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Dennis Roie v. J.T. Shartle

November 14, 2011


The opinion of the court was delivered by: Jerome B. Simandle U.S. District Judge


SIMANDLE, District Judge:

This matter comes before the Court upon petitioner Dennis Roie's ("Petitioner") submission of an amended petition and it appears that:

1. On August 26, 2011, the Clerk received Petitioner's § 2241 petition ("Petition"). The Petition, a five-page document, suggested that Petitioner, a federal inmate currently confined at the F.C.I. Fairton, Fairton, New Jersey, wished to assert challenges related to the holding of Barden v. Keohane, 921 F.2d 476 (3d Cir. 1990). See id. at 2.

2. On October 6, 2011, this Court issued a memorandum opinion and order ("October Order") addressing the challenges stated in the Petition. See Docket Entry No. 2. The content of the Court's lengthy October Order need not be repeated in the instant Memorandum Opinion and, thus, it shall suffice to state that the Court: (a) dismissed Petitioner's challenges without prejudice, since these challenges appeared unexhausted; and, in addition, (b) explained to Petitioner the limited scope of review allowed to federal courts under the holding of Barden. Specifically, the Court detailed as follows:

In Barden, the BOP contended that it had no discretion to consider giving credit for state sentences that were: (a) served; and (b) imposed to run concurrently with federal sentences. The Court of Appeals disagreed, pointing out that the United States Attorney General (or the BOP, as the Attorney General's delegatee) had discretionary power to calculate federal sentences by crediting the already-served state sentence. The term "discretionary power" means just that: upon good faith consideration of the statutory factors, the BOP may either grant or deny such credit. Indeed, had the BOP been obligated to grant credit, it would have no discretion. See Barden, 921 F.2d at 483 ("We hold only that the Bureau has power [but not the obligation] to grant relief"). Therefore, the role of the federal court sitting in habeas review is limited to determining whether the BOP gave the prisoner's application for nunc pro tunc credit good faith consideration in light of the applicable statutory factors; absent evidence that the BOP exercised its discretion in an impermissible way, the federal court sitting in habeas review is obligated to defer to the BOP's determination reached in its exercise of the discretionary power plainly established by the statutory regime. See, e.g., Galloway v. Warden of F.C.I. Fort Dix, 2009 U.S. Dist. LEXIS 71201 (D.N.J. Aug. 12, 2009), reconsid. denied, Galloway v. Bureau of Prisons, 2009 U.S. Dist. LEXIS 82000 (D.N.J. Sept. 4, 2009), aff'd, 358 Fed. App'x 301 (3d Cir. 2009), app. dismissed, 385 Fed. App'x 59 (3d Cir. 2010), cert. denied, Galloway v. Zickefoose, 131 S. Ct. 1709 (2011).*fn1 Therefore, Petitioner's challenges here could have presented a viable claim only if Petitioner asserted facts indicating that the BOP, being served with Petitioner's request to grant Petitioner nunc pro tunc credit either: (i) outright refused to consider the factors enumerated in § 3621(b); or (ii) exercised its discretion in an impermissible way. See id. Here, however, the Petition contain no single fact so asserting.

Id. at 7-10 (footnote in original).

3. The Court's October Order closed with the statement that, in the event Petitioner did seek the Barden credit through administrative means, and the BOP either refused to consider § 3621(b) factors or exercised its discretion in an impermissible way, Petitioner could file an amended § 2241 habeas petition challenging the so-deficient determination. See id. at 10 and 14, and n. 5.

4. On October 27, 2011, Petitioner submitted his amended petition ("Amended Petition").

See Docket Entry No. 4. While the submission made by Petitioner in conjunction with his filing of the Amended Petition was voluminous, see id. (reflecting a 36-page document), the actual Amended Petition is brief, see id. at 1-5; and the remainder of the submission is consumed by Petitioner's exhibits ("Exhibits"). See id. at 6-35.

5. The Exhibits verify that Petitioner did, indeed, exhaust his administrative remedies at all three levels of the Bureau of Prisons ("BOP"). The response to Petitioner's challenges, issued by the Central BOP Office / National Inmate Appeals ("Central Office"), reads as follows:

This is in response to your Central Office Administrative Remedy Appeal in which you request the Bureau of Prisons recompute your sentence, to run concurrent to your state sentence. You provide no new information in this matter beyond that which you supplied at the institution and regional levels. However, as a result of Barden v. Keohane, 921 F.2d 476');">921 F. 2d 476 (3 Cir. 1990) your case was reviewed for a "nunc pro tunc" designation. We have reviewed your appeal according to the factors provided in 18 U.S.C. §3621(b). In your case, we have determined the relevant factors under the statute are (2), (3), and (4). With respect to factor (2), your instant federal offenses is Armed Bank Robbery, Aiding and Abetting, and Use of a Firearm During and in Relation to a Crime. With respect to factor (3), our records reveal that at the time of sentencing for your instant offense, you were in custody of the State of Pennsylvania. You were sentenced to a 6 year term for Manufacture, Sale, Deliver, or Possess Drugs. In addition, your criminal history includes convictions for Involuntary Manslaughter, and institutional infractions of Giving/Accepting Money without Authorization and Fighting with Another Person. Finally, considering factor (4), any statement by the Court which imposed the sentence; the federal Judgment and Commitment Order was silent regarding the relationship of the federal sentence to any impending state sentence. Title 18 U.S.C. §3584, Multiple Terms of Imprisonment states, in part: "Multiple terms of imprisonment imposed at different times run consecutively unless the court orders that the terms are to run concurrently." However, the sentencing Court was contacted and requested to provide input regarding your request. The Court stated they have no position on retroactivity, but requested we assess your conduct and behavior while incarcerated. Based on the foregoing, we have determined that a "nunc pro tunc" designation is not consistent with the goals of the criminal justice system due to the nature of your state conviction, repetitive criminal conduct, and the intent of the court. Additionally, the [Willis] credit you seek has already been applied toward your state sentence. Your sentence has been computed as directed by federal statute and Program Statement 5880.28, Sentence Computation Manual . . . . Your appeal is denied.

Docket Entry No. 4, at 19.

6. In accord with Petitioner's challenges raised administratively, Petitioner's Amended Petition now asks the Court to award Petitioner "a" credit, which would allow him to have the term of his state confinement deducted from the federal term he is currently serving; in support of his request, Petitioner: (a) cites the holding of Willis v. United States, 438 F.2d 923 (5th Cir. 1971); (b) reiterates, once again, his reference to Barden; and, in addition, (c) asserts, generally, that [P]petitioner negotiated a plea agreement with the Commonwealth of Pennsylvania . . . . In an apparent oversight, [P]petitioner's . . . assume[d] that the plea agreement was valid at the time of its formation. . . . [However, P]petitioner's . . . faith in the concurrent sentence recommendation in his plea agreement was fostered, or at least not dispelled, by the State prosecutor and sentencing judge, [and if Petitioner's faith in the validity of concurrent sentence recommendation was misplaced, then his] his guilty plea was not knowing and voluntary. The State prosecutor, defense counsel, and [the state] court should have known that the [s]tate [c]court had no authority to dictate ...

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