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Miller v. CV. Rivera

United States District Court, E.D. Arkansas, Eastern Division

February 23, 2016

MARCUS RUSSELL MILLER, Reg #XXXXX-XXX Petitioner,
v.
CV. RIVERA, Warden, Federal Correctional Complex, Forrest City, Arkansas, Respondent.

RECOMMENDED DISPOSITION

BETH DEERE, Magistrate Judge.

I. Procedure for Filing Objections

This Recommended Disposition ("Recommendation") has been sent to Judge D.P. Marshall Jr. Any party to this suit may file written objections with the Clerk of Court. Objections must be specific and must include the factual or legal basis for the objection. An objection to a factual finding must identify the finding of fact believed to be wrong and describe the evidence that supports that belief. All objections are due within fourteen (14) days of filing of the Recommendation.

Parties are cautioned that, by not objecting, they may waive the right to appeal questions of fact. And, if no objections are filed, Judge Marshall can adopt this Recommendation without independently reviewing the record.

II. Introduction

Petitioner Marcus Russell Miller is currently serving a sixty-month sentence at the Federal Correctional Complex, Forrest City, Arkansas, for conspiracy to defraud the United States by obtaining false income tax returns. Mr. Miller challenges the manner in which the Bureau of Prisons ("BOP") has calculated his sentence. (Docket entry #1) Specifically, he claims "intentional and purposeful discrimination and abuse of BOP discretion." (#1, p. 4)

Although it is not clear, it appears that Mr. Miller challenges the BOP's decision to decline his request for a nunc pro tunc designation. (#1, p. 5) The result of that decision is that Mr. Miller did not receive credit towards his federal sentence for the nineteen years he spent in state custody. Mr. Miller alleges that other "similarly situated" inmates were granted nunc pro tunc designation but that the BOP failed to give his request "full and fair consideration." (#1, pp. 5-6)

Warden C.V. Rivera has responded to Mr. Miller's petition, contending that the BOP has correctly calculated the sentence. (#4) And Mr. Miller filed a reply to Warden Rivera's response. (#6) The Clerk recently transferred the referral in this case to the undersigned. (#7, #8) For the following reasons, Judge Marshall should DENY and DISMISS Mr. Miller's petition, with prejudice.

III. Background

On April 13, 1994, the United States charged Mr. Miller with conspiracy to defraud the United States by obtaining false income tax returns, in violation of 18 U.S.C. ยง 286. (#4-1, p. 30) At the time, Mr. Miller was serving Oklahoma state sentences for larceny, drug possession, and assault-and-battery on a police officer. (#1, p. 4)

On September 22, 1994, Mr. Miller appeared on a writ of habeas corpus ad prosequendum in the United States District Court for the Western District of Oklahoma and pleaded guilty to the federal charge. (#4-1, p. 31) On November 30, 1994, the federal judge handed down a sixty-month sentence that Mr. Miller was to serve in the BOP. (#4-1, p. 32; #4-1, pp. 40-43) As Mr. Miller notes, the sentencing judge ordered his sentence to run consecutive to any prior sentences imposed. (#1, p. 4; #4-1, p. 32; #4-1, p. 41)

After sentencing, federal authorities returned Mr. Miller to Oklahoma state authorities so that he could finish serving his state sentences. (#1, p. 4) On October 28, 2013, Mr. Miller finished serving his state sentences. At that time, he was taken into federal custody and began serving his federal sentence.

On June 17, 2009, Mr. Miller filed a "petition for a writ of nunc pro tunc " in his federal criminal case. (#4-1, p. 32) On July 13, 2009, the sentencing court denied the petition, noting that the imposition of a consecutive federal sentence precluded crediting Mr. Miller's federal sentence for time spent serving his state sentences. (#4-1, pp. 51-53) Mr. Miller appealed, and the Tenth Circuit Court of Appeals affirmed the denial. (#4-1, pp. 55-60)

The BOP calculated Mr. Miller's federal sentence as beginning October 28, 2013, the date his state sentences expired. (#4-1, p. 63) The BOP considered Mr. Miller's nunc pro tunc request, but noted that the federal court's consecutive sentence ...


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