Rambo v. Thomas, CIVIL ACTION NO. 3:CV-13-1858

• Decision Date: 20 November 2014
• Docket Number: CIVIL ACTION NO. 3:CV-13-1858
• Court: U.S. District Court — Middle District of Pennsylvania
• Parties: GREGORY JAY RAMBO, Petitioner v. WARDEN J.E. THOMAS, Respondent

GREGORY JAY RAMBO, Petitioner v. WARDEN J.E. THOMAS, Respondent

CIVIL ACTION NO. 3:CV-13-1858

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

November 20, 2014

(Judge Nealon)

MEMORANDUM

Petitioner, Gregory Jay Rambo, a federal inmate currently confined in the Allenwood United States Penitentiary, White Deer, Pennsylvania (USP-Allenwood), filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. He alleges that the Federal Bureau of Prisons ("BOP") has incorrectly computed his federal sentence because his federal sentence should have been served concurrent to his state sentence. (Doc. 2, Memorandum of Law). Specifically, Rambo argues that he should be "awarded by the BOP all the time served from January 5, 2000 to July 9, 2008." Id. For relief, Rambo requests immediate release. Id. A response and traverse having been filed, the petition is ripe for disposition, and, for the reasons set forth below, the petition will be denied.

Background

On August 18, 1999, Petitioner was arrested by the Portland, OregonPolice Department for Bank Robbery. See (Doc. 6-1 at 10, Sentence Monitoring Computation Data). He was indicted by the Portland, Oregon, Multnomah County Grand Jury on ten (10) counts of Robbery in the First Degree with a Firearm; six (6) counts of Robbery in the Second Degree with a Firearm; four (4) counts of Felon in Possession of a Firearm; Burglary 1; Trespass 1; and Escape III. Id. These offenses all occurred between July 20, 1999, and August 18, 1999.

On September 15, 1999, Petitioner was indicted in the United States District Court for the District of Oregon on federal charges of Bank Robbery. See (Doc. 6-1 at 21-26, U.S. v. Rambo, 3:99-cr-0392-MA-1, criminal docket sheet).

On September 28, 1999, Rambo was "borrowed" from state primary custody by the U. S. Marshal Service, pursuant to a Federal Writ of Habeas Corpus Ad Prosequendum, to appear for his arraignment, and was returned on the same day. Id.

On January 5, 2000, Petitioner was again "borrowed" from state custody by the U.S. Marshal Service to attend his sentencing. Id. The United State District Court for District of Oregon sentenced Petitioner to a term of 151 months for the offense of Bank Robbery. (Doc. 6-1 at 14, Judgment in a Criminal Case). Id. The federal judgment was silent as to the relation with the state charges. Id. Petitioner was then returned to the primary custody of the state of Oregon for prosecution onthe state's charges. See (Doc. 6-1 at 21-26, U.S. v. Rambo, 3:99-cr-0392-MA-1, criminal docket sheet).

On March 27, 2000, Petitioner was sentenced in the Multnomah County, Portland, Oregon Circuit Court to serve ninety (90) months in the Oregon Department of Corrections for two (2) counts of Robbery 1; forty-eight (48) months for three (3) counts of Burglary 1; thirty (30) days for Escape 3; and thirty (30) days for Criminal Trespass 1; (for a total term of 228 months). (Doc. 6-1 at 33-40, Judgment of Conviction and Sentence). Petitioner was given 224 days of prior custody credit on the state sentence from August 18, 1999, to March 29, 2000, and served his state sentence from March 29, 2000, to December 19, 2007. (Doc. 6-1 at 30, Oregon Department of Corrections Records). However, on November 21, 2007, Petitioner was re-sentenced by the state. Id. Due to the re-sentencing, Petitioner had actually completed time served on his state sentences on February 16, 2007. Id.

On December 19, 2007, Petitioner was released from state custody to the U.S. Marshal Service for designation to a federal facility to commence his federal sentence. Id. The BOP determined Rambo's federal commencement date as December 19, 2007 and granted Petitioner prior custody credit from February 17, 2007, to December 18, 2007. (Doc. 6-1 at 11, BOP SENTRY Report, Sentence Monitoring Computation Data).

On February 15, 2008, Petitioner submitted an Inmate Request to Staff, "seeking a Barden¹ request" for credit for time spent in primary state custody, serving his state sentence, toward his sentence. (Doc. 6-1 at 42, Inmate Request to Staff).

The BOP² reviewed Petitioner's request for a nunc pro tunc (concurrent) designation and, accordingly, conducted a review pursuant to Barden v. Keohane, 921 F. 2d 476 (3rd Cir. 1990) and the factors set forth in 18 U.S.C. § 3621(b). See (Doc. 6-1 at 45-48, Responses to Inmate Request to Staff).

In Rambo's case, the five (5) factors set forth in 18 U.S.C. § 3621(b) were considered, and the BOP denied Petitioner's request based upon factors (2), (3), and (4), as follows:

Factor (2) - the nature and circumstances of the offense: Inmate Rambo was convicted of Bank Robbery. The nature of this offense is violent. Circumstances surrounding this offense are that Rambo and another offender entered a bank.

Rambo immediately approached the teller, pulled a mask over his face and stated "Okay, here we go, it's a hold-up," then in a loud voice he yelled profanities at the teller ordering the money. During the course of his get-away, Rambo ran in and out of private residences attempting to elude police. In one instance, he was lying on the ground at gun point, but got up and jumped out of a window to keep from being apprehended.

Factor (3) - the history and characteristics of the prisoner (to include institutional adjustment and prior criminal history): Inmate Rambo has been in federal custody since January 4, 2008. He participated in general programs and has no disciplinary actions. His prior criminal history consists of Armed Robbery; Use of a Firearm; Robbery I & II; Possession Controlled Substance; and Forgery. He was released from a sentence in May 1999, and committed the instant offense in August 1999.

Factor (4) - any statement by the court that imposed the sentence (to include no response from the judge): The court was contacted on January 7, 2009, regarding the inmate's request for Barden credit. The response received from the court states: "since the state sentence was subsequent to mine, I made no declaration of concurrent or consecutive and therefore, leave it to the discretion of the Bureau of Prisons, since it appears that the state court made no such determination either."

(Doc. 6-1 at 45, Factors Under 18 U.S.C. §3621(b) Worksheet). Based on the above, the Designation and Sentencing Computation Center determined that a nunc pro tunc designation was not appropriate in this case. (Doc. 6-1 at 47, 48, Feb. 27, 2009 Decision Letter).

Discussion

A. Jurisdiction

It is not the sentencing court which determines if jail time credits should be granted towards a federal sentence, it is the Bureau of Prisons ("BOP"). See United States v. Wilson, 503 U.S. 329, 333-35 (1992); Edwards v. United States, 41 F.3d 154, 155 (3d Cir. 1994). The proper vehicle for challenging the erroneous determination of sentence credit by the BOP is a petition for relief under 28 U.S.C. § 2241 in the district where the defendant is imprisoned. United States v. Smith, 101 F. Supp. 2d 332, 338 (W.D. Pa. 2000); United States v. Donohue, No. 93 CR 422, 1999 WL 690154 (E.D. N.Y. Aug. 28,1999). Failure by the BOP to implement the sentence imposed by a sentencing court mandates habeas corpus relief under § 2241. See Rios v. Wiley, 201 F.3d 257 (3d Cir. 2000); see also Gomori v. Arnold, 533 F.2d 871, 874-75 (3d Cir. 1976) (holding that where the prisoner seeking federal habeas corpus relief challenges the effect of events "subsequent" to his sentence, habeas corpus remedy is appropriate rather than motion pursuant to 28 U.S.C. § 2255). Here, because Petitioner is alleging that the BOP failed to calculate his sentence correctly, he is properly before this Court.

B. Computation of Federal Sentence

The Attorney General is responsible for computing federal sentences onall offenses committed on or after November 1, 1987, see 18 U.S.C. § 3585; United States v. Wilson, 503 U.S. 329, (1992), and has delegated that authority to the Director of the Bureau of Prisons under 28 C.F.R. § 0.96 (1992). See United States v. Brann, 990 F.2d 98, 103-04 (3d Cir. 1993).

1. Primary Jurisdiction

When two (2) different sovereigns have custody of a criminal defendant over time, the general rule is that the sovereign who acquires custody first in time has primary jurisdiction over the defendant. See Chambers v. Holland, 920 F. Supp. 618, 622 (M.D. Pa.), aff'd, 100 F.3d 946 (3d Cir. 1996) (citing cases). Primary jurisdiction remains vested in the jurisdiction that first arrested the defendant until that jurisdiction relinquishes its priority by, e.g., bail release, dismissal of the state charges, parole release, or expiration of the sentence. Notably, producing a state prisoner under a writ of habeas corpus ad prosequendum to answer federal charges does not relinquish state custody. Chambers, 920 F. Supp. at 622 (citations omitted). Thus, in this case, the state of Oregon, acquired primary jurisdiction over Rambo when it arrested him, and retained primary custody over him when it produced him pursuant to the writ of habeas corpus ad prosequendum.³

2. Prior Custody Credit

Computation of a federal sentence is governed by 18 U.S.C. § 3585, and is comprised of a two-step determination: first, the date on which the federal sentence commences and, second, the extent to which credit may be awarded for time spent in custody prior to commencement of the sentence ("prior custody credit").

(a) Commencement of sentence.--A sentence to a term of imprisonment commences on the date the defendant is received in custody awaiting transportation to, or arrives voluntarily to commence service of sentence at, the official detention facility at which the sentence is to be served.

(b) Credit for prior custody.--A defendant shall be given credit toward the service of a term of imprisonment for any time he has spent in official detention prior to the date the sentence commences--

(1) as a result of the offense for which the sentence was imposed; or

(2) as a result of any other charge

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