Cross v. Andrews

MEMORANDUM OPINION & ORDER

Anthony J. Trerga, United States District Judge.

Petitioner Patrick Wayne Cross is a federal inmate serving a 144-month sentence at FCI-Petersburg for robbery, see 18 U.S.C. § 2111, and possessing with the intent to distribute heroin, see 21 U.S.C. § 841(a)(1). The Commonwealth of Virginia has lodged a detainer on Cross so that after he completes his federal sentence, he will be transferred to state custody to serve a three-year sentence for burglary, see Va. Code § 18.2-91, and grand larceny of a firearm, see id § 18.2-95. Cross has filed a petition for a writ of habeas corpus under 28 U.S.C. § 2241, in which he urges this Court to order his state and federal sentences to run concurrently. [Dkt. No. 1], Respondent moves for summary judgment. [Dkt. No. 6]. Cross has received the notice required by Local Rule 7(K) and Roseboro v. Garrison. 528 F.2d 309 (4th Cir. 1975), [Dkt. No. 6-1], and he has not responded. Because the execution of Cross's sentence does not run afoul of the laws, constitution, or treaties of the United States, respondent's motion will be granted, and the petition will be dismissed.

I. Background

Cross was arrested by, and taken into the custody of, the United States Marshals Service, on August 8, 2012, for the federal crimes of robbery and possessing with the intent to distribute heroin. [Resp't Ex. (REX) 1, Hodge Decl. ¶ 6 & Attach. 3]. While still in federal custody on June

14, 2013, Cross was charged in Salem County, Virginia, for the state crimes of statutory burglary, grand larceny of a firearm (two counts), possessing a firearm, and property damage. [Id., Hodge Decl. ¶ 7]. That same day, the Salem County Circuit Court imposed a three-year sentence for the burglary and grand larceny charges, and the remaining charges were entered nolle prosequi. [Id]. The circuit judge ordered that the state sentences "shall run consecutively with... any other sentence imposed against the defendant in this Court or in any other Court." [Dkt 1-3]. Cross remained in federal custody throughout these state proceedings. [REX 1, Hodge Decl. ¶ 7]. The following year, on August 19, 2013, Cross pleaded guilty to the federal charges, and the U.S. District Court for the Western District of Virginia imposed a 204-month sentence for each charge, "to be served concurrently." [Id. Attach. 4]. Cross was remanded to the custody of the U.S. Marshals, with a recommendation that he receive drug treatment in prison and be confined at FCI Burner, North Carolina, or FCI Beckley, West Virginia. [Id.].

The duration of Cross's federal sentence later was reduced to 144-months' incarceration after the government sought a reduction based on Cross's substantial assistance. See Fed. R. Crim. P. 35(b). [REX 1, Attach. 5]. The Order amending the judgment states that "[a]ll other terms and conditions of the defendant's original sentence shall remain the same." [Id.].

Cross's projected release date from federal custody is October 29, 2022. [REX 1, Attach. 6]. This projection includes 376-days' credit for the time Cross spent in federal custody before he was convicted and sentenced: from August 8, 2012 through August 18, 2013. [Id., Attach. 6 & Hodge Decl. ¶ 10]. The Commonwealth of Virginia has lodged a detainer on Cross requiring his transfer to state custody to serve his three-year state sentence after his federal sentence is completed. [Id., Attach. 6].

In the § 2241 petition Cross challenges his federal sentence on the ground that it should be served concurrently with his state sentence. In support, he points out that the record is silent about whether his federal sentence should be served consecutively or concurrently with his state sentence. He further insists that the sentencing transcript reveals the federal judge's intent to have the sentences run concurrently.

II. Standard of Review

In reviewing respondent's motion for summary judgment, the Court views all facts and makes reasonable inferences in the light most favorable to petitioner, the nonmoving party. See Eline v. Town of Ocean City. Md., 7 F.4th 214, 220 (4th Cir. 2021). "Summary judgment is appropriate when no genuine issue of material fact is in dispute and the moving party is entitled to judgment as a matter of law." Rodriguez v. Ratledee. 715 Fed.Appx. 261, 265 (4th Cir. 2017) (citing United States v. Leak. 123 F.3d 787, 794 (4th Cir. 1997)).

III. Analysis

Respondent argues that Cross is not entitled to relief because the undisputed facts demonstrate that he is not in custody in violation of the constitution, laws, or treaties of the United States. In particular, respondent contends that the Bureau of Prisons (BOP) properly computed Cross's sentence, and, further, that the BOP has no authority to control how the Commonwealth of Virginia executes its sentence.

Summary judgment is warranted for respondent....