UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Theodore Jones

v. Civil No. 17-cv-365-LM Opinion No.

FCI Berlin, Warden

O R D E R

Petitioner Theodore Jones, who is presently incarcerated at

the Federal Correctional Institution in Berlin, brings a

petition for a writ of habeas corpus. See

. He

challenges a decision of the Bureau of Prisons (“BOP”), which

determined that Jones should not receive presentence credit for

the time he served in state custody with the Connecticut

Department of Corrections (“DOC”). Before the court is

respondent’s motion for summary judgment. Jones objects. For

the following reasons, respondent’s motion is denied.

STANDARD OF REVIEW

A movant is entitled to summary judgment if it “shows that

there is no genuine dispute as to any material fact and [that

it] is entitled to judgment as a matter of law.” Fed. R. Civ.

P. 56(a).1 “An issue is ‘genuine’ if it can ‘be resolved in

1 Neither party disputes that, in resolving respondent’s motion, the court should employ the framework set forth in the Federal Rules of Civil Procedure. See Nunez v. Warden, Fed. favor of either party,’ and a fact is ‘material’ if it ‘has the

potential of affecting the outcome of the case.’” Xiaoyan Tang

v. Citizens Bank, N.A.,

(1st Cir. 2016). In

reviewing the record, the court construes all facts and

reasonable inferences in the light most favorable to the

nonmovant. Kelley v. Corr. Med. Servs., Inc.,

(1st Cir. 2013).

Under

, a prisoner “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.”

(b). In order for the prisoner to

be entitled to such credit, the time spent in official detention

must have been “as a result of the offense for which the

sentence was imposed” and cannot have been “credited against

another sentence.”

§ 3585(b)(1). The parties agree that

Jones’s petition is properly before this court, because Jones

has exhausted his administrative remedies at the BOP. See

Rogers v. United States,

(1st Cir. 1999)

(stating that “[o]nce administrative remedies are exhausted . .

. prisoners may then seek judicial review of any jail-time

Corr. Inst., Berlin, N.H., No. 16-cv-129-JL,

, at *1 (D.N.H. July 24, 2017), R. & R. adopted by

(Aug. 10, 2017); see also Whitmore v. Parker,

, 231 & n.2 (10th Cir. 2012) (stating that courts have discretion to apply the Federal Rules of Civil Procedure in § 2241 habeas proceedings).

2 credit determination . . . by filing a habeas petition under 28

U.S.C. § 2241”).

BACKGROUND

The following facts are undisputed, unless otherwise noted.

In January 2012, Jones began serving a term of special parole on

a Connecticut state sentence, which was set to expire in January

2018. Under Connecticut law, special parole is a mandatory

period of parole that the defendant must complete after serving

his term of imprisonment. See

-125e.

On October 2, 2012, Jones was arrested by state authorities

for a number of state charges relating to drugs and firearms.

On the same day, a parole officer issued a “remand to actual

custody order” to the Connecticut DOC. This order directed the

Connecticut DOC to hold Jones in custody for violation of the

conditions of his special parole. See

-124a(j)(1)-1(15), 54-124a(j)(1)-4;

.

On April 10, 2013, while still in custody, Jones was

indicted on federal drug and firearm charges related to his

October 2012 arrest. Later that year, Jones pleaded guilty to

two of the federal charges and, on October 8, 2013, he was

sentenced to 94 months imprisonment. The federal court

recommended to the BOP “[t]hat [Jones] receive credit for time

3 served.” Doc. no. 10-7 at 3 of 4. On October 17, the state

charges arising from Jones’s October 2012 arrest were dismissed.

During this time, the proceedings relating to Jones’s

parole violation remained pending. See

-124a(j)(1)-6 (“Parole revocation procedures premised upon

criminal misconduct that is the subject of prosecution shall be

continued until the criminal matter is disposed.”). On November

25, 2013, a parole revocation hearing was held before a hearing

examiner, and Jones admitted that he had violated the terms of

his special parole. The hearing examiner made the following

recommendation: “This officer recommends revoke and reparole to

Mr. Jones’ Federal Detainer.” Doc. no. 10-9 at 3 of 3.

On December 5, 2013, the Connecticut Board of Pardons and

Paroles (the “parole board”) appears to have accepted the

hearing officer’s recommendation, because it issued the

following “Board Action” in Jones’s case: “Revoked/Reparoled.”

Doc. no. 1-2 at 18 of 22. Once special parole is revoked, the

parole board is required to issue a mittimus “declaring the

cause of commitment and requiring the warden of the correctional

institution . . . to receive and keep such person for the period

fixed by the judgment of the Board.”

-124a(j)(1)-9(p). The mittimus issued in Jones’s case,

dated December 5, 2013, states that his parole was revoked on

4 December 5, 2013, and orders that Jones be confined until April

4, 2014.

Federal authorities took custody of Jones on April 10,

2014. Once in federal custody, Jones requested that the BOP

credit towards his federal sentence the 428 days that he spent

in state custody before his parole revocation. The BOP denied

the request because it determined that the time in state custody

was “spent serving [the] state parole revocation sentence.”

Doc. no. 10-15 at 9 of 9. This petition followed.

To summarize the relevant dates:

(1) On October 2, 2012, Jones was arrested and held on state drug and firearm charges, and a parole officer issued a “remand to actual custody order” for Jones’s violation of the terms of his special parole.

(2) On October 8, 2013, Jones was sentenced on the federal charges to which he had pleaded guilty.

(3) On December 5, 2013, the parole board revoked Jones’s special parole, and issued a mittimus ordering that Jones be confined until April 4, 2014.

(4) On April 10, 2014, federal authorities took custody of Jones.

DISCUSSION

Respondent does not argue, as a general matter, that there

is any legal barrier preventing Jones from relying on

. Respondent contends only that, based on the undisputed

facts, Jones cannot demonstrate that the time he requests “has

not been credited against another sentence.”

5 3585(b). Specifically, respondent asserts that the only

reasonable inference from the record is that Jones was sentenced

to approximately eighteen months for his parole violation, with

credit for the time Jones spent detained prior to the revocation

hearing. Thus, Jones would not be entitled to credit for the

time he spent in custody between October 2012 and December 2013,

because that time has already been credited towards the sentence

for his parole violation.

Jones counters that there is a genuine dispute of material

fact as to the length of his parole revocation sentence. In

Jones’s view, a reasonable inference from the record is that the

parole board sentenced him to approximately four months for his

parole violation: December 5, 2013 to April 10, 2014.

Consequently, the time he spent in state custody prior to his

parole revocation should be credited towards his federal

sentence, because it was time spent in official detention that

has not been credited against another sentence.

Assuming, as respondent appears to concede, that Jones may

otherwise be entitled to relief under

, the

court concludes that there is a genuine issue of material fact

as to the length of Jones’s parole revocation sentence.

Therefore, the court denies respondent’s motion for summary

judgment.

6 At bottom, respondent’s argument is that it would “not make

sense” for the parole board to sentence Jones to a term of

confinement of four months, because that would mean that Jones

would have been forced to serve “dead time”—i.e., time not

credited towards any sentence—while awaiting the revocation

hearing. Doc. no. 10 at 6 n.2. Respondent argues that

Connecticut law and policy recognize that defendants are to be

given credit for any time served in custody prior to trial.

While respondent’s inference may be reasonable, it is not

the sole reasonable inference that may be drawn from this

record. As Jones points out, there is no evidence in the record

that explicitly shows that the parole board considered Jones’s

prehearing confinement when it made its decision. Indeed, the

decision of the board contains no information except the

following notation: “Revoked/Reparoled.” Doc. no. 1-2 at 18 of

22. It is entirely unclear how the parole board fixed April 4,

2014 as the date of release. Given that the federal court had

already sentenced Jones and ordered the BOP to credit Jones for

time served, the parole board may have declined to consider such

time in fixing Jones’s parole revocation sentence. Or perhaps

the parole board simply neglected to account for the period

Jones spent in prehearing confinement.

Thus, absent more information that sheds light on either

the general procedure that the parole board follows in these

7 situations, or the specific circumstances relating to Jones’s

sentence, the court concludes that there is a genuine issue of

material fact that precludes summary judgment.

CONCLUSION

For the reasons stated herein, respondent’s motion (doc.

no. 10) is DENIED.

SO ORDERED.

__________________________ Landya McCafferty United States District Judge

February 7, 2018

cc: All Counsel of Record

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