United States District Court, E.D. Kentucky, Central Division, Lexington
MEMORANDUM OPINION AND ORDER
C. Reeves United States District Judge
matter is pending for consideration of Movant/Defendant
Raymond Ambrose, Jr.'s motion to vacate, set aside, or
correct his sentence under 28 U.S.C. § 2255. [Record No.
199] The motion was referred to United States Magistrate
Judge Edward B. Atkins for review and issuance of a report
and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B).
Magistrate Judge Atkins issued a Recommended Disposition on
July 17, 2018, recommending that the motion be denied.
[Record No. 201] Ambrose has not filed any objections to the
Magistrate Judge's report.
this Court must make a de novo determination of
those portions of the Magistrate Judge's recommendations
to which objections are made, 28 U.S.C. § 636(b)(1)(C),
“[i]t does not appear that Congress intended to require
district court review of a magistrate's factual or legal
conclusions, under a de novo or any other standard,
when neither party objects to those findings.”
Thomas v. Arn, 474 U.S. 140, 150 (1985).
Nevertheless, the Court has examined the record and has
conducted a de novo review of the matter.
pleaded guilty on July 8, 2013, to conspiracy to distribute
heroin in violation of 21 U.S.C. §§ 846, 841(a)(1)
and 851. [Record No. 106] He was sentenced to a 34-month term
of imprisonment, followed by a six-year term of supervised
release. [Record No. 138] During his term of supervised
release, Ambrose was arrested by the Lexington Police
Department and charged with receiving stolen property under
$500 and third-degree burglary. [See Supervised
Release Violation Report.] The United States Probation Office
submitted a report on May 2, 2017, alleging that this
constituted a violation of the condition of Ambrose's
supervision requiring that he “not commit another
federal, state or local crime.” [Id.; Record
No. 138, p. 3] The Court issued a warrant for Ambrose's
arrest that same day. [Record No. 184]
pleaded guilty in state court on May 5, 2017, to receiving
stolen property under $500 and criminal attempt to commit
third-degree burglary. [Record No. 199-2] He was sentenced to
a combined 120-day term of imprisonment. [Id.] On
August 31, 2017, after the term of imprisonment imposed by
the state court was completed, this Court held a hearing
regarding Ambrose's supervised release violation. [Record
No. 188] Ambrose stipulated to the violation, and his
original term of supervised release was revoked.
[Id.] The Court then entered an Amended Judgment,
imposing a 21-month term of imprisonment be followed by a
four-year term of supervised release. [Record No. 191]
filed a motion to modify his sentence under Rule 32.1 of the
Federal Rules of Criminal Procedure on January 4, 2018.
[Record No. 192] He argued, in part, that his sentence should
be modified to a term of six to eight months in a halfway
house due to various medical conditions. [Id. at 4]
He also argued that he was entitled to jail time credit for
the 120 months he spent in state custody because a federal
detainer had prevented him from seeking bond. [Id.
at 3-4] The Court denied the motion, finding that because
Ambrose was not on supervised release, and was not seeking to
modify the terms of his supervised release, Rule 32.1 of the
Federal Rules of Criminal Procedure was inapplicable. [Record
No. 193, p. 2] The Court further explained that, to the
extent Ambrose was seeking to alter the term of imprisonment
imposed by the Amended Judgment, the Court was without
jurisdiction to grant his request. [See Id. at 2-3
(discussing 18 U.S.C. § 3582(c)(2)).]
then filed a second motion for a sentence reduction. This
time, he cited 18 U.S.C. § 3585, 18 U.S.C. § 3584,
and U.S.S.G. § 5G1.3. [Record No. 197] The Court denied
the motion, again explaining that the Court “may not
modify a term of imprisonment once it has been imposed except
in limited circumstances” not presented in this case.
[Record No. 198]
then filed his § 2255 motion alleging ineffective
assistance of counsel. [Record No. 199] Ambrose believes that
his previous motions were denied because they were not filed
with 120 days of the Amended Judgment being entered. [See
id.] And he contends that the motions would have been
filed within 120 days if his attorney had responded to his
emails seeking her assistance in filing the motions. [See
id.; Record No. 199-1.]
the premise underlying Ambrose's argument is incorrect.
As the Magistrate Judge accurately stated:
[t]he Court did not deny Defendant's motions to modify
his sentence because Defendant failed to file a motion within
120 days, as the Defendant believes. Instead, the Court
denied Defendant's Motions because the Court may only
modify a sentence under limited circumstances, and those
circumstances . . . do not apply to the present case.
No. 201, p. 4 (citations omitted).] Because the Court's
prior Orders did not rely on the fact that Ambrose's
motions were not filed within 120 days of the Amended
Judgment, the Magistrate Judge correctly determined that
Ambrose “has not shown either deficient performance by
counsel or that he was prejudiced by his counsel's
performance. Even if [his] counsel had moved to modify his
sentence within 120 days, the result would not have been
different.” [Id. (citing Strickland v.
Washington, 466 U.S. 668, 694-95 (1984).]
Magistrate Judge went further, explaining that Ambrose's
motions for collateral relief lack merit. Ambrose's
§ 2255 motion relies primarily on his assertion that the
120 days he spent in state custody should be credited against
the 21-month term of imprisonment imposed for his supervised
release violation, rather than his previous claim that his
sentence should be modified to a reduced term in a halfway
house due to various medical conditions. [Compare
Record No. 199, with Record Nos. 192, 197.] This
claim fails for three basic reasons.
the award of jail time credit is governed by 18 U.S.C. §
3585(b). But “a district court does not have
jurisdiction to apply credit against a sentence under section
3585(b). Rather, the Attorney General, through the Bureau of
Prisons, is to make that determination.” United
States v. Westmoreland, 974 F.2d 736, 737 (6th Cir.
1992). “Review of the Bureau of Prisons'
determination is available through the administrative process
and ultimately, after the exhaustion of administrative
remedies, in the District Court.” Id. Where,
as here, a prisoner fails to exhaust his administrative
remedies, the Court is without jurisdiction to award jail
even if Ambrose's request was properly before the Court,
18 U.S.C. § 3585(b) only authorizes the award of credit
for time “spent in official detention prior to the
date the sentence commences.” (emphasis added).
Ambrose appears to believe that the 21-month term of
imprisonment imposed on August 31, 2017, in fact
“commenced” on May 2, 2017, when a federal
detainer prevented him from “bonding out” on his
state charges. [Record No. 199] He is incorrect. A sentence
“commences” when the defendant “is received
in custody awaiting transportation to, or arrives voluntarily
to commence service of sentence at, the official detention
facility at which the sentence is to be served.” 18
U.S.C. § 3585(a). The fact that a federal detainer may
have prevented Ambrose from “bonding out” before
that time is irrelevant. As the Magistrate Judge explained,
“[a] detainer neither effects a transfer of a prisoner
from state to federal custody nor transforms state custody