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Everett v. Antonelli

United States District Court, D. South Carolina, Florence Division

January 10, 2019

KWAMANE MONTE EVERETT, Petitioner,
v.
B.M. ANTONELLI, WARDEN, Respondent.

          REPORT AND RECOMMENDATION

          Thomas E. Rogers, III United States Magistrate Judge.

         Petitioner, Kwamane Monte Everett, (hereinafter “Petitioner”), is currently incarcerated at the Federal Correctional Institution (FCI) Williamsburg located in Salters, South Carolina. Petitioner appearing pro se, filed his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241[1] on May 7, 2018, alleging that the Bureau of Prisons (BOP) has failed to properly calculate his federal sentence. Respondent filed a Motion to Dismiss on July 3, 2018, along with a return, supporting memorandum, affidavit, and exhibits. The undersigned issued an order filed July 6, 2018, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Petitioner of the motion to dismiss and motion for summary judgment procedure and the possible consequences if he failed to respond adequately. (EFC No.18). Petitioner filed a response to the Motion to Dismiss on August 2, 2018. (ECF No. 20). An order was issued on August 22, 2018, advising the parties that the Motion to Dismiss was being converted to a Motion for Summary Judgment due to Respondent submitting evidence outside of the pleadings and giving Petitioner fifteen (15) days to make any additional submissions in accordance with Rule 56 of the Federal Rules of Civil Procedure. Petitioner filed additional submissions on September 10, 2018. (ECF Nos. 25 and 29).

         Petitioner filed an additional submission to his response on September 10, 2018, arguing, among other things, that the motion to dismiss should not be converted to a motion for summary judgment. However, if it is being converted, Petitioner argues he is entitled to discovery.[2]

         DISCUSSION

         A. STANDARD FOR SUMMARY JUDGMENT

         The federal court is charged with liberally construing the complaints filed by pro se litigants, to allow them to fully develop potentially meritorious cases. See Cruz v. Beto, 405 U.S. 319 (1972); Haines v. Kerner, 404 U.S. 519 (1972). The court's function, however, is not to decide issues of fact, but to decide whether there is an issue of fact to be tried. The requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts which set forth a federal claim, Weller v. Dep't of Social Servs., 901 F.2d 387 (4th Cir. 1990), nor can the court assume the existence of a genuine issue of material fact where none exists. If none can be shown, the motion should be granted. Fed.R.Civ.P. 56(c). The moving party bears the burden of showing that summary judgment is proper. Summary judgment is proper if there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Summary judgment is proper if the non-moving party fails to establish an essential element of any cause of action upon which the non-moving party has the burden of proof. Celotex, 477 U.S. 317. Once the moving party has brought into question whether there is a genuine dispute for trial on a material element of the non-moving party's claims, the non-moving party bears the burden of coming forward with specific facts which show a genuine dispute for trial. Fed.R.Civ.P. 56(e); Matsushita Electrical Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986). The non-moving party must come forward with enough evidence, beyond a mere scintilla, upon which the fact finder could reasonably find for it. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The facts and inferences to be drawn therefrom must be viewed in the light most favorable to the non-moving party. Shealy v. Winston, 929 F.2d 1009, 1011 (4th Cir. 1991). However, the non-moving party may not rely on beliefs, conjecture, speculation, or conclusory allegations to defeat a motion for summary judgment. Barber v. Hosp. Corp. of Am., 977 F.2d 874-75 (4th Cir. 1992). The evidence relied on must meet “the substantive evidentiary standard of proof that would apply at a trial on the merits.” Mitchell v. Data General Corp., 12 F.3d 1310, 1316 (4th Cir. 1993).

         To show that a genuine dispute of material fact exists, a party may not rest upon the mere allegations or denials of his pleadings. See Celotex, 477 U.S. at 324 (Rule 56(e) permits a proper summary judgment motion to be opposed by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves). Rather, the party must present evidence supporting his or her position through “depositions, answers to interrogatories, and admissions on file, together with . . . affidavits, if any.” Id. at 322; see also Cray Communications, Inc. v. Novatel Computer Systems, Inc., 33 F.3d 390 (4th Cir. 1994); Orsi v. Kickwood, 999 F.2d 86 (4th Cir. 1993); Local Rules 7.04, 7.05, D.S.C.

         B. ARGUMENT OF PARTIES/ANALYSIS

         Petitioner filed this action challenging the execution of his federal sentence. Specifically, Petitioner states in his response that he “challenges the execution of his 114-month federal sentence.” (ECF No. #20 at 2). Petitioner asserts that he was named in a criminal indictment returned by a federal grand jury on April 10, 2012, resulting in a detainer being lodged with the state of North Carolina by federal authorities. (Id.). Petitioner asserts that he was released from state custody to the custody of the United States Marshal Service on September 25, 2014. (Id.). Petitioner argues that he is entitled to all the time spent in state jail credited to his federal sentence because he was held at the request of federal officials. (Id.).

         Respondent argues that the computation of a federal sentence is the responsibility of the Attorney General of the United States and delegated to the BOP. (Id.). Respondent asserts that Petitioner was in the exclusive custody of federal authorities at the time he received his federal sentence so that the 114-month federal term of confinement commenced on November 18, 2014, the date it was imposed and the earliest date it could commence. (Id.). Further, Respondent asserts that since Petitioner was in exclusive federal custody, the provisions of Title 18 U.S.C. §3621 do not apply and a nunc pro tunc designation is not possible. (Id.).

         Respondent submitted the declaration of Forest Kelly (Kelly) who declares that he is employed by the United States Department of Justice, Federal BOP, as a Correctional Program Specialist at the Designations and Sentence Computation Center (DSCC) located in Grand Prairie, Texas. (ECF No.17-2, with attachments; (Id.).) The DSCC is responsible for the computation of federal inmate sentences. (Id.). Kelly reviewed the federal sentence computation conducted on the federal term of imprisonment for federal inmate Kwamane Monte Everett and declares that the sentence was computed in accordance with federal statute and BOP policy (Id.).

         Kelly declares that the computation of a federal sentence is the responsibility of the Attorney General of the United States, delegated by the Attorney General of the Federal Bureau of Prisons. 28 C.F.R. §0.96. (Id.). When performing the computation of a federal term of imprisonment, the BOP verifies an inmate's arrest and incarceration dates utilizing information provided by, but not limited to, applicable state law enforcement agencies, state courts, the United States District Courts, the United States Marshals Service, and the United States Probation Office. (Id.). In determining the commencement date of a federal sentence, the BOP is guided by 18 U.S.C. §3585(a), and Program Statement 5880.28, Sentence Computation Manual (CCCA of 1984) which provides that “ a sentence to a term of imprisonment commences on the date the defendant is received in custody awaiting transportation to, or arrives voluntarily to commence service at, the official detention facility at which the sentence is to be served.” (ECF No. 17-2 at4). Program Statement 5880.28 and Title 18 U.S.C. §3585(b) preclude the application of credit time that has already been credited against another sentence. (Id.). When a period of state presentence time has been credited against a state sentence, and the application of the presentence time was of no benefit to the inmate, the state presentence time that was of no benefit to the inmate will be credited to a concurrent federal sentence. (Doc. 17-2 at 4-5).

         Petitioner was arrested by state authorities in Greenville, North Carolina, on January 8, 2012, for state offenses. (ECF No. 17-2 at 2).This arrest resulted in the instant federal offenses of Interference with Commerce by Robbery and Aiding and Abetting, and Using or Carrying a Short Barreled Firearm During and in Relation to a Crime of Violence and Aiding and Abetting.[3] (Id.).On March 3, 2012, Everett was charged in Wake County, North Carolina, case Number 12CRS204912, with the unrelated state offenses of First Degree Murder, Robbery with a Dangerous Weapon, and Conspiracy to Commit Robbery with a Dangerous Weapon. (Id.).On April 10, 2012, Everett was named in a criminal indictment, charging him with the instant federal offenses of Interference with Commerce by Robbery and Aiding and Abetting, and Using or Carrying a Short Barreled Firearm During and in Relation to a crime of Violence and Aiding and Abetting. (Id.). The related state charges were subsequently dismissed on April 17, 2012. (Id.).

         On September 25, 2014, Everett was released from state custody, via unsecured bond, to the exclusive custody of authorities. (ECF 17-2 at 3; Attachment 4 to Kelly declaration). Everett was sentenced on November 18, 2014, in the U.S. District Court for the Eastern District of North Carolina, to a 114-month total term of imprisonment for Interference with Commerce by Robbery and Aiding and Abetting, and Using or Carrying a Short Barreled Firearm During and in Relation to a Crime of Violence and Aiding and Abetting. ((Id.; See Attachment 2 to Kelly's declaration). He was sentenced on November 19, 2014, in Wake County, North Carolina, Case Number 12CRS204912, to a 44-month to 65-month term of confinement for the unrelated state offenses of Accessory After the Fact - First Degree Murder, Robbery with a Dangerous Weapon, and Conspiracy to Commit Robbery with a Dangerous Weapon, with credit in the amount of 992 days, for time spent in presentence confinement from March 3, 2012 through November 19, 2014. (ECF No. 17-2 at 3). Furthermore, the sentence was ordered to run concurrently with Everett's federal term of imprisonment. ((Id.); See Attachment 5). Everett was also sentenced on November 19, 2014, in Wake County, North Carolina, Case Number 13CRS009725, ...


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