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Rambo v. Thomas

United States District Court, M.D. Pennsylvania

November 20, 2014

GREGORY JAY RAMBO, Petitioner
v.
WARDEN J.E. THOMAS, Respondent.

MEMORANDUM

WILLIAM J. NEALON, District Judge.

Petitioner, Gregory Jay Rambo, a federal inmate currently confined in the Allenwood United States Penitentiary, White Deer, Pennsylvania (USP-Allenwood), filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. He alleges that the Federal Bureau of Prisons ("BOP") has incorrectly computed his federal sentence because his federal sentence should have been served concurrent to his state sentence. (Doc. 2, Memorandum of Law). Specifically, Rambo argues that he should be "awarded by the BOP all the time served from January 5, 2000 to July 9, 2008." Id . For relief, Rambo requests immediate release. Id . A response and traverse having been filed, the petition is ripe for disposition, and, for the reasons set forth below, the petition will be denied.

Background

On August 18, 1999, Petitioner was arrested by the Portland, Oregon Police Department for Bank Robbery. See (Doc. 6-1 at 10, Sentence Monitoring Computation Data). He was indicted by the Portland, Oregon, Multnomah County Grand Jury on ten (10) counts of Robbery in the First Degree with a Firearm; six (6) counts of Robbery in the Second Degree with a Firearm; four (4) counts of Felon in Possession of a Firearm; Burglary 1; Trespass 1; and Escape III. Id . These offenses all occurred between July 20, 1999, and August 18, 1999.

On September 15, 1999, Petitioner was indicted in the United States District Court for the District of Oregon on federal charges of Bank Robbery. See (Doc. 6-1 at 21-26, U.S. v. Rambo, 3:99-cr-0392-MA-1, criminal docket sheet).

On September 28, 1999, Rambo was "borrowed" from state primary custody by the U.S. Marshal Service, pursuant to a Federal Writ of Habeas Corpus Ad Prosequendum, to appear for his arraignment, and was returned on the same day. Id.

On January 5, 2000, Petitioner was again "borrowed" from state custody by the U.S. Marshal Service to attend his sentencing. Id . The United State District Court for District of Oregon sentenced Petitioner to a term of 151 months for the offense of Bank Robbery. (Doc. 6-1 at 14, Judgment in a Criminal Case). Id . The federal judgment was silent as to the relation with the state charges. Id . Petitioner was then returned to the primary custody of the state of Oregon for prosecution on the state's charges. See (Doc. 6-1 at 21-26, U.S. v. Rambo, 3:99-cr-0392-MA-1, criminal docket sheet).

On March 27, 2000, Petitioner was sentenced in the Multnomah County, Portland, Oregon Circuit Court to serve ninety (90) months in the Oregon Department of Corrections for two (2) counts of Robbery 1; forty-eight (48) months for three (3) counts of Burglary 1; thirty (30) days for Escape 3; and thirty (30) days for Criminal Trespass 1; (for a total term of 228 months). (Doc. 6-1 at 33-40, Judgment of Conviction and Sentence). Petitioner was given 224 days of prior custody credit on the state sentence from August 18, 1999, to March 29, 2000, and served his state sentence from March 29, 2000, to December 19, 2007. (Doc. 6-1 at 30, Oregon Department of Corrections Records). However, on November 21, 2007, Petitioner was re-sentenced by the state. Id . Due to the re-sentencing, Petitioner had actually completed time served on his state sentences on February 16, 2007. Id.

On December 19, 2007, Petitioner was released from state custody to the U.S. Marshal Service for designation to a federal facility to commence his federal sentence. Id . The BOP determined Rambo's federal commencement date as December 19, 2007 and granted Petitioner prior custody credit from February 17, 2007, to December 18, 2007. (Doc. 6-1 at 11, BOP SENTRY Report, Sentence Monitoring Computation Data).

On February 15, 2008, Petitioner submitted an Inmate Request to Staff, "seeking a Barden[1] request" for credit for time spent in primary state custody, serving his state sentence, toward his sentence. (Doc. 6-1 at 42, Inmate Request to Staff).

The BOP[2] reviewed Petitioner's request for a nunc pro tunc (concurrent) designation and, accordingly, conducted a review pursuant to Barden v. Keohane, 921 F.2d 476 (3rd Cir. 1990) and the factors set forth in 18 U.S.C. § 3621(b). See (Doc. 6-1 at 45-48, Responses to Inmate Request to Staff).

In Rambo's case, the five (5) factors set forth in 18 U.S.C. § 3621(b) were considered, and the BOP denied Petitioner's request based upon factors (2), (3), and (4), as follows:

Factor (2) - the nature and circumstances of the offense: Inmate Rambo was convicted of Bank Robbery. The nature of this offense is violent. Circumstances surrounding this offense are that Rambo and another offender entered a bank.
Rambo immediately approached the teller, pulled a mask over his face and stated "Okay, here we go, it's a hold-up, " then in a loud voice he yelled profanities at the teller ordering the money. During the course of his get-away, Rambo ran in and out of private residences attempting to elude police. In one instance, he was lying on the ...

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