Ivy v. Joyner

• Decision Date: 15 January 2019
• Docket Number: CIVIL ACTION NO. 9:18-2158-HMH-BM
• Parties: GREGORY D. IVY, Petitioner, v. HECTOR JOYNER, Warden, Respondent.
• Court: U.S. District Court — District of South Carolina

GREGORY D. IVY, Petitioner, v. HECTOR JOYNER, Warden, Respondent.

CIVIL ACTION NO. 9:18-2158-HMH-BM

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA

January 15, 2019

REPORT AND RECOMMENDATION

This Petition for a writ of habeas corpus was filed, pro se, pursuant to 28 U.S.C. § 2241. Petitioner is currently incarcerated at the Federal Correctional Institution in Estill.

Respondent filed a motion to dismiss or in the alternative for summary judgment on October 2, 2018. As the Petitioner is proceeding pro se, a Roseboro order was entered by the Court on October 4, 2018, advising Petitioner of the importance of a dispositive motion and of the necessity for him to file an adequate response. Petitioner was specifically advised that if he failed to respond adequately, the Respondent's motion may be granted, thereby ending his case. Petitioner thereafter filed a response in opposition to the motion on November 9, 2018, and Respondent filed a reply on November 16, 2018.

This matter is now before the Court for disposition.¹

Background

On October 15, 2014, Petitioner was arrested by the Richmond County, Georgia, Sheriff's Office for Use of an Article with Altered ID, Possession of Marijuana, and Possession of a Firearm by a Convicted Felon. See Rohmer Affidavit, ¶ 4 & Attachment 1 (Documents from the Superior Court of Richmond County, Docket No. 2014-RCCR-1752). The charges were nolle prosequed on August 5, 2015. Id. However, on January 8, 2015, while Petitioner was still in the primary custody of the State of Georgia for Case Number 2014-RCCR-1752, his probation was revoked in Case Number 2012-RCCR-1557. See Rohmer Affidavit, ¶ 5 & Attachment 2 (Georgia Department of Corrections ("GADOC"), Revocation of Probation Case No. 2012-RCCR-1552). Petitioner was sentenced to serve 6 years, 2 months, and 2 days imprisonment. Id. Petitioner completed his state sentence on May 17, 2017. Id.

In the interim, on January 21, 2015 the United States Marshal Service borrowed Petitioner from the GADOC via a federal writ; see Rohmer Affidavit, ¶ 6 & Attachment 3 (United States Marshals Service Prisoner Tracking System, USM-129); and the record before the Court shows that Petitioner was sentenced on July 30, 2015, to a 72-month term of imprisonment, to be followed by a three year term of supervision, by the United States District Court for the Southern District of Georgia for being a Felon in Possession of a Firearm in violation of 18 U.S.C. § 922(G)(1) and § 924(A)(2). See Rohmer Affidavit, ¶ 7 & Attachments 4 and 5. The United States District Court ordered this sentence to be served consecutively to the revoked state probation term in Richmond County Superior Court, Case Number 2012-RCCR-1557. See Rohmer Affidavit Attachment 4. Following his federal conviction and sentencing, Petitioner was returned to state custody on August 4, 2015. See Rohmer Affidavit Attachment 3.

Since Petitioner's state sentence was completed on May 17, 2017, the Bureau of Prisons computed Petitioner's federal sentence as beginning on May 17, 2017, the day the GADOC turned Petitioner over to the exclusive custody of the United States Marshal Service. See Rohmer Affidavit, ¶ 11 & Attachment 2 Respondent's Exhibit 2 (Georgia Department of Corrections, Revocation of Probation Case No. 2012-RCCR-1552); see also Rohmer Affidavit Attachment 5. Petitioner currently has a projected release date of May 14, 2022, via Good Conduct Time (GCT) Release. See Rohmer Affidavit, ¶ 11. However, Petitioner asserts in this federal habeas action that he should have received credit on his federal sentence from January 21, 2015, when he was taken on a writ into federal custody, through July 30, 2015 (the date he was federally sentenced), and that he should also receive a nunc pro tunc designation with federal credit for the time he was in state custody from July 30, 2015 forward. Petitioner also separately complains that time spent in custody from January 21, 2015 (the date Petitioner was taken from state authorities on the federal writ) through August 4, 2015 (the date that he was returned to state custody) was not credited to his state sentence, and that those days should be credited toward his state sentence. See Petitioner's Memorandum in Opposition, p. 2, ¶ 4.

With respect to his state sentence calculation, the Central Office Administrative Remedy Response states that documentation from the Georgia Department of Corrections verifies prior custody credit from January 8, 2015, through May 17, 2017, was spent in service of Petitioner's Georgia sentence [see Court Docket No. 1-1, p. 1(attached to Petition)]. As for his federal sentence, Petitioner is correct that he did not receive credit on his federal sentence from January 21, 2015 through the date of his return to state custody. It is also undisputed that, while the time from August 4, 2015 (the date of Petitioner's actual return to state custody) through May 17, 2017 has beencredited to his state sentence, it has not been credited to his federal sentence.²

I.(Exhaustion)

Respondent does not contest that, to the extent Petitioner is challenging the Bureau of Prisons ("BOP") decision not to credit him for prior time served in state custody, this claim may be brought under 28 U.S.C. § 2241, and that Petitioner has exhausted his administrative remedies with respect to this claim. See Rohmer Affidavit, ¶ 8 & Attachment 6; Court Docket No. 1-1; see also Hughes v. Slade, 347 F.Supp.2d 821 (C.D.Cal. 2004); Jimenez v. Warden, FDIC, Fort Devens, Massachusetts, 147 F.Supp.2d 24, 27 (D.Mass. June 8, 2001); 18 U.S.C. § 3585; Chua Han Mow v. United States, 730 F.2d 1308, 1313 (9th Cir. 1984) [ "It is only when a prisoner has exhausted his administrative remedies that he becomes entitled to litigate the matter in the district court." ]. See also United States v. Mathis, 689 F.2d 1364, 1365 (11th Cir. 1982). Therefore, that claim is properly before this Court for review.

II.(Custody Credit)

Initially, with respect to Petitioner's state credit claim, documentation from the Georgia Department of Corrections shows that Petitioner was placed in the custody of the state prison on January 8, 2015, and there is no indication of any break in service. See Court Docket No. 9-1, pp. 13-14. While Petitioner conclusorily states that he did not receive credit on his state sentence fromJanuary 21, 2015 through August 4, 2015, he has provided no documentation or evidence to support this assertion. Accordingly, even if this was a cognizable federal claim, Petitioner has not shown that he did not receive state credit for this time period on his state sentence, and this claim is therefore without merit. See Smith v. North Carolina, 528 F.2d 807, 809 (4^th Cir. 1975)[Petitioner bears the burden of proving his allegations when seeking a writ of habeas corpus].

With respect to Petitioner's federal sentence, Petitioner was sentenced on his federal conviction on July 30, 2015. Under federal law,

[a] federal sentence cannot commence before it is imposed, United States v. Walker, 98 F.3d 944, 945-946 (7th Cir. 1996), and a district court has no power to award presentence credit, United States v. Wilson, 503 U.S. 329, 333 (1992); United States v. Ross, 219 F.3d 592, 594 (7th Cir. 2000). A district court may order a federal sentence to run concurrently with an undischarged state sentence, 18 U.S.C. § 3584(a); Romandine v. United States, 206 F.3d 731, 737-738 (7th Cir. 2000) . . . . [but the BOP cannot give credit for any period of presentence custody that has already been credited against another sentence], 18 U.S.C. § 3585(b); Ross, 219 F.3d at 594.

Short v. Revell, No. 05-1890, 152 Fed.Appx. 542, 544 (7th Cir. Oct. 24, 2005)(unpublished).

A prisoner cannot receive double credit, and prior custody credit will therefore not ordinarily be granted under § 3585³ if the prisoner has already received prior custody credit towardanother sentence. See United States v. Mojabi, 161 F.Supp.2d 33, 36 (D.Mass. 2001)["Section 3585(b) prohibits 'double-credit', i.e. awarding credit for presentence time served against one sentence if that time has already been credited against another sentence."]; United States v. Arroyo, 324 F.Supp.2d 472, 473-474 (S.D.N.Y. 2004)[BOP is precluded from granting credit for time in pre-sentence detention that has already been credited against another sentence]; Nguyen v. Department of Justice, No. 97-6489, 1999 WL 96740 (6th Cir. Feb. 3, 1999); Ransom v. Morton, No. 95-15127, 1995 WL 620935 (9th Cir. Oct. 19, 1995); see also 28 U.S.C. ¶ 3585(b); Bacon v. Federal Bureau of Prisons, No. 545-18, 2001 WL 34684734 (D.S.C. Mar. 22, 2001); see also Program Statement 5800.28, Sentence Computation Manual (New Law/CCCA)(Rohmer Affidavit Exhibit 7).

The United States Marshal Service's "borrowing" Petitioner from the GADOC via a federal writ also did not change his custody status for purposes of his federal credit calculation. Although Petitioner was physically in the hands of the United States Marshal before his federal sentencing, he actually remained in the legal custody of the State of Georgia during that period and therefore received credit only against his state sentence. United States v. Evans, 159 F.3d 908, 911-912 (4th Cir. 1998); Stewart Bailey, 7 F.3d 384, 389 (4th Cir.1993)[a prisoner is not "in custody" when he appears in another jurisdiction's court pursuant to an ad prosequendum writ; he is merely "on loan" to that jurisdiction's authorities]; Thomas v. Whalen, 962 F.2d 358, 361 n. 3 (4th Cir.1992); Short, 152 Fed.Appx. at 544; Jake v. Herschberger, 173 F.3d 1059, 1062 n. 1 (7th Cir.1999); Sinito v. Kindt, 954 F.2d 467, 469 (7th Cir.1992)(per curiam)[writ of habeas corpus ad prosequendum does not alter custody status]; Flick v. Blevins, 887 F.2d 778, 781 (7th Cir.1989)(per curiam)[prisonerdelivered on writ of habeas corpus ad prosequendum does not alter custody status].

With regard to potential credit on his federal sentence for time served in...