The Bureau of Prisons explained that 18 U.S.C. § 3582(b) governs the
application of credit to a sentence, and that statute prohibits the credit he seeks because it includes
time that was credited against his state sentence. He filed his application for relief on May 14, 2008,
on the grounds that his federal sentence has been improperly computed, and on the grounds of
ineffective assistance of counsel. In support of the latter grounds, Petitioner states that his attorney
erred by not requesting that the sentencing court, “pursuant to § 5G1.3(b) [of the United States
Sentencing Guidelines], downwardly depart from the 130 month sentence to a sentence reduced by
11 months, 7 days.” (Pet. 18.)
1
(...continued)
Specifically, he requested that the judge set forth in his judgment that “defendant is to be credited
with time served from 8/6/04 through 11/21/05.” United States v. Franklin, Crim. No. 2:04-80028
(E.D. Mi. Nov. 22, 2005)(Docket 46). The judge granted Petitioner’s motion, but only to the extent
he amended the judgment to reflect that “Defendant has been in federal custody beginning August
6, 2004.” (Docket 49, 50). Relevant to Petitioner’s contentions relating to the intent of the federal
sentence, the judge refused to assert that Petitioner was to receive credit for the time period he
claimed.
3
In the PF&R, the magistrate judge found under 18 U.S.C. § 3585(a), Petitioner’s federal
sentence began on November 22, 2005. He further found that Petitioner is not entitled to prior
custody credit for the time period he claims. Quoting 18 U.S.C. § 3582(b) and United States v.
Wilson, 503 U.S. 329, 337 (1992), he stated that “a defendant [can] not receive double credit for
his detention time.” (PF&R 8.) He explained that Petitioner’s federal credit ended when his state
sentence commenced, because at that point his time in custody was spent serving his state sentence
and 18 U.S.C. § 3582(b) only allows credit for time that has not been credited to another sentence.
The magistrate judge further found that to the extent Petitioner claims his sentence should have been
reduced pursuant to § 5G1.3(b) of the sentencing guidelines, such a claim is properly raised on direct
appeal or in a Section 2255 motion.
Petitioner filed his Traverse Brief Setting Forth Objections and Arguments on July 2, 2010.2
In his objections, he contends that his federal sentence began on August 6, 2004. (Objs. 2.) This
contention is without merit. As the magistrate judge found, Petitioner was sentenced in federal court
on November 22, 2005, and his sentence began on that date. Section 3583(a) of the United States
Code, Title 18, states that “A sentence to a term of imprisonment 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). “A federal sentence does not commence until the Attorney General receives the
defendant into her ‘custody’ for service of that sentence.” United States v. Evans, 159 F.3d 908, 911
(4th Cir. 1998) (emphasis added). That an order was entered one year before his federal sentence
2
Petitioner incorrectly characterizes the magistrate judge’s PF&R as the “Government’s
response” to his petition. The Government has not been directed to respond to Petitioner’s claims.
4
was issued proclaiming Petitioner to have been in federal custody pending his trial as of August 6,
2004, does not alter the date he was committed to federal custody to commence the service of his
sentence. He commenced service of his concurrent federal sentence on November 22, 2005, and the
credit he received for time spent in custody prior to that date is governed under 18 U.S.C. § 3585(b).
Section 3585(b) states,
A defendant shall be given credit toward the service of a term of imprisonment for
any time he has spent in official detention prior to the date the sentence
commences—
(1) as a result of the offense for which the sentence was imposed; or
(2) as a result of any other charge for which the defendant was arrested after
the commission of the offense for which the sentence was imposed;
that has not been credited against another sentence.
18 U.S.C. § 3585(b). Petitioner contends in his objections that he meets the requirements of this
statute for the entire time he spent in custody between August 6, 2004, and November 22, 2005.
(Objs. 4.) This contention is also without merit. The BOP explained to him,
The period of time you contend should be applied to the federal sentence as prior
custody credit, December 15, 2004, to November 22, 2005, is the time period serving
the active state sentence. Program Statement 5880.28, Sentence Computation
Manual (CCCA of 1984), states under credit related to 18 U.S.C. § 3583(b)(1),
“credit will not be given for any portion of time spent serving another sentence
regardless of whether the sentence is federal, state or foreign.
(Pet. Ex. D, Warden Resp. to Request for Admin. Remedy.) Petitioner appears to contend that the
BOP has only presumed that his time in custody following his state sentence and prior to his federal
sentence was credited toward the service of his state sentence, and that he challenges this
presumption. (Objs. 4-5.) However, Petitioner has not set forth any suggestion of evidence that the
5
time he spent in custody immediately following the imposition of his state sentence was not credited
to his state sentence. Indeed, the documents he attaches to his petition tend to support the contrary,
in that the BOP has determined on at least three occasions that he was in primary state custody
serving his state sentence after the state sentence was imposed and before the federal sentence was
imposed.
Inasmuch as Petitioner did not object to the magistrate judge’s findings with respect to his
claim that his sentence should have been reduced pursuant to § 5G1.3(b) of the sentencing
guidelines, the Court declines to address those grounds of his petition.
For the reasons set forth above, the Court ADOPTS and incorporates herein the findings and
recommendation of the Magistrate Judge as contained in the Proposed Findings and
Recommendation [Docket 9]. The Court ORDERS that Petitioner's Petition For Writ of Habeas
Corpus Pursuant to 28 U.S.C. § 2241 [Docket 1] be DISMISSED. The Court further ORDERS that
this matter be REMOVED from the Court's docket.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any
unrepresented party.
ENTER:
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June 30, 2011
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