Dwight Major v. Warden Craig Apker

UNPUBLISHED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Affirmed in part, vacated in part, and remanded with instructions by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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