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Zeigler v. Andrews

United States District Court, E.D. North Carolina, Western Division

September 23, 2019

TINDRICK ZEIGLER, Petitioner,
v.
JUSTIN ANDREWS, Respondent.

          ORDER

          LOUISE W. FLANAGAN UNITED STATES DISTRICT JUDGE.

         Petitioner, 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), [1] and 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.

         BACKGROUND

         On 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).[2] 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).

         On an 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).

         On 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.).

         Petitioner 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. (Id.).

         After 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.).

         Petitioner 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. (Id.).

         On 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.

         DISCUSSION

         A. Standard of Review

         Summary 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.

         B. Analysis

         Pursuant 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).

         1. BOP’s Authority to Designate an Inmate’s Place of Imprisonment

         As 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 . . ., ...


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