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Pass v. Mosley

United States District Court, S.D. Mississippi, Northern Division

November 8, 2017

TAKARA PASS PETITIONER
v.
B. MOSLEY RESPONDENT

          REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          LINDA R. ANDERSON UNITED STATES MAGISTRATE JUDGE.

         Petitioner Takara Pass filed the instant petition for writ of habeas corpus pursuant to Title 28 U.S.C. § 2241 on September 11, 2015. Pass is a federal prisoner incarcerated in the Federal Correctional Complex (“FCC”) in Yazoo City, Mississippi, seeking a nunc pro tunc concurrent designation pursuant to 18 U.S.C. § 3621(b). Having considered the submissions of the parties and the applicable law, the undersigned is of the opinion that the Petition should be denied and dismissed with prejudice.

         Pass was arrested by New York state authorities on August 28, 2004, and charged with reckless endangerment. He was temporarily transferred on October 12, 2004, to federal custody pursuant to a federal writ of habeas corpus ad prosequendum. On July 11, 2005, he entered a guilty plea in the United States District Court for the Southern District of New York to illegally selling firearms and being a felon in possession of a firearm. He was sentenced that same date to a total term of 110 months, with 3 years of supervised release, and returned to state custody. On October 19, 2005, the state of New York sentenced Pass on his state charges to a term of two to four years, and the state sentence commenced on October 26, 2005. He received a total of 424 days of prior custody credit against his state sentence for time served from his arrest until the commencement of his state sentence. On January 3, 2011, Pass's state sentence expired and he was transferred to federal custody to commence service of his 110-month federal sentence. His projected release date, as determined by the Bureau of Prisons, is February 12, 2019.[1]

         In the instant petition, Petitioner asserts that the BOP abused its discretion in denying his request for a nunc pro tunc designation. “The practical effect of such a designation is to grant the federal prisoner credit against his federal sentence for all of the time spent in state custody, in effect serving the two sentences concurrently.” Wright v. Hogsten, Civil Action No. 10-58-GFVT, 2010 WL 1995011, at *5, n. 5. (E.D. Ky., May 19, 2010); Branch v. Nash, 669 F. App'x 774 (5th Cir. 2016). The Government argues that Petitioner is not entitled to a nunc pro tunc designation because it is not “consistent with the intent of the federal sentencing court or the goals of the criminal justice system” in accordance with 18 U.S.C. § 3621(b). As an alternate basis for relief, Pass contends that the BOP regulation for assessing the “goals of the criminal justice system” is unconstitutionally vague.

         Discussion

         The United States Attorney General, through the Bureau of Prisons (BOP), “determines what credit, if any, will be awarded to prisoners for time spent in custody prior to the commencement of their federal sentences.” Leal v. Tombone, 341 F.3d 427, 428 (5th Cir. 2003) (citing United States v. Wilson, 503 U.S. 329, 331-32, 334 (1992)). The computation is governed by 18 U.S.C. § 3585, and is comprised of a two-step determination: first, the BOP determines the date on which the federal sentence commences and, second, the BOP determines whether the prisoner is entitled to any credit for time spent in custody prior to the commencement of the sentence, i.e., prior-custody credit. Section 3585 provides as follows:

(a) Commencement of sentence. -- A sentence to a term of imprisonment commences on the date the defendant is received in custody awaiting transportation to, or arrives voluntarily to commence service of sentence at, the official detention facility at which the sentence is to be served.
(b) Credit for prior custody. -- A defendant shall be given credit toward the service of a term of imprisonment for any time he has spent in official detention prior to the date the sentence commences-
(1) as a result of the offense for which the sentence was imposed; or
(2) as a result of any other charge for which the defendant was arrested after the commission of the offense for which the sentence was imposed; that has not been credited against another sentence.

18 U.S.C. § 3585. Based on the plain language of the statute, a defendant commences his federal sentence when he is received in federal custody to begin serving his sentence, and he receives credit for time served only if it has not been credited against another sentence.

         Applying these principles here, the BOP determined that Petitioner was not entitled to pre-custody credit against his federal sentence, having previously received 424 days of credit for time served from his arrest to the commencement of his state sentence. The BOP also rejected Petitioner's request to retroactively designate, nunc pro tunc, the New York state prison where he served his state sentence as the facility where his federal sentenced commenced.

         The BOP has wide discretion to designate a state institution for concurrent service of a federal sentence. Pursuant to 18 U.S.C. § 3621(b) and the nunc pro tunc designation procedure set forth in BOP Program Statement 5160.05, “[w]here a federal sentence was imposed before a state sentence, the BOP may indirectly award credit for time served in state prison by designating nunc pro tunc the state prison as the place in which the prisoner serves a portion of his federal sentence.” Pierce v. Holder, 614 F.3d 158, 160 (5th Cir. 2010) (citing Barden v. Keohane, 921 F.2d 467, 480 (3rd Cir. 1990) and Rodriguez v. Pitzer, 76 F. App'x. 519, 520 (5th Cir. 2003) (unpublished)). However, the BOP's nunc pro tunc designation “shall be made only when it is consistent with the intent of the sentencing federal court, or with the goals of the criminal justice system.” See BOP Program Statement 5160.05.

         To this end, the BOP considers the factors set forth in 18 U.S.C. § 3621(b): “(1) the resources of the facility contemplated; (2) the nature and circumstances of the offense; (3) the history and characteristics of the prisoner; (4) any statement by the court that imposed the sentence -- (A) concerning the purposes for which the sentence to imprisonment was determined to be warranted; or (B) recommending a type of penal or correctional facility as appropriate; and, (5) any pertinent policy statement issued by the Sentencing Commission.” The BOP's nunc pro tunc designation is “entitled to substantial deference, ” Fegans v. United States, 506 F.3d 1101, 1105 (8th Cir. 2007), and it ...


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