George v. Longley
| Decision Date | 21 February 2012 |
| Docket Number | No. 11-2406,11-2406 |
| Parties | STEPHEN GEORGE, Appellant v. ARCHIE LONGLEY |
| Court | U.S. Court of Appeals — Third Circuit |
NOT PRECEDENTIAL
On Appeal from the United States District Court
for the Western District of Pennsylvania
Submitted Pursuant to Third Circuit LAR 34.1(a)
Before: RENDELL, FUENTES and WEIS , Circuit Judges
Stephen George, a federal prisoner who is currently incarcerated at FCI McKean, filed a petition for writ of habeas corpus (28 U.S.C. § 2241) to challenge the way in which the Federal Bureau of Prisons (BOP) computed his federal sentence. The District Court denied both the petition and George's timely filed Fed. R. Civ. P. 52(b)/59(e)motion. George now appeals. Having carefully examined the lengthy factual record, we find no legal or clear factual error in the District Court's opinion, and we will therefore affirm its judgment.
Between 2003 and 2005, George was arrested several times for various state offenses. One of those arrests (for which state charges were eventually dropped) attracted the attention of federal authorities. On April 26, 2005, a federal grand jury issued an indictment charging George with one count of possession of a firearm by a convicted felon (18 U.S.C. § 922(g)(1)). An arrest warrant was issued the next day. See United States v. George, W.D. Pa. Crim. No. 2:05-cr-00114, ECF Nos. 1, 5.
On July 16, 2005, George was arrested by a Pittsburgh police task force for (unrelated) controlled-substance offenses. He was held at the Allegheny County Jail (ACJ). Pursuant to a writ of habeas corpus ad prosequendum, George was produced in federal court for an August 17, 2005 hearing. He eventually pleaded guilty to the federal firearms offense on September 19, 2005. Five months later, George was sentenced to 71 months of incarceration and three years of supervised release; after sentencing, he was transferred back to the ACJ, the writ of habeas corpus ad prosequendum "satisfied in full." Supplemental Appendix (S.A.) 262.1 The federal judgment was filed as a detainer with the Commonwealth of Pennsylvania.
George eventually pleaded guilty to selected charges in three remaining state cases,2 and received a net three-to-six-year term of imprisonment. This sentence was to be consecutive to his federal sentence. S.A. 236-37. George apparently served this state term at numerous facilities, see S.A. 190, before being paroled on April 30, 2008, and entering federal custody pursuant to the detainer. Deeming the federal sentence to have commenced at this time, the BOP calculated that, with good-conduct time, George would be released on November 27, 2012. S.A. 90.
Dissatisfied with this projected release date, George pursued administrative remedies, arguing that a "nominal bond" granted by the state court in November 2006 had the effect of "placing [him] into federal . . . custody; [and] [s]ince there was no other custody holding [him], the BOP should credit [him] from November 20, 2006[,] onward." S.A. 33; see also S.A. 91-99. His efforts were unsuccessful; the BOP construed the challenge as a request for nunc pro tunc designation and, after weighing the relevant factors,3 denied relief.
George then filed the instant habeas petition, the gravamen of which echoed, but did not quite match, what he had raised in his administrative proceedings. Invoking the"primary custody" or "primary jurisdiction" doctrine,4 George argued that the federal authorities gained primary custody over him at some point before the explicit commencement of his federal sentence in April 2008, thereby "forcing" the running of his federal term of incarceration. See, e.g., S.A. 44; see also 18 U.S.C. § 3585(a) (). George calculated his "correct" release date, with "anticipated good-conducted time," to fall in September of 2010. S.A. 41.
The District Court5 denied relief, addressing George's primary-custody argument as well as its offshoots, such as an implied claim that the BOP had otherwise miscalculated his sentence or had erred in declining to grant nunc pro tunc relief. See George v. Longley, No. 10-65, 2011 WL 1327482, at *2, 9 (W.D. Pa. Apr. 6, 2011). In so doing, the District Court took judicial notice of George's state judgments, which were explicitly intended to run consecutive to George's federal term of incarceration. See S.A. 236-37. George then moved for additional factfinding pursuant to Fed. R. Civ. P. 52(b)and for reconsideration pursuant to Fed. R. Civ. P. 59(e). His motion was denied, and this appeal followed.
George correctly brought his sentence-computation challenge under 28 U.S.C. § 2241. See Coady v. Vaughn, 251 F.3d 480, 485 (3d Cir. 2001); Barden v. Keohane, 921 F.2d 476, 478-79 (3d Cir. 1990). Appellate "jurisdiction is proper in this Court under 28 U.S.C. §§ 1291 and 2253."6 Vega v. United States, 493 F.3d 310, 313-14 (3d Cir. 2007); United States v. Cepero, 224 F.3d 256, 264-65 (3d Cir. 2000) ().
In reviewing the denial of a § 2241 petition, we "exercise plenary review over the District Court's legal conclusions and apply a clearly erroneous standard to its findings of fact." See O'Donald v. Johns, 402 F.3d 172, 173 n.1 (3d Cir. 2005) (per curiam). To be clearly erroneous, a factual determination must "either (1) [be] completely devoid of minimum evidentiary support displaying some hue of credibility, or (2) bear[] no rational relationship to the supportive evidentiary data." Behrend v. Comcast Corp., 655 F.3d 182, 189 (3d Cir. 2011). Our review is further informed by the "presumption of regularity of the sentence, which the petitioner must overcome." Espinoza v. Sabol, 558 F.3d 83, 89 n.7 (1st Cir. 2009). Habeas corpus Skaftouros v. United States, No. 11-0462, ____ F.3d ____, 2011 WL 6355163, at * 10 (2d Cir. Dec. 20, 2011) (citing Pinkney v. Keane, 920 F.2d 1090, 1094 (2d Cir. 1990)). We review the denial of 52(b) and 59(e) motions for abuse of discretion. Max's Seafood Cafe ex rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 673 (3d Cir. 1999); cf. United States v. Texas, 601 F.3d 354, 362 (5th Cir. 2010).
At the outset, we observe that George cannot fairly be said to have exhausted his administrative remedies on the specific issues raised in his § 2241 petition. "Ordinarily, federal prisoners are required to exhaust their administrative remedies prior to seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2241." Gambino v. Morris, 134 F.3d 156, 171 (3d Cir. 1998). But since failure to exhaust in this context is an affirmative defense,see Garza v. Davis, 596 F.3d 1198, 1200 (10th Cir. 2010), we agree with the appellant that the Government has waived the issue. See Brown v. Rison, 895 F.2d 533, 535 (9th Cir. 1990), overruled on other grounds by Reno v. Koray, 515 U.S. 50, 54 (1995). On the other hand, while George explicitly states that he does not wish to raise arguments about sentence calculation and nunc pro tunc designation, it appears that he does not understand that those more-traditional claims could also serve to provide the relief he seeks and that he believes arguing in the alternative will undermine his main contention; accordingly, we will follow the District Court's example and liberally construe his pleadings to include those claims. See Diop v. ICE/Homeland Sec., 656 F.3d 221, 229 (3d Cir. 2011).
Assuming without deciding that George's argument about custody could serve to force early commencement of his federal sentence, we agree with the District Court that the Commonwealth of Pennsylvania maintained custody of George throughout the relevant proceedings. George insists that his July 2005 arrest by the Pittsburgh police task force was done at the behest of federal authorities, but even if that were the case, he was actually arrested on state charges by agents representing the non-federal sovereign.7 He argues, in the alternative, that he was granted release-on-recognizance bond onAugust 1, 2005, but 1) the record suggests that he was not actually released on that day, S.A. 43, 104, and 2) that he was granted bond in one case, see S.A. 55, does not mean he was bonded out on the other cases for which he was being held.8 Finally, he argues that the nominal bond granted in November 2006, shortly before his state sentencing, forced him into federal custody, but the record shows that he was not granted nominal bond on one of the three cases, undermining his claim that Pennsylvania "relinquished" its hold on him. Nor does a writ of habeas corpus ad prosequendum serve to transfer custody to the federal authorities. Ruggiano v. Reish, 307 F.3d 121, 125 n.1 (3d Cir. 2002), superseded on other grounds by U.S.S.G. § 5G1.3(c) cmt. n.3(E) (2003); see also BOP Program Statement 5880.28 § 3b (1999) (). In sum, the District Court did not err in reading the record to support the Government's view of the custody transfers and (as a result) the BOP's calculation of when George's federal sentence properly began.
With regard to nunc pro tunc designation, which we review for abuse of discretion, see Barden, 921 F.2d at 483, we are in accord with the District Court. TheBOP followed the guidelines we established in Barden, see S.A. 195; moreover, the federal sentencing court was (and remains) silent on whether the federal sentence was to be...
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