JAMES E. McGHEE, Petitioner,
FRANK STRADA, WARDEN, Respondent.
WILLIAM W. CALDWELL, District Judge.
I. Introduction and Procedural History
The pro se petitioner, James E. McGhee, an inmate at the low security correctional facility in Allenwood, Pennsylvania, has filed an amended 28 U.S.C. § 2241 petition. Under Barden v. Keohane, 921 F.2d 476 (3d Cir. 1990), the petition requests that we order the Federal Bureau of Prisons (the BOP) to designate nunc pro tunc the state institution where Petitioner had served his Maryland State sentence as the place where Petitioner would serve his federal sentence. The effect of such a designation would make the federal sentence retroactively concurrent to the state sentence.
Petitioner's original petition essentially sought credit on his federal sentence for the time that he spent serving the state sentence. In support, he made the following arguments: (1) the federal sentencing court stated at sentencing that he intended the federal sentence to run retroactively concurrent with the previously imposed state sentence; (2) when the federal sentencing court's sentencing order is silent on whether the federal sentence is to run concurrently or consecutively with another sentence, the rule of lenity requires that the sentences run concurrently; and (3) once Petitioner's federal sentence began to run, he was entitled to have it run continuously and not have it interrupted by the service of his state sentence.
In a memorandum dated August 15, 2013, we rejected these arguments. McGhee v. Strada, 2013 WL 4417722 (M.D. Pa.). However, in his reply brief, Petitioner argued for the first time that the BOP had improperly refused to grant him a nunc pro tunc designation under Barden. Raised of the first time in a reply brief, the claim was not properly before us, but we granted him the opportunity to file an amended petition, which we now consider.
We take this background mostly from our memorandum of August 15, as based on Respondent's submissions in connection with Petitioner's original petition. On June 29, 1990, Petitioner was arrested by the Maryland State Police. (Penalty-of-perjury declaration of John A. Farrar, BOP sentencing computation specialist (Doc. 9-1, ECF p. 1). He was in the custody of the state of Maryland on Maryland charges. ( Id. ) On October 24, 1990, McGhee was sentenced in the Baltimore County Circuit Court to a thirty-year term for burglary, breaking and entering of a dwelling, theft, malicious destruction of property, and possession of a handgun. ( Id. ).
On November 29, 1990, the United States Marshals Service (USMS) took custody of McGhee by way of a writ of habeas corpus ad prosequendum. ( Id. ¶ 3, citing the USMS Tracking System (Attach. B, Sec. III to Ex. 1), Doc. 9-1, ECF p. 10). On June 25, 1991, the United States District Court for the District of Delaware sentenced Petitioner to two 240-month terms on two counts of bank robbery, to be served concurrently. The order made no mention of the previously imposed state sentence. (Doc. 9-1, ECF pp. 13-14, written sentencing order). The sentencing order remanded Petitioner to the custody of the United States Marshal. (Doc. 9-1, ECF p. 14).
At the sentencing hearing, as part of his allocution, Petitioner had requested that the court run the sentence "with the 30 year, 35-year sentence [he was] already serving." (Doc. 18, ECF p. 9). The court told Petitioner that his "criminal record is amazingly outrageous" and that Petitioner had "wasted [his] life." ( Id., ECF p. 10). The court then orally sentenced Petitioner to 240 months' imprisonment on each offense, to be served concurrently to each other. ( Id., ECF p. 11). The following exchange also took place between Petitioner's counsel and the court at sentencing:
[trial counsel]: Your Honor, what is the effective day of the sentence, according to your Honor's Order?
The Court: Well, I am sentencing him as of today. If there is any credit time, the Bureau of Prisons will calculate that separately. And that is the function that is left to them.
( Id., ECF p. 10).
On July 1, 1991, McGhee was returned to the state of Maryland. (Doc. 9-1, ECF p. 10). Some seventeen years later, on March 28, 2008, the Maryland State sentence expired, and he was taken into federal custody. (Doc. 9-1, ECF p. 18).
The BOP prepared a sentence calculation commencing the running of Petitioner's federal sentence on March 28, 2008, the date he was taken into federal custody. His projected release date is August 29, ...