United States District Court, E.D. Arkansas, Eastern Division
RASHAD WEARING Reg. #XXXXX-XXX, Petitioner,
ANTHONY HAYNES, Warden FCI-Forrest City, Respondent.
PROPOSED FINDINGS AND SUPPLEMENTAL RECOMMENDED DISPOSITION
J. THOMAS RAY, Magistrate Judge.
This Proposed Findings and Supplemental Recommended Disposition ("Recommendation") has been sent to United States District Judge J. Leon Holmes. You may file written objections to all or part of this Recommendation. If you do so, those objections must: (1) specifically explain the factual and/or legal basis for your objection; and (2) be received by the Clerk of this Court within fourteen (14) days of the entry of this Recommendation. By not objecting, you may waive the right to appeal questions of fact.
On December 9, 2013, Petitioner, Rashad Wearing ("Wearing"), initiated this § 2241 action. In his habeas Petition, he argued that the Bureau of Prisons ("BOP") failed to credit his federal sentence with approximately seven months of "prior custody" time from December 29, 2004 to July 20, 2005. See Docs. 1, 2 & 12.
Respondent Haynes, in his Response, argued that the BOP had properly calculated all "prior custody credit" that Wearing was entitled to receive on his federal sentence and that the approximately seven months in question could not be credited toward his federal sentence because all of that time had been credited toward Wearing's state sentence. Doc. 9.
The Recommended Disposition, dated April 28, 2015, suggested that this habeas claim should be dismissed, with prejudice, because it lacked merit. Doc. 31. However, in reaching that conclusion, this Court acknowledged a potential problem in the record:
While the records from the BOP and the State of Virginia confirm that Wearing was given credit on his state sentence for the period from December 29, 2004 to July 15, 2005, there is a discrepancy regarding whether his state sentence was credited with the five days of detention from July 16, 2005 to July 20, 2005. See Doc. 2, at 7 (BOP records stating that, according to state officials: (1) Wearing "satisfied [his] state sentence" on July 20, 2005; (2) his state sentence was credited with time spent in custody "from October 12, 2004, through July 15, 2005"; and (3) "the credit [he was] seeking was awarded toward [his] state sentence"); Doc. 9-1, at 16 (BOP records stating that, according to state officials, "jail credit" was applied to Wearing's state sentence from October 12, 2004 to July 15, 2005, and he was "released" on July 20, 2005); Doc. 9-1, at 29 (BOP records showing that credit was applied to Wearing's federal sentence beginning July 21, 2005); Doc. 9-1, at 10 & Doc. 19-2, at 1-2 (Virginia records stating that Wearing had a "Custody Responsibility Date" of July 15, 2005, and was "released" from the Virginia Department of Corrections to the USMS detainer on July 20, 2005).
Id. at 10 n.8. Notwithstanding the noted five-day "discrepancy, " this Court concluded that, because the record "generally suggested" that Wearing's state sentence had been properly credited with all of his prior custody time, between December 29, 2004, and July 20, 2005, it "need not resolve the discrepancy regarding the five-day period from July 16, 2005, to July 20, 2005."
On May 19, 2015, United States District Judge J. Leon Holmes adopted the Recommended Disposition and entered a Judgment dismissing Petitioner Wearing's § 2241 action, with prejudice. Docs. 34 & 35.
On October 22, 2015, the Eighth Circuit Court of Appeals: (1) vacated the May 19, 2015 Order and Judgment; and (2) directed the district court to resolve the following issue: Did the Virginia Department of Corrections ("VDC") credit Wearing's state sentence for violating his probation with the five days between July 16 and July 20, 2005? Doc. 45. 
On November 17, 2015, this Court ordered Respondent to file a properly supported Response that established with precision the answer to that question. Doc. 48.
On December 15, 2015, Respondent filed a "Response to Court Order, " along with a supporting Affidavit from James D. Crook, Supervisory Attorney for the BOP. Doc. 54. In his Affidavit, Mr. Crook stated the following:
On November 9, 2015, I received a letter from the Virginia Department of Corrections. In their correspondence, they verified that the appellant, Rashadi Andre Wearing, had received credit for the time period in question. See Attachment A, VaDOC Letter. The time in ...