Jefferson v. Berkebile

Decision Date27 January 2010
Docket NumberCivil Action No. 5:07-cv-00941.
Citation688 F. Supp.2d 474
CourtU.S. District Court — Southern District of West Virginia
PartiesRichard Selvis JEFFERSON, Petitioner, v. David BERKEBILE, Respondent.

Edward H. Weis, Mary Lou Newberger, Federal Public Defender's Office, Charleston, WV, for Petitioner.

Kelly R. Curry, U. S. Attorney's Office, Charleston, WV, Lara P. Crane, Beaver, WV, for Respondent.


THOMAS E. JOHNSTON, District Judge.

Before the Court is Petitioner's Amended Petition for Writ of Habeas Corpus: 28 U.S.C. § 2241 Docket 51.


In May of 1991, Petitioner embarked on a several day crime spree that involved the commission of multiple serious offenses. Petitioner stole a car at gunpoint in Baltimore, Maryland, for use as a getaway car for a later robbery. He then proceeded to Jersey City, New Jersey, where he committed the armed robberies of two liquor stores on consecutive days. In one of the robberies, the proprietor of the liquor store suffered serious gunshot wounds. This was followed by the armed robbery of a bank in Jersey City. Petitioner fled the scene of the bank robbery in the stolen car with Jersey City police officers in hot pursuit. This led to a crash and a shootout with the officers. Petitioner was apprehended by the officers and placed in state custody on May 31, 1991. The New Jersey authorities charged Petitioner with numerous offenses, including multiple counts of armed robbery, aggravated assault, unlawful possession of a weapon, and attempted murder of a police officer.

While in state custody awaiting trial on the state offenses, federal bank robbery and weapon possession charges were filed against Petitioner. He was "borrowed" by federal authorities pursuant to a writ of habeas corpus ad prosequendum for the purpose of prosecuting the federal charges against him. Petitioner appeared before the Honorable H. Lee Sarokin, United States District Judge for the District of New Jersey, and pled guilty to two counts of the indictment: bank robbery in violation of 18 U.S.C. § 2113 and possession of a firearm in the commission of a bank robbery in violation of 18 U.S.C. § 924(c).

Petitioner was sentenced on the federal charges on September 2, 1992. The firearm possession charge carried a mandatory five-year term of imprisonment to run consecutively to the bank robbery sentence. The total offense level for Petitioner's bank robbery charge was 28 and his criminal history category was III. This produced a guideline sentence range of 97 to 121 months incarceration under the then-mandatory United States Sentencing Guidelines. The pending state charges did not factor into the computation of Petitioner's total offense level or criminal history category. At sentencing, Judge Sarokin expressed concern that Petitioner's sentence would not account for all of his criminal activity during the crime spree. It had come to the court's attention that the state charges pending against Petitioner likely would result in a plea agreement, and that one of the terms of the proposed plea agreement recommended that Petitioner's state sentence run concurrently with his federal sentence. Regarding the state plea agreement, Judge Sarokin remarked,

In essence, this provides no additional sanction under the state system for the two armed robberies in Jersey City, as well as the attempted murder of the police officers. Therefore, the full responsibility for this sanction and punishment appears to rest with this Court.

(Docket 2-2.) Accordingly, Judge Sarokin outlined two separate grounds for an upward departure of Petitioner's guideline sentencing range to account for the state offenses. First, Judge Sarokin stated that it would be appropriate to increase Petitioner's criminal history category from III to V. This would produce a guideline sentence range of 130 to 162 months on the bank robbery count. In the alternative, Judge Sarokin considered including the state offenses as relevant conduct and increasing the total offense level to 34. This would produce a guideline sentence range of 188 to 235 months. Judge Sarokin settled on the former grounds for departure and found a total offense level of 28 and a criminal history category of V. Petitioner was sentenced to 210 months incarceration, which consisted of 150 months for the bank robbery count and 60 months for the firearm possession count. Immediately following pronouncement of the sentence, Judge Sarokin stated,

Mr. Jefferson, the Court has imposed a substantial sentence upon you in this matter, but one thing is you will be moved, I would expect in the near future, out of the local jail. You will be put in a federal prison.

(Docket 2-2.)

Petitioner was returned to the New Jersey authorities for the disposition of the state charges pending in the Hudson County Superior Court. As anticipated, Petitioner pled guilty to three counts— two counts of armed robbery and one count of attempted murder—in accordance with a plea agreement. The plea agreement contained the following sentencing recommendation from the Hudson County Prosecutor: "20 years with 10 years parole ineligibility to run concurrent with each indictment and with federal time (210 months)." (Docket 2-1.) The recommendation was followed by the court1 and Petitioner was sentenced to ten- to twenty-years incarceration on each count on April 28, 1993. The sentencing judge ordered each sentence to run concurrently with the others and with the federal sentence.

Petitioner was not returned to federal custody, however, as Judge Sarokin apparently had expected. He was placed in the New Jersey prison system to serve his sentence. Petitioner was paroled on March 4, 2003, after serving roughly twelve years in state custody. He was taken into federal custody immediately upon his release from state custody. Pursuant to 18 U.S.C. § 3585(a),2 he was not given credit for the time served in state custody, and the service of his 210-month federal sentence commenced at that time. The projected date of Petitioner's release, accounting for good conduct credit, is August 24, 2018.

Petitioner filed a request with the Bureau of Prisons (BOP) for a nunc pro tunc designation of the state prison where he served his sentence as a federal facility. If granted, the request would have afforded Petitioner credit against his federal sentence for the approximately twelve years served in state custody. On June 12, 2003, the BOP addressed a letter to Judge Sarokin asking if he objected to the nunc pro tunc designation of Petitioner's sentence. Judge Sarokin had since retired from the bench and the Probation Office responded in his stead. The return letter stated that the Probation Office believed that the sentencing court intended the federal sentence to run consecutively to the state sentence. (Docket 11-1.) Based on this letter and other factors, the BOP denied Petitioner's nunc pro tunc request on October 23, 2003.

After exhausting his administrative appeals, Petitioner filed this action on December 12, 2007. By Standing Order entered August 1, 2006, and filed in this action on December 17, 2007, the petition was referred to the Honorable Mary E. Stanley, United States Magistrate Judge, for submission to this Court of proposed findings and recommendations (PF & R) in accordance with 28 U.S.C. § 636(b)(1)(B). On May 5, 2008, 2008 WL 5621699, the magistrate judge submitted a PF & R recommending that the Court deny the petition and dismiss the action from the Court's docket. In his response to the PF & R, Petitioner raised no objections to the magistrate judge's proposed findings and conceded that he has no remedy under the relevant statutes.3 Nevertheless, the Court exercised its discretion to afford the PF & R de novo review, see United States v. Raddatz, 447 U.S. 667, 680, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980); Camby v. Davis, 718 F.2d 198, 199-200 (4th Cir. 1983), and found some of the proposed findings to be inconsistent with the record.

In a Memorandum Opinion and Order entered January 20, 2009, the Court found that the manner in which the BOP considered and denied Petitioner's nunc pro tunc designation request did not comport with the applicable statutes in two respects and therefore was an abuse of discretion. First, the BOP did not give appropriate consideration to the requisite statutory factors when it construed a letter from the Probation Office as a "statement by the court that imposed the sentence." 18 U.S.C. § 3621(b) (setting forth five factors the BOP must consider when making designation decisions). Second, the BOP misconstrued 18 U.S.C. § 3584(a) when it determined that there was a statutory presumption that Petitioner's federal sentence was to be consecutive to his state sentence, which had not yet been imposed. Cf. United States v. Smith, 472 F.3d 222, 226 (4th Cir.2006). Based on these findings, the Court remanded the matter to the BOP with instructions to promptly reconsider Petitioner's request for nunc pro tunc designation.

The BOP again denied Petitioner's request for a nunc pro tunc designation on February 6, 2009. The BOP's decision relied heavily on the nature and circumstances of the offense and Petitioner's history and characteristics.

In an Order dated February 19, 2009, the Court took stock of the procedural history of this case in light of Petitioner's extraordinary factual allegations. Petitioner, who had been proceeding pro se, had been unable to match the facts in the record to any recognized legal theory that would entitle him to the habeas relief he was requesting, namely, release from prison. The record had been developed in a haphazard fashion, however, and factual circumstances that in some instances had only been alluded to cautioned that Petitioner may have had undeveloped and potentially meritorious claims. Accordingly, the Court found it to be in the interests of justice to appoint counsel to Petitioner. The...

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    ...have ... deliver[ed] him into federal custody for the purpose of beginning his federal sentence,"); see also Jefferson v. Berkebile, 688 F. Supp. 2d 474, 488 (S.D.W.Va. 2010) ("Furthermore, Petitioner has cited no law, nor has this Court found any, which supports the notion that due process......
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    ...§ 3621(b). "The phrase 'or otherwise' refers to the BOP's authority to designate federal prisoners to state prisons." Jefferson v. Berkebile, 688 F.Supp.2d 474, 486 (S.D.W. Va. 2010( (citing Evans, 159 F.3d at 911-12). The statute specifically directs the BOP to consider five factors in mak......
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