Dwight Major v. Warden Craig Apker , 576 F. App'x 284 ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-7210
DWIGHT AVON MAJOR,
Petitioner – Appellant,
v.
WARDEN CRAIG APKER,
Respondent – Appellee,
and
WARDEN SARA M. REVELL; ERIC HOLDER.; CHARLES E. SAMUELS,
Respondents.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever III,
Chief District Judge. (5:12-hc-02098-D)
Submitted: December 17, 2013 Decided: June 27, 2014
Before KING, DIAZ, and FLOYD, Circuit Judges.
Affirmed in part, vacated in part, and remanded with
instructions by unpublished per curiam opinion.
Dwight Avon Major, Appellant Pro Se. Michael Bredenberg, FEDERAL
MEDICAL CENTER, Butner, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Dwight Avon Major appeals from the district court’s
order denying his 28 U.S.C. § 2241 (2012) petition seeking
credit towards his federal sentence for time spent in Bahamian
prison prior to his conviction. The Bureau of Prisons (“BOP”)
and the district court denied Major’s request, finding that the
time period in question had already been applied to a Bahamian
conviction. We affirm in part, vacate in part, and remand with
instructions.
In 2001, Major was sentenced in the Commonwealth of
the Bahamas to two years’ imprisonment for possession of drugs
with the intent to distribute. In 2003, while still in custody,
Major was sentenced in the Bahamas to a two-year term of
imprisonment for making threats and obstructing justice. Those
sentences ran concurrently and expired on September 28, 2004. 1
On May 21, 2003, while in Bahamian custody, Major was convicted
in the Bahamas of conspiracy to import cocaine. However, the
Bahamian court did not impose a sentence on this third
conviction until November 2007.
On June 3, 2003, a grand jury in the Southern District
of Florida indicted Major on drug charges. On July 19, the
1
As with many dates in the record, the date fluctuates from
filing to filing.
2
Bahamian police executed a warrant from the United States for
Major’s arrest. The United States also commenced extradition
proceedings, which Major vigorously contested in the Bahamas for
several years.
On July 30, 2004, the Bahamian courts issued an
extradition warrant. On November 7, 2007, the Bahamian court
sentenced Major on his third conviction to five years in prison,
retroactive to October 11, 2003. On the same date, Major
appealed his third conviction and sentence in the Bahamian
courts, which had the effect of suspending the execution of the
decision. The Court of Appeal has not ruled on Major’s appeal
of his third conviction. Major was extradited on April 18,
2008.
On October 10, 2008, Major pled guilty in the Southern
District of Florida to a drug conspiracy charge. He
subsequently was sentenced to 108 months in prison with “credit
for time served in the Bahamas while awaiting extradition.” The
BOP then calculated a release date in 2011. However, in 2011,
after making inquiries as to Major’s legal status between 2004
and 2008, the BOP determined that Major was in the primary
custody of the Bahamas at that time and recalculated his release
date as May 4, 2016.
3
Major filed a grievance with the BOP seeking credit
towards his sentence from June 19, 2003 2 (the date on which he
was arrested) to April 18, 2008 (the date he was removed from
the Bahamas). He averred that the BOP had relied on incorrect
information from Bahamian officials. In support of Major’s
grievance, his lawyer obtained a letter from the Bahamian Deputy
Superintendent of Prisons dated October 11, 2011, stating that
Major was remanded to prison on June 23, 2003, pursuant to the
extradition request and that Major was not, at that time, a
custodial inmate serving a term of imprisonment.
The warden denied Major’s grievance, ruling that the
Designation and Sentence Computation Center had not yet reviewed
and verified the October 11, 2011 letter. Major appealed, and
his request for relief was denied at the regional level.
Specifically, the Administrator found that Major’s time spent in
Bahamian custody was credited to his Bahamian sentences.
Major appealed to the Central Office, providing a
letter dated November 18, 2011, from the Bahamian Records
Department, showing that Major had appealed his third Bahamian
conviction, and that the appeal was still pending. As such, the
official concluded that Major’s service of a Bahamian sentence
2
Major actually states that he was arrested on June 23.
4
concluded on March 16, 2003, 3 and, therefore, Major was in prison
solely for the purpose of awaiting extradition from March 16,
2003, until April 18, 2008. The Central Office denied the
appeal, ruling that Major’s time in prison was credited to his
Bahamian sentences and, thus, could not be credited to his
federal sentence.
Major then filed the instant § 2241 petition. In a
supplement, he submitted a decision by the Supreme Court of the
Bahamas regarding Major’s request for a declaratory judgment
that, from July 19, 2003, until April 18, 2008, Major was in
Bahamian custody solely pursuant to the extradition warrant and
not as a sentenced inmate. The Supreme Court ruled that Major’s
first two Bahamian sentences expired in September 2004. From
that date until April 18, 2008, Major was a “remand prisoner”
regarding both the extradition proceedings and his pending
appeal. The Court further noted that, had Major been in prison
solely awaiting appeal, he would have been entitled to bail;
however, Major was not permitted bail based on the extradition
proceedings.
3
Major avers that this date is a typographical error and
should be May 10, 2003. It is not clear, however, why the
correct date was not in September 2004 when Major’s first two
Bahamian sentences expired.
5
The Government filed a motion to dismiss, arguing that
Major could not receive the credit he requested because the time
period in question “has been, or is presumed to be, applied to
his Bahamian sentence.” The Government splits the credit
requested in two parts: (1) from June 19, 2003, to September 16,
2004, which was credited towards Major’s first two Bahamian
convictions, and (2) from September 16, 2004, to April 18, 2008,
which has not yet been credited to a Bahamian sentence, as his
third Bahamian sentence remains on appeal. However, the
Government argued that the BOP properly determined, pursuant to
its policies, that this time period will presumably be applied
to service of Major’s third sentence. The Government further
asserted that, pursuant to Bahamian law, the time spent in
custody awaiting appeal “shall be included in computing the term
of the sentence.”
In response, Major argued that the relevant statute,
18 U.S.C. § 3585(b) (2012), dictates that a prisoner is entitled
to prior custody credit so long as his time “has not been
credited” against another sentence. 4 Major argued that, to date,
4
The statute further provides that the prior incarceration
had to be served “as a result of the offense for which the
sentence was imposed.” 18 U.S.C. § 3585(b). Here, there is
some question as to whether Major’s incarceration could be
viewed as a result of his pending Bahamian appeal as well as, or
instead of, of the extradition offenses. Although both parties
(Continued)
6
his prison time has not been credited to any sentence, and
accordingly, he should be given federal credit for his prison
time in accordance with the plea agreement and the criminal
judgment. Major also submitted a letter from Keod Smith, his
Bahamian lawyer, opining that Major is entitled to an acquittal
regarding his third Bahamian conviction because the Bahamian
Government’s support of the extradition was tantamount to
withdrawal of the charges. As such, Smith concludes that Major
will not be subject to incarceration on his third conviction.
The district court denied Major’s petition. The court
ruled that credit for the time period between September 28,
2004, and April 18, 2008, “had already been applied to his third
Bahamian conviction.” The court also ruled that it was without
authority to award such credit in the first instance; instead,
the Attorney General, through the Bureau of Prisons, was
authorized to compute credit due. Major timely appealed.
We review the district court’s order denying a § 2241
petition filed by a federal inmate de novo. Yi v. Fed. Bureau
of Prisons, 412 F.3d 526, 530 (4th Cir. 2005). The BOP’s
determination is reviewed for an abuse of discretion. Barden v.
Keohane, 921 F.2d 476, 478 (3d Cir. 1990).
argued this issue in the district court, the court did not
address it and neither did the BOP.
7
First, we note that there appears to be no real
dispute regarding the time period prior to September 28, 2004. 5
Major’s Bahamian incarceration prior to that date was clearly
credited to his first two Bahamian convictions, and he does not
appear to argue otherwise on appeal. Accordingly, to the extent
the district court’s order denied Major’s request for credit
prior to September 28, 2004, we affirm the court’s judgment.
However, with regard to the time period between
September 28, 2004, and April 18, 2008, we conclude that the
district court’s order was in error. The court ruled that this
period of time was credited to Major’s third Bahamian
conviction. However, the court does not cite any facts or law
to support this conclusion. In fact, the record and the
Government (in its motion to dismiss) agree that the time period
between September 2004 and April 2008 has not yet been credited
to Major’s third sentence. This sentence is still pending on
appeal, and the parties do not dispute that, under Bahamian law,
the sentence is suspended pending a decision on the appeal.
5
The actual September date fluctuates a bit in the record
and filings. However, Major relies on the September 28, 2004
date in his informal brief, and his failure to pursue any prior
dates constitutes a waiver of the argument that he was entitled
to any credit prior to September 28, 2004. See 4th Cir. R.
34(b).
8
The district court also concluded that the court was
without authority to grant credit, as such discretion lay with
the Attorney General. It is true that a district court has no
power to give credit for time served and that that authority
rests solely with the BOP. See United States v. Wilson, 503
U.S. 329, 334-35 (1992). However, a district court may review
under § 2241 the BOP's ruling on an inmate’s request for
presentence credit. See Rogers v. United States, 180 F.3d 349,
358 (1st Cir. 1999); United States v. Koller, 956 F.2d 1408,
1417 (7th Cir. 1992). Here, Major properly exhausted his
administrative remedies, and the district court’s conclusion
that it was without authority to grant him relief is in error.
Turning to the issue of whether the BOP abused its
discretion, the BOP also concluded that the time period in
question was credited to Major’s Bahamian sentence. Because the
record reveals that Major was detained for nearly four years in
a Bahamian prison and that the time period has not yet been
credited to a Bahamian sentence, we conclude that the BOP’s
conclusions to the contrary are an abuse of discretion.
The relevant statute provides:
A defendant shall be given credit toward the service
of a term of imprisonment for any time he has spent in
official detention prior to the date the sentence
commences--
(1) as a result of the offense for which the sentence
was imposed; or
9
(2) as a result of any other charge for which the
defendant was arrested after the commission of the
offense for which the sentence was imposed;
that has not been credited against another sentence.
18 U.S.C. § 3585(b). While the BOP and the district court
concluded that Major was given credit towards his third Bahamian
sentence, the Government admits and the record clearly shows
that such credit has not yet been given. While credit may be
granted by the Bahamian court at some future time if Major’s
appeal is heard and rejected, the statute’s mandatory language
requires credit for certain time spent in prison (satisfying the
statutory language) that “has not been credited against another
sentence.” See Wilson, 503 U.S. at 333 (“Congress’ use of a
verb tense is significant in construing [§ 3585(b)].”).
While exercising its broad discretion, the BOP upon
reconsideration may conclude that Major is not entitled to
credit under § 3585(b) for one of any number of reasons.
However, neither the BOP nor the district court addressed the
effect of the suspension of the third Bahamian sentence, and
both instead incorrectly concluded that credit had already been
applied to that sentence. In so doing, neither the BOP nor the
district court examined or analyzed the letters from the
Bahamian officials or the Bahamian court order which described
relevant Bahamian law. Moreover, the district court did not
10
address Major’s attorney’s contentions regarding the lack of
probability that he would be required to serve a sentence on his
third Bahamian conviction.
Accordingly, we grant leave to proceed in forma
pauperis and vacate the district court's order with regard to
the time period between September 28, 2004, and April 18, 2008,
and remand with instructions for the court to enter an order
directing the BOP to reconsider Major’s request for sentencing
credit, taking into account Bahamian law regarding suspension of
a sentence pending appeal and the Government’s concession in its
motion to dismiss that the time period between September 2004
and April 2008 “has not yet been credited to another sentence.”
The remainder of the district court’s order is affirmed. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED WITH INSTRUCTIONS
11