George v. Deboo

• Court: U.S. District Court — Northern District of West Virginia
• Writing for the Court: DAVID J. JOEL
• Decision Date: 31 August 2011
• Docket Number: CIVIL ACTION NO. 2:11cv43
• Citation: George v. Deboo, CIVIL ACTION NO. 2:11cv43 (N.D. W.Va. Aug 31, 2011)
• Parties: CYRUS GEORGE, Petitioner, v. KUMA J. DEBOO, Respondent.

CYRUS GEORGE, Petitioner, v. KUMA J. DEBOO, Respondent.

CIVIL ACTION NO. 2:11cv43

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

Dated: August 31, 2011

(Judge Bailey)

REPORT AND RECOMMENDATION

I. BACKGROUND

On June 3, 2011, the pro se petitioner, Cyrus George, an inmate at FCI Gilmer, filed an Application for Habeas Corpus Pursuant to 28 U.S.C. §2241, seeking additional good conduct credits. The petitioner paid the filing fee on June 8, 2011. On June 9, 2011, the undersigned made a preliminary review of the petition and determined that summary dismissal was not warranted. Accordingly, an Order to Show Cause was issued against the respondent. On July 27, 2011, the respondent filed a Motion to Dismiss and Response to Order to Show Cause.. On July 28, 2011, a Roseboro Notice was issued, and on August12, 2011, the petitioner filed a response.

II. FACTS

The petitioner was convicted in the Circuit Court of Upshur County, West Virginia, for malicious assault and attempted murder in the first degree. On September 8, 1989, he was sentenced to a term o f not less than two years and not more than ten years on the malicious assault count and a term of not less than one year, nor more than five years, on the attempted murder conviction. Theeffective date of the sentences was September 7, 1988.¹

On May 3, 1990, while confined in state custody, the petitioner was removed to federal custody pursuant to a federal writ of habeas corpus ad prosequendum. Following a jury trial, the petitioner was convicted in federal court for several offenses: violation of18 U.S.C. § 1620© (Count 1, offense concluded December 1989); 19 U.S.C. § 1982(d) (Count 2, offense concluded December 1989); 18 U.S.C. § 1952(B)(a)(5) (Count 15, offense concluded November 1986); 18 U.S.C. § 1952B(a)(2) (Count 16, offense concluded November 14, 1986); 18 U.S.C. § 1952B(a)(5) (Count 17, offense concluded February 1987); and 18 U.S.C. § 1952B(a)(2) (Count 18, offense concluded February 2, 1987).²

On May 26, 1993, the petitioner was sentenced by the Honorable Robert E. Maxwell, United States District Judge for the Northern District of West Virginia. Judge Maxwell committed the petitioner to the custody of the Bureau of Prisons ("BOP") for a term of four hundred eighty (480) months on counts 1 and 2, to be executed as a guideline sentence imposed under the Sentencing Reform Act. Judge Maxwell imposed the following sentencing as to the remaining (pre-guidelines offense): ten (10) years as to counts 15, 17, and 18, to be served concurrently with each other and with the sentence imposed in count 1, and thirty (30) years as to count 16, to be served concurrently with the sentences imposed on counts 1 and 2. The federal sentences were to run concurrently with his unexpired state sentence.

On May 26, 1993, the petitioner was returned to the Huttonsville Correctional Center in West Virginia. The petitioner was released from his state sentence to his federal detainer to serve the remainder of his federal sentence.

III. CONTENTIONS OF THE PARTIES

Petitioner makes the following arguments in his Application for Habeas Corpus:

(1) The BOP failed to award him 169 days of extra good time credits for the time he claims he was in federal detention, specifically from April 10, 1990 to May 25, 1993.

(2) Because the sentencing court imposed the statutory maximum sentence, and because he is not entitled to prior custody credit for the time he spent in state custody serving his state sentence prior to the imposition of his federal sentence, in effect he is being forced to serve a sentence longer than the statutory maximum sentence. The petitioner contends that this dilemma creates a separation of powers issue.

The Government contends that the petition should be dismissed because:

(1) the petitioner is not entitled to extra good time credit for the time period April 10, 1990 to May 25, 1993, because he was not in federal custody and thus not in federal pretrial detention during that time.

(2) It is 18 U.S.C. § 3585(b) and not the BOP that preludes the petitioner from receiving prior custody credit, and therefore, the petitioner's separation of powers claim is without merit.

In his reply the petitioner argues that the plain reading of 28 C.F.R. § 523.17(1) allows him to receive federal good time credits for the time he spent in federal pretrial detention. Citing Lopez v. Terrell, 697 F.Supp.2d 549 (SDNY 2010), the petitioner contends that this regulation permits federal pretrial detention credits, regardless of whether the detainee is serving a prior state sentence or prior federal sentence. Additionally, the petitioner argues that the BOP's refusal to obey the Court's recommendation created an upward departure in his sentence.

IV. STANDARD OR REVIEW

A. Motion to Dismiss "A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint; importantly, it does not resolve contests surrounding facts, the merits of a claim, or the applicability of defenses." Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir.1992) (citing 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1356 (1990)). In considering a motion to dismiss for failure to state a claim, a plaintiff's well-pleaded allegations are taken as true and the complaint is viewed in the light most favorable to the plaintiff. Mylan Labs, Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir.1993); see also Martin, 980 F.2d at 952.

The Federal Rules of Civil Procedure "require only 'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the ... claim is and the grounds upon which it rests.'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Courts long have cited the "rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of [a] claim which would entitle him to relief." Conley, 355 U.S. at 45-46. In Twombly, the United States Supreme Court noted that a complaint need not assert "detailed factual allegations," but must contain more than labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Conley, 550 U.S. at 555 (citations omitted). Thus, the "[f]actual allegations must be enough to raise a right to relief above the speculative level," id. (citations omitted), to one that is "plausible on its face," id. at 570, rather than merely "conceivable." Id. Therefore, in order for a complaint to survive dismissal for failure to state a claim, the plaintiff must "allege facts sufficient to state all the elements of [his or] her claim." Bass v. E.I.DuPont de Nemours & Co., 324 F.3d 761, 765 (4th Cir.2003) (citing Dickson v. Microsoft Corp., 309 F.3d 193, 213 (4th Cir.2002); Iodice v. United States, 289 F.3d 279, 281 (4th Cir.2002)). In so doing, the complaint must meet a "plausibility" standard, instituted by the SupremeCourt in Ashcroft v. Iqbal, where it held that a "claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). Thus, a well-pleaded complaint must offer more than "a sheer possibility that a defendant has acted unlawfully" in order to meet the plausibility standard and survive dismissal for failure to state a claim. Id.

V. ANALYSIS

It is pertinent to note that this is not the first time the petitioner has challenged the BOP's calculation of his federal sentence. In 2000, the petitioner filed a Petition for Writ of Habeas Corpus with the United States District Court for the District of Maryland. In that action, the petitioner requested that time spent serving his state sentence be credited to his federal sentence. The Maryland Court found that the 37 months in which the petitioner was on writ to federal authorities was credited to his state sentence and could not be credited to his federal sentence. The Maryland Court also found that the petitioner's federal sentence was properly imposed. Thereafter, on January 12, 2006, the petitioner filed a Petition for Writ of Habeas Corpus with this Court arguing that the BOP's failure to credit his federal sentence with the requested time had effectively transformed his 480-month federal sentence into a 525-month sentence. As with his instant petition, the petitioner asserted that such a sentence is beyond the statutory maximum permitted by statute. However, in his first petition filed with this Court, the petitioner alleged that since the BOP and the sentencing court had refused to award his federal sentence with the time in question, his 480-month sentence must be vacated as a violation of the double jeopardy clause.

A. Good Conduct Time

In his current, or third petition, the petitioner seeks 169 days of extra good conduct time for the period he was in "federal pretrial detention" from April 4, 1990 through May 25, 1993. Thepetitioner maintains that he is entitled to that credit under 28 C.F.R. § 523.17(l), and the BOP's failure to determine this claim constitutes a complete failure by the BOP to account for its own pretrial detention regulation.

As previously noted, the petitioner relies on the holding in Lopez v. Terrell,³ supra to support his claim for his calculated 169 days of good time credit. In Lopez, the District Court interpreted the phrase "term of imprisonment" as used in the good conduct time statute to encompass all the time a prisoner serves for a federal offense, whether before or after the sentence date, and if before the sentence date, whether the prisoner has received credit for any time spent in official detention prior to the date the sentence commences or has received adjustment for period of incarceration for related state conviction. However, this Court need not...