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Ivy v. Joyner

United States District Court, D. South Carolina

January 15, 2019

GREGORY D. IVY, Petitioner,
v.
HECTOR JOYNER, Warden, Respondent.

          REPORT AND RECOMMENDATION

          BRISTOW MARCHANT UNITED STATES MAGISTRATE JUDGE

         This Petition for a writ of habeas corpus was filed, pro se, pursuant to 28 U.S.C. § 2241. Petitioner is currently incarcerated at the Federal Correctional Institution in Estill.

         Respondent filed a motion to dismiss or in the alternative for summary judgment on October 2, 2018. As the Petitioner is proceeding pro se, a Roseboro order was entered by the Court on October 4, 2018, advising Petitioner of the importance of a dispositive motion and of the necessity for him to file an adequate response. Petitioner was specifically advised that if he failed to respond adequately, the Respondent's motion may be granted, thereby ending his case. Petitioner thereafter filed a response in opposition to the motion on November 9, 2018, and Respondent filed a reply on November 16, 2018.

         This matter is now before the Court for disposition.[1]

         Background

         On October 15, 2014, Petitioner was arrested by the Richmond County, Georgia, Sheriff's Office for Use of an Article with Altered ID, Possession of Marijuana, and Possession of a Firearm by a Convicted Felon. See Rohmer Affidavit, ¶ 4 & Attachment 1 (Documents from the Superior Court of Richmond County, Docket No. 2014-RCCR-1752). The charges were nolle prosequed on August 5, 2015. Id. However, on January 8, 2015, while Petitioner was still in the primary custody of the State of Georgia for Case Number 2014-RCCR-1752, his probation was revoked in Case Number 2012-RCCR-1557. See Rohmer Affidavit, ¶ 5 & Attachment 2 (Georgia Department of Corrections (“GADOC”), Revocation of Probation Case No. 2012-RCCR-1552). Petitioner was sentenced to serve 6 years, 2 months, and 2 days imprisonment. Id. Petitioner completed his state sentence on May 17, 2017. Id.

         In the interim, on January 21, 2015 the United States Marshal Service borrowed Petitioner from the GADOC via a federal writ; see Rohmer Affidavit, ¶ 6 & Attachment 3 (United States Marshals Service Prisoner Tracking System, USM-129); and the record before the Court shows that Petitioner was sentenced on July 30, 2015, to a 72-month term of imprisonment, to be followed by a three year term of supervision, by the United States District Court for the Southern District of Georgia for being a Felon in Possession of a Firearm in violation of 18 U.S.C. § 922(G)(1) and § 924(A)(2). See Rohmer Affidavit, ¶ 7 & Attachments 4 and 5. The United States District Court ordered this sentence to be served consecutively to the revoked state probation term in Richmond County Superior Court, Case Number 2012-RCCR-1557. See Rohmer Affidavit Attachment 4. Following his federal conviction and sentencing, Petitioner was returned to state custody on August 4, 2015. See Rohmer Affidavit Attachment 3.

         Since Petitioner's state sentence was completed on May 17, 2017, the Bureau of Prisons computed Petitioner's federal sentence as beginning on May 17, 2017, the day the GADOC turned Petitioner over to the exclusive custody of the United States Marshal Service. See Rohmer Affidavit, ¶ 11 & Attachment 2 Respondent's Exhibit 2 (Georgia Department of Corrections, Revocation of Probation Case No. 2012-RCCR-1552); see also Rohmer Affidavit Attachment 5. Petitioner currently has a projected release date of May 14, 2022, via Good Conduct Time (GCT) Release. See Rohmer Affidavit, ¶ 11. However, Petitioner asserts in this federal habeas action that he should have received credit on his federal sentence from January 21, 2015, when he was taken on a writ into federal custody, through July 30, 2015 (the date he was federally sentenced), and that he should also receive a nunc pro tunc designation with federal credit for the time he was in state custody from July 30, 2015 forward. Petitioner also separately complains that time spent in custody from January 21, 2015 (the date Petitioner was taken from state authorities on the federal writ) through August 4, 2015 (the date that he was returned to state custody) was not credited to his state sentence, and that those days should be credited toward his state sentence. See Petitioner's Memorandum in Opposition, p. 2, ¶ 4.

         With respect to his state sentence calculation, the Central Office Administrative Remedy Response states that documentation from the Georgia Department of Corrections verifies prior custody credit from January 8, 2015, through May 17, 2017, was spent in service of Petitioner's Georgia sentence [see Court Docket No. 1-1, p. 1(attached to Petition)]. As for his federal sentence, Petitioner is correct that he did not receive credit on his federal sentence from January 21, 2015 through the date of his return to state custody. It is also undisputed that, while the time from August 4, 2015 (the date of Petitioner's actual return to state custody) through May 17, 2017 has been credited to his state sentence, it has not been credited to his federal sentence.[2]

         I.

         (Exhaustion)

         Respondent does not contest that, to the extent Petitioner is challenging the Bureau of Prisons (“BOP”) decision not to credit him for prior time served in state custody, this claim may be brought under 28 U.S.C. § 2241, and that Petitioner has exhausted his administrative remedies with respect to this claim. See Rohmer Affidavit, ¶ 8 & Attachment 6; Court Docket No. 1-1; see also Hughes v. Slade, 347 F.Supp.2d 821 (C.D.Cal. 2004); Jimenez v. Warden, FDIC, Fort Devens, Massachusetts, 147 F.Supp.2d 24, 27 (D.Mass. June 8, 2001); 18 U.S.C. § 3585; Chua Han Mow v. United States, 730 F.2d 1308, 1313 (9th Cir. 1984) [ “It is only when a prisoner has exhausted his administrative remedies that he becomes entitled to litigate the matter in the district court.” ]. See also United States v. Mathis, 689 F.2d 1364, 1365 (11th Cir. 1982). Therefore, that claim is properly before this Court for review.

         II.

         (Custody ...


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