United States District Court, E.D. North Carolina, Western Division
W. Flanagan United States District Judge.
a federal inmate 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 petitioner's motion for
reconsideration, (DE 28), pursuant to Federal Rule of Civil
Procedure 59(e). Respondent did not respond to the motion.
For the reasons that follow, the court grants the motion,
vacates its September 23, 2019, judgment, denies
respondents' motion for summary judgment, and grants
petitioner's petition for writ of habeas corpus.
court summarized the factual and procedural background of
this action in its September 23, 2019, order, which is
restated in relevant part below:
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 [of] 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).
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.”
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
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.
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.
Zeigler v. Andrews, No. 5:17-HC-2044-FL, 2019 WL
4635636, at *1-2 (E.D. N.C. Sept. 23, 2019). On December 22,
2017, respondent filed motion for summary judgment, which was
fully briefed. The court then stayed the action pending
resolution of an appeal in the United States Court of Appeals
for the Fourth Circuit addressing similar claims. On
September 23, 2019, the court lifted the stay, granted
petitioner's motion for summary judgment, and denied a
certificate of appealability. On September 30, 2019,
petitioner filed notice of appeal of the court's ruling.
On October 2, 2019, petitioner filed the instant motion for
reconsideration of the September 23, 2019, order and
judgment. That same day, the Fourth Circuit entered
jurisdictional notice on this court's docket, stating
that proceedings on appeal would be suspended pending
resolution of the instant motion for reconsideration and
directing the parties to immediately inform the Fourth
Circuit when the court resolves the motion. Respondent did
not file response opposing the instant motion for
moves to alter or amend the court's September 23, 2019,
judgment pursuant to Federal Rule Civil Procedure 59(e).
Before addressing the merits of petitioner's Rule 59(e)
motion, the court must confirm it has jurisdiction to
consider the motion in light of petitioner's notice of
appeal, which he filed before the Rule 59(e) motion.
“The general rule is that the filing of a timely and
sufficient notice of appeal immediately transfers
jurisdiction of all matters relating to the appeal from the
district court to the court of appeals.” In re
Grand Jury Proceedings Under Seal, 947 F.2d 1188, 1190
(4th Cir. 1991); see also Griggs v. Provident Consumer
Discount Co., 459 U.S. 56, 58-60 (1982). However, the
rule “is not absolute” and the district court
“does not lose jurisdiction to proceed as to matters in
aid of the appeal.” Id. Where a party files a
post-judgment motion to alter or amend a judgment pursuant to
Rule 59(e), the court retains jurisdiction to resolve the
motion under the in aid of an appeal exception. See Wolfe
v. Clarke, 718 F.3d 277, 281 n.3 (4th Cir. 2013)
(stating district court retained jurisdiction to amend its
judgment pursuant to Rule 59(e) despite previously-filed
notice of appeal); see also Fed. R. App. P.
4(a)(4)(B)(i) (providing notice of appeal filed before
district court's resolution of Rule 59(e) motion does not
become “effective” until the court rules on the