United States District Court, N.D. West Virginia
MEMORANDUM OPINION AND ORDER REJECTING REPORT AND
RECOMMENDATION [DKT NO. 20], DENYING RESPONDENT'S MOTION
TO DISMISS OR MOTION FOR SUMMARY JUDGMENT [DKT. NO. 13], AND
GRANTING IN PART PETITIONER'S § 2241 PETITION [DKT.
M. KEELEY UNITED STATES DISTRICT JUDGE
August 16, 2017, the petitioner, Richard Lee Bates
(“Bates”), filed a petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2241 (Dkt. No. 1). In his
petition, he alleges that, following its decision to grant in
part his request for a nunc pro
tunc designation, the Federal Bureau of Prisons
(“BOP”) miscalculated his credit for time spent
in state prison. Id. After the respondent, Jennifer
Saad (“Saad”), filed a motion to dismiss or, in
the alternative, motion for summary judgment (Dkt. No. 13),
the Honorable Michael J. Aloi, United States Magistrate
Judge, issued a Report and Recommendation
(“R&R”), recommending that the Court grant
Saad's motion and dismiss Bates's petition (Dkt.No.
de novo review of the R&R,  the Court concludes that the BOP
abused its discretion by selecting July 1, 2013, as the
retroactive start date for Bates's federal sentence.
Accordingly, it DENIES Saad's motion
(Dkt. No. 13), and GRANTS IN PART
Bates's § 2241 Petition (Dkt. No. 1).
November 2011, in Martinsville, Virginia, the Henry County
Sheriff's Office arrested Bates and charged him with
possession of a firearm and ammunition by a felon in the
Commonwealth of Virginia (Dkt. No. 20). After a federal grand
jury named Bates in a six-count indictment, Virginia loaned
him to the United States District Court for the Western
District of Virginia pursuant to a Writ of Habeas Corpus
Ad Prosequendum (Dkt. No. 13-3 at 1-2).
to a plea agreement, Bates pleaded guilty to Counts Three and
Four of the six-count federal indictment, charging him with
distribution of oxycodone, in violation of 21 U.S.C. §
841(a)(1), and possession of a firearm during and in relation
to a drug trafficking offense, in violation of 18 U.S.C.
§ 924(c)(1)(A) (Dkt. No. 13-3 at 5). He received a
sentence of 46 months of imprisonment on Count 3, and a
consecutive sentence of 60 months of imprisonment on Count 4,
for a total sentence of 106 months. Id. at 6.
Western District of Virginia returned Bates to the custody of
Virginia and lodged the federal judgment as a detainer. The
Henry Circuit Court, in Henry County, Virginia, sentenced
Bates to a 10-year term of imprisonment, with 5 years
suspended and credit for time served in pretrial custody
(Dkt. No. 13-3 at 11-12). Notably, the time Bates served in
pretrial custody ran from November 13, 2011 (the date of his
arrest), until August 30, 2012 (the day his state sentence
officially commenced), for a total of 291 days. Id.
at 13. When Bates completed his state sentence on March 9,
2016, Virginia transferred him to the custody of the United
States Marshals Service to begin serving his federal sentence
of 106 months. Id. at 14.
2016, while serving his federal sentence, Bates sought a two
level reduction of his 46-month sentence for distribution of
oxycodone pursuant to the newly enacted, so-called
“Drugs Minus Two” law, 28 U.S.C. § 994(u).
Id. at 15. The Western District of Virginia granted
Bates's motion and reduced his term of imprisonment on
Count 3 from 46 to 37 months, effectively reducing his total
federal sentence from 106 to 97 months. Id.
2016, the BOP sent a letter to his federal sentencing court
inquiring whether it would oppose a potential nunc pro
tunc designation of Bates's sentence as to Count 3.
Id. at 16-17. The court interposed no objection, and
the BOP, utilizing the five factors outlined in 18 U.S.C.
§ 3621(b), concluded that a nunc pro tunc
designation was appropriate “insofar as it related to
Count 3” (Dkt. Nos. 13-2 at 3; 13-3 at 18-19; 20).
effectuate the nunc pro tunc designation, the BOP
selected a retroactive start date for Bates's 37-month
sentence on Count 3 that would allow his federal sentence to
run partially concurrent to his state sentence (Dkt. No. 13-2
at 3). According to the BOP's calculation, Bates would
have satisfied his 37 months on Count 3 on March 8, 2016, the
day before Virginia released him to federal custody to begin
serving his federal sentence. Id. Based on this, the
BOP contends that Bates began serving his consecutive
60-month sentence on Count 4 on March 9, 2016. Id.
the BOP correctly determined that “a 37-month term of
imprisonment commencing on July 1, 2013 would be satisfied on
March 8, 2016, the day prior to the state sentence's
satisfaction date, ” id., is, as Bates has
aptly pointed out in his memorandum, “the crux of the
matter” (Dkt. No. 22). Notably, the span of time
between July 1, 2013, and March 8, 2016, is not 37 months,
but only 32 months and 8 days.
motion argues that Bates is not entitled to any additional
credit for time spent in state custody because all of the
time he spent in pretrial custody has already been ...