United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN UNITED STATES DISTRICT JUDGE.
a federal prisoner proceeding pro se, petitions this court
for a writ of habeas corpus pursuant to 28 U.S.C. §
2241. The matter is before the court on the parties’
responses to the court’s August 27, 2018, order, which
stayed this matter pending the United States Court of Appeals
for the Fourth Circuit’s decision in Mangum v.
Hallembaek, 910 F.3d 770 (4th Cir. 2018). The matter
also is before the court on respondent’s motion to
dismiss, or in the alternative, for summary judgment (DE 10),
petitioner’s motion to expedite and compel (DE 22). For
the reasons that follow, the court lifts the stay, grants
respondent’s motion for summary judgment, and denies as
moot petitioner’s motion.
October 12, 2006, federal authorities indicted petitioner in
the Eastern District of New York on one count of possession
with intent to distribute 50 grams or more of cocaine base,
in violation of 21 U.S.C. §§ 841(a)(1) and
(b)(1)(A)(iii). United States v. Zeigler, No.
2:06-CR-680-SJF-AKT (E.D.N.Y. Oct. 12, 2006). On May 16,
2007, the United States District Court for the Eastern
District of New York (“Eastern District of New
York”) entered order setting conditions of pretrial
release. Id. (May 16, 2007). On August 13, 2009, New
York authorities arrested petitioner and charged him with
criminal possession a weapon and resisting arrest. (Clarke
Decl. (DE 13-1) ¶ 4). Following the arrest, petitioner
remained in primary state custody awaiting trial on the state
charges. (See id. ¶¶ 4-5). On September 1,
2009, petitioner was temporarily transferred to federal
custody, pursuant to a writ of habeas corpus ad prosequendum,
for hearing on revocation of pretrial release. United
States v. Zeigler, No. 2:06-CR-680-SJF-AKT (E.D.N.Y.
Sept. 1, 2009). The Eastern District of New York revoked
conditional release and ordered petitioner detained pending
trial on his federal charges. Id. Federal
authorities then returned petitioner to primary state
custody. (Clarke Decl. (DE 13-1) ¶ 5).
unidentified date, federal authorities filed superseding
information charging petitioner with conspiracy to distribute
and possess with intent to distribute at least 50 grams or
more of cocaine base, in violation of 21 U.S.C. §§
846, 841(a)(1) and (b)(1)(A)(iii). United States v.
Zeigler, No. 2:06-CR-680-SJF-AKT (E.D.N.Y. Aug. 8,
2010). Petitioner pleaded guilty to this offense.
Id. On July 26, 2010, state authorities transferred
petitioner to temporary federal custody, pursuant to a writ
of habeas corpus ad prosequendum, for his sentencing.
Id. The Eastern District of New York sentenced
petitioner to 144 months’ imprisonment and five
years’ supervised release. Id. At sentencing,
the Eastern District of New York did not indicate whether
petitioner’s federal sentence should run concurrent or
consecutive to petitioner’s anticipated state sentence.
Id.; (see also Clarke Decl. (DE 13-1)
¶ 6). Federal authorities then returned petitioner to
primary state custody, where his state criminal charges
remained pending, and filed the federal judgment as a
detainer. (Clarke Decl. (DE 13-1) ¶ 7). On September 16,
2010, a New York state court sentenced petitioner to five
years’ imprisonment for criminal possession of a
weapon, second degree, and ordered the state sentence to run
concurrent to the federal sentence. (Id. ¶ 8).
October 11, 2011, petitioner requested that the BOP
designate, nunc pro tunc, his state prison as the place of
imprisonment for his federal sentence, which effectively
would credit the time he served in state custody towards his
federal sentence. (Id. ¶ 11). On December 13,
2011, the BOP completed a “Factors Under 18 U.S.C.
[§] 3621(b) Worksheet.” (Id. ¶¶
11-12; Factors Worksheet (DE 13-5)). Under the first factor,
“nature and circumstances of the offense, ” the
BOP noted petitioner had been sentenced to a term of five
years’ imprisonment in New York state court for
criminal possession of a weapon, and his current federal
sentence was 144 months’ imprisonment. (Factors
Worksheet (DE 13-5)). Under “history and
characteristics of the prisoner” the BOP noted that
petitioner had not incurred any disciplinary infractions in
BOP custody, but that his criminal history included the
following: 1) 1996 conviction for distributing heroin and
cocaine; 2) 2001 conviction for criminal facilitation; and 3)
2006 conviction for sale of a controlled substance.
(Id.). Under the factor “any statement by the
court that imposed the sentence” the BOP noted it had
contacted the federal sentencing judge, who stated she did
not intend petitioner’s federal sentence to run
concurrent to his state sentence. (Id.). The BOP
denied the request for nunc pro tunc designation based on
these factors, noting the federal sentencing judge
“considered all factors to include state charges when
determining term in effect.” (Id.).
remained in primary state custody in service of the state
sentence until November 13, 2013. (Id. ¶ 9). At
that time, state authorities transferred petitioner to the
primary jurisdiction of the federal government.
his transfer to federal custody, the BOP prepared
petitioner’s federal sentence computation.
(Id. ¶ 10). The BOP determined
petitioner’s federal sentence commenced on November 21,
2013, the date petitioner completed his state sentence and
was transferred to federal custody. (Id.).
Petitioner’s anticipated release date, after
application of good time credits, is May 4, 2024.
(Id.). Under the BOP’s sentence computation,
petitioner’s federal and state sentences do not run
concurrently. (See id.).
appealed the BOP’s decision denying his request for
nunc pro tunc designation through the BOP’s
administrative remedy procedure, but the BOP rejected all of
petitioner’s appeals. (Clarke Decl. (DE 13-1) ¶
14). Petitioner has exhausted his BOP administrative appeals.
February 27, 2017, petitioner filed the instant petition for
a writ of habeas corpus, alleging the BOP abused its
discretion by denying his nunc pro tunc request. On December
22, 2017, respondent filed the instant motion for summary
judgment, which was fully briefed. On August 27, 2018, the
court entered order staying this action pending the Fourth
Circuit’s decision in Mangum v. Hallembaek,
910 F.3d 770 (4th Cir. 2018). The Fourth Circuit decided
Mangum on December 12, 2018, and, following issuance
of the mandate, the parties filed supplemental briefing
addressing Mangum. On September 20, 2019, petitioner
filed the instant motion to expedite and compel.
Standard of Review
judgment is appropriate when there exists no genuine issue of
material fact, and the moving party is entitled to judgment
as a matter of law. Fed.R.Civ.P. 56(a); Anderson v.
Liberty Lobby, 477 U.S. 242, 247 (1986). The party
seeking summary judgment bears the burden of initially coming
forward and demonstrating an absence of a genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986). Once the moving party has met its burden,
the nonmoving party must then affirmatively demonstrate that
there exists a genuine issue of material fact requiring
trial. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986). There is no issue for
trial unless there is sufficient evidence favoring the
non-moving party for a jury to return a verdict for that
party. Anderson, 477 U.S. at 250.
to § 2241, a federal court may issue a writ of habeas
corpus to a federal or state prisoner if the prisoner
“is in custody in violation of the Constitution or laws
or treaties of the United States.” 28 U.S.C. §
2241(a), (c)(3). “[A]ttacks on the execution of a
[federal] sentence are properly raised in a § 2241
petition.” In re Vial, 115 F.3d 1192, 1194 n.5
(4th Cir. 1997) (en banc). A federal prisoner challenges the
execution of his sentence when he contests, as here, the
BOP’s “administrative rules, decisions, and
procedures applied to his sentence.” In re
Wright, 826 F.3d 774, 777 (4th Cir. 2016).
BOP’s Authority to Designate an Inmate’s Place of
noted, petitioner alleges the BOP abused its discretion by
denying his request to designate, nunc pro tunc, his state
prison as the place of imprisonment for his federal sentence.
Under 18 U.S.C. § 3621(b), the BOP may “designate
any available penal or correctional facility that meets
minimum standards of health and habitability [regardless of]
whether [the facility is] maintained by the Federal
Government or otherwise . . ., ...