Hiller v. FCI Berlin, Warden

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Kevin Hiller
v. 	Case No. 19-cv-252-PB
Opinion No. 2019 DNH 202
Robert Hazlewood, Warden, Federal
Correctional Institution, Berlin
O R D E R
Before this Court is FCI-Berlin inmate Kevin Hiller’s
memorandum (Doc. No. 13), filed in response to the October 22,
2019 Order in this case, granting Hiller leave to file an
amended Rule 59(e) motion seeking to reopen the judgment. 	In
considering the instant memorandum (Doc. No. 13), in the context
of reviewing the evidence filed by the respondent Warden in
support of the motion for summary judgment that this Court
granted, see Oct. 8, 2019 Order, this Court has identified an
issue unrelated to the specific arguments Hiller has made, which
could affect the Bureau of Prisons (“BOP”) calculations
regarding when Hiller’s 18-year federal sentence began to run,
and/or the BOP’s rationale for its sentence calculations at
issue here. 	Specifically, there is a state court document in
the record before this Court, stating that Hiller’s state
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sentence for a 2001 robbery charge “maxed” in June 2008,1 three
years before the June 3, 2011 date BOP determined Hiller’s
federal sentence began to run. 	Although Hiller has not raised
that issue in Document No. 13, the Court treats Hiller’s filing
as an amended Rule 59(e) motion, takes that motion under
advisement, and directs the parties to brief whether the
discrepancy in the record identified by this Court affects BOP’s
calculations or the agency’s rationale for its decision, or
otherwise provides grounds for reopening the judgment here.
Procedural History
The following facts are undisputed. 	In June 2001, Kevin
Hiller received a 4½ - 10 year sentence for robbery in
Pennsylvania state court (“2001 robbery”). 	See Decl. of
Veronica Hodge (“Hodge Decl.”) ¶ 5 (Doc. No. 9-1, at 2). 	In
2005, Hiller was transferred to a work release program as part
of his state sentence on the 2001 robbery. 	Id. ¶ 6. 	In May
2006, Hiller was arrested by Pennsylvania authorities for
committing additional robberies. 	Id. ¶ 7. 	Hiller’s work
release was revoked, and he was returned to a Pennsylvania
prison to continue serving the 2001 robbery sentence. 	Id. ¶ 8.
1See Doc. No. 9-3, at 2 (state robbery sentence “maxed on
6/3/2008”).
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The May 2006 arrest resulted in federal Hobbs Act charges.
On October 31, 2006, while Hiller was in Pennsylvania Department
of Corrections (“PDOC”) custody on the 2001 robbery, the federal
court issued a writ of habeas corpus ad proseqendum to “borrow”
Hiller from the PDOC so that he could answer the federal charge.
Id. ¶ 9. 	While Hiller was temporarily in the custody of federal
authorities on the Hobbs Act case, the state brought two
additional state robbery charges against Hiller (“2007 and 2008
state robbery charges”), to which Hiller ultimately pleaded
guilty.
On December 19, 2008, while the 2007 and 2008 state robbery
charges were still pending, the federal court sentenced Hiller
to 18 years in prison for the Hobbs Act offense. 	Id. ¶ 11.
That court intended to have the federal sentence run
concurrently with any sentence to be imposed by the state courts
in the 2007 and 2008 state robbery charges. 	See, e.g., United
States v. Hiller, No. 06-cr-0096-04 (E.D. Pa. Mar. 20, 2017)
(Doc. No. 9-17, at 9).
Hiller was returned to state custody on January 2, 2009.
Hodge Decl. ¶ 12. 	Eleven months later, on December 2, 2009, the
state court sentenced Hiller to a 3 - 6 year prison term on the
2007 and 2008 state robbery charges. 	The state court judge in
those cases indicated that the state sentences would be served
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concurrently with the 18-year federal sentence imposed in
December 2008 on the Hobbs Act offenses, id. ¶ 13, and the state
court credited Hiller with the time he had spent in detention
after his September 2007 and September 2008 arrests on those
charges. 	Pennsylvania released Hiller to federal custody on
September 7, 2012. 	Id. ¶ 14.
Hiller filed administrative proceedings to challenge the
BOP’s sentence calculations affecting the projected end-date of
his 18-year federal sentence. 	In response to Hiller’s filings,
the BOP made a nunc pro tunc designation of Hiller’s state
institution as the place where he was serving his federal
sentence starting on June 3, 2011, and granted Hiller
corresponding credit towards his 18-year federal sentence
beginning on that same date, which the BOP concluded was the
date Hiller had completely served his state sentence on the 2001
robbery case.
This Court’s October 8, 2019 Order granted the respondent
Warden’s motion for summary judgment filed in this § 2241
petition, ruling that judgment as a matter of law was warranted
in light of respondent’s “Statement of Undisputed Facts,” to
which Hiller had failed to file any objection. 	After judgment
entered, Hiller filed a motion (Doc. No. 12) seeking an
opportunity to file an out-of-time objection to the summary
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judgment motion. 	This Court’s October 22, 2019 Order then
granted Hiller leave to file an amended Rule 59(e) motion,
through which the Court allowed Hiller to file his objection to
respondent’s summary judgment motion. 	The instant filing (Doc.
No. 13) is Hiller’s response to that October 22, 2019 Order.
The respondent Warden has not filed any response to Doc. No. 13.
Discussion
Upon reviewing the record in response to Document No. 13,
and re-examining the exhibits filed by the respondent in support
of the underlying dispositive motion (Doc. No. 9), the Court has
identified a discrepancy in the record that Hiller has not
highlighted, which could draw into question the BOP’s conclusion
that Hiller’s federal sentence began on June 3, 2011.
Specifically, a document in the record, generated by the PDOC,
states that, at some point, the PDOC determined that Hiller’s
sentence on the 2001 robbery case “maxed” on June 3, 2008.2 	The
existence of that document raises questions regarding BOP’s
calculations that rest on a finding that Hiller was released
2A form prepared by PDOC officials calculates Hiller’s
“maximum release date” on the 2001 robbery as June 3, 2011. 	See
Att. 2 to Hodge Decl. (PDOC Sent. Summ.) (Doc. No. 9-3, at 2).
Another section of the same form entitled, “Summary of Remarks
on Sentence,” states that “version 4” of the same document
reflected that the 2001 robbery sentence “maxed on 6/3/2008.”
Doc. No. 9-3, at 2.
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from that state sentence on June 3, 2011.
To enable this Court to issue an informed disposition of
Hiller’s amended Rule 59(e) motion, the Court directs the Warden
to file a brief with exhibits: clarifying whether the
discrepancy in the record identified by this Court affects the
BOP’s sentence calculations or the BOP’s rationale for its
calculations, and expressing the Warden’s position on whether
the judgment here should be reopened. 	Hiller may file a
response relating to those issues, according to the schedule set
forth below.
Conclusion
For the foregoing reasons, the Court directs as follows:
1. 	The clerk’s office is directed to update the docket to
reflect that Document No. 13 is Hiller’s amended Rule 59(e)
motion, filed in response to the October 22, 2019 Order in this
case. 	The Court denies Hiller’s original motion for
reconsideration as moot (Doc. No. 12).
2. 	No later than January 13, 2020, the Warden is directed
to file a brief with exhibit(s) clarifying matters relating to
issues highlighted in this Order; addressing whether BOP’s
sentence calculations or its rationale for its decisions
relating to Hiller’s sentence are affected or altered; and
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addressing whether the judgment here should be reopened.
Petitioner is granted leave to file a response addressing those
issues by February 14, 2020.
3. 	The Court takes Hiller’s amended Rule 59(e) motion
(Doc. No. 13) under advisement pending the parties’ responses to
this Order.
SO ORDERED.
/s/ Paul J. Barbadoro
Paul J. Barbadoro
United States District Judge
December 2, 2019
cc: 	Kevin Hiller, pro se
Seth R. Aframe, Esq.
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