Winston v. United States Attorney General, No. 3:2012cv00172 - Document 16 (E.D. Va. 2013)
Court Description: MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 7/31/13. Copy sent: Yes(tdai, )
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Winston v. United States Attorney General Doc. 16 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division MONTE DECARLOS WINSTON, Petitioner, v. Civil Action No. 3:12CV172 UNITED STATES ATTORNEY GENERAL, Respondent. MEMORANDUM OPINION Monte DeCarlos Winston, a federal inmate proceeding pro se, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 22411 ("Present § 2241 Petition"). The matter was referred to the Magistrate Judge for preliminary review. 1 That statute provides, in pertinent part: (c) The writ of habeas corpus shall not extend to a prisoner unless by color of the authority of the United States or is trial before some court thereof; or (1) committed for (2) He is in custody under or He is in custody for an act done or omitted in pursuance of an Act of Congress, or an order, process, judgment or decree of a court or judge of the United States; (3) He is Constitution States 28 U.S.C. or in or custody laws or in violation treaties of the of the United .... § 2241(c) (l)-(3) . Dockets.Justia.com I. The Magistrate BACKGROUND Judge made the following findings recommendations: Preliminary Review A. Winston's First § 2241 Petition On August 26, 2008, the Court U.S.C. § 2241 Petition from Winston Petition"). asserted In the the First Bureau of § 2241 Prisons received a 28 ("First § 2241 Petition, ("BOP") Winston failed to credit time against his federal sentence for time spent in custody prior to the imposition of his federal sentence. Winston argued "[a]s he has in previous filings" that "he did not receive credit against his federal sentence for time spent in state custody while on loan to the Eastern District of Virginia federal court on a writ of habeas ad prosequendum" from February 17, 2000 until May 20, 2003. Winston v. Stansberry, No. 3:08cv553, 2009 WL 2230844, at *2-3 (E.D. Va. July 21, 2009). Winston asserted that "*time credit should actually go back to January 6, 1999.'" Winston v. Stansberry, 3:10CV631, 2011 WL 2693383, at *1 (E.D. Va. July 11, 2011) (quoting Memorandum in Support of First § 2241 Petition at 1, Winston v. Stansberry, No. 3:08cv553 (E.D. Va. filed Aug. 26, 2008)). Winston requested that the Court "%clear up, correct, and credit my sentence with all prior time credit that I'm entitled to.'" Id. (quoting First § 2241 Petition at 5, Winston v. Stansberry, No. 3:08cv553 (E.D. Va. filed Aug. 26, 2008)). Accordingly, the Court conducted a thorough review of the manner in which the BOP calculated Winston's sentence and made the following pertinent findings: 1. Credit Toward Winston's Concurrent Federal Sentence BOP awarded federal sentence 3584, which Winston pursuant controls credit to 18 toward U.S.C. calculation his § of concurrent federal sentences if "imposed on a defendant who is already subject to an and undischarged term of 18 3584(a); U.S.C. § imprisonment see . . ." States United . v. Smith, 472 F.3d 222, 225 (4th Cir. 2006). In calculating time served for concurrent sentences, BOP considers to commence when it States (2d v. a Labeille-Soto, Cir. 1998) sentence federal is imposed. 163 (holding cannot F.3d 93, that commence sentence See United a 98-99 federal before it is imposed). In Winston's case, the district court judge ordered 77 months of his federal sentence to sentence. toward in run concurrent Accordingly, Winston's state BOP federal custody to his sentence after state granted his credit for time 19, May 2003 federal sentencing date and prior to his June 18, 2007 reception into [United States Marshal Service] custody .... 2. Credit Toward Winston's Federal Sentence for So Called "Willis" Time Served Winston also earned credit toward his federal sentence under the second factor, so-called "Willis" time, which arises from the holding in Willis v. United States, 438 F.2d [923, 925 (5th Cir. 1971)]. While 18 U.S.C. § 3585(b)(2) bars crediting a federal term with time already counted toward another sentence, Willis provides an exception. custody Under credit, Willis, even if BOP it grants prior results in a double-credit toward a state sentence, when two conditions are met: (1) a prisoner's state and federal concurrently; full term and, (2) release greater than the release date. sentences the federal date state Id. is as sentence equal sentence If, run in to full this or term case, these two circumstances are met, then credit is given toward the federal sentence for time spent in state that begins on or federal offense, pre-sentence after the date custody of the and runs to the imposition of the first state sentence. Id. Winston's federal offense occurred January 6, 1999, and he was taken into custody on January 7, 1999. His first sentencing date occurred on March 22, 1999. Pursuant to Willis, BOP accurately credited Winston's federal term for 74 days of pre sentence credit for time served from January 7 to March 21, 1999. . . . Time in state custody on or after the March 22, 1999 imposition of his state sentence is ineligible for credit toward his federal sentence under the Willis exception. Accordingly, Winston's claim to entitlement for time served in state custody toward his federal sentence lacks merit. The Court finds no error in the manner that Respondent has calculated Winston's sentence. Winston, 2011 WL 2693383, at *l-2 (quoting Winston, 2009 WL 2230844, at *3-4) (first omission in original) (all alterations in original). B. Winston's Second § 2241 Petition In September of 28 U.S.C. § 2241 2010, the Court Petition received another ("Second § 2241 Petition") from Winston again alleging that the BOP incorrectly calculated his sentence. Winston once again claimed the BOP failed to award him proper credit against his federal sentence for time spent in custody prior to commencement of his federal sentence. See Winston, 2011 WL 269383, at *1. By Memorandum Opinion and Order entered July 11, 2011, the Court denied the Second § 2241 Petition on the ground that Winston's petition constituted an abuse of the writ. Id. at *3. The Court explained: Long before the enactment of the Antiterrorism and Effective Death Penalty Act, the Supreme Court developed the doctrine of abuse of the writ, which limited the review of second applications. See U.S. 467, 479-88 or successive habeas McCleskey v. Zant, (1991) (describing evolution of the doctrine) . of the writ doctrine, 499 the Under the abuse a federal habeas court "could decline to hear a claim that was both raised and petition." 1270 (10th adjudicated in an earlier Stanko v. Davis, 617 F.3d 1262, Cir. 2010) (citing Sanders v. United States, 373 U.S. In the abuse of the writ petitioner's claims "may same even when supported arguments." Id. (citing at 16). Nevertheless, 1, 11-12 (1963)). context, a habeas be considered the by different legal Sanders, 373 U.S. "[e]ven if the same ground was rejected on the merits on a prior application, it is open to the applicant to show that the ends of justice would be served by permitting the redetermination of the ground." Sanders, 373 U.S. at 16.2 Winston's [Second] § 2241 constitutes an abuse of the writ Court rejected has his claim Petition in that the that he is entitled to additional credit against his federal sentence for time spent in custody prior to the imposition of his federal sentence, including Willis credit. Stanko, 617 F.3d at 1270 (citing Sanders, 373 U.S. at 16). Winston's prior broad assertions that his sentence was not properly executed, 2 Additionally, the Supreme Court barred new claims under the abuse of the doctrine when those new claims could been raised were not. in an earlier McCleskey, application 499 U .S. at 489. writ have but The principles of the abuse of the writ doctrine are generally codified in 28 U.S.C. § 2244(a), which provides: No circuit or district judge shall be required to entertain an application for a writ of habeas corpus to inquire into the detention of a person pursuant a of judgment United States a if court of to the it appears that the legality of such detention has been determined court of prior application habeas the United corpus, in section 2255. 28 U.S.C. § 2244(a). by for except a judge States a on writ or a of as provided in his First § 2241 Petition, embraced his current claim. Sanders, 373 U.S. at 16 ("In other words, identical grounds may often be proved by different factual allegations. So also, identical grounds may often be supported by different legal arguments, or be couched in different language, or vary in immaterial respects." (internal citations omitted)). Winston that the ends consideration of fails of his to demonstrate justice [Second] warrant § 2241 Petition. Id. at *2-3 (first alteration in original.) C. Winston's Present § 2241 Petition In the Present again challenges the § 2241 Petition, Winston once BOPs execution of his sentence with respect to time allegedly spent in federal custody prior to May 19, 2003. Winston argues: I am being improperly detained because the Attorney General is abusing it's [sic] discretion by not commencing my sentence pursuant to 18 [U.S.C] § 3585(a), when their policy authorizes it. I was received at a Federal penitentiary on 7-17-00 pursuant Sentence. to a (You Court ordered Provisional must be sentenced in order to be designated to a Federal facility.) However, the Attorney General is commencing my final sentence on 5-19-03 without factoring in the time I spent serving my Provisional Sentence. The AG's position is that an ad prosequendum writ gives them the power to "borrow" me from the any regard to jurisdictional concerns, and without statutory laws that petitioner. any may However, State without or custodial regard benefit the ad to any me, the prosequendum writ in this case was never executed while I was in Federal custody, therefore, custody and jurisdiction was never transferred, making the writ void. In closing, either the State relinquished jurisdiction and I am entitled to the relief I am seeking, or the Fed. Gov. didn't have jurisdiction to enter- a Judgment against me. Judgment jurisdiction is void Judgment. (Present § 2241 Pet. 8.)3 without Winston demands the following relief: "I want the Court to assure the Attorney General that it had jurisdiction to enter a Judgment, and order the AG to calculate the Judgment pursuant to Federal Statute and Federal Jurisdiction." (Id,) Winston's Present § 2241 Petition challenges BOP's execution of his sentence. Winston appears raise the same challenges for sentence credit that Court previously rejected. See Winston, 2011 the to the WL 2693383, his at arguments as Winston these claims While matters raises petition. at *2-3. new of have See id. at n.2 489) . Moreover, now recasts "jurisdiction," to the extent claims, could not Winston Winston he fails been to raised address in an earlier (citing McCleskey, fails why 499 U.S. to demonstrate that the ends of justice warrant revisiting his challenge to the execution of his sentence. Accordingly, it is RECOMMENDED that the action be DISMISSED for abuse of the writ. (May 1, 2013 omissions in Report and original).) Recommendation The Court advised could file objections within fourteen (14) of the Report and Recommendation. objections. Judge's (ECF No. analysis 14.) applies (alterations On May 8, Winston equal he days after the entry 2013, Winston filed As explained below, with that and force to the Magistrate the Amended Complaint. Because Winton's petition lacks page numbers, the Court employs the numbers assigned to the document by the Clerk's CM/ECF docketing system. Moreover, while Winston divides his argument into three claims, all are encompassed by the text cited here. II. STANDARD OF REVIEW "The magistrate makes only a recommendation to this court. The recommendation has responsibility to make court." 1993) Estrada (citing v. no a presumptive final determination Witkowski, v. Mathews weight, 816 Weber, F. 423 remains Supp. U.S. and 408, 261, the with this 410 270-71 (D.S.C. (1976)). This Court "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which filing objection of district is objections judge to made." to focus a 28 U.S.C. magistrate's attention on § 636(b)(1). report the issues factual those enables and legal that are at the heart of the parties' dispute." Arn, 474 U.S. and conclusory specific 140, 147 (1985). objections error recommendations," in the de novo that "The Thomas v. "[W]hen a party makes general do not direct magistrate's review the proposed court to findings is unnecessary. Orpiano a and v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982) (citations omitted). III. Winston conclusions objects while WINSTON'S OBJECTIONS generally expressing his to the belief Magistrate that have ordered Respondent to file a response. the Court need not conduct a de novo review should Winston points to no specific error in the Report and Recommendation. Court Judge's of Thus, the the record. Nevertheless, record and the finds Accordingly, for Court has that the conducted Winston's reasons § a de 2241 stated by novo review should the be of the dismissed. Magistrate Judge, Winston's action will be dismissed as an abuse of the writ. IV. Winston's objections Recommendation will U.S.C. petition § 2241 be CONCLUSION will be OVERRULED. ACCEPTED will be and The Report and ADOPTED. denied. Winston's The action will 28 be dismissed. Winston has abused the writ by filing at least three § 2241 Petition's challenging the From this point forward, BOP's calculation of his sentence. before the Court will review any new action challenging the calculation or execution of his sentence, Winston must do the following: a. Provide a brief summary, not to exceed seven (7) double spaced pages, explaining why the ends of justice and warrant attach the consideration summary to of his the submission front of any filing; and, b. Certify that the claims he wishes to present are new claims never before raised and disposed of on the merits by any federal court and set forth why each claim could not have been raised in one of his previous actions. Winston's failure to comply with the above result in summary dismissal of the new action. directives will An appeal may not be taken from the final order in a § 2241 proceeding unless a judge issues a certificate of appealability ("COA"). 28 U.S.C. § 2253(c) (1) (A). A COA will not issue unless a prisoner makes "a substantial showing of the denial of a constitutional requirement is right." 28 U.S.C. satisfied only when debate whether (or, § 2253(c)(2). "reasonable jurists could for that matter, agree that) should have been resolved in a different issues presented were proceed further.'" 'adequate to This the petition manner or that the deserve encouragement to Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)). Winston fails to satisfy this standard. A certificate of appealability will be DENIED. The Clerk is directed to send a copy of the Memorandum Opinion to Winston. is/ Date: r\ 21 n I*) j/b^Y ?'r^( 7 Richmond/ Virginia Kooert a. Payne O.W Senior United States District Judge 10
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