Kalasho v. United States

1

DHIA SHAKIR KALASHO, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

Civil Action No. 3:21-CV-171 (GROH)

United States District Court, N.D. West Virginia

October 4, 2022

REPORT AND RECOMMENDATION

ROBERT W. TRUMBLE UNITED STATES MAGISTRATE JUDGE

I. INTRODUCTION

On October 26, 2021, Petitioner, by counsel, filed in the Eastern District of Michigan a Petition for Habeas Corpus pursuant to 28 U.S.C. § 2241 (the “Petition”), challenging the calculation of his sentence. ECF No. 1.^[1] Petitioner was convicted in the Eastern District of Michigan in case number 18-CR-20063, but is currently housed in the Northern District of West Virginia at FCI Hazelton^[2] in Bruceton Mills, West Virginia. The case was transferred to this district on October 26, 2021. ECF No 2. On July 21, 2022, Petitioner paid the filing fee. ECF No 14.

The matter is now before the undersigned United States Magistrate Judge for a Report and Recommendation to the District Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and LR PL P 2. For the reasons set forth below, the undersigned recommends that the Petition be denied and dismissed with prejudice.

II. FACTUAL AND PROCEDURAL HISTORY

A. State Conviction and Sentence in Michigan

In 2017, Petitioner was arrested in Macomb County, Michigan for the offense of Controlled Substance Possession (Narcotic or Cocaine) Less than 25 Grams - 2^ndOffense, under Case No. 17-4364-FH and remained in state custody. ECF Nos. 19-2 at 1 - 2; 19-4 at 4. Also in 2017, Petitioner was charged in Macomb County, Michigan, Case No. 17-4196-FH with the following offenses: (1) Controlled Substance - Possession Narcotic/Cocaine Less Than 25 Grams in violation of Michigan Code 333.74032A5; (2) Controlled Substance - Possession Analogues in violation of Michigan Code 333.74032BA; and (3) Assault/Resist/Obstructing a Police Officer in violation of Michigan Code 750.81D1. Id.

Petitioner entered a guilty plea to all four offenses on February 15, 2018. ECF Nos. 19-4 at 4. On May 10, 2018, Petitioner was sentenced to: (1) a 178-day term of imprisonment in Case No. 17-4364-FH, with credit for 178 days already served from November 13, 2017, through May 10, 2018 [ECF Nos. 19-4 at 4 - 5; 19-11 at 7]; and (2) to a 1-to-15-year term of confinement in Case No. 17-4196-FH [ECF No. 19-12 at 5, 7]. Petitioner received 14 days of jail credit towards his state sentence in 17-4196-FH, from April 27, 2017, through April 28, 2017, and from August 7, 2017, through August 18, 2017. ECF Nos. 19-4 at 3 - 5; 19-12 at 7.

While in custody of the state of Michigan, Petitioner was borrowed by federal law enforcement pursuant to a writ of habeas corpus ad prosequendum on June 5, 2018, to address charges filed in the Eastern District of Michigan. ECF No. 19-5. The “Individual Custody/Detention Report” prepared by the United States Marshals Service shows that on June 5, 2018, Petitioner was picked up from Egeler Correction Facility pursuant to a writ of habeas corpus, to respond to the federal criminal charges described in Section II.B. herein. ECF No. 19-8 at 4. Petitioner was returned to Egeler Correctional Facility pursuant to the writ of habeas corpus on October 3, 2019. Id. On May 27, 2020, the state of Michigan paroled Petitioner who was then taken into custody by the U.S. Marshals to begin service of his federal sentence described below.

B. Conviction and Sentence in the Eastern District of Michigan^[3]

On January 11, 2018, a complaint was filed in case number 2:18-CR-20063 in the Eastern District of Michigan. ECF No. 1. On October 2, 2018, a third superseding indictment was returned which charged Petitioner with various drug trafficking offenses. ECF No. 41. On April 3, 2019, Petitioner entered a plea of guilty to Count 1 of the third superseding indictment which charged conspiracy to distribute a controlled substance, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846. ECF No. 68. On August 27, 2019,^[4] Petitioner was sentenced to 60 months of imprisonment. ECF No. 71.

On October 8, 2021^[5], Petitioner filed a motion^[6] for a writ of habeas corpus pursuant to 28 U.S.C. §2241 seeking an order which would direct the Bureau of Prisons to correct Petitioner's sentence credit. ECF No. 93. On October 26, 2021, the District Court for the Eastern District of Michigan entered an opinion and order transferring that motion to this district because Petitioner is incarcerated in this jurisdiction. ECF No. 94.

After transfer of the motion for habeas relief to this district, Petitioner sought additional relief in the Eastern District of Michigan. On November 18, 2021, Petitioner filed a motion to reduce sentence pursuant to 18 U.S.C. § 3582(c)(1)(A)(i). ECF No. 95. The district court denied Petitioner's motion to reduce sentence on January 24, 2022. ECF No. 100. Petitioner filed a notice of appeal and sought a certificate of appealability on February 2, 2022. ECF Nos. 103, 104. That matter remains pending in the Sixth Circuit, docket number 22-1091.

C. Instant Petition for Habeas Corpus Under § 2241

Petitioner's sole claim for relief is that the Bureau of Prisons improperly computed his sentence, and unlawfully failed to give him credit for all the time he served while in federal custody. ECF No. 1. Petitioner contends that he was primarily in federal custody on May 18, 2018, and his sentence should be calculated from that date. Id. at 2. According to Petitioner, he exhausted his administrative remedies as to his claim because he filed an appeal with the Central Office on June 4, 2021, but received no response within 40 days, as required. Id. at 10. Petitioner asks this Court to “enter an Order directing the Federal Bureau of Prisons to calculate Mr. Kalasho's sentence credit from May 18, 2018, as opposed to May 27, 2020.” ECF No. 1 at 11.

On September 9, 2022, Respondent filed a motion to dismiss, or in the alternative for summary judgment, along with a memorandum and exhibits in support. ECF Nos. 19, 19-1 through 19-12. Therein, Respondent argues that Petitioner is not entitled to credit for time he spent in Michigan state custody prior to commencing his federal sentence on May 27, 2020. ECF No. 19-1 at 6. Further, Respondent argues that Petitioner properly received no credit toward his federal sentence from May 18, 2018, through May 27, 2020, because during that period Petitioner was serving his state sentence, and was not in the primary custody of the United States. Id. Respondent also argues that Petitioner did not receive credit for that two year and nine-day period because all that time was credited toward Petitioner's state sentence in Michigan. Id. at 7. Respondent also argues that Petitioner is not entitled to credit for any time that Petitioner was in federal custody pursuant to a writ, from June 5, 2018, through October 3, 2019, because for that period Petitioner remained in the primary custody of the state of Michigan, and was only “borrowed” by federal authorities. Id. at 7 - 9. Finally, Respondent argues that Petitioner failed to exhaust his administrative remedies prior to filing his petition for habeas corpus relief. Id. at 9 - 12.

Petitioner filed a response on September 23, 2022, wherein he argues that he has “undertaken efforts to exhaust his administrative remedies prior to filing the instant petition.” ECF No. 20 at 1. Petitioner asserts that he filed an appeal to the Central Office on June 4, 2021^[7], and that pursuant to BOP Policy Statement No. 1330.18, a response was due not later than 40 days after the date of filing. Id. at 2. However, Petitioner contends that the response was not received until July 11, 2022, more than a year after Petitioner filed his appeal. Id.

On September 30, 2022, Respondent filed a reply, which asserted that Petitioner's response did not address the substantive arguments contained in the motion to dismiss.

ECF No. 21. Further, Respondent argued that Petitioner misrepresented the timeline of administrative appeal to the BOP Central Office. Id. at 1 - 2. Attached to the reply are exhibits that Respondent contends demonstrate the following timeline for Petitioner's administrative remedy filings: (1) Petitioner submitted an Informal Resolution Form (BP-8) on January 16, 2022, which was denied on January 29, 2022 [ECF No. 21-1]; (2) Petitioner prepared his BP-9 Request for Administrative Remedy on January 29, 2022, which was denied by the acting warden on February 17, 2022 [Id. at 3]; (3) Petitioner next submitted a Regional Administrative Remedy Appeal, which was received on March 4, 2022, and denied by the Regional Director of the Mid-Atlantic Region on April 6, 2022^[8][Id. at 4 - 5]; (4) Petitioner then prepared a Central Office Administrative Remedy Appeal on May 30, 2022, which was received on June 15, 2022, and denied on July 19, 2022 [Id. at 6 - 8; ECF No. 19-3 at 3].

III. LEGAL STANDARD

A. Review of Petitions for Relief

Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and the Court's Local Rules of Prisoner Litigation Procedure, this Court is authorized to review such petitions for relief and submit findings and recommendations to the District Court. This Court is charged with screening Petitioner's case to determine if “it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court.” Rule 4, Rules Governing Section 2254 Cases in the U.S. District Courts; see also Rule 1(b) Rules Governing Section 2254 Cases in the U.S. District Courts (a district court may apply these rules to a habeas corpus petition not filed pursuant to § 2254).

B. Post-Conviction Remedies and Relief

Prisoners seeking to challenge the validity of their convictions or their sentences are required to proceed under § 2255 in the district...