United States District Court, D. South Carolina
GREGORY D. IVY, Petitioner,
HECTOR JOYNER, Warden, Respondent.
REPORT AND RECOMMENDATION
BRISTOW MARCHANT UNITED STATES MAGISTRATE JUDGE
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.
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.
matter is now before the Court for disposition.
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2014-RCCR-1752, his probation was revoked in Case Number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.
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.
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.
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.
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.