Johnson v. Deboo
| Decision Date | 11 February 2013 |
| Docket Number | CIVIL ACTION NO. 3:12-CV-30 |
| Court | U.S. District Court — Northern District of West Virginia |
| Parties | DEMETRICE BENOR JOHNSON, Petitioner, v. KUMA DEBOO, Warden, Respondent. |
(JUDGE GROH)
On this day, the above-styled matter came before the Court for consideration of the Report and Recommendation of United States Magistrate Judge James E. Seibert. By local rule, this action was referred to Magistrate Judge Seibert for submission of a proposed report and recommendation ("R&R"). Magistrate Judge Seibert filed his R&R on December 4, 2012 [Doc. 19]. In that filing, the magistrate judge recommended that this Court grant the Respondent's Motion to Dismiss or, in the Alternative, for Summary Judgment [Doc. 11], and deny and dismiss with prejudice the Petitioner's Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. §2241 [Doc. 1].
The Petitioner is currently incarcerated at FCI Gilmer in Glenville, West Virginia, within the geographical bounds of the United States District Court for the Northern District of West Virginia. Pursuant to 28 U.S.C. §2241(d), a petition for writ of habeas corpus "may be filed in the district court for the district wherein such person is in custody or the district court for the district within which the State court was held which convicted and sentencedhim and each of such district courts shall have concurrent jurisdiction to entertain the application."
Pursuant to 28 U.S.C. §636(b)(1)(c), this Court is required to make a de novo review of those portions of the magistrate judge's findings to which objection is made. 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, failure to file timely objections constitutes a waiver of de novo review and the Petitioner's right to appeal this Court's order. 28 U.S.C. §636(b)(1); Snyder v. Ridenour, 889 F.2d 1363 (4th Cir. 1989); United States v. Schronce, 727 F.2d 91, 94 (4th Cir. 1984). Here, objections to Magistrate Judge Seibert's R&R were due within fourteen (14) days after being served with a copy of the R&R pursuant to 28 U.S.C. §636(b)(1) and Fed. R. Civ. P. 72(b). Per the return receipt on file with the District Clerk's office, service of the R&R was accepted on December 6, 2012. Objections were thus due by December 24, 2012. See 28 U.S.C. §636(b)(1); FED. R. CIV. P. 72(b); FED. R. CIV. P. 6(a)(3)(A); FED. R. CIV. P. 6(d) (). The Petitioner filed his objections on December 28, 2012. However, given operation of the "mailbox rule" of Houston v. Lack, 487 U.S. 266 (1988), wherein a document is deemed filed by a prisoner when it is delivered to prison officials for mailing, the Court finds that the Petitioner's objections are timely. Accordingly, the Court will undertake a de novo review of those portions of the magistrate judge's findings to which objection is made. The Court will review the remainder of the R&R for clear error.
On January 7, 2000, the Petitioner was arrested by Michigan state authorities and charged with Assault with Attempt to do Great Bodily Harm Less Than Murder. On March 16, 2000, while in state custody, he was borrowed by federal authorities, pursuant to a federal writ of habeas corpus ad prosequendum, and on August 25, 2000, he was sentenced by the United States District Court for the Eastern District of Michigan to a term of thirty-three (33) months imprisonment for Bank Fraud Conspiracy. After sentencing, the Petitioner was returned to Michigan's state custody with the federal judgment filed as a detainer.
On September 27, 2000, the Petitioner was sentenced by the State of Michigan to a term of sixty-seven (67) months to ten (10) years imprisonment for Assault with Attempt to do Great Bodily Harm Less than Murder. The state granted the Petitioner 267 days credit against his state sentence for time he had already spent in custody. On August 3, 2005, the Petitioner was released by the state to the custody of the United States Marshals Service ("USMS") to begin serving his federal sentence.
On May 31, 2005, the Petitioner filed a "Motion to Clarify Judge Intent" in the federal sentencing court. On October 20, 2005, the Petitioner filed a "Motion for Release from Federal Custody." Through these motions, the Petitioner asked the federal sentencing court to clarify its intent at the time of the Petitioner's August 25, 2000 sentencing with regard to whether the Petitioner's federal sentence was to have run concurrently with his state sentence. Apparently the Petitioner did not serve the United States Attorney's office with a copy of the May 31, 2005 motion, but did serve the Government with a copy of theOctober 20, 2005 motion. The Petitioner sought an order "correcting his sentence" to commence on August 25, 2000, and alleged that the state court viewed him as a federal prisoner whose state sentence was to be served concurrently with his federal sentence.
On January 5, 2006, the federal Bureau of Prisons ("BOP") drafted a letter to the federal sentencing court, seeking the court's position regarding a nunc pro tunc designation for the Petitioner.
In reviewing the transcript from the state court proceeding, it is apparent that there was a misunderstanding by the state court judge at the time of the Petitioner's August 25, 2000 sentencing. The court, defense counsel, and the prosecutor were all under the mistaken belief that the Petitioner had been taken into federal custody first, when in fact the state had arrested him first, his federal sentence had not yet been determined to be concurrent, and the federal sentence was to be a detainer on the Petitioner's state sentence.
The Petitioner's October 20, 2005 motion argued that "[c]ontrary to the clear intention of [the state court] that defendant be allowed to serve the first portion of his state sentence while in federal custody," the BOP "intend[ed] to imprison the defendant for another 33 month period." Because the motion sought to "correct" the Petitioner's sentence, the Government regarded it as a motion to vacate under 28 U.S.C. §2255, and, consistent with the Rules Governing §2255 Proceedings, waited for the court to either summarily dismiss the motion or order the Government to respond. The federal sentencing court did neither.
Instead, in a June 9, 2006 Order Granting Defendant's Motion for Release from Federal Custody, the federal sentencing court granted both of the Petitioner's motions,holding that the state court had ordered its sentence to be served concurrent to the Petitioner's federal sentence, and stating that "it is the intention of this court to comply with the intent of the state court judge." The order directed that the Petitioner's federal sentence was to be served concurrently with the state sentence.
In response to the June 9, 2006 order from the Eastern District of Michigan, the Government filed a June 9, 2006 Motion for Stay of Release from Federal Custody and a Motion for Reconsideration of Order Granting Defendant's Release from Federal Custody. By order dated June 14, 2006, the federal sentencing court clarified that in its June 9, 2006 order, it had "inaccurately ordered that [the Petitioner's] sentence be served concurrent with the state sentence in order to comply with the intention of the state court judge." The federal sentencing court granted the Government's Motion for Reconsideration and, because the Petitioner had already been released, denied as moot the Petitioner's Motion for Release from Custody. The court noted that the Petitioner had been brought into federal court from state custody on a writ of habeas corpus ad prosequendum, received a thirty-three (33) month federal sentence, was returned to state custody to receive a state sentence of sixty-seven (67) to one hundred twenty (120) months, and then remained in state custody serving a five year sentence, before being released back into federal custody to begin a thirty-three (33) month federal sentence which was to run consecutive, as opposed to concurrent, with the state sentence. Because the Petitioner had already been unintentionally released from his thirty-three (33) month federal sentence to begin his three year term of supervised release, the federal sentencing court recommended to the BOP the nunc pro tunc designation, which the BOP later granted, retroactively making the federal sentence concurrent with the state sentence.
On March 7, 2007, while the Petitioner was still on supervised release, he was arrested by Michigan state authorities and charged with a new series of crimes committed on December 23, 2006, including: Count I, Assault with Intent to Commit Murder, Count II, Weapons Firearm-Discharge from Vehicle, Count III, Felon in Possession of a Firearm, and Count IV, Felony Firearm and Habitual Offender. On June 19, 2007, the State of Michigan sentenced the Petitioner to twenty-two (22) months to fifteen (15) years imprisonment on Counts II and III, and to two years imprisonment on Count IV, consecutive to the term of imprisonment imposed in Counts II and III.
On August 2, 2007, the Petitioner was borrowed from state custody pursuant to a federal writ of habeas corpus ad prosequendum for an initial appearance on his federal supervised release violations which were based upon his recent state conviction. On August 9, 2007, he was sentenced by the Eastern District of Michigan to twenty-four (24) months imprisonment to be followed by one year of supervised release, to be served consecutive with his state sentence. He was returned to state custody following sentencing.
The Petitioner completed his second state sentence on October 18, 2011, and was released to the USMS to...
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