UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA

v. Crim. Action No. 17-58 (EGS) DOMINIC RANDY QUEEN,

Defendant.

MEMORANDUM OPINION AND ORDER

I. Introduction

Defendant Dominic Randy Queen (“Mr. Queen”), proceeding pro

se, is serving a sixty-month concurrent term of imprisonment at

the Rivers Correctional Institution in Winton, North Carolina,

after pleading guilty to two counts in the five-count

indictment: (1) unlawful possession of a firearm by a convicted

felon, in violation of

(g)(1); and (2) unlawful

possession with intent to distribute marijuana, in violation of

(a)(1), 841 (b)(1)(D). See J., ECF No. 47 at 1-

3. 1 Mr. Queen claims that the Court’s written judgment conflicts

with the Court’s oral pronouncement of the sentence—

specifically, the written judgment fails to state that he will

receive credit for the time he served in custody before

sentencing. Def.’s Mot. for Amend. (“Def.’s Mot.”), ECF No. 49

1 When citing electronic filings throughout this Opinion, the Court cites to the ECF page number, not the page number of the filed document. at 2-3.

Mr. Queen understands, based on the oral pronouncement,

that he is entitled to receive credit for all of the time that

he served in custody from his initial arrest on February 25,

2017 until his sentencing hearing on September 25, 2018.

. Mr. Queen contends that the Federal Bureau of Prisons (“BOP”)

is subjecting him to an eighty-four month prison term rather

than a sixty-month prison term because BOP calculated his

sentence from the sentencing hearing instead of the initial

arrest.

Mr. Queen urges this Court to amend the written

judgment pursuant to Federal Rule of Criminal Procedure 36.

.

The government opposes Mr. Queen’s motion, arguing that

there is no clerical error in the written judgment. Gov’t’s Mot.

to Transfer (“Gov’t’s Mot.”), ECF No. 53 at 1. According to the

government, BOP correctly calculated Mr. Queen’s jail-time

credit in this case as required by federal law, and BOP

attributed most of Mr. Queen’s jail-time credit to his parole

revocation proceedings in the Superior Court of the District of

Columbia (“D.C. Superior Court”).

The government moves to

transfer Mr. Queen’s motion, construed as a habeas corpus

petition under

, to the United States District

Court for the Eastern District of North Carolina, the district

where Mr. Queen is presently incarcerated.

2 Pending before the Court are: (1) Defendant’s Motion for

Amendment of the Written Judgment Pursuant to Federal Rule of

Criminal Procedure 36; and (2) United States’ Motion to Transfer

Defendant’s Rule 36 Motion, Construed as a Habeas Petition Under

, to the Eastern District of North Carolina.

Upon careful consideration of the parties’ submissions, the

applicable law, and the entire record herein, the Court

construes Mr. Queen’s motion as a petition for habeas corpus

under

, and such a petition must be brought in

the district in which Mr. Queen is presently incarcerated.

Therefore, the government’s motion is GRANTED. Mr. Queen’s

motion shall be TRANSFERRED to the United States District Court

for the Eastern District of North Carolina.

II. Background

On February 25, 2017, officers from the District of

Columbia’s Metropolitan Police Department (“MPD”) arrested

Mr. Queen after conducting a traffic stop and recovering a

loaded firearm and drugs from his vehicle. Statement of Offense,

ECF No. 33 at 2-3. Eleven days later, on March 7, 2017, the

United States Parole Commission issued a warrant based on

Mr. Queen’s violation of the conditions of release in his D.C.

Superior Court case. Warrant, ECF No. 36 at 1-2. On March 22,

2017, a federal grand jury indicted Mr. Queen on five related

drug and firearm charges in this case. Indictment, ECF No. 1 at

3 1-3.

On May 31, 2018, Mr. Queen pled guilty to being a felon in

possession of a firearm, in violation of

(g)(1)

(“Count One”); and possessing with the intent to distribute

marijuana, in violation of

(a)(1), 841 (b)(1)(D)

(“Count Four”). Plea Agreement, ECF No. 32 at 1 ¶ 1. Pursuant to

the Rule 11(c)(1)(C) plea agreement, the parties agreed that a

total sentence of sixty months of imprisonment, to be followed

by four years of supervised release, was an appropriate

sentence.

at 2 ¶ 4. Later, the parties agreed that three

years of supervised release was the appropriate period. Gov’t’s

Mot., ECF No. 53 at 4. To address the parole warrant detainer

from the D.C. Superior Court case, the Court released Mr. Queen

to the custody of the United States Marshals Service on June 22,

2018. Gov’t’s Mot., ECF No. 53 at 3.

The United States Parole Commission revoked Mr. Queen’s

parole in the D.C. Superior Court case and imposed a revocation

sentence of twenty-one months.

(citing Gov’t’s Ex. 1, ECF

No. 53-1 at 11). Mr. Queen completed his parole revocation

sentence on September 14, 2018, after receiving jail-time credit

from the date of the issuance of the parole warrant (March 7,

2017) through June 21, 2018, in addition to good time credit.

On the same day, BOP erroneously released Mr. Queen from

federal custody despite the pending charges in this case.

On

4 September 19, 2018, this Court scheduled a status hearing for

September 21, 2018, and the Court ordered Mr. Queen to self-

surrender at the status hearing. See Min. Order of Sept. 19,

2018; see also Def.’s Mot. to Continue Hearing/Defendant

Released by Error, ECF No. 40 at 1. Mr. Queen complied with the

Court’s Order. Min. Entry of Sept. 21, 2018.

On September 25, 2018, the Court sentenced Mr. Queen. At

sentencing, the Court accepted the parties’ proposed sentence

under Rule 11(c)(1)(C). Sentencing Hr’g Tr. (Sept. 25, 2018),

ECF No. 52 at 14. Before the oral pronouncement of the sentence,

the Court asked the government for its position on whether the

Court should run the sentence concurrently with or consecutively

to any other sentence.

. “[W]ith respect to the parole

sentence,” the government stated that it did not take the

position that the sixty-month prison term should be consecutive

to the parole sentence.

Neither party, however, informed the

Court that Mr. Queen had already completed his parole revocation

sentence on September 14, 2018. See

. The Court

decided that the sentence in the instant case would run

concurrently with Mr. Queen’s parole revocation sentence.

.

The Court sentenced Mr. Queen to a sixty-month concurrent

term of imprisonment as to Counts One and Four.

. The

Court imposed a three-year concurrent term of supervised

5 release.

The Court ordered the prison term to run

concurrently with the parole revocation sentence.

Following the oral pronouncement, the Court informed

Mr. Queen that he would receive credit for the time that he had

served in custody.

. The Court engaged in a discussion

with the United States Probation Officer regarding the estimated

jail-time credit:

THE COURT: But I’m going to run the sentence -- I’m going to accept the sentence. It’s 60 months. You’ll get credit for the time served. I’m not sure how much time remains. I don’t know, maybe -- I don’t know. I hate to guess because I’m always wrong, but it’s about three years or so. Ms. Kraemer-Soares, I don’t know.

THE PROBATION OFFICER: That sounds about right.

THE COURT: That’s about right. It could be less than, I just don’t know because you’re getting credit for -- you’ve been incarcerated for 19 months, right, so 15 percent every year will be reduced, so it’s going to be reduced, so it’s somewhere around 36 months or so. I don’t know. You have a better calculation. And that’s with credit, so it’s not quite 36 months. Do you understand that?

THE DEFENDANT: Yes.

.

The Court reiterated the sentence to Mr. Queen: “I’ll run

the sentences -- It’s Count 1 and Count 4, so I’ll run the

sentence of 60 months concurrent, impose a period of supervision

of three years on each count concurrent, and that’s concurrent

6 with the parole sentence that you are serving, all right.”

.

Consistent with the oral pronouncement, the Court entered

the written judgment on October 4, 2018. J., ECF No. 47 at 1-8.

The written judgment states that Mr. Queen shall serve a sixty-

month concurrent term of imprisonment as to Counts One and Four.

. And the sixty-month concurrent term of imprisonment

would run concurrently with the term of imprisonment imposed by

the United States Parole Commission.

Mr. Queen did not

appeal the sentence to the United States Court of Appeals for

the District of Columbia Circuit (“D.C. Circuit”). See generally

Docket for Crim. Action No. 17-58.

Less than a year after the entry of the written judgment,

the Clerk of Court filed Mr. Queen’s pro se Rule 36 motion on

July 28, 2019. See Def.’s Mot., ECF No. 49 at 1. On September 3,

2019, the government filed its motion to transfer Mr. Queen’s

Rule 36 motion, construed as a Section 2241 petition, to the

Eastern District of North Carolina. See Gov’t’s Mot., ECF No. 53

at 1. Mr. Queen filed his response, styled as “Defendant’s Reply

to the Government’s Motion for Order to Transfer His Rule 36

Motion, Construed as a Habeas Petition Under

,

to the Eastern District of North Carolina.” See Def.’s Resp.,

ECF No. 55 at 1. The government then filed its reply brief. See

Gov’t’s Reply, ECF No. 57 at 1. On April 21, 2020, Mr. Queen

7 submitted a letter to the Court. See Def.’s Letter, ECF No. 58

at 1. The motions are ripe for the Court’s adjudication.

III. Analysis

Under Rule 36 of the Federal Rules of Criminal Procedure,

“the court may at any time correct a clerical error in a

judgment, order, or other part of the record, or correct an

error in the record arising from oversight or omission.” Fed. R.

Crim. P. 36 (emphasis added). Mr. Queen seeks an amendment to

the written judgment to: (1) reflect “the Court’s intent to

credit the nineteen (19) months he had already served prior to

his sentencing”; and (2) “conform the sentence [to] the Court’s

intentions pronounced orally on September 25, 2018.” Def.’s

Mot., ECF No. 49 at 7. In Mr. Queen’s view, the written judgment

should include an explicit statement that he will receive credit

for time served. See

; see also Def.’s Resp., ECF No. 55

at 7-8. Mr. Queen, however, is not entitled to relief under Rule

36.

Having carefully reviewed the transcript from the

sentencing hearing, the Court cannot find that the written

judgment contains a clerical error within the meaning of Rule

36. See Sentencing Hr’g Tr., ECF No. 52 at 14-15; see also J.,

ECF No. 47 at 3. During the sentencing hearing, the Court did

not state that an express term of the sentence would include

credit for the time that Mr. Queen had already served in

8 custody. See Sentencing Hr’g Tr., ECF No. 52 at 14-15. Although

the Court stated that Mr. Queen would receive “credit for the

time served,” the Court made clear that its prediction could be

“wrong” with respect to the specific amount of Mr. Queen’s jail-

time credit.

(“I’m not sure”; “I hate to guess”; “I

don’t know”; “I just don’t know”). The Court’s statement—that

Mr. Queen would receive credit for the time served in custody—is

consistent with the plain language of

(b).

By its terms, Mr. Queen “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 . .

. that has not been credited against another sentence.”

(b). As the Supreme Court has explained, “[a]fter a

district court sentences a federal offender, the Attorney

General, through the BOP, has the responsibility for

administering the sentence,” which includes calculating jail-

time credit. United States v. Wilson,

(1992).

“Because the offender has a right to certain jail-time credit

under § 3585(b), and because the district court cannot determine

the amount of the credit at sentencing, the Attorney General has

no choice but to make the determination as an administrative

matter when imprisoning the defendant.” Id. (emphasis added).

Blood v. Bledsoe,

(3d Cir. 2011) is

illustrative. There, a sentencing judge stated during the

9 sentencing hearing that “the time [the defendant] served to date

will be credited to this conviction.” Blood,

.

The United States Court of Appeals for the Third Circuit (“Third

Circuit”) held that the sentencing judge’s statement, “when read

in context, merely reflect[ed] the [sentencing judge’s]

prediction that the BOP would credit the disputed time toward

the [state] sentence under

(b).”

The Third

Circuit explained that “district courts have no authority to

credit time toward a sentence under § 3585(b)—that function

rests in the sole authority of the BOP.” Id. 2

2 Mr. Queen’s argument—that the Court has the authority to award him credit for time served under Section 5G1.3 of the United States Sentencing Guidelines—is unavailing. See Def.’s Resp., ECF No. 55 at 3-10. Section 5G1.3 did not apply to Mr. Queen’s sentence because he was not subjected to an “undischarged” term of imprisonment or an “anticipated” state term of imprisonment. U.S.S.G. § 5G1.3. In fact, Mr. Queen’s parole revocation sentence was discharged as of September 14, 2018. Gov’t’s Reply, ECF No. 57 at 4. Mr. Queen’s reliance on the Third Circuit’s decision in Ruggiano v. Reish,

(3d Cir. 2002) is misplaced. In that case, the Third Circuit held that a federal district court had authority under U.S.S.G. § 5G1.3(c) to adjust a sentence for time served on a state conviction. Ruggiano,

. As the government correctly notes, the “holding [in Ruggiano] has been superseded by more recent amendments to the Sentencing Guidelines, which the Third Circuit expressly acknowledged in Blood v. Bledsoe,

(3d Cir. 2011).” Gov’t’s Reply, ECF No. 57 at 5 n.1. Finally, the Court rejects Mr. Queen’s contention that this Court “intended to exercise [its] authority to adjust [his] sentence to account for all the 19 months of time he had served prior to his sentencing including the time served on his parole sentence.” Def.’s Resp., ECF No. 55 at 6. The Court expressly accepted the agreed-upon sentence in the Rule 11(c)(1)(C) plea agreement and imposed sixty months of imprisonment without any adjustments. See Sentencing Hr’g Tr., ECF No. 52 at 14, 18. 10 Here, the government argues—and the Court agrees—that a

district court lacks the authority to “assess its own

calculation of credit for time served in a particular case”

because “‘that authority rests exclusively with the BOP.’”

Gov’t’s Mot., ECF No. 53 at 6 (quoting United States v. Ross,

(7th Cir. 2000)). That being said, the

government contends that the Court should construe Mr. Queen’s

motion as a challenge to: (1) BOP’s calculation of his jail-time

credit attributable to this case; and (2) BOP’s computation of

his release date. Id. at 7. Mr. Queen asserts that he “is NOT

challenging how the BOP calculated his sentence.” Def.’s Resp.,

ECF No. 55 at 9.

Nonetheless, the Court is not bound by the label that

Mr. Queen attaches to his pro se Rule 36 motion. See Castro v.

United States,

, 381–82 (2003). The Court may

recharacterize Mr. Queen’s motion to, among other things,

“create a better correspondence between the substance of [his]

pro se motion’s claim and its underlying legal basis.”

The

Court liberally construes Mr. Queen’s motion and filings given

his status as a pro se prisoner. See Davis v. U.S. Sentencing

Comm’n,

(D.C. Cir. 2013). In doing so, it is

clear that Mr. Queen disagrees with the BOP’s calculation of his

jail-time credit attributable to the sixty-month term of

imprisonment in this case. See Def.’s Mot., ECF No. 49 at 1-7.

11 The crux of Mr. Queen’s motion challenges BOP’s calculation

of the length of his confinement. See

Based on his own

calculations, Mr. Queen claims that his projected release date

should be May 31, 2021 with good time credit and the nineteen

months that he served in custody prior to sentencing in this

case. See id. at 3. But the government explains that “[t]he

discrepancy between the BOP’s calculation and the proposed

release date in [Mr. Queen’s] motion is because [he] seeks to

attribute all of the time he spent in custody from his arrest

(February 25, 2017) until his sentencing hearing (September 25,

2018) as jail credit in this case.” Gov’t’s Mot., ECF No. 53 at

7.

The government confirms that “BOP did calculate

[Mr. Queen’s] jail credit in this case, as it does for every

inmate pursuant to federal law.” Id. at 6. According to BOP’s

calculation, Mr. Queen “had only 20 days of jail credit

attributable to this case: 10 days for the period from [his]

arrest (February 25, 2017), until the parole warrant was issued

for [his] [D.C.] Superior Court case (March 7, 2017), plus 10

days for the period after [his] completion of his parole

revocation sentence (September 15, 2018), until the day before

[he] was sentenced in this case (September 24, 2018).” Id. at 7.

The government asserts that BOP attributed most of Mr. Queen’s

jail-time credit to his parole revocation proceedings in the

12 D.C. Superior Court case. Id. (stating that “[a] BOP

representative informed government counsel . . . that the BOP

believes it properly attributed most of that time to defendant’s

parole revocation proceedings in his [D.C.] Superior Court

case”). And the government correctly notes that “federal law

prohibits [Mr. Queen] from receiving dual credit.” Id.

A petition for a writ of habeas corpus pursuant to

is the proper vehicle for challenges to the

execution of a defendant’s sentence, the administration of his

sentence, or the length of his confinement. See Wilkinson v.

Dotson,

(2005) (explaining that challenges to

the fact or duration of confinement lie at the core of habeas

corpus). The government contends—and the Court agrees—that

“[Mr. Queen’s] motion should be construed as a challenge to the

BOP’s calculation of his jail credit attributable to this case,

and to the BOP’s determination of his release date.” Gov’t’s

Mot., ECF No. 53 at 7.

“A federal court can only issue a writ of habeas corpus if

(1) the petitioner is physically confined within the court’s

territorial jurisdiction, and (2) the court has personal

jurisdiction over the petitioner’s immediate custodian.” Jeong

Seon Han v. Lynch,

(D.D.C. 2016) (citing

Rumsfeld v. Padilla,

(2004)). “This means

that, as a general matter, courts may grant habeas relief only

13 ‘within their respective jurisdictions.’”

(quoting

(a)); see also Stokes v. U.S. Parole Com’n,

(D.C. Cir. 2004) (“[I]n habeas cases involving present

physical confinement, jurisdiction lies only in one district:

the district of confinement.” (citation and internal quotation

marks omitted)).

Here, Mr. Queen is serving his sentence at the Rivers

Correctional Institution in Winton, North Carolina, and the

warden is his immediate custodian. This Court does not have

personal jurisdiction over the warden because the warden is

located in the Eastern District of North Carolina. See Padilla,

(“Whenever a § 2241 habeas petitioner seeks to

challenge his present physical custody within the United States,

he should name his warden as respondent and file the petition in

the district of confinement.”). Where, as here, the Court lacks

jurisdiction over a Section 2241 motion, the Court “has the

authority to dismiss the action or transfer it [to the

appropriate district] in the interest of justice.” Stern v. Fed.

Bureau of Prisons,

(D.D.C. 2009).

Having construed Mr. Queen’s motion as a habeas petition under

, the Court will exercise its authority, in the

interest of justice, to transfer Mr. Queen’s motion to the

appropriate forum. See

.

14 IV. Conclusion and Order

For the reasons set forth above, Mr. Queen is not entitled

to relief under Rule 36 of the Federal Rules of Criminal

Procedure. Mr. Queen’s Rule 36 motion, construed as a habeas

petition under

, shall be transferred to the

United States District Court for the Eastern District of North

Carolina, the district in which Mr. Queen is incarcerated.

Accordingly, it is hereby

ORDERED that the United States’ Motion to Transfer

Defendant’s Rule 36 Motion, Construed as a Habeas Petition Under

, to the Eastern District of North Carolina, ECF

No. 53, is GRANTED; it is further

ORDERED that Defendant’s Motion for Amendment of the

Written Judgment Pursuant to Federal Rule of Criminal Procedure

36, ECF No. 49, is TRANSFERRED to the United States District

Court for the Eastern District of North Carolina; it is further

ORDERED that the Clerk of Court shall terminate Mr. Queen’s

motion, ECF No. 49, and mail a copy of this Memorandum Opinion

and Order to Mr. Queen’s address of record.

SO ORDERED.

Signed: Emmet G. Sullivan United States District Judge May 27, 2020

15