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Bush v. Warden

October 14, 2009

DUMONT BUSH, PETITIONER
v.
WARDEN, USP CANAAN, RESPONDENT



The opinion of the court was delivered by: Sylvia H. Rambo United States District Judge

(Judge Rambo)

MEMORANDUM

Before the court is a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241, filed by Petitioner Dumont Bush ("Bush"), an inmate currently incarcerated at the United States Penitentiary at Canaan in Waymart, Pennsylvania ("USP-Canaan"). (Doc. 1.) Bush is challenging the Bureau of Prisons' ("BOP") calculation of his federal sentence. For the reasons that follow, the petition will be denied.

I. Background

On July 20, 1995, Bush was taken into the custody of Pennsylvania authorities when his bond was revoked due to convictions in the Court of Common Pleas of Lehigh County, Pennsylvania ("Lehigh County court"), for possession with intent to deliver a controlled substance and possession of a controlled substance. (Doc. 11-2, Kelly Decl., Attach. C, Criminal Docket CP-39- CR-0000524-1995, at 19-28.) On September 1, 1995, the Lehigh County court sentenced Bush to a term of imprisonment of eighteen (18) to thirty-six (36) months. (Id. at 26.)

Subsequently, on October 24, 1995, Bush was sentenced in the Lehigh County court to an additional term of imprisonment of six (6) to twelve (12) months for a probation violation. (Doc. 11-2, Kelly Decl., Attach. D, Criminal Docket CP-39-CR-0000922-1993, at 38.) The court directed that this sentence run concurrently with all other state sentences being served by Bush. (Id.)

Bush was produced from Pennsylvania state custody pursuant to a federal writ of habeas corpus ad prosequendum for various proceedings in the United States District Court for the Eastern District of Pennsylvania ("Eastern District Court") on the following dates: February 23, 1996; April 8, 1996; April 11, 1996; June 24, 1996; and September 6, 1996. (Doc. 11-2, Kelly Decl., Attach. E, United States Marshals Service ("USMS") Prisoner Tracking System Report, at 49-50.) On each of these dates, Bush was returned to Pennsylvania state custody the same day. Further, on October 21, 1996, Bush was produced from Pennsylvania state custody pursuant to a federal writ of habeas corpus ad prosequendum for an Eastern District Court proceeding, where he remained in secondary custody until October 30, 1996. (Id. at 50.) On that date, Bush was returned to the custody of Pennsylvania authorities.

On January 21, 1997, Bush was sentenced in the Eastern District Court to a term of imprisonment of two hundred and ten (210) months for conspiracy to commit armed bank robbery, see 18 U.S.C. § 371, and armed bank robbery, see 18 U.S.C. § 2113(d). (Doc. 11-2, Kelly Decl., Attach. B, Eastern District Court Judgment, at 14-17.) Bush was arraigned on these charges on February 23, 1996. (Doc. 1 at 2.) In its judgment and commitment, the Eastern District Court recommended that Bush receive credit for all federal time served in custody pending disposition of the case. (Doc. 11-2 at 15.) The court was silent, however, with regard to whether Bush's sentence was to run concurrent with any undischarged state sentences. (Id.)

On June 18, 1997, Bush entered a plea of guilty in the Lehigh County court to a state charge of aggravated assault on a prison guard, for an offense committed on January 12, 1997. (Doc. 11-2, Kelly Decl., Attach. F, Criminal Docket CP-39-CR-0000395-1997, at 59.) On July 22, 1997, the Lehigh County court sentenced Bush to a term of imprisonment of one and one-half (1-1/2) to five (5) years. (Id. at 61.) On September 8, 1997, the Lehigh County court amended the sentence to reflect a term of imprisonment of twenty-one (21) months to five (5) years. (Id. at 64.) The court ordered the sentence to be served consecutively to the sentences Bush was serving at the time the sentence was imposed. (Id.)

Bush's eighteen (18) to thirty-six (36) month state sentence imposed on September 1, 1995, expired on March 21, 1998. (Doc. 11-2, Kelly Decl., Attach. G, Pennsylvania Department of Corrections records, at 70-72.) Bush's other state sentence of twenty-one (21) months to five (5) years, imposed on July 22, 1997, and amended on September 8, 1997, commenced on March 21, 1998, or the expiration of his previous state term of imprisonment. (Id. at 72.)

Bush was released from primary state custody on January 19, 2000, at which time federal authorities assumed primary custody. (Doc. 11-2, Kelly Decl., Attach. H, USMS Prisoner Tracking System, Custody and Detention Report, at 74-75.) The BOP calculated Bush's federal sentence as commencing on that date and running continuously since that date. (Doc. 11-2 at 12.) The BOP also reviewed Bush's case to determine whether he had any previous custody periods that would qualify him for an award of jail time credit or "prior custody credit" pursuant to 18 U.S.C. § 3585(b). (Doc. 11-2, Kelly Decl., ¶¶ 24-25, 6-7.) Further, the BOP presumed that Bush's state and federal sentences would not run concurrently because the federal sentencing court's judgment and commitment order was silent on the matter. (Id. at 6.) Bush's records reveal that all time he spent in primary state custody, beginning July 20, 1995 through January 19, 2000, was awarded and credited toward his state sentence. (Doc. 11-2, Kelly Decl., Attach. L, DOC Sentence Computation, at 85-86.) Thus, under 18 U.S.C. § 3585(b), Bush was not entitled to receive credit toward his federal sentence for that period of time. (Doc. 11-2 at 12.)

Bush filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 in the Eastern District Court on March 10, 2008. (Doc. 1.) Bush challenges the start date of his federal sentence of January 19, 2000, arguing that the BOP should award him credit for the time spent in state custody prior to being taken into primary federal custody on this date. (Doc. 1 at 6.) In its response, the government contended that Bush had filed his petition in the wrong district, as he was incarcerated in the Middle District of Pennsylvania at the time he filed his petition. (Doc. 3.) The Eastern District Court agreed, and the petition was subsequently transferred to this court on April 30, 2009. (See Doc. 5).

Prior to this court directing a substantive response to the petition, the BOP interpreted Bush's habeas petition filed on March 1, 2008 as a request for nunc pro tunc designation of a state institution for service of his federal sentence. As a result, on May 19, 2009, the BOP sent a letter to the federal sentencing court that imposed the 210-month term of imprisonment for the bank robbery convictions,*fn1 requesting the court's position with respect to retroactive designation of a state institution for the service of Bush's federal sentence. (Doc. 11-2, Kelly Decl., Attach. N, Letter to the Honorable Harvey Bartle, III, at 93-94.) The BOP was acting in accordance with BOP Program Statement 5160.05, which provides, in part, that an inmate may request a nunc pro tunc designation of a state institution for concurrent service of a federal sentence. (Doc. 11-2, Kelly Decl., Attach. M, BOP Program Statement 5160.05, Designation of State Institution for Service of Federal Sentence, at 88-91.) Program Statement 5160.05 requires that the BOP wait sixty (60) days for a response from the sentencing court. (Id. at 90.) If a response is not received after those sixty days, the BOP will determine if a retroactive designation is appropriate based on five factors set forth in 18 U.S.C. § 3621(b).*fn2 (Id.) In Bush's case, the sixty days elapsed without a response from the sentencing court. (Doc. 15-2, Supplemental Kelly Decl., ¶ 7, 4.) As a result, the BOP considered the five factors outlined in 18 U.S.C. § 3621(b), and determined that Bush is not entitled to a nunc pro tunc designation. (Doc. 15-2, Kelly Decl., Attach. C, Factors Under 18 U.S.C. 3621(b) Worksheet, at 15-16.) In doing so, the BOP considered, inter alia, Bush's time spent in secondary federal custody, his extensive history of institution adjustment problems, his prior criminal history, and the fact that the judgment and commitment order was silent regarding his undischarged state sentence. (Id.)

After this matter was transferred to this court, on June 9, 2009, an order to show cause was issued, directing Respondent to respond to the merits of Bush's petition. (Doc. 10.) Responsive and reply briefings have ...


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