Frommie v. Federal Bureau of Prisons et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
*
CHRISTOPHER JAMES FROMMIE, * CIV 22-4082
*
Petitioner, *
*
vs. * ORDER REGARDING OBJECTIONS
* AND GRANTING PETITIONER'S
FEDERAL BUREAU OF PRISONS and * MOTION TO APPEAL
WARDEN BENNET, * WITHOUT PREPAYMENT OF FEES
Respondents. *
*
On June 27, 2022, Petitioner James Frommie, an inmate at the Terre Haute Federal
Correctional Institution, applied for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, Doc. I.
Respondent moved to dismiss. A Report and Recommendation was entered recommending granting
the Motion to Dismiss. Objections were due by September 6, 2022.
On October 31,2022,Petitioner filed a Notice of Change of Address,Doc. 15, advising the
Court be bad been moved to a different facility. An Order was entered by the Court on November 8,
2022,for a copy ofthe Magistrate Judge's Report and Recommendation to be furnished to Petitioner,
and allowing an additional fourteen(14)days after that service for the Petitioner to file objections.
When no objections were filed,the Court entered its Order and Judgment on November 30,
2022,granting Respondents'Motion to Dismiss and denying Petitioner's Petition for Writ ofHabeas.
Petitioner Frommie filed Objections to the Report and Recommendation on December 7,
2022, Doc. 19, and stated be did not receive the Report and Recommendation until the night of
November 14, 2022.
Accordingly,this Court has reviewed Petitioner's Objections and the entire file de novo even
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though they are not timely.
The Objections are met by the Report and Recommendation. The BOP was required to
aggregate the two sentences byl8U.S.C.§3584(c)as it requires that for "administrative purposes,"
all sentences imposed on multiple convictions shall be treated "as a single, aggregate term of
imprisonment." Key to those considerations is whether or not the determination by the Bureau of
Prisons(BOP)was an administrative determination. This Court concludes, as does the Report and
Recommendation, that the aggregation determination by the BOP was an administrative
determination.
The BOP position is that the First Step Act provision in question is ambiguous in that it
speaks in terms ofserving a "sentence ofconviction." Both "sentence" and "conviction" are in the
singular,notthe plural,form ofthe words. That administrative determination is entitled to deference
as it is a reasonable interpretation "in light ofthe text, nature, and purpose ofthe statute." Cuozzo
Speed Technologies, LLCv.Zee,579 U.S.261,277(2016). To be a reasonable interpretation it need
not be the only interpretation reasonably possible. This portion ofthe First Step Act that speaks in
the singular was passed when the aggregation statute was in place, 18 U.S.C. § 3584(c), so it is
consistent with Congressional intentfor a single aggregated sentence to not qualify for First Step Act
benefits ifa part ofthat aggregated sentence contained a disqualifying offense as in the present case.
In either event, whether the First Step Act provision ofserving "a sentence for a conviction"
is ambiguous or not,the result is the same,the Petitioner here is not entitled to the benefit ofthe First
Step Act. Petitioner's objections would again be overruled, but the Petitioner has appealed, so this
Court is without jurisdiction other than to consider Petitioner's Motion to Appeal Without
Prepayment ofFees. Frommie filed aNotice of Appeal, Doc. 20,on December 12,2022, a Motion
to Appeal Without Prepayment of Fees, Doc. 21, and provided the Court with his Prisoner Trust
Account Report, Doc. 22.
The Eighth Circuit historically has looked to district courts to rule on in forma pauperis
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motions for appeal and has held that the filing-fee provisions of the Prison Litigation Reform Act
do not apply to habeas corpus actions. Malave v. Hedrick, 271 F.3 1139,1140(8th Cir. 2001)(per
curiam). To determine whether a habeas petitioner qualifies for in forma pauperis status, the court
need only assess(1) whether the petitioner can afford to pay the full filing fee, and(2) whether the
petitioner's appeal is taken in "good faith." 28 U.S.C. § 1915(a)(1),(3).
Frommie's prisoner trust account report indicates that he has average monthly deposits of
$104.12 and an average monthly balance of $205.14, Doc. 22 at 1. Frommie's notice of appeal
appear to be taken in good faith. Frommie has insufficient funds to pay the $505.00 appellate filing
fee, thus his Motion to Appeal without prepayment of fees. Doc. 21, granted. Accordingly,
IT IS ORDERED that Frommie's Motion to Appeal Without Prepayment of Fees,
Doc. 21, is granted.
lis	Dated this II *'day of December, 2022.
BY THE COURT:
fawrence L. Piersol
ATTEST: United States District Judge
MATTHEW W. THELEN,CLERK
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