Opinion
CIV-21-652-J
12-16-2021
KENNETH M. HOLCOMB, Petitioner, v. FNU GRANT, Warden, Respondent.
REPORT AND RECOMMENDATION
SHON T. ERWIN, UNITED STATES MAGISTRATE JUDGE.
Federal prisoner Kenneth Holcomb has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241, challenging the execution of his sentence. (ECF No. 1). Mr. Grant has filed his Response to the habeas petition. (ECF No. 10). For the reasons set forth below, it is recommended that the Petition be DENIED.
I. BACKGROUND
On September 11, 2010, in Tarrant County, Texas Case No. 1213471D, Mr. Holcomb was committed to the Texas Department of Corrections for possession with intent to deliver a controlled substance of four grams or more, but less than 200 grams, of methamphetamine. (ECF No. 10-1:1-2, 10, 12-14). On November 5, 2010, following a guilty plea on the drug charges, the Tarrant County Texas Court ordered Petitioner to be incarcerated for six years with “time credited” from September 11, 2010 through November 5, 2010. (ECF No. 10-1:2, 12).
On September 21, 2011, in Case No. 11-MJ-331 in the Northern District of Texas Fort Worth Division, Petitioner was charged with conspiracy with intent to distribute a controlled dangerous substance in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(a) & 846. (ECF No. 10-1:2, 16-27). On September 27, 2011, Petitioner was borrowed from state custody by the United States Marshals Service on a federal Writ of Habeas Corpus Ad Prosequendum, and was taken into temporary federal custody on September 28, 2011. (ECF No. 10-1:2, 29, 31-34). On December 14, 2011, Case No. 11-MJ-331 was merged into Case No. 11-CR-193-A. (ECF No. 10-1:2).
See docket sheet, United States v. Holcomb, Case No. 11-MJ-331 (Dec. 14, 2011); United States v. Pursley, 577 F.3d 1204, 1214 n.6 (10th Cir. 2009) (exercising discretion “to take judicial notice of publicly-filed records in [this] court and certain other courts concerning matters that bear directly upon the disposition of the case at hand”) (citation omitted).
On May 18, 2012, in Case No. 11-CR-193-A, the United States District Court for the Northern District of Texas sentenced Petitioner to 200 months in prison on the federal charges to which Petitioner had pled guilty. See ECF No. 106, United States v. Holcomb, Case No. 11-CR-193-A (May 18, 2012). On May 22, 2012, the Court entered Judgment and specifically stated that Mr. Holcomb was to be given “credit for 11 months already served in the related state case, Case No. 1213471, imposed in Criminal District Court No. 1 of Tarrant County, in Fort Worth, Texas.” (ECF No. 10-1:2-3, 36). The Court further stated that the sentence “shall run concurrently with the remainder of the sentence imposed in the related state case. Thus, the defendant is committed to the custody of the Bureau of Prisons for a term of 189 months.” Id. On June 11, 2012, Petitioner was returned to the custody of Texas state authorities. (ECF No. 10-1:3, 33).
On March 14, 2013, Mr. Holcomb was released from state custody and entered into exclusive federal custody. (ECF No. 10-1:3, 42). On April 5, 2016, in Case No. 11-CR-193-A, the Northern District of Texas, Fort Worth Division, reduced Petitioner's federal sentence to 160 months. (ECF No. 10-1:3, 44-45). On April 6, 2016, the federal court issued a corrected Order in Case No. 11-CR-193-A, which stated:
As part of the original sentence the court imposed a term of imprisonment of 200 months, on which defendant was given a credit for 11 months he had already served in a related state case, Case No. 1213471, Criminal District Court No. 1 of Tarrant County, Texas, resulting in a net sentence of imprisonment of 189 months, to run concurrently with the remainder of the sentence imposed in the related state case. The reduced net sentence of imprisonment of 160 months takes into account the credit of 11 months served in the related state case before sentence was originally imposed in this federal case, and is to run concurrently with the sentence imposed in the related state case. Were it not for the credit of 11 months, the reduced sentence would be a term of imprisonment of 171 months.(ECF No. 10-1:44).
II. THE PARTIES' ARGUMENTS
On June 24, 2021, Petitioner filed the instant habeas petition pursuant 28 U.S.C. § 2241, arguing that he is due credit on his federal sentence for time served in state custody prior to the commencement of his federal sentence. (ECF No. 1). Specifically, Mr. Holcomb states:
The record in the federal sentencing Court clearly establishes that the federal charges were brought from the same criminal conduct as the Tx. State Conviction in case no: 1213471. Petitioner spent ‘20 months' in Texas State Prison directly related to the case which was used as relevant conduct to enhance Petitioner's sentence in his federal case. The federal sentencing Court later adjusted Petitioner's sentence by ‘11' months but overlooked the additional ‘9' months of the Texas State sentence and the FBOP refuses to apply the ‘9' months jail credit as well.
Petitioner contends FBOP Program Statement 5160.05, Chapter 9 b. (4) and U.S.S.G. § 5G1.3(b)(1) applies to his situation and relief is warranted. (ECF No. 1:8). Although Petitioner does not specify, the undersigned presumes that the “20 months” to which Mr. Holcomb refers encompasses the period of time from September 11, 2010 (the date Mr. Holcomb was taken into custody on the state charges) through May 18, 2012 (the date the federal sentence was imposed). Respondent argues a denial on the merits because Mr. Holcomb has already received credit for the time period at issue and is statutorily prohibited from receiving “double credit” under 18 U.S.C. § 3585(b). (ECF No. 10:6-9).
III. DENIAL OF THE HABEAS PETITION
To compute a federal sentence, a two-step process governs. See Binford v. U.S., 436 F.3d 1252, 1254 (10th Cir. 2006). First, the commencement date of the sentence must be determined and second, the right to credit (if any) for time spent in custody prior to commencement of the federal sentence must be determined. Id. The BOP is responsible for interpreting and calculating a federal prisoner's sentence and determining any credit for time served. United States v. Wilson, 503 U.S. 329, 331-35 (1992); see also United States v. Mata, 145 Fed.Appx. 276, 280 (10th Cir. 2005) ('“A district court has no authority to compute or award sentencing credit at sentencing; rather, it is the Attorney General, through the [BOP], which has the power to grant sentencing credit in the first instance.”).
Here, Respondent has submitted evidence from the Bureau of Prisons (BOP) which shows that Mr. Holcomb's federal sentence commenced on May 18, 2012, the date the sentence was imposed. See supra; ECF No. 10-1:8, 36. When the federal sentence was pronounced, the sentencing court made it clear that Petitioner was to receive credit on the federal sentence for 11 months Petitioner had spent in custody on the related state charges. (ECF No. 10-1:36). As a result, the Court subtracted 11 months from the 200 month sentence that was originally imposed, and ordered Mr. Holcomb to serve 189 months on the federal sentence, to run concurrently “with the remainder of the sentence imposed in the related state case.” (ECF No. 10-1:36). According to Mr. Holcomb, at the time the federal sentence was imposed, he had been in state custody on the related charges for 20 months, and that the federal court erred in only giving him credit for 11 months in state custody. (ECF No. 1:8). Mr. Holcomb is wrong.
Pre-sentence or “prior-custody” credit is governed by 18 U.S.C. § 3585(b) which provides:
(b) Credit for prior custody.-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-
(1) as a result of the offense for which the sentence was imposed; or
(2) as a result of any other charge for which the defendant was arrested after the commission of the offense for which the sentence was imposed; that has not been credited against another sentence.18 U.S.C. § 3585 (emphasis added). The emphasized language of the statute prohibits double sentencing credit. Wilson, 503 U.S. at 337. As the Tenth Circuit has explained, under § 3585(b) “[a] federal prisoner is statutorily entitled to credit for time 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).
Here, Petitioner alleges that the federal sentence court erred in only applying 11 months of credit for time spent in state custody against his federal sentence, when he had, in actuality, been incarcerated in state custody for 20 months prior the issuance of the federal sentence (from September 11, 2010 through May 18, 2012). See supra. Although the federal court Judgment was silent as to the exact period of time encompassed by the “11 months credit, ” the record is clear that Petitioner was in state custody from September 11, 2010 through March 14, 2013. (10-1:10, 42). Thus, subtracting any 11-month period from the 20 months prior to the federal sentence being imposed would leave approximately 9 months. Petitioner argues that the court “overlooked” the 9 months by failing to credit the same to his federal sentence, and asks the court to “Order the FBOP to apply the ‘9' months” to his federal sentence. (ECF No. 1:9). But because the record is clear that the 9 months in question had been credited to Mr. Holcomb's state sentence, the Court should conclude that 18 U.S.C. § 3585(b) prohibits the award of any additional credit. See Esquivel v. Warden, F.C.I., El Reno, 462 Fed.Appx. 825, 826-27 (10th Cir. 2012).
As stated, Mr. Holcomb entered state custody on September 11, 2010 and was “borrowed” by federal officials via a writ of habeas corpus ad prosequendum on September 28, 2011. (ECF No. 10-1:2, 29, 31-34). However, the fact that Petitioner was in “temporary” federal custody on the writ does not change the fact that Mr. Holcomb remained subject to the primary custody of the State of Texas. See United States v Alonzo-Garcia, 659 Fed.Appx. 476, 478 (10th Cir. 2016) (“Although Mr. Alonzo-Garcia was in federal custody on the writ [of habeas corpus ad prosequendum], he was still subject to the primary custody of Colorado.”) (citing Weekes v. Fleming, 301 F.3d 1175, 1178-80 (explaining if a state is the first arresting sovereign, it has primary custody over a defendant and maintains this custody even if the United States takes “temporary custody under either a detainer and written request for temporary custody or a writ of habeas corpus ad prosequendum.”)).
Mr. Holcomb contends that “FBOP Program Statement 5160.05 Chapter 9 b. (4) and U.S.S.G. § 5G1.3(b)(1) applies to his situation and relief is warranted.” (ECF No. 1:8). The Court should find these arguments without merit.
BOP Program Statement 5160.05 § 9(b)(4) allows an inmate to request a nunc pro tunc-i.e., retroactive-designation of a state facility as the official place of imprisonment for a prisoner who has served or is serving time in state custody, allowing the prisoner to gain credit against his federal sentence for the time he served there, effectively reducing the length of his federal sentence. See generally Barden v. Keohane, 921 F.2d 476 (3d Cir. 1990); Fed. Bureau of Prisons, U.S. Dep't of Justice, Program Statement 5160.05: Designation of State Institution for Service of Federal Sentence, § 9(b)(4).
After the federal sentence was imposed, Mr. Holcomb was returned to state custody where he served the remainder of his state sentence until his release to federal authorities on March 14, 2013. (ECF No. 10-1:3, 42). The effect of the Judgment in the federal case and Petitioner's return to state custody following the imposition of the federal sentence was that the state facility was designated “nunc pro tunc” for service of the federal sentence for the period of time from May 18, 2012 (when the federal sentence was imposed) through March 14, 2013 (when Petitioner was released from state custody). See BOP Program Statement 5160.05 § 9(b)(1) (noting that a federal court may designate a non-federal institution for service of a federal sentence when the sentencing order states that the federal sentence is to be served concurrently with a state sentence).
Federal judges unquestionably have the authority to impose a federal sentence to run concurrent to an undischarged term of imprisonment, see 8 U.S.C. § 3584(a), and that authority was exercised in this case, when the federal sentenced was imposed on May 18, 2012. See ECF No. 10-1:36 ("The sentence imposed in this case shall run concurrently with the remainder of the sentence imposed in the related state case.”). To the extent Petitioner is contending that BOP Program Statement 5160.05 § 9(b)(4) entitles him to additional federal credit for the entire period of time he was in state custody prior to the date the federal sentence was imposed, based on the federal court's order that the sentences were to run "concurrent, ” that argument should be rejected. "Concurrent” sentences generally mean that the sentence being imposed will run concurrently with the undischarged portion of a previously imposed sentence. See Azure v. Gallegos, 97 Fed.Appx. 240, 244 (10th Cir. 2004) (concluding petitioner's federal and state sentences "were concurrent from the date of his federal sentencing” and rejecting claim that federal and state sentences were not fully concurrent unless his federal sentence was deemed to have commenced from the date of the federal charge); see also Shelvy v. Whitfield, 718 F.2d 441, 444 (D.C. Cir. 1983)("[A] federal sentence made concurrent with a sentence already being served does not operate in a 'fully concurrent' manner. Rather, the second sentence runs together with the remainder of the one then being served.”). As a result, the Court should conclude that Mr. Holcomb is not entitled to additional relief under BOP Program Statement 5160.05 § 9(b)(4).
Petitioner also states that "U.S.S.G. § 5G1.3(b)(1) applies to his situation[.]” (ECF No. 1:8). Mr. Holcomb does not further explain this argument, but to the extent he is claiming that the sentencing court failed to grant him an adjustment or downward departure pursuant to U.S.S.G. § 5G1.3, such a claim constitutes a challenge to the validity of the sentence imposed and must be brought pursuant to § 2255 in the sentencing court. See Carroll v. Peterson, 105 Fed.Appx. 988, 990 (10th Cir. 2004) (“Mr. Carroll contends the federal sentencing court should have provided for concurrent federal and states sentences pursuant to U.S.S.G. § 5G1.3(c). Despite Mr. Carroll's best efforts to construe this claim as one within the reach of a § 2241 petition, this court has previously determined that alleged errors in sentencing must be brought pursuant to 28 U.S.C. § 2255.”); see also Hasan v. Sniezek, 379 Fed.Appx. 232, 235 (3d Cir. 2010) (“A challenge under the sentencing guidelines goes to an error allegedly committed by a sentencing court, as opposed to BOP in its implementation of a sentence, and is thus inappropriate for a § 2241 petition.”); Velvickv. Antonelli, 2017 WL 2349098, at *6 (W.D. Okla. Mar. 31, 2017) (“Thus, to the extent Petitioner claims he is entitled to relief due to a sentencing error pursuant to § 5G1.3, he must seek relief before the sentencing court. Petitioner cannot seek a downward departure of his sentence through this § 2241 petition and this Court lacks jurisdiction to consider the matter.”).
In sum, the Court should conclude that under 18 U.S.C. § 3585(b), Petitioner is statutorily prohibited from receiving any additional credit to his federal sentence for the time period dating September 11, 2010 through May 18, 2012. Furthermore, Mr. Holcomb does not qualify for any additional relief under BOP Program Statement 5160.05 § 9(b)(4) and the Court lacks jurisdiction to consider any claim that the sentencing court failed to grant him an adjustment or downward departure pursuant to U.S.S.G. § 5G1.3.
IV. RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT
It is recommended that the Court deny Mr. Holcomb's Petition for Writ of Habeas Corpus.
The parties are advised of their right to file an objection to this Report and Recommendation with the Clerk of this Court by December 6, 2021, in accordance with 28 U.S.C. § 636 and Fed.R.Civ.P. 72. The parties are further advised that failure to make timely objection to this Report and Recommendation waives the right to appellate review of both factual and legal issues contained herein. Casanova v. Ulibarri, 595 F.3d 1120, 1123 (10th Cir. 2010).
V. STATUS OF REFERRAL
This Report and Recommendation terminates the referral by the District Judge in this matter.