Preston v. Ebert

• Decision Date: 25 August 2014
• Docket Number: No. 3:12-cv-1058,3:12-cv-1058
• Parties: JAMES MICHAEL PRESTON, Petitioner, v. DAVID EBERT, WARDEN, Respondent.
• Court: U.S. District Court — Middle District of Pennsylvania

JAMES MICHAEL PRESTON, Petitioner, v. DAVID EBERT, WARDEN, Respondent.

No. 3:12-cv-1058

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

August 25, 2014

(Judge Mariani)

MEMORANDUM

I. Introduction

On March 9, 2012, Petitioner James Michael Preston, an inmate currently confined at the Canaan United States Penitentiary in Waymart, Pennsylvania, ("USP-Canaan"), filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. (Doc. 1). Preston argues that the Bureau of Prisons, ("BOP"), improperly calculated his federal sentence. (Id.). For the reasons discussed below, the Petition will be denied.

II. Factual Background and Procedural History

The factual background of this case, undisputed by the parties, is as follows:

On September 14, 2002, Preston was arrested by state/local law enforcement officers in Decatur, Alabama, and charged with Sale of Cocaine and Possession of a Pistol by a Prohibited Person (Criminal Case No. CC02-1195 (Morgan County Circuit Court)) and was released on bond that same date. Solis Decl. ¶ 4 (54), Attach. 2 at 16.

On November 14, 2002, while on bond, local charges of Failure to Yield and Driving with a Suspended License (Case Number TR02-2362, 2363, Colbert County, AL), were issued against Preston. Id. ¶ 4 (55), Attach. 2 at 16.

On December 5, 2002, Preston failed to appear in court for a hearing in

Colbert County for Case Numbers TR02-2362,2363. Id. As a result a Failure to Appear Warrant was issued. Id.

On December 13, 2002, Preston was arrested by Decatur, Alabama, Police Officers and charged with First Degree Robbery, in state criminal case number CC03-243 (Morgan County Circuit Court). Id. at ¶ 4 (56), ¶ 5(d), Attach. 2 at 16.

On January 15, 2003, while detained in criminal case number CC03-243, Preston was arrested by state/local law enforcement authorities and charged with Distribution of a Controlled Substance in criminal case Number 03-262 (Morgan County Circuit Court). Id. at ¶ 4 (57), Attach. 2 at 17.

On January 31, 2003, the United States District Court for the Northern District of Alabama issued a two count federal indictment charging Preston with the federal crime of Bank Robbery by Force or Violence and Violent Crime/Drugs/Machine Gun, in violation of 18 U.S.C. §§ 2113(a), 2113(d), and 924(c)(1)(A). Id. at ¶ 4 (1-2), Attach. 2 at 4. The federal charges set forth in the indictment involved the same conduct as charged in state criminal case number CC03-243 (Morgan County Circuit Court). Id. at ¶ 4, Attach. 2 at 16, 56.

On February 11, 2003, Preston was borrowed by federal authorities via federal writ of habeas corpus ad prosequendum for processing of the federal criminal charges. Id. at ¶ 4 (57), Attach. 2a.

On March 19, 2003, Preston pleaded guilty to both counts listed in the federal indictment. Id. at ¶ 4 (3), Attach. 2 at 4.

On June 25, 2003, Preston was sentenced by the United States District Court for the Northern District of Alabama to 188 months for Bank Robbery and 84 months for Brandishing a Firearm During a Crime of Violence, to be served consecutively with each other. Id. at ¶ 4 (57), Attach. 2b. The Court recommended Petitioner be designated to a Bureau of Prisons institution where he could participate in the 500 hour drug abuse treatment program and in other mental health programs. Id. The court also recommended he be designated to an institution as close as possible to his home in Decatur, Alabama. Id. The court was silent as to whether it intended the federal

sentence to run consecutively or concurrently with any other sentence to which Petitioner was subject. Id.

On August 6, 2003, Preston was returned to state authorities in satisfaction of the federal writ of habeas corpus ad prosequendum. Id. at ¶ 4 (57), Attach. 2a.

On January 26, 2004, Preston was sentenced in state court to a 20 year term of imprisonment for the state offense of Sale of Cocaine. Id. at ¶ 4 (57), Attach. 2c. The state sentencing court directed the state sentence run concurrently with the federal sentence, and that Preston receive credit against his state sentence for all time served prior to the imposition of the state sentence. Id.

On September 22, 2008, Petitioner was paroled by state authorities to the United States Marshals Service (USMS). Id. at ¶ 4 (57), Attach. 2d.

In a letter dated March 9, 2010, from the BOP to Preston's federal sentencing court it was explained that pursuant to Barden v. Keohan, 921 F.2d 476 (3d Cir. 1990), because: (1) Preston was in primary state custody at the time the federal sentence was imposed; (2) the federal sentence was imposed prior to the imposition of Preston's state sentence; and (3) the federal Judgment and Commitment Order was silent as to the federal sentencing court's intention or recommendation as to the relationship of the federal sentence with any other sentence to which Preston was subject, the BOP had the discretion to consider Preston for a retroactive designation of the state sentence for service of the federal sentence. Id. at ¶ 4 (57), Attach. 2e. It was explained that if the BOP granted Preston's request for a retroactive designation, the 272 month federal sentence imposed in Case Number CR03-B-0054 (N.D. Ala.), would run concurrently with a 20 year state sentence imposed by the State of Alabama for Distribution of a Controlled Substance. Id. If the BOP denied the request for a retroactive designation, the federal sentence would be treated as a consecutive sentence, which would commence upon the satisfaction of the state sentence. Id. It was also explained that among the factors considered by the BOP when determining whether to grant an inmate's request for a retroactive designation, was the position of the federal sentencing court. Id. It was explained that although the court's recommendation was not binding, it was relevant and helpful to the BOP

when making this determination. Id. The BOP requested the court to state its position on this issue. Id. The BOP requested the court to respond to this request within 60 days of the date of the letter. Id.

On May 15, 2010, after considering Preston's personal circumstances against the five factors set forth at 18 U.S.C. § 3621(b), the BOP denied Preston's request for a retroactive designation of the state prison for service of his federal sentence. Id. at ¶ 4 (57), Attach. 2f. It was specifically explained that Preston had a significant criminal history, and the conduct related to his instant offense reflected a calculated attempt to rob a bank and Preston's discharge of a firearm in furtherance of the crime. Id. It was also noted that as he and his accomplices attempted to flee the crime scene, Preston engaged in a vehicle chase in a vehicle that had been stolen the night prior to the bank robbery, and during the pursuit the law enforcement officers' vehicle was rammed by the escaping vehicle. Id. It was also noted the federal sentencing court did not respond to the BOP's letter seeking its position on this issue. Id.

On August 9, 2010, the federal sentencing court issued an order recommending that the BOP grant Preston's request for a retroactive designation. Id. at ¶ 4 (57), Attach. 2g.

On December 2, 2010, Preston's request for a retroactive designation of the state prison for service of his federal sentence was reconsidered by the BOP. Id. at ¶ 4 (57), Attach. 2h. It was noted that on December 1, 2010, the August 9, 2010 Order of the Federal Sentencing Court was received, and the Order recommended the BOP grant Preston's request for a retroactive designation of the state prison for service of his federal sentence. Id. After reconsidering Preston's personal circumstances in light of the factors set forth at 18 U.S.C. § 3621(b), it was determined Preston was not appropriate for a retroactive designation. Id. Preston's lengthy criminal history including violence and escape, and the circumstances of the criminal offense conduct involved in his instant offense, were cited as reasons supporting the BOP's decision to deny Preston's request for a retroactive designation. Id.

Preston's 272 month federal sentence has been computed as commencing on September 22, 2008, the date he was paroled by state authorities to the USMS. Id. at ¶ 4 (57), Attach. 2i-j. He received no prior custody credit

against his federal sentence. Id. It was noted that a total of 121 days of good conduct time had been disallowed or forfeited as a result of disciplinary action. Id. Assuming he received all available good conduct time available to him under 18 U.S.C. § 3624(b), his projected release date was September 21, 2018. Id.

(Doc. 19, pp. 11-16).

Preston originally filed his Petition for Writ of Habeas Corpus on March 9, 2012 in the United States Court of Appeals for the Third Circuit. (Doc. 1). The Third Circuit transferred the Petition to the United States District Court for the Northern District of Alabama, the district in which his underlying criminal case was handled. (Id.). However, because Preston was confined in the United States District Court for the Middle District of Pennsylvania, on April 10, 2012, the Northern District of Alabama directed that the case be transferred to this Court. See (Doc. 2). On June 5, 2012, Preston's Petition was received in the Middle District. (Doc. 5).

In his Petition, Preston argues that the BOP improperly calculated his federal sentence because the BOP failed to credit Preston with any time he spent serving his state sentence. (Doc. 1). Preston specifically states that: (1) he should be awarded credit for his state custody under U.S.S.G. § 5G1.3; (2) the BOP "was required to honor Judge Blackburn's¹ clear clarification of her sentencing intent when she indicated it was her intentthat petitioner receive credit against his Federal sentence for time spent in state custody as an award of credit under U.S.S.G. Sec. 5G1.3"; and (3) the BOP failed to give Preston's request for nunc pro tunc credit under 28 C.F.R. § 541.12 fair consideration. (Id. at pp. 6-7).

On June 28,...