Thomas v. Drew
| Decision Date | 14 March 2011 |
| Docket Number | CIVIL ACTION NO. 5:10-cv-00180 |
| Parties | DERWIN L. THOMAS, Petitioner, v. D. DREW, Respondent. |
| Court | U.S. District Court — Southern District of West Virginia |
Before the Court is Petitioner's Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, or, in the Alternative, Pursuant to 28 U.S.C. §§ 2241 or 2255 [Docket 51]. By Standing Order [Docket 31] entered on February 23, 2010, this action was referred to the Honorable R. Clarke VanDervort, United States Magistrate Judge, for submission to this Court of proposed findings of fact and recommendation for disposition (PF&R), pursuant to 28 U.S.C. § 636. The Magistrate Judge has submitted findings of fact and has recommended that the Court FIND that Petitioner's claims are properly considered under § 2255 and that the Court lacks jurisdiction to hear his petition. The Magistrate Judge has further recommended that the Court dismiss the petition and remove this matter from the Court's docket.
Petitioner was arrested on October 13, 2004, in Chesterfield County, Virginia, and charged with violations of Virginia law. On December 14, 2004, the state charges were dismissed and Petitioner was released by Virginia state authorities to federal authorities who arrested him. On February 18, 2005, Petitioner was again taken into custody by Virginia authorities pursuant to a writ of habeas corpus ad prosequendum based on charges stemming from arrests predating the October 13, 2004, arrest. Petitioner was sentenced in Virginia state court on February 23, 2005, to a 40-year term of imprisonment with 38 years suspended. The sentencing judge ordered that his sentence run consecutive to any other sentence that may be imposed. As Petitioner notes, at the time of that sentence, he had not been convicted or sentenced by the federal court. He was returned to federal custody the following day.
On May 23, 2005, Petitioner was sentenced to 96 months in prison. The court ordered that the federal sentence run concurrently with any other sentences previously imposed. On September 7, 2005, the Virginia Department of Corrections filed a detainer for the remaining two years on the state sentence, noting that the state sentence was to be served consecutive to the federal sentence. Petitioner's federal sentence was modified to 84 months on June 27, 2008. The Modified Order restated that the federal sentence was to be served concurrently with all other sentences previously imposed. According to the Bureau of Prison's Inmate Locator website, Petitioner is set to be released on March 15, 2011, at which time, presumably, his federal sentence expires.
Petitioner originally filed his Petition pursuant to 22 U.S.C. § 2241 on December 4, 2008, in the District of South Carolina, where he was housed on December 4, 2008. The original petition described Petitioner's efforts to serve the remaining two years of his federal sentence in the State of Virginia Department of Corrections to concurrently serve his two year state sentence. The exhibits attached to the petition demonstrate that the Bureau of Prisons denied Petitioner's request for redesignation and subsequently denied his administrative appeal of that decision. The original petition is based on those denials. It requests that the court order the Bureau of Prisons to designate Petitioner to a Virginia state facility so that his state sentence and final two years of his federal sentence may run concurrently.
On April 10, 2009, Respondents moved for summary judgement on the grounds that Petitioner was essentially challenging the order--that is, the sequence--in which he served his "consecutive" state sentence and his "concurrent" federal sentence, and he did not have standing to do so. After Respondents filed their Motion for Summary Judgment [Docket 32], Petitioner was transferred from the District of South Carolina to FCI Beckley in Beckley, West Virginia. The district court for the District of South Carolina entered an order on February 23, 2010, transferring the case to the Southern District of West Virginia.
Magistrate Judge VanDervort entered his first PF&R on August 24, 2010. Upon review of the record, the Court found it in the interest of justice to appoint pro bono counsel to assist Petitioner in this matter, and on September 29, 2010, the Court appointed counsel to the case, denied Respondent's motion for summary judgment, and set a briefing schedule for any amended petition. Through counsel, Petitioner filed his amended Petition for Writ of Habeas Corpus pursuant to 28U.S.C. § 2254, 2241 or 2255 on October 26, 2010, and the magistrate judge entered his second PF&R on December 15, 2010. Petitioner responded to the PF&R on December 20, 2010.
In his amended Petition, he alleges that the Virginia state court determination imposing a sentence "consecutive to" a sentence that had not yet been imposed violates his due process rights under the Fifth and/or Fourteenth Amendment. In his Petition, he asserts that jurisdiction is proper under § 2254 because he alleges that the state court judgment is in violation of the Constitution and/or the laws of the United States. (Docket 51 at 2.)
Petitioner admits that he has not exhausted his state remedies, but asserts that he is not required to do so under § 2254 because "circumstances exist that render such process ineffective to protect the rights of the applicant." (Docket 51 at 2-3) (citing Granberry v. Greer, 481 U.S. 129, 131-132 (1987)). Specifically, he states,
Because Petitioner is scheduled to serve a potentially illegal sentence in less than six months [now two days], this Court should look beyond Petitioner's admitted failure to exhaust state remedies because the risk of serving an illegal and erroneous sentence potentially outweighs the exhaustion requirement, especially in light of the fact that Petitioner exhausted his administrative remedies seeking remand to state custody.
(Pet. 3.) He further asserts that because exhaustion is an issue of comity rather than jurisdiction, Petitioner's exceptional situation warrants the Court excusing the failure to exhaust.
Petitioner asserts that his state court sentence violates his due process rights in that it was indefinite, unclear and contrary to federal law. (Docket 51 at 6.) He states that the length of hissentence was left undetermined inasmuch as it was unclear whether the sentences were to be served consecutively, as the state court had ordered, or concurrently, as the federal district court had ordered. (Docket 51 at 7.) Petitioner asserts that he should be able to understand and appreciate the length of his sentence at the time the sentence is imposed, which was not the case because his state sentence depended on a future occurrence. He further states that the state sentence and the federal sentence are conflicting, adding to the vagueness and uncertainty that violates his rights under the Due Process Clause. (Docket 51 at 7-8.)
In support of his claims, Petitioner cites Fourth Circuit precedent holding that a district court may not order a sentence to run consecutively to another sentence that has not yet been imposed. (Docket 51 at 8.) Interpreting 18 U.S.C. § 3584(a), the statute that permits federal courts to order multiple terms of imprisonment to be served concurrently or consecutively, the Fourth Circuit in United States v. Smith, 472 F.3d 222 (4th Cir. 2006), held that this provision applies only when the defendant is "already subject to an undischarged term of imprisonment." Smith, 472 F.3d at 226. Petitioner contends that this principle should apply to state courts as well as federal.
Petitioner then cites Virginia Code § 19.3-308, which confers authority upon the court to order that a defendant's multiple sentences run concurrently. It states, "When any person is convicted of two or more offenses, and sentenced to confinement, such sentences shall not run concurrently, unless expressly ordered by the court." Va. Code. Ann. § 19.2-308. Petitioner contends that in the absence of guidance in the statute as to whether, for the purposes of § 19.2-308, the convictions must be issued at the same time or by a Virginia court, the Court may look to the analogous federal statute, 18 U.S.C. § 3584(a), and its progeny case law and determine that the statecourt does not have authority to impose a sentence consecutively to a sentence that has not yet been imposed. (Docket 51 at 9.)
Petitioner requests that the Court declare his state sentence void or, in the alternative, transfer him to Virginia for re-sentencing with a limiting instruction directing that the sentence not exceed the federal sentence that he is currently serving.
In his PF&R dated December 15, 2010, the magistrate judge first determined that Petitioner's claims are properly considered under § 2254, inasmuch as he is seeking habeas corpus relief concerning his state court judgment. (PF&R 10.) The magistrate judge goes on to conclude that this Court does not have jurisdiction to hear a § 2254 challenge to a sentence imposed by the State of Virginia because § 2241(d) requires such a challenge to be brought "in the district court for the district within which the State court was held which convicted and sentenced him." 28 U.S.C. § 2241(d).
Petitioner responded that the Supreme Court of Appeals of the United States spoke to this issue in Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484 (1973), and held that a prisoner challenging a detainer lodged against him by one state could bring a habeas corpus application in another state in which he is presently detained. (Docket 53 at 6-7.) He stated that, pursuant to this holding, jurisdiction for his petition was proper in the State of West Virginia or the Commonwealth of Virginia. He further responds that the Court has the jurisdiction to quash the Virginia detainer and declare his Virginia sentence void, or to transfer him to Virginia to receive a new...
To continue reading
Request your trial