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Green v. Grant

United States District Court, Western District of Oklahoma
Aug 31, 2021
No. CIV-21-474-R (W.D. Okla. Aug. 31, 2021)

Opinion

CIV-21-474-R

08-31-2021

DARRIUS GREEN, Petitioner, v. S.R. GRANT, Warden, Respondent.


SUPPLEMENTAL REPORT AND RECOMMENDATION

GARY M. PURCELL, UNITED STATES MAGISTRATE JUDGE

Petitioner, a federal prisoner appearing pro se, has filed this Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. Petitioner is challenging how the Federal Bureau of Prisons (“BOP”) has calculated his sentence. Respondent has responded to the Petition and filed the relevant records. The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). For the following reasons, it is recommended the Petition be denied.

I. Background

On June 22, 2017, Petitioner was arrested by the Washington County Sheriff's Office in Arkansas and charged with Simultaneous Possession of Drugs and Firearms, Possession of a Controlled Dangerous Substance with Purpose to Deliver, Possession of Drug Paraphernalia, and Possession of Firearms by Certain Persons. Doc. No. 15-1 at 2, 6. At the time of his arrest, Petitioner was on parole for a previous criminal offense. Id. at 2, 6, 8, 16-20. As a result of his arrest, the Arkansas Board of Parole revoked Petitioner's parole and on June 28, 2017, sentenced him to at least six months incarceration. Id. at 15. Petitioner was not eligible for consideration of release until December 2017. Id. at 15.

Pursuant to a Writ of Habeas Corpus Ad Prosequendum, on March 26, 2018, the United States Marshals Service (“USMS”) “borrowed” Petitioner from the custody of the State of Arkansas. Id. at 2, 22-23. Petitioner was charged with, inter alia, Possessing a Firearm in Furtherance of a Drug Trafficking Crime based on his actions on June 22, 2017, in violation of 18 U.S.C. § 924(c)(1)(A). Id. at 30. On November 28, 2018, Petitioner entered a guilty plea to this charge and the Court sentenced him to 60 months imprisonment. Id. at 30-31. The Court ordered that the sentence “shall run concurrently to any undischarged portion of the defendant's parole violation in Washington County, Arkansas ....” Id. at 31. The BOP documented Petitioner's federal sentence as commencing on November 28, 2018, the date it was imposed. Id. at 39.

On March 29, 2018, the State of Arkansas dismissed the four charges for which Petitioner was arrested on June 22, 2017. Id. at 2, 25-28.

After his federal sentencing, officials returned Petitioner to the custody of the State of Arkansas to complete his state sentence in a state facility. Id. at 23. On February 21, 2019, Petitioner was paroled from Arkansas state custody and released to the USMS. Id. at 23, 42. Petitioner is currently serving the remainder of his federal sentence.

By this action, Petitioner challenges the BOP's calculation of his sentence. Specifically, Petitioner contends that because he was in federal custody from March 2018 through November 28, 2018, the date he received his federal sentence, that time should be credited toward his federal sentence of 60 months imprisonment. Doc. No. 1 at 7. He also argues that because his federal and state criminal charges were similar, he is entitled to credit against his federal sentence for his non-federal, or state, presentence custody. Id. Essentially, he requests habeas relief in the form of an order from this Court directing the BOP to credit toward his federal sentence Petitioner's time in state custody from June 22, 2017 through November 28, 2018. Id. at 8.

II. Analysis

Respondent opposes the Petition in this matter based on his contention that the BOP has awarded Petitioner all available credit toward his federal sentence. Doc. No. 15 at 14-21. The Court agrees.

“The computation of a federal sentence requires consideration of two separate issues.” Binford v. United States, 436 F.3d 1252, 1254 (10th Cir. 2006). The first issue involves the date a federal sentence commences. Id. “A sentence to a term of imprisonment commences on the date 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 second issue considers whether a federal inmate should be credited for prior custody. Binford, 436 F.3d at 1254. Under 18 U.S.C. § 3585(b), credit for prior custody is awarded for time a defendant “spent in official detention prior to the date his federal sentence commences if the detention resulted from the same offense of conviction or from another charge for which the defendant was arrested after commission of the offense of conviction and if that time has not been credited against another sentence.” Weekes v. Fleming, 301 F.3d 1175, 1178 (10th Cir. 2002).

The Attorney General, through the BOP, is responsible for making the sentence calculations contemplated by § 3585. United States v. Wilson, 503 U.S. 329, 334-35 (1992); Hedding v. Garcia, 491 Fed.Appx. 896, 899 (10th Cir. 2012). However, the Attorney General's decision may be reviewed in a habeas corpus action pursuant to 28 U.S.C. § 2241.

A. Commencement of Federal Sentence

As previously established, on November 28, 2018, Petitioner was sentenced in his federal case to 60 months imprisonment, to be served concurrently with his remaining state sentence. Doc. No. 15-1 at 30-31. Pursuant to 18 U.S.C. § 3585(a), “A sentence to a term of imprisonment commences on the date 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.” Therefore, the Court finds the BOP has correctly determined that Petitioner's federal sentence commenced on November 28, 2018, the date he was sentenced on his federal charge.

B. Credit for Pre-Sentence Federal Custody

Petitioner argues that he should receive credit toward his federal sentence from March 26, 2018 through November 28, 2018, representing the time he spent in federal custody prior to his sentencing. Doc. No. 1 at 6-7. However, § 3585(b) prohibits awarding credit for pre-sentence custody if the time has been credited against another sentence. See 18 U.S.C. § 3585(b) (“A defendant shall be given credit toward the service of a term of imprisonment for any time he has spent in official detention prior to the date the sentence commences. . . that has not been credited against another sentence.”). Thus, “Congress made clear [in enacting §3585(b)] that a defendant could not receive a double credit for his detention time.” Wilson, 503 U.S. at 337; see e.g., Falan v. Gallegos, 38 Fed.Appx. 549, 552 (10th Cir. 2002) (“[S]ince that time was presumably credited against [the petitioner's] state sentence, it cannot qualify under the plain language of 18 U.S.C. § 3585(b)”). Petitioner's pre-sentence custody from March 26, 2018 through November 28, 2018 was credited toward his state sentence. Therefore, pursuant to § 3585(b), Petitioner is not entitled to have this time period applied to his federal sentence.

The Court notes the BOP credited June 22, 2017 through June 28, 2017, the time period between Petitioner's state arrest and the revocation of his parole, to his federal sentence as it had not been credited toward his state sentence. Doc. No. 15-1 at 40.

Additionally, the fact that Petitioner's federal and state sentences run concurrently does not entitle him to any credit for presentence incarceration against his federal sentence. See Kinslow v. Wands, 432 Fed.Appx. 788, 789 (10th Cir. 2011) (“Because Mr. Kinslow received credit for his pretrial incarceration on his state sentence, he is not entitled to any additional credit against his federal sentence [even though the sentences run concurrently.]”); see also Vaughn v. Smith, No. CV 11-0852-PHX-JAT, 2012 WL 996542, at *4 (D. Ariz. Mar. 23, 2012) (explaining that federal sentence ordered to run concurrently with state sentence did not entitle the petitioner to presentence confinement credit for time period that was credited to state sentence). Based on the federal sentencing statute, Petitioner's federal sentence could not begin to run before it was imposed. Though his federal sentence runs concurrently with his state sentence, he is not entitled to credit for presentence confinement because that time had been credited to his state sentence. See Tilson v. Walton, No. 12-CV-255-CJP, 2014 WL 503860, at *1-2 (S.D. Ill. Feb. 7, 2014) (“[T]he fact that his federal sentences were to run concurrently with his state sentence does not . . . require the BOP to calculate his federal sentence from the date of arrest.").

Furthermore, the Court notes that any time Petitioner was in federal custody pursuant to a federal writ of habeas corpus ad prosequendum, the State of Arkansas retained primary custody. See Weekes, 301 F.3d at 1181 (noting that the use of an ad prosequendum writ to gain custody indicates the sovereign gaining custody is merely borrowing the prisoner from the sovereign with primary custody). The State of Arkansas, therefore, did not relinquish its primary custody over Petitioner at any time prior to his federal sentence being imposed.

The time Petitioner spent in federal “custody” between March 2018 and November 28, 2018, the date of his federal sentencing, was credited toward his state sentence. Accordingly, the Court concludes that, pursuant to 18 U.S.C. § 3585(b), Petitioner cannot also receive credit for that time against his federal sentence.

C. Similarity Between Charges

In his final ground for relief, Petitioner asserts that he is entitled to dual credit for the time he spent in state custody because his state and federal charges “are similar enough to be considered the same criminal act or offense.” Doc. No. 1 at 7.

Although he does not cite to any particular authority to support this assertion, the undersigned presumes Petitioner intended to rely on the BOP's Program Statement, 5880.30, which provides, in relevant part:

(1) For time in non-federal custody when the non-federal custody is based on charges that later resulted in a federal sentence.
....
(b) If the federal defendant has been in presentence state or foreign custody on essentially the same charges as the federal charges, credit shall also be given even though a federal detainer may not have been on file during that time. Credit shall also be given for time spent in non-federal presentence custody when the non-federal and federal charges are similar enough to be considered the same criminal act or offense. This non-federal presentence custody is applicable when the factors of time, location, and the criminal acts are identical in both charges.
5880.30, Ch. VI (7)(c)(1)(b) (emphasis added).

See https://www.bop.gov/policy/progstat/5880030.pdf (last accessed on August 31, 2021).

However, in Comrie v. Wilner, 380 Fed.Appx. 783 (10th Cir. 2010), the Tenth Circuit explained:

PS 5880.30 was promulgated under 18 U.S.C. § 3568, which stated, in relevant part:
The sentence of imprisonment of any person convicted of an offense shall commence to run from the date on which such person is received at the penitentiary, reformatory, or jail for service of such sentence. The
Attorney General shall give any such person credit toward service of his sentence for any days spent in custody in connection with the offense or acts for which sentence was imposed.
(emphasis added).
But § 3568 . . . was repealed effective November 1, 1987, by Pub.L. No. 98-473, tit. II, § 212(a)(2), 98 Stat.1987 (1984). For offenses committed after November 1, 1987, the new statutory provision, [Section] 3585(b), applies. See 18 U.S.C. § 3585; PS 5880.28, ch. I [Section] 3(c) (explaining change in controlling law). Because Mr. Comrie's offenses were committed in 1999-2000, see Comrie, 136 [F. App'x, ] at 886-87, the new statute[, § 3585, ] governs his sentence.
Id. at 785; see also Shepherd v. Warden, UPS - Atlanta, 683 Fed.Appx. 854, 855 n.1 (11th Cir. 2017) (“Shepherd also contends he is entitled to relief based on BOP policy 5880.30. That provision, however, applies only to offenses that occurred before 1 November 1987 and, thus, is inapplicable here.”); Piccarreto v. Clark, 215 F.3d 1333, 1333 n.4 (9th Cir. 2000) (applying Program Statement 5880.30, Ch. VI (7)(c)(1)(b) where the petitioner's “claim is governed by [§] 3568, not the current statute, 18 U.S.C. § 3585(b), because [§] 3568 was in effect at the time [the petitioner] was sentenced”).

Presuming without deciding that Program Statement 5880.30 would otherwise apply to Petitioner's case, because his offenses were committed well after November 1, 1987, the Program Statement does not apply. Instead, § 3585 governs his sentence and as established above, Petitioner has received all the credit to which he is entitled under the same.

RECOMMENDATION

Based on the foregoing findings, it is recommended the Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 be DENIED. Petitioner is advised of his right to file an objection to this Supplemental Report and Recommendation with the Clerk of this Court by September 20th , 2021, in accordance with 28 U.S.C. §636 and Fed.R.Civ.P. 72. The failure to timely object to this Supplemental Report and Recommendation would waive appellate review of the recommended ruling Moore v. United States, 950 F.2d 656 (10th Cir. 1991); cf. Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) (“Issues raised for the first time in objections to the magistrate judge's recommendation are deemed waived.”).

This Supplemental Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in the captioned matter, and any pending motion not specifically addressed herein is denied.


Summaries of

Green v. Grant

United States District Court, Western District of Oklahoma
Aug 31, 2021
No. CIV-21-474-R (W.D. Okla. Aug. 31, 2021)
Case details for

Green v. Grant

Case Details

Full title:DARRIUS GREEN, Petitioner, v. S.R. GRANT, Warden, Respondent.

Court:United States District Court, Western District of Oklahoma

Date published: Aug 31, 2021

Citations

No. CIV-21-474-R (W.D. Okla. Aug. 31, 2021)