Grigsby, Melvin v. Bledsoe, B. A. , 223 F. App'x 486 ( 2007 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted February 7, 2007*
Decided February 8, 2007
Before
Hon. JOHN L. COFFEY, Circuit Judge
Hon. KENNETH F. RIPPLE, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 06-3284
MELVIN GRIGSBY, Appeal from the United States
Petitioner-Appellant, District Court for the Southern
District of Illinois
v.
No. 03-832-GPM
B.A. BLEDSOE,
Respondent-Appellee. G. Patrick Murphy,
Chief Judge.
ORDER
Melvin Grigsby petitioned for a writ of habeas corpus under 28 U.S.C. § 2241to compel the Bureau of Prisons to credit his federal term with the time he spent in
state custody before his federal sentencing. The district court concluded that
federal law prohibits giving Grigsby credit for this period and denied his petition.
We agree and affirm the judgment.
On March 28, 1993, state authorities in California took Grigsby into custody
on a robbery charge. He was convicted in state court, and on August 13, 1993, he
*
After an examination of the briefs and the record, we have concluded that oral
argument is unnecessary. Thus, the appeal is submitted on the briefs and the record. Fed. R.
App. P. 34(a)(2).
No. 06-3284 Page 2
was sentenced to nine years’ imprisonment. About a month later, federal
authorities executed a writ of habeas corpus ad prosequendum and took custody of
Grigsby to answer an indictment charging him with committing a federal drug
offense prior to entering state custody. He was convicted of conspiracy to possess
with intent to distribute crack cocaine, and on August 19, 1994, he was sentenced to
200 months’ imprisonment to run concurrently with his undischarged California
sentence. Grigsby was then returned to a California facility, where he remained
until he was paroled to federal officials to complete the remainder of his federal
sentence.
After exhausting his administrative remedies, Grigsby filed his § 2241
petition claiming that he should have received credit against his federal sentence
for the period between his arrest by California authorities on March 28, 1993, and
his sentencing in federal court on August 19, 1994. The magistrate judge assigned
to review Grigsby’s petition recommended that the district court deny it. As to the
period before Grigsby’s state sentencing (March 28, 1993, to August 12, 1993), the
magistrate judge reasoned that the petition was moot because the BOP already had
credited this time against Grigsby’s federal sentence. As to the period between
Grigsby’s state sentencing and his federal sentencing (August 13, 1993, to August
19, 1994), the magistrate judge reasoned that 18 U.S.C. § 3585(b), which governs
the award of federal credit for periods of prior incarceration, prohibited crediting
this period against Grigsby’s federal sentence because the California Department of
Corrections already had credited the time against his state sentence. See 18 U.S.C.
§ 3585(b). The magistrate judge further concluded that BOP Program Statement
5880.28(2)(c), which allows credit for time spent in “nonfederal presentence
custody” in certain instances where the federal and state sentences run
concurrently, did not provide an alternate basis for awarding the credit Grigsby
sought. See Program Statement 5880.28(2)(c), Sentence Computation Manual of
1984.
The magistrate judge notified Grigsby that he had just ten days to file any
objections to the proposed resolution of his § 2241 petition. The notice warned that
failure to object would result in a waiver of the right to appeal. Within ten days,
Grigsby filed a single page entitled “Objections,” which reads in full:
Petitioner respectfully objects to the magistrate judge, Report
and Recommendation/Proposed Findings of Fact and Conclusions of
Law.
If petitioner is allowed to file additional papers will the court
please inform petitioner of the time limit for doing so.
No. 06-3284 Page 3
Afterward the district court adopted in full the magistrate judge’s proposed
resolution. Citing Federal Rule of Civil Procedure 72(b), which provides that any
party disagreeing with a magistrate judge’s report and recommendation on a
dispositive motion must file “specific, written objections,” the district court
concluded that it need not undertake de novo review in this case because Grigsby’s
submission was so general. See Fed. R. Civ. P. 72(b). Nonetheless, the court noted
that it “fully agree[d]” with the magistrate judge’s “findings, analysis, and
conclusions.” The court then dismissed Grigsby’s petition and later denied his
motion for reconsideration.
On appeal Grigsby presses his contention that his petition should have been
granted to the extent that it seeks credit against his federal sentence for the period
between his California sentencing on August 13, 1993, and his federal sentencing
on August 19, 1994. Before reaching that argument, however, we must address the
government’s argument that Grigsby failed to comply with Rule 72(b) and thus
waived the right to challenge the dismissal of his § 2241 petition. A party who fails
to abide by that rule waives appellate review of both factual and legal questions.
See United States v. Hall, 462 F.3d 684, 688 (7th Cir. 2006). The government
argues that Grigsby’s submission fails to fulfill Rule 72(b)’s mandate that a party
file “specific” objections. See Fed. R. Civ. P. 72(b).
We have interpreted “specific” as used in Rule 72(b) to require only that a
party “specify each issue for which review is sought and not the factual or legal
basis for the objection.” Johnson v. Zema Sys. Corp., 170 F.3d 734, 741
(7th Cir. 1999). The magistrate judge addressed only the facts and law relating to
whether Grigsby was entitled to presentence credit. Since this question is the only
question presented by Grigsby’s § 2241 petition, and given that Grigsby was
proceeding pro se, we conclude that his timely objection was sufficient under Rule
72(b) to preserve his challenge on appeal. See United States v. Sawaf, 74 F.3d 119,
122 (6th Cir. 1996) (pro se litigants’ letter stating only that “[w]e object to the report
and recommendation” satisfied Rule 72(b) given the limited nature of the legal
question presented), cited with approval in Johnson, 170 F.3d at 741.
We therefore take up the merits. Our review is de novo. Glaus v. Anderson,
408 F.3d 382, 386 (7th Cir. 2005). Grigsby acknowledges § 3585(b), which prohibits
the BOP from giving credit for prior custody that already has “been credited against
another sentence.” 18 U.S.C. § 3585(b). Grigsby further admits that California
authorities already credited the disputed time period against his state sentence.
But relying on Program Statement 5880.28(2)(c) and our decision in Kayfez v.
Gaselle, 993 F.2d 1288 (7th Cir. 1993), Grigsby insists that the same period should
be credited against his federal sentence because that sentence was ordered to run
concurrently with his California sentence. Grigsby is mistaken.
No. 06-3284 Page 4
Program Statement 5880.28(2)(c) provides that if a prisoner’s federal and
state sentences are concurrent, and the federal sentence is to run longer than the
state sentence (not counting any credits), “[p]rior custody credits shall be given for
any time spent in non-federal presentence custody that begins on or after the date
of the federal offense up to the date that the fist sentence begins to run, federal or
non-federal.” Program Statement 5880.28(2)(c). The BOP refers to these credits as
“Willis time credits.” See Willis v. United States, 438 F.2d 923 (5th Cir. 1971).
We recognized in Kayfez v. Gaselle, 993 F.2d 1288 (7th Cir. 1993), that by
sanctioning Willis time credits the BOP often permits what amounts to a form of
“double counting,” despite the language in § 3585(b). See Kayfez, 993 F.2d at 1290.
In Kayfez, the BOP had refused to credit against the petitioner’s federal sentence
the time he spent in state custody before receiving his first sentence (federal in that
case) because that time already had been credited to his concurrent state sentence.
Id. at 1289. The BOP insisted that, because his state sentence was longer than his
federal sentence, the period he sought credit for did not qualify as “Willis time.” Id.
at 1290. We concluded, however, that because the petitioner had been in
presentence custody for 416 days, and his state sentence was longer than his federal
sentence by only 358 days, he needed a 58-day credit to his federal sentence in order
to receive the full benefit of the 416-day credit he technically had received. Id.But Grigsby’s reliance on that line of reasoning is misplaced: the time for
which he seeks credit is not “Willis time” because it was not time spent in non-
federal presentence custody. See Program Statement 5880.28(2)(c). (The BOP
already credited that period—March 28, 1993 to August 12, 1993—to his sentence.)
The disputed period—August 13, 1993 to August 19, 1994—all arose after Grigsby’s
state sentencing, and since he obtained credit for this period from the state, he is
not entitled to the same benefit from the BOP merely because his subsequent
federal sentence was ordered to run concurrently. See Rios v. Wiley, 201 F.3d 257,
273 n.13 (3d Cir. 2000) (concluding that reasoning in “Willis/Kayfez line of cases”
does not extend to permit federal credit for time served after concurrent state
sentence was imposed). By its plain language, § 3585(b) prohibits such a credit.
See 18 U.S.C § 3585(b); United States v. Ross, 219 F.3d 592, 594 (7th Cir. 2000)
(“[Section] 3585(b) forbids the BOP from giving credit for presentence custody when
that credit has been applied against another sentence.”).
Accordingly, we AFFIRM the dismissal of Grigsby’s petition for a writ of
habeas corpus.