Glover v. Warden

Background

John Glover, proceeding without a lawyer, filed a petition under 28 U.S.C. § 2241, the federal procedure used to challenge how prison officials are carrying out a federal sentence. He challenged the Bureau of Prisons’ refusal to apply 1,658 days of time credits under the First Step Act of 2018.

Glover had pleaded guilty in federal court in South Carolina to drug-conspiracy charges and was later sentenced to 360 months in prison, a sentence later reduced to 210 months. A Virginia state court subsequently sentenced him to 15 years, to run concurrently with his federal sentence. The federal court amended its judgment to reflect that the sentences would run concurrently.

Glover had initially posted federal bond, but he was later arrested on separate Virginia drug-trafficking charges. The court concluded that Virginia obtained primary custody when Glover left federal custody and entered state custody. He remained in state custody until 2023, after which he spent time in several federal facilities before reaching his designated federal facility, FCI Jesup.

Glover sought credits for the period from December 21, 2018, through July 7, 2023. He argued that his transfer to state custody was an error and that he should have received a presumption of participation in First Step Act programming. He also argued that the Bureau of Prisons had initially calculated 1,658 credits and unlawfully stopped recognizing them. He raised concerns about the Bureau’s failure to respond to some of his administrative appeals.

Legal framework and analysis

The First Step Act allows eligible prisoners to earn credits for successful participation in qualifying programs and activities designed to reduce the risk of reoffending. Subject to statutory requirements, those credits can be used for earlier placement in prerelease custody or transfer to supervised release.

Bureau of Prisons regulations provide that prisoners do not receive credits for periods when they are temporarily transferred to another government agency, including a transfer to state custody to serve a state sentence. The regulations also provide a presumption of participation for part of the period before the Bureau had established the relevant tracking systems, but the court held that this presumption did not apply to people housed in state facilities.

The court rejected Glover’s argument that federal authorities retained primary custody merely because he had first faced federal charges. It explained that physical custody controls between competing state and federal authorities. By releasing Glover on federal bond and later obtaining his presence for federal sentencing through a writ requiring his temporary appearance, the federal government did not retain primary custody. Virginia therefore properly retained primary custody and returned Glover to state custody.

The court also explained that the Bureau of Prisons’ designation of a state facility as the place where Glover would serve his federal sentence allowed his state-custody time to count toward both concurrent sentences. That designation did not give him access to federal First Step Act programming while he was housed in the state facility. The court stated that Glover could not receive credits for non-First Step Act programming in state custody.

The court separately denied credits for the period from June 7, 2023, to July 7, 2023, when Glover was temporarily housed at federal institutions before arriving at FCI Jesup. The court stated that the regulations appeared to contemplate earning credits at the prisoner’s designated Bureau of Prisons facility, not during temporary placements, and Glover did not allege that he had completed a risk assessment or been assigned to and completed qualifying programming during that period.

Finally, the court stated that it could not determine from the available evidence that the Bureau of Prisons had previously calculated 1,658 credits. Even if such a calculation had occurred, the court said it could not determine that the current failure to recognize those credits was unlawful.

Disposition

The court held that Glover was not entitled to the requested First Step Act credits. It also held that its review of the claims provided appropriate process despite any deficiencies in the Bureau of Prisons’ handling of Glover’s administrative appeals. Judge Lewis J. Liman denied the petition and directed the clerk to close the motion and the case.