The opinion of the court was delivered by: Chief Judge Vanaskie
David L. Shumate, a federal inmate currently confined at FCI-Ray Brook, Ray Brook, New York, filed this habeas corpus action pursuant to 28 U.S.C. § 2241 on December 3, 2004, while he was housed in this District at USP-Allenwood. He has paid the required filing fee. Named as respondent is the United States of America.*fn1
Shumate, who is serving concurrent federal and state sentences, desires to serve the remainder of his federal sentence in state custody. Shumate argues that the Bureau of Prisons ("BOP") arbitrarily denied his request to designate the New York Department of Corrections ("NY DOC") as his place of imprisonment for the service of the remainder of his federal sentence without properly exercising its discretion under 18 U.S.C. § 3621(b).
Following service of the Petition, Respondent filed a response, asserting that Shumate is not entitled to the requested relief as: (a) his place of confinement was a negotiated component of his plea agreement with state and federal authorities that Shumate enforced by way of a successful proceeding in the United States District Court for the Northern District of New York; (b) his place of confinement is within the sole discretion of the BOP, which properly exercised its discretion when denying his request for a transfer; and (c) Petitioner cannot obtain the relief requested, a transfer to a state facility, via the habeas corpus statute. Petitioner filed a Traverse to the Response in which he concedes that he is housed in federal custody pursuant to his plea agreement, and that he has no right to the requested transfer to the NY DOC. Nonetheless, he contends Respondent's position ignores the heart of his petition, the failure of the BOP to consider criteria set forth in 18 U.S.C. § 3621(b).
After careful consideration of the record before me, I find that the BOP's exercise of discretion as to the place of Shumate's confinement is not subject to judicial review, and that, even if review were available, the BOP did not abuse its discretion when denying Petitioner's request for a transfer to the custody of the NY DOC prior to the expiration of his federal sentence. Accordingly, Shumate's petition for habeas corpus relief under 28 U.S.C. § 2241 will be denied.
Petitioner David Shumate was indicted on New York state charges on August 13, 1993, in Schenectady County, New York. See Shumate v. United States, 893 F. Supp. 137, 138 (N.D. N. Y. 1995). On the same date he was arrested by a multi-jurisdictional Drug Enforcement Task Force on a warrant which issued under the state indictment. (Id.) On August 20, 1993, Petitioner was indicted by a federal grand jury on charges related to those underlying the state indictment. (Id.) Eight days later Shumate was produced in federal court pursuant to a writ of habeas corpus ad prosequendum for arraignment on the federal indictment. (Id.) He was then returned to the United States Marshal and held in federal custody. (Id.)
Prior to Shumate entering a plea in either federal or state court, considerable efforts were undertaken by defense counsel working with both the federal and state prosecuting authorities to reach a comprehensive resolution of all charges. The negotiations culminated in a deal that ensured Shumate's state and federal sentences would (a) run concurrently; and (b) that he would first serve his federal sentence, in a federal facility, after New York state relinquished primary jurisdiction.*fn2 (Id. at 139.) On April 11, 1994, Petitioner pled guilty to the federal charges in the Northern District of New York. The following day he was produced in the Schenectady County Court and plead guilty to the New York state charges. He was then returned to federal authorities, and on August 10, 1994, was sentenced in federal court to 204 months imprisonment.*fn3 (Id.) Petitioner was remanded to the United States Marshal for delivery to a federal facility. (Id.) Thereafter, on August 22, 2004, Shumate was sentenced in Schenectady County Court to an indeterminate term of between fifteen years and life in prison. (Id.)
Initially Shumate remained in New York state custody despite the NY DOC's best efforts to transfer Petitioner to federal authorities. (Id. at 140.) The BOP authorities refused to take custody of Shumate, stating that "New York State's expressed waiver of its primary jurisdiction" was insufficient to bestow upon the federal government primary jurisdiction. (Id.) As then-Chief Judge McAvoy of the Northern District of New York observed, the BOP's actions made "two fundamental alterations in the sentencing scheme contemplated by both [sentencing] courts, both prosecutors and the defendant: 1) petitioner's federal sentence no longer ran concurrent with his state sentence; and 2) petitioner was unable to serve his federal sentence in a federal facility." (Id.) To remedy this apparent frustration of the plea agreement endorsed by the state and federal courts, Shumate sought relief from the federal sentencing court. Prior to the Court resolving the matter, the BOP, with significant prompting from the United States Attorney, directed the "nunc protunc designat[ion of]] the state facility as the place of service for petitioner's federal sentence and to commence petitioner's federal sentence as of the August 10, 1994, the date of sentencing." (Id. at 141.)
Still unresolved, however, was the matter of Shumate's service of his concurrent federal and state sentences in federal custody. From the BOP's perspective, New York State authorities had not effectively relinquished priority of jurisdiction over Shumate. Thus, the BOP "was unable to redress petitioner's primary complaint concerning his place of incarceration because to do so would violate BOP's policies." (Id.) After reviewing the matter, Chief Judge McAvoy held that New York State effectively relinquished its primary jurisdiction of Petitioner by executing the Waiver, thus vesting the federal authorities with primary jurisdiction over Petitioner. (Id. at 143.) The BOP was then ordered to take custody of Petitioner for the remainder of his federal sentence, "and maintain petitioner in a federal facility for the duration of his federal sentence until such time as that sentence is satisfied, at which time petitioner should be returned to the custody of New York State to serve the remainder, if any, of his concurrent state sentence." (Id.)
Shumate subsequently believed that his interests would be better served if he were transferred to state custody. He again petitioned the Northern District of New York for habeas relief. As Shumate was then confined within the jurisdiction of this Court, the matter was transferred here and docketed to No. 3:00-CV-2216. By Order dated July 9, 2002, the habeas petition was dismissed for failure to exhaust administrative remedies.
In April 2004, Shumate filed an Administrative Remedy Procedure for Inmates Information Resolution Form, or BP-8, requesting to be transferred to the NY DOC to serve the concurrently-running sentences. (Dkt. Entry 3, Record of Exhibits in Support of Shumate's § 2241 Petition.) The request was denied. Petitioner was told that he must finish his federal sentence before he would be returned to the NY DOC to serve his state sentence, which is currently lodged as a detainer against him. Additionally he was advised that "[t]here [was] no reason to transfer [him] to NY DOC therefore, [his] request [was] denied." (Id.) Shumate then filed a Request for Administrative Remedy, BP-9, again appealing to the BOP to exercise its discretionary authority "to transfer its prisoners to a state facility" due to his elderly mother's difficulties in traveling out of state to visit him. (Id.) The Warden denied Petitioner's appeal, explaining that the BOP "will enforce your federal sentence until completion or upon receiving a different Judgment in your case from the court." (Id.) Shumate appealed to the Regional Director, asserting that while it was true that he negotiated his placement in federal custody, he still wished the BOP to exercise its discretionary authority and grant his transfer request as his state sentence exceeded his federal sentence. (Id.) The Regional Director denied Shumate's appeal, referencing an intergovernmental agreement between New York and the BOP. The Regional Director stated that "the Intergovernmental Agreement between the State of New York and the Bureau does not provide boarding for federal inmates in a New York state facility." The Regional Director also noted that Shumate's federal sentencing Judge effectively ordered that the federal sentence be served in federal custody. (Id.) Shumate appealed this decision to the BOP's General Counsel, who affirmed the responses of the Warden and Regional Director. (Id.) Shumate was advised that "the Bureau of Prisons will enforce your federal sentence in federal custody until completion." (Id.)
Petitioner asks that the BOP be ordered to exercise its discretion pursuant to 18 U.S.C. § 3621(b) in addressing his transfer request, and not simply deny it based on his plea agreement. (Dkt. Entry 2.) Shumate requests this relief, citing to his mother's poor health, which makes it difficult for her to travel to visit him in Pennsylvania, as well as his alleged lack of appropriate legal research materials to investigate recent ...