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Zeigler v. Andrews

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

November 14, 2019

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

          ORDER

          Louise W. Flanagan United States District Judge.

         Petitioner, 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.

         BACKGROUND

         The 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.” (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.

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 reconsideration.

         DISCUSSION

         Petitioner 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 motion); ...


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