Wright v. Krueger, CIVIL ACTION NO. 3:13-2185

• Decision Date: 08 September 2015
• Docket Number: CIVIL ACTION NO. 3:13-2185
• Court: U.S. District Court — Middle District of Pennsylvania
• Parties: MARK WRIGHT, Petitioner v. J.E. KRUEGER, Warden Respondent

MARK WRIGHT, Petitioner v. J.E. KRUEGER, Warden Respondent

CIVIL ACTION NO. 3:13-2185

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF PENNSYLVANIA

September 8, 2015

(Judge Mannion)

MEMORANDUM

Petitioner, Mark Wright, a federal inmate currently confined in the Schuylkill Federal Correctional Institution, Minersville, Pennsylvania (FCI-Schuylkill), filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. §2241. He "contends that the Federal Bureau of Prisons ("BOP") abused its discretion in deciding that he is not entitled to credit against his federal sentence for the time he spent in state confinement for the exact offense for which he was federally prosecuted." (Doc. 1, petition at 1). Petitioner "further contends that the Disciplinary Hearing Officer's ("DHO") imposition of a monetary fine, pursuant to 28 C.F.R. §541.4(e), which includes under Program Statement 5270.09. page 15, paragraph E the suspension of commissary privileges for an indefinite period until the fine is paid, is invalid and contravenes due process, and for the reasons argued herein, is cognizable for habeas review under 28 U.S.C. §2241." Id. For relief, Wright requests "(1) remand to the BOP for proper consideration ofPetitioner's Barden request for concurrent sentences, (2) set aside the DHO's $25.00 monetary fine sanction; and (3) issue a preliminary injunction ordering the BOP to reinstate Petitioner's commissary and TRULINCS privileges, and remove the $25.00 encumbrance placed on his Prison Trust Fund Account." (Doc. 1, petition at 16). A response and traverse having been filed, the petition is ripe for disposition. For the reasons set forth below, the Court will deny the petition.

I. Background

A. Sentence Computation

On December 6, 1991, Petitioner was arrested in Philadelphia after being found in possession of 521 vials of cocaine. (Doc. 6-2 at 3, Declaration of Patricia Kitka, BOP Correctional Programs Specialist at the Designation and Sentence Computation Center (DSCC)). He was subsequently convicted and, on August 25, 1992, sentenced by the Philadelphia Court of Common Pleas to three to six years imprisonment for possession with intent to deliver controlled substances. Id.

On August 25, 1993, Wright was indicted in the United States District Court for the Eastern District of Pennsylvania of conspiracy to distribute cocaine base and possession with intent to distribute cocaine base. Id.

On September 16, 1993, the United States Marshal Service ("USMS") borrowed Wright from state custody pursuant to a writ of habeas corpus ad prosequendum in order that he may appear in the United States District Court for the Eastern District of Pennsylvania. (Doc. 6-2 at 11, United States Marshals Service (USMS) Individual Custody and Detention Report).

On May 26, 1994, Petitioner was sentenced in the United States District Court for the Eastern District of Pennsylvania to life imprisonment on the conspiracy charge and forty (40) years imprisonment on the possession charge. (Doc. 6-2 at 14, Judgment in a Criminal Case). The Court ordered the terms of imprisonment to be served concurrently. Id. The judgment, however, was silent regarding concurrency with the state sentence Petitioner was serving at that time. Id.

On June 21, 1994, Petitioner was returned by the USMS to the primary custody of Pennsylvania authorities to continue serving his state sentence. (Doc. 6-2 at 11, (USMS) Individual Custody and Detention Report). The federal judgment was filed as a detainer. Id.

On December 9, 1997, Petitioner completed his state sentence and was taken into custody by the USMS to begin serving his federal sentence. Id.

On June 11, 1998, Petitioner's sentence was reduced by the federal sentencing court to 360 months on both counts, to be served concurrently. (Doc. 6-2 at 21, Amended Judgment in a Criminal Case). The amended judgment was again silent regarding concurrency with the state sentence Wright was serving at the time the original sentence was imposed. Id.

In accordance with Petitioner's June 12, 1998 sentence reduction, the BOP updated Petitioner's sentence computation by commencing his 360-month federal sentence on December 9, 1997, the date he was released from his state sentence and taken into custody by the USMS to begin serving his federal sentence. (Doc. 6-2 at 26-27, Public Information Inmate Data). He was not entitled to any prior custody credit, and his projected release date is April 1, 2024, via good conduct time release. Id.

On June 12, 2003, Petitioner wrote a letter to his sentencing judge, the Honorable Harvey Bartle, III, informing him that the BOP had incorrectly calculated his federal sentence as commencing on December 9, 1997 as opposed to "the date offense concluded on." (Doc. 6-2 at 29, Letter). He requested the Court to contact the BOP to correct the mistake. Id. By correspondence to Warden Pugh, dated June 19, 2003, the Court requested information from the BOP concerningthe start date of Petitioner's federal sentence. (Doc. 6-2 at 31, Letter to Warden Pugh).

By Letter dated July 1, 2003, Warden Pugh responded to Judge Bartle's correspondence with the following:

This is in response to your correspondence dated June 19, 2003, in which you inquire into the start date (commencement date) of the above referenced offender's federal sentence.

On May 26, 1994, Mr. Wright was sentenced to a term of life imprisonment, for the offense of Conspiracy to Distribute Cocaine Base and Possession with Intent to Distribute Cocaine Base. On June 11, 1998, an Amended Judgment & Commitment Order was issued reducing the term of imprisonment to 360 months on both counts, terms ordered to served concurrently.

At the time of sentencing in federal court, Mr. Wright was produced by state custody pursuant to a Federal Writ of Habeas Corpus Ad Prosequendum. Mr. Wright was serving a 3-6 year state sentence for the offense of Possession with Intent to Deliver Controlled Substances. Principles of Comity required the return of the defendant after sentencing in federal court, to continue service of state sentence imposed.

The language in the Judgment & Commitment Orders does not state the relationship (concurrent/consecutive) to the term of imprisonment in state court. Title 18, United States Code, § 3584(a), states in part, "multiple terms of imprisonment imposedatdifferenttimes (emphasis added) without the judge specifying whether they are to run concurrently or consecutively, they will run consecutively unless the statute specifies otherwise". Mr. Wright's federal sentence was treated as a consecutive sentence.

Bureau of Prisons staff have verified with Pennsylvania State officials that Mr. Wright satisfied his state term of imprisonment on December 9, 1997. On that day, Mr. Wright was turned over to federal authorities for service of federal sentence imposed.

We have calculated Mr. Wright's sentence as commencing on December 9, 1997, the date of release from his state sentence pursuant to Title 18, United States Code, §3585(a), Commencement (Beginning Date) of sentence, which states, "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 at, the official detention facility at which the sentenced is to be served." As stated earlier, Mr. Wright was "borrowed" from state authorities at the time of sentencing in federal court; therefore, absent the language in the Judgment & Commitment Orders indicating concurrent service of sentence to the undischarged state sentence, Mr. Wright's federal sentence has been carried as a consecutive sentence.

It is our desire to carry out the intent of the sentencing court in computing Mr. Wright's federal sentence. If the intent of the sentencing court was to have Mr. Wright serve his federal sentence concurrent to the state term, an Amended Judgement & Commitment Order must be received indicating same. This would permit the federal sentence to start on the date of imposition, May 26, 1994, as opposed to December 9, 1997, the date Mr. Wright was released from his state sentence.

I trust this response has addressed your concerns. If you have any further questions or concerns, please let me know.

(Doc. 6-2 at 32-33, Letter to Honorable Harvey Bartle, III).

On July 21, 2003, Judge Bartle responded with the following:

Thank you for your letter of July 1 concerning Mark Wright.

It was and is my intention that he serve his state and federal sentence consecutively.

(Doc. 6-2 at 34, Letter to Warden Pugh).

By correspondence dated August 10, 2011, Correctional Programs Specialist, Kara Carr, informed Petitioner that he was not eligible for a nunc pro tunc designation indicating the following:

This is in response to your request for credit toward your federal sentence for time spent in state custody. Title 18 U.S.C. §3585(b), prohibits the application of this credit. However, as a result of the decision in Barden v. Keohane, the Bureau considers an inmate's request for prior custody credit for time spent in state custody, as a request for a nunc pro tunc or retroactive designation. In accordance with Program Statement 5160.05, Designation of State Institution for Service of Federal Sentence, a designation affecting concurrent service of state and federal sentences is made only when it is consistent with the goals of the criminal justice system.

We have reviewed your request. In your case, you were sentenced on August 25, 1992, in the State of Pennsylvania to a 3 to 6 year term of confinement. On May 26, 1994, you were sentenced in the United States District Court for the Eastern District of Pennsylvania to a term of life (later reduced to 360 months), (silent).

Both Program Statement 5880.28, Sentence Computation Manual (CCCA of 1984), and Title 17 U.S.C. §3584(a), state in part; "Imposition of concurrent or consecutive terms. If multiple terms of imprisonment are imposed on a defendant at the same time, or if a term of

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