United States District Court, D. New Hampshire
Darnell L. Lewis
Warden, Federal Correctional Institution, Berlin, New Hampshire
REPORT AND RECOMMENDATION
K. Johnstone United States Magistrate Judge.
Lewis, who appears pro se, petitioned this court for
a writ of habeas corpus, pursuant to 28 U.S.C. § 2241,
while he was an inmate at the Federal Correctional
Institution in Berlin, New Hampshire
(“FCI-Berlin”). In his petition, Lewis claims
that the federal Bureau of Prisons (“BOP”) has
improperly calculated the term of his incarceration.
Specifically, he contends that the BOP erred by failing to
give him credit against his federal sentence for time he
spent in the custody of the United States Marshals Service
(“USMS”) between April 14, 2009, and January 1,
2010. Before this magistrate judge for a report and
recommendation is respondent's second motion for summary
judgment. Petitioner objects. For the reasons that follow,
respondent's motion should be denied.
judgment is appropriate only when the record, read in the
light most favorable to the nonmovant, presents no genuine
issue as to any material fact and reflects the movant's
entitlement to judgment as a matter of law.” Morse
v. Cloutier, 869 F.3d 16, 22 (1st Cir. 2017) (citing
Fed.R.Civ.P. 56(a); Schiffmann v. United States, 811
F.3d 519, 512 (1st Cir. 2016)).
April 14, 2009, Lewis was arrested in Michigan on drug
charges by officers of the Kalamazoo Police Department on
drug charges. At the time, he was on parole from a sentence
for a prior state conviction. Two days after Lewis was
arrested, on April 16, 2009, an assistant county prosecutor
sent a fax to the county jail, directing the jail to release
Lewis “to the custody of the U.S. Marshall's Office
. . . as the [state] charges against [him] . . . will be
dismissed to due to [his] Federal indictment.”
Resp't's Mot. Summ. J., Ex. A., Attach. A (Doc. No.
18-1), at 2. “There was no writ of habeas corpus
prosequendum issued by the federal court ordering Michigan to
produce Lewis to answer the federal charge.”
Resp't's Mot. Summ. J. (Doc. No. 14), at 1. On the
same day that the assistant prosecutor sent the fax quoted
above, Lewis was: (1) released by the county jail to the
USMS; and (2) arrested by the federal Drug Enforcement Agency
Individual Custody/Detention Report (“ICDR”)
prepared by the USMS shows that Lewis was in the custody of
the USMS from April 16 to December 29, 2009. See
Resp't's Mot. Summ. J., Ex. A, Attach. B (Doc. No.
18-2), at 3. “On December 29, 2009, [Lewis] was
returned to state custody with the federal judgment lodged as
a detainer.” Id., Ex. A, Woods-Coleman Decl.
(Doc. No. 18) at ¶ 8. “On May 11, 2010, [Lewis]
paroled from his Michigan state sentence into the custody of
the USMS for service of his federal sentence.”
Id. at ¶ 9. At some point, the BOP performed a
sentence calculation using May 11, 2010, as the starting date
for Lewis's federal incarceration. Thus, the time between
Lewis's arrest by the DEA on April 16, 2009, and his
return to state custody on December 29 was not credited
toward his federal sentence.
summary judgment record includes an April 26, 2011, email
exchange between a BOP inmate classification and computation
technician and a specialist in the Central Records Section at
the MDOC. In the first e-mail, the BOP technician made the
following request for information:
This inmate paroled from MDOC on 04/03/2007. He violated his
parole on 4/14/2009. Was he given credit from
04/14/2009-05/11/2010 when he [was] discharged from his MDOC
parole violation or was there a break in his credit during
that time. He believes he is entitled to credit from us
[i.e., BOP] for some of that time. Please verify his
Resp't's Mot. Summ. J., Ex. A, Attach. C (Doc. No.
14-1), at 2.
MDOC records specialist responded:
There has been no break in service on his Michigan sentence.
He has received credit since July 17, 1998 and continues to
be credited with service toward his maximum term while in
Id. The content of that e-mail was confirmed two
days later, in a letter from another MDOC employee. See
id., Attach. H (Doc. No. 18-8), at 2.
September 2015, Lewis asked the BOP for credit against his
federal sentence for the time he spent in the custody of the
USMS between April 14, 2009, and January 1,
2010. His request generated this response:
On 04-14-09 you were arrested by state PD and taken to jail
for Delivery of Controlled Substance. The DEA interviewed you
inside the jail the same day. You were released to USM[S]
custody on 04-16-2009. On 04-14-2009 your parole violation
was entered into the data system and you were sent back to
continue your state prison term until you paroled on
5-11-2010, which is the same day your computation began with
the Bureau of Prisons. You were primary state custody until
the date of parole.
Pet. (Doc. No. 1) at 9.
with that response, Lewis began the process of seeking an
administrative remedy from the BOP. In his initial inmate
request, he stated, in pertinent part:
This petitioner asserts that he was initially arrested by the
federal authorities and was then taken to the local jail for
processing and holding purposes. This movant is relying on
Barden v. [K]eohane, [according] to which the BOP
has the discretion to retroactively designate a state prison
as the place of a prisoners confinement to serve a federal
sentence under 18 U.S.C. § 3621(b).
Pet. at 10. The BOP responded as follows:
A review was conducted and found that on April 14, 2009, you
were arrested by Michigan State Police and taken to Kalamazoo
County Jail, for the Delivery of Control Substance. The same
day you were questioned by the Drug Enforcement
Administration. On April 14, 2009, your Parole Violation was
entered into Michigan Department of Corrections data system.
On April 16, 2009, you were released, inadvertently, to
United States Marshal Service. The Kalamazoo County Jail had
no information pertaining to your Parole Violation that had
been entered on April 14, 2009. You were considered primarily
state custody and you were sent back to the state to complete
your probation violation until you were paroled ...