Lewis v. FCI Berlin, Warden

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Darnell L. Lewis
v. Case No. 16-cv-188-LM
Warden, Federal Correctional
Institution, Berlin, New
Hampshire
REPORT AND RECOMMENDATION
Darnell Lewis is an inmate in the Federal Correctional
Institution in Berlin, New Hampshire. Pursuant to 28 U.S.C. §
2241, he petitions for a writ of habeas corpus, claiming that
the federal Bureau of Prisons (“BOP”) improperly calculated the
term of his incarceration. Specifically, he contends that the
BOP erred by failing to give him credit against his federal
sentence for time he claims to have spent in federal custody
between April 14, 2009, and January 1, 2010. Before this
magistrate judge for a report and recommendation is respondent’s
motion for summary judgment. Petitioner objects. For the
reasons that follow, respondent’s motion should be denied.
I. Summary Judgment Standard
A movant is entitled to summary judgment where he “shows
that there is no genuine dispute as to any material fact and
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[that he] is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). In reviewing the record, the court construes all
facts and reasonable inferences in the light most favorable to
the nonmovant. Kelley v. Corr. Med. Servs., Inc., 707 F.3d 108,
115 (1st Cir. 2013).
II. Background
The summary judgment record in this case is limited to the
declaration of Grace Woods-Coleman, a BOP management analyst.
Lewis’s petition is unverified, and even though the court
provided him with notice of the federal and local rules that
pertain to summary judgment, he has submitted no material of
evidentiary quality in support of his objection to respondent’s
motion. Accordingly, the facts in this section are drawn
exclusively from the Woods-Coleman declaration. See Sweat v.
Grondolsky, 898 F. Supp. 2d 347, 348 n.1 (D. Mass. Oct. 15,
2012) (drawing facts used to decide summary judgment motion in §
2241 case largely from declaration of BOP management analyst).
On April 14, 2009, Lewis was arrested by officers of the
Kalamazoo, Michigan, Police Department. At the time, he was on
parole from a sentence for a prior state conviction. His
“arrest led to parole violation charges for [his] prior state
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conviction.” Resp’t’s Mot. Summ. J., Ex. A, Woods-Coleman Decl.
(doc. no. 10-1) ¶ 5. The record, however, is silent as to when
Lewis was charged with violating his parole, and does not
describe the manner in which the parole violation was
prosecuted.
“On April 16, 2009, [the] state charges against the
Petitioner [related to his April 14 arrest] were dismissed and
he was released from state custody to the United States Marshals
Service (USMS).” Woods-Coleman Decl. ¶ 6. Lewis was released
to the USMS because the conduct for which he had been arrested
on April 14 “also formed the basis of . . . federal charges
[against him].” Id. ¶ 5. However, Woods-Coleman describes
Lewis’s release as having been “in error, because he still had a
state Parole Violation term.” Id. ¶ 6. In support of that
proposition, Woods-Coleman cites three attachments to her
deposition, but respondent has not produced them.1 As a result,
those attachments are not part of the summary judgment record.
Moreover, the Woods-Coleman declaration does not describe the
1 Those attachment are described as: (1) “Facsimile from the
Office of the Prosecuting Attorney, County of Kalamazoo,” Woods-
Coleman Decl. ¶ 13.a; (2) “United States Marshals Service Form
US-129, Individual Custody/Detention Report,” id. ¶ 13.b; and
(3) “E-mail correspondence between DSCC and Michigan Dept. of
Corrections,” id. ¶ 13.c. The declaration does not provide
dates for any of those three documents.
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legal mechanics of Lewis’s “release” from state custody to
federal custody, nor does it report anything that state
officials might have said to the USMS about the reason(s) for
Lewis’s release.
On November 19, 2009, Lewis was sentenced on his federal
charges. “On December 29, 2009, Petitioner was returned to
state custody with the federal judgment lodged as a detainer.”
Woods-Coleman Decl. ¶ 8. The summary judgment record includes
no description of the mechanics of Lewis’s return to state
custody. “On May 11, 2010, Petitioner [was] paroled from his
Michigan state sentence into the custody of the USMS for service
of his federal sentence.” Id. ¶ 9. At that time, the BOP
performed a sentence calculation using May 11 as the starting
date for Lewis’s federal incarceration. On that basis, the time
between Lewis’s arrest on April 14, 2009, and his return to
state custody on December 29 was not credited toward his federal
sentence, notwithstanding the fact that he was in the custody of
the USMS for most of that time.
III. Discussion
“[W]hen an inmate wants to challenge or clarify the amount
of credit for time served, the inmate must seek an
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administrative remedy before the Bureau of Prisons, and the
administrative determination [is] subject to review through a
section 2241 petition.” Stebbins v. United States, Nos. 1:10-
cr-00077 JAW & 1:14-cv-00368-JAW, 2015 WL 5022023, at *4 (D. Me.
Aug. 24, 2015) (citing United States v. Stebbins, 523 F. App’x
1, 4 (1st Cir. 2013)). It is undisputed that Lewis has
exhausted the administrative remedies available to him through
the BOP.
In his petition, Lewis seeks credit toward his federal
sentence for the time he was in custody between April 14, 2009,
and January 1, 2010. In his view, he is entitled to that relief
because: (1) he was in federal custody during that time, which
means that the BOP erred when it determined that his federal
custody began on May 11, 2010; or (2) the BOP should have given
him credit for the time he served between April 14, 2009, and
January 1, 2010, under the provisions of 18 U.S.C. § 3621(b).
Respondent disagrees, categorically.
In Sweat, Magistrate Judge Dein explained that “[t]here are
two separate determinations to be made in computing a federal
sentence.” 898 F. Supp. 2d at 351 (quoting Jimenez v. Warden,
FDIC, Fort Devens, Mass., 147 F. Supp. 2d 24, 27 (D. Mass.
2001)). She went on to specify that “[t]he BOP must decide (1)
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when the sentence commences and (2) to what extent the defendant
in question may receive credit for any time already spent in
custody.” Id. (citation omitted). Judge Dein continued:
Pursuant to 18 U.S.C. § 3585(a), a federal sentence
“commences on the date the defendant is received in
custody . . . to commence service [of sentence] at,
the official detention facility at which the sentence
is to be served.” Thus, “[a] federal sentence is
deemed to have commenced on the date a defendant is
received into federal custody[.]” Ysabel v. Sabol,
645 F. Supp. 2d 37, 39 (D. Mass. 2009). “When a
federal court imposes a sentence on a defendant who is
already in state custody, the federal sentence may
commence if and when the Attorney General or the
Bureau agrees to designate the state facility for the
service of the federal sentence.” United States v.
Smith, 812 F. Supp. 368, 370 (E.D.N.Y. 1993), and
cases cited. See also Ysabel, 645 F. Supp. 2d at 39
(time served in state custody “may be credited nunc
pro tunc (i.e., may be deemed to have run concurrently
against [the defendant’s] federal sentence) if the BOP
chooses to designate the state institution for service
of that federal sentence.”).
Id.
The petitioner in Sweat was convicted on several federal
charges while he was serving a state sentence. See 898 F. Supp.
2d at 349. He appeared in federal court after having been
“‘borrowed’ by the federal government on various occasions
pursuant to a federal habeas writ to answer [his] federal
charges.” Id. Under those circumstances, the court
adjudicating Sweat’s § 2241 petition ruled that because he was
in state custody when he was sentenced on his federal
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convictions, the BOP acted correctly when it “calculated Sweat’s
service of his federal sentence as commencing on his parole from
New York State custody,” id. at 351. In this case, if Lewis had
been borrowed by the federal government to stand trial then,
perhaps, the reasoning of Sweat would entitle respondent to
summary judgment. But the summary judgment record includes no
evidence that Lewis was borrowed from state custody to stand
trial in the same way that the defendant in Sweat was. Thus,
the facts of Sweat are materially distinguishable from the facts
of this case, as the record now stands.
Rather, as currently developed, this case has somewhat more
in common with Stephens v. Sabol, 539 F. Supp. 2d 489 (D. Mass.
2008). In Stephens, while the petitioner was in state custody
awaiting trial on state charges, he was indicted in federal
court and “was brought into federal custody under a writ of
habeas corpus ad prosequendum.” Id. at 491. He was tried on
his federal charges, convicted, and sentenced. See id.
Thereafter, he was returned to state custody and was sentenced
on his state charges. See id. Then, the petitioner
successfully moved to vacate his state sentence, and a date for
resentencing was set. See id. This is what happened next:
Apparently unaware that Stephens was to be
resentenced, officials at the Dade County Jail
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informed the United States Marshals that he had
finished serving his state sentence and that the
Marshals should execute the federal detainer lodged
pursuant to his federal judgment and commitment order.
Consequently, Stephens was picked up by U.S. Marshals
on September 20, 2001, and placed in the Federal
Corrections Institute at Jesup, Georgia (“FCI–Jesup”),
on March 15, 2002. About two months later, federal
officials at FCI–Jesup realized that Stephens had not
completed his state sentence. They returned him to
the Florida Department of Corrections on May 23, 2002.
On November 26, 2002, Stephens filed another
motion to modify his state sentence. The motion was
granted, and Stephens was resentenced on January 22,
2003, nunc pro tunc February 14, 2002. . . .
Stephens completed his state sentence on February
28, 2003 [and] was immediately transferred to federal
custody.
Id. at 491-92 (footnotes and citations to the record omitted).
The BOP, in turn, determined that Stephens began to serve his
federal sentence on February 28, 2003.
Stephens filed a § 2241 petition, advancing three arguments
that he began serving his federal sentence at some point before
his February 28, 2003, transfer to federal custody. The court
found merit in one of those arguments, “Stephens’s . . .
contention . . . that his federal sentence began when he was
mistakenly transferred to federal custody in 2001.” Stephens,
539 F. Supp. 2d at 495. Judge Gertner explained:
That day [i.e., the day of the mistaken transfer], the
U.S. Marshals took Stephens into federal custody with
the intention of transporting him to FCI–Jesup to
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begin serving his federal sentence. When they did so,
the federal government took primary jurisdiction over
him. As noted above, the sovereign with primary
jurisdiction continues to have jurisdiction until some
affirmative act relinquishes it. In this case, the
“expiration” of the petitioner’s state sentence and
the affirmative act of transferring him to federal
authorities suffice. See [United States v.] Cole, 416
F.3d [894,] 897 [(8th Cir. 2005)]; Jimenez v. Warden,
FDIC, Fort Devens, 147 F. Supp. 2d 24, 28 (D. Mass.
2001). When Stephens was remitted to the Marshals,
Florida no longer claimed any hold on him; to the
contrary, it disavowed having one. And Florida
permitted the United States to take physical custody
of Stephens without the use of a writ, which would
have maintained its primary jurisdiction. It thus
voluntarily, if mistakenly, allowed the United States
to take primary jurisdiction over Stephens. See
Weekes v. Fleming, 301 F.3d 1175, 1180–81 (10th Cir.
2002). See also Fed. Bureau Prisons, Sentence
Computation Manual at 1–12, Program Statement 5880.28
(July 19, 1999) (defining exclusive federal custody as
custody obtained without the use of a restrictive
writ).
Id. (citation to the record omitted). Finally, Judge Gertner
noted that “[i]t makes no difference that Florida’s
relinquishment of jurisdiction was accidental.” Id. She
explained her conclusion:
In this area, courts have consistently held executives
to a negligence standard. See, e.g., Vega v. United
States, 493 F.3d 310, 319 (3d Cir. 2007); United
States v. Martinez, 837 F.2d 861, 865 (9th Cir. 1988).
Florida’s act of relinquishing jurisdiction when
Stephens had not yet been resentenced was clearly
negligent, and the Court will hold it to the plain
import of its actions.
Id. at 495–96.
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As respondent correctly points out, the determinative legal
principle in this case is primary jurisdiction, which operates
in the following way:
The sovereign that first arrests a defendant
takes primary jurisdiction over him. See, e.g.,
United States v. Cole, 416 F.3d 894, 897 (8th Cir.
2005). It retains that jurisdiction until it takes a
specific act to relinquish it, such as release on
bail, parole, or the dismissal of pending charges.
See id. In addition, the sovereign may, in an act of
executive discretion, waive the right to primary
jurisdiction and turn the defendant over to another
sovereign. See, e.g., Poland v. Stewart, 117 F.3d
1094, 1097–98 (9th Cir. 1997) (citing Ponzi v.
Fessenden, 258 U.S. 254 (1922)).
Stephens, 539 F. Supp. 2d at 493 (parallel citation omitted).
Here, petitioner argues that the United States gained
primary jurisdiction over him on April 16, 2009, when it became
the first sovereign to arrest him. That is incorrect; before
that date, Lewis had been arrested twice by the State of
Michigan. He was first arrested for the offense that resulted
in the state sentence from which he had been paroled, and he was
arrested again on April 14. For his part, respondent argues
that the State of Michigan had primary jurisdiction over Lewis
continuously until May 11, 2010, when he was paroled from his
state sentence into the custody of the USMS.
But, it is undisputed that on April 16, 2009, the State of
Michigan “released” Lewis to the USMS. Respondent attempts to
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evade the consequences of Lewis’s release by characterizing it
as a mistake. However, even if Lewis’s release was erroneous,
it was an “affirmative act,” Stephens, 539 F. Supp. 2d at 495,
that, without more, would be sufficient to relinquish
jurisdiction, see id. If Michigan relinquished jurisdiction
over Lewis on April 16, that would support his claim. But, if
Michigan transferred physical custody of Lewis to the USMS
without relinquishing jurisdiction, that would support
respondent’s position. Such a transfer could have taken place
if, for example, Michigan had given up custody of Lewis pursuant
to a writ of habeas corpus ad prosequendum. See id. at 493
(“When the writ is used, the defendant officially remains in the
jurisdiction of the sovereign from which he was borrowed, even
though his custodians change.”).
The problem here is that while respondent argues that
Lewis’s release to the USMS on April 16, 2009, was a change of
custody without a change of jurisdiction, the summary judgment
record does not support that argument. In her declaration,
Woods-Coleman characterizes Lewis’s “release[ ] from state
custody to the United States Marshals Service” as having been
“in error.” Doc. no. 10-1 ¶ 6. But she does not describe the
mechanics of that release, and respondent has not produced any
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of the documents that Woods-Coleman attached to her declaration.
For that reason, in its current state, the record does not
permit the court to determine whether Lewis’s April 16, 2009,
release was a relinquishment of both custody and jurisdiction or
was merely a relinquishment of custody, with jurisdiction
remaining vested in the State of Michigan. Thus, the summary
judgment record does not demonstrate that respondent is entitled
to judgment as a matter of law that the United States did not
acquire jurisdiction over Lewis until May 11, 2010. Accordingly
respondent’s motion for summary judgment should be denied.2
IV. Conclusion
For the reasons detailed above, respondent’s motion for
summary judgment, document no. 10, should be denied, but without
prejudice to respondent’s filing another summary judgment
motion.
Any objection to this report and recommendation must be
filed within 14 days of receipt of this notice. See Fed. R.
2 Both parties engage, at least to some extent, on the
question of whether the BOP erred by failing to give Lewis the
benefit of retroactive designation of his place of imprisonment,
pursuant to 18 U.S.C. § 3621, but absent a definitive
determination of the sovereign that had jurisdiction over Lewis
during the relevant time period, there is no basis for even
attempting to decide the question of retroactive designation.
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Civ. P. 72(b)(2). Failure to file an objection within the
specified time waives the right to appeal the district court’s
order. See United States v. De Jesús-Viera, 655 F.3d 52, 57
(1st Cir. 2011); Sch. Union No. 37 v. United Nat’l Ins. Co., 617
F.3d 554, 564 (1st Cir. 2010) (only issues fairly raised by
objections to magistrate judge’s report are subject to review by
district court; issues not preserved by such objection are
precluded on appeal).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
April 27, 2017
cc: Darnell L. Lewis, pro se
Seth R. Aframe, Esq.
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