Opinion
No. 3:03-CV-1052-R.
June 3, 2004
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b), and an Order of the Court in implementation thereof, subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the Magistrate Judge are as follows:
I. BACKGROUND
A. Nature of the Case : This is an action filed pursuant to 28 U.S.C. § 2241 to challenge the manner in which petitioner is serving his federal sentence and the calculation of credit to his federal sentence. B. Parties : Movant is currently incarcerated in a federal prison located in Seagoville, Texas. The respondent is K.J. Wendt, Warden of the Seagoville facility.
Alternatively, petitioner invokes 5 U.S.C. § 706 as a basis for this action. Because § 2241 provides a proper jurisdictional basis for this action the Court need not consider this alternative basis. Furthermore, petitioner merely paid the $5 filing fee applicable to habeas petitions rather than the $150 filing fee applicable to other civil actions. Without payment of the proper fee, the Court declines to consider this action as anything but a habeas action.
C. Procedural History : Petitioner was arrested by state authorities in Denton County, Texas, on May 28, 1996, on drug and weapons charges. He was released on bond the next day. On June 24, 1996, state authorities arrested petitioner for a state parole violation in a previous case. While in custody on the state parole violation, petitioner was transferred to federal custody on December 11, 1996 via a writ of habeas corpus ad prosequendum for a federal court appearance on charges related to the Denton County case. Petitioner pled guilty to the federal charges, and the federal court sentenced him to eighty-seven months imprisonment on May 1, 1997. On May 3, 1997, petitioner returned to state custody.
Petitioner subsequently pled guilty to the state charges in the Denton County case, and the state court sentenced him to ten years imprisonment on May 29, 1997. The state court specifically ordered that the state sentence in the Denton County case run concurrently with the previously-imposed federal sentence. The state court also ordered that petitioner be given credit for the 366 days of incarceration between the date of his arrest and his state sentencing, i.e., May 28, 1996, through May 29, 1997. On January 18, 2000, petitioner was paroled from his state sentence, and released into federal custody.
Petitioner alleges that upon his transfer to the federal Bureau of Prisons (BOP), BOP officials advised him that his federal sentence would run consecutively to his state sentence. Petitioner was further advised that he would not receive the 366-day jail credit because the time had already been credited to his state sentence, and BOP policy precluded the award of "dual credit". At petitioner's request, the state court rescinded and withdrew the 366 days of state credit on November 20, 2002 so that the time could be credited to his federal sentence. Despite the state court's November 20, 2002 order, BOP refused to allow the credit or run the sentences concurrently.
In May 2003, petitioner filed the instant action claiming that the BOP has imposed a consecutive sentence amounting to unconstitutional incarceration and has refused to properly credit him with jail time in violation of the orders of the Court and the statute governing the credit. On August 18, 2003, respondent filed his answer. Petitioner filed a reply on September 16, 2003.
II. RELIEF UNDER § 2241
Petitioner's claims concerning BOP's decisions to consider his federal sentence as consecutive to his state sentence and to disallow the 366 days of credit to his federal sentence properly fall under 28 U.S.C. § 2241. See Jeffers v. Chandler, 253 F.3d 827, 830 (5th Cir. 2001) (stating that "[s]ection 2241 is correctly used to attack the manner in which a sentence is executed"); United States v. Garcia-Gutierrez, 835 F.2d 585, 586 (5th Cir. 1988) (holding that claims for sentence credit to federal sentences are properly brought pursuant to § 2241). "The exclusive remedy for challenging the BOP's calculation of a federal sentence is a habeas corpus petition filed pursuant to 28 U.S.C. § 2241, directed to the district court in the United States District Court wherein the petitioner is incarcerated, and naming the warden of the federal facility as a respondent." United States v. Smith, 101 F. Supp.2d 332, 338 (W.D. Pa. 2000); accord Leal v. Tombone, 341 F.3d 427, 427-28 (5th Cir. 2003) (considering similar challenge in context of a § 2241 petition). The proper remedy for a sentence-credit miscalculation by the BOP must be pursuant to § 2241, after exhaustion of administrative remedies within the BOP. See Smith, 101 F. Supp.2d at 338-39.Although petitioner has exhausted his administrative remedies, he is entitled to a writ of habeas corpus under § 2241 only to remedy his restraint of liberty in violation of the constitution, treaties, or laws of the United States. See United States v. Hayman, 342 U.S. 205, 211-12 n. 11 (1952). "Habeas corpus relief is extraordinary and `is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and would, if condoned, result in a complete miscarriage of justice.'" Kinder v. Purdy, 222 F.3d 209, 213 (5th Cir. 2000) (quoting United States v. Vaughn, 955 F.2d 367, 368 (5th Cir. 1992)). A. Concurrent versus Consecutive Sentences
Petitioner challenges BOP's decision to consider his federal sentence as consecutive to his state sentence. He submits that the state court ordered his state sentence to run concurrently with the already imposed federal sentence. He argues, furthermore, that the federal court could not have ordered the sentences to run concurrently because the state sentence had yet to be imposed.
Petitioner's claim implicates 18 U.S.C. § 3584(a), which provides:
(a) Imposition of concurrent or consecutive terms. — If multiple terms of imprisonment are imposed on a defendant at the same time, or if a term of imprisonment is imposed on a defendant who is already subject to an undischarged term of imprisonment, the terms may run concurrently or consecutively, except that the terms may not run consecutively for an attempt and for another offense that was the sole objective of the attempt. Multiple terms of imprisonment imposed at the same time run concurrently unless the court orders or the statute mandates that the terms are to run consecutively. Multiple terms of imprisonment imposed at different times run consecutively unless the court orders that the terms are to run concurrently.
The statute has two discrete functions. First, it grants federal sentencing courts the discretion to impose concurrent or consecutive sentences except in specified circumstances. Second, it creates a presumption regarding whether multiple terms of imprisonment run concurrently or consecutively when the sentencing court is silent on the matter. The Fifth Circuit Court of Appeals has interpreted § 3584(a) as granting the district courts the discretion to order a federal term of imprisonment to run concurrently with an anticipated but "yet-to-be-imposed state sentence." See United States v. Hernandez, 234 F.3d 252, 256 (5th Cir. 2000) (citing cases). Without such interpretation, an earlier federal sentence would necessarily "run consecutive to a later-imposed state sentence." Id. at 256-57.
In this instance, the state court unquestionably intended petitioner's state sentence to run concurrently with his earlier-imposed federal sentence. However, the federal court expressed no position on whether the imposed federal sentence would run concurrently with or consecutively to any anticipated state sentence. Such silence invokes the presumption that the federal sentence would be consecutive to any term of imprisonment imposed at a different time. See 18 U.S.C. § 3584(a) (last sentence); Hernandez, 234 F.3d at 256-57. When a federal judgment is silent with respect to whether sentences are to run concurrently or consecutively, the presumption is that "they will run consecutively, unless the district court specifically orders that they run concurrently." Free v. Miles, 333 F.3d 550, 553 (5th Cir. 2003). Although the federal courts "may consider subsequent sentences anticipated, but not yet imposed, in separate state court proceedings" when determining whether to impose concurrent or consecutive sentences, see United States v. Brown, 920 F.2d 1212, 1217 (5th Cir. 1991), the failure to provide for concurrent sentences for multiple terms of imprisonment imposed at different times necessarily results in the imposition of consecutive sentences, see Hernandez, 234 F.3d at 256-57. "A district court must specify in its sentencing order that sentences run concurrently; otherwise, they run consecutively." Free, 333 F.3d at 553.
Because the federal sentencing court did not specify that the federal sentence would run concurrently with any later-imposed state sentence, the federal sentence runs consecutively to petitioner's later-imposed state sentence. Petitioner has not shown that such consecutive sentences violate the United States Constitution or federal law. The constitution affords no right to have state and federal sentences run concurrently. United States v. Dovalina, 711 F.2d 737, 739 (5th Cir. 1983). "It is constitutionally permissible for the state and federal governments to each impose a sentence on a defendant based on the commission of a single act constituting offenses under both state and federal law." United States v. Shillingford, 586 F.2d 372, 375 (5th Cir. 1978). "A person who has violated the criminal statutes of both the Federal and State Governments may not complain of the order in which he is tried or punished for such offenses." Dovalina, 711 F.2d at 739 (quoting Gunton v. Squier, 185 F.2d 470, 471 (9th Cir. 1950)). Similarly, there is no federal statute that provides a prisoner a right to concurrent sentences.
In the absence of a violation of the United States Constitution or federal law, the fact that the BOP considers petitioner's federal sentence to run consecutive to the later-imposed state sentence entitles petitioner to no habeas relief under § 2241. The BOP's decision is consistent with well-settled federal law regarding consecutive sentences when the federal judgment is silent on the matter. Furthermore, the state court's order that petitioner's state sentence to run concurrently with the previously imposed federal sentence is not binding upon the BOP. See Leal v. Tombone, 341 F.3d 427, 429 (5th Cir. 2003); Bloomgren v. Belaski, 948 F.2d 688, 691 (10th Cir. 1991).
Federal prison officials are under no obligation to, and may well refuse to, follow the recommendation of state sentencing judges that a prisoner be transported to a federal facility. Moreover, concurrent sentences imposed by state judges are nothing more than recommendations to federal officials. Those officials remain free to turn those concurrent sentences into consecutive sentences by refusing to accept the state prisoner until the completion of the state sentence and refusing to credit the time the prisoner spent in state custody.Leal, 341 F.3d at 429 n. 13. State courts have no authority to order the commencement of a federal sentence. Id. Nor do they have authority to determine the computation of a federal sentence. The United States Attorney General is responsible for such computation. See United States v. Wilson, 503 U.S. 329, 337 (1992); United States v. Dowling, 962 F.2d 390, 393 (5th Cir. 1992).
Though petitioner cites various cases from other jurisdictions in support of his argument that the second sentencing court's order is determinative of whether a later-imposed sentence is consecutive or concurrent to a previously-imposed sentence, these cases conflict with binding Fifth Circuit precedent.
For all of these reasons, petitioner's attack on the manner in which his federal sentence is being executed fails. To the extent that petitioner seeks to modify or vacate the federally imposed sentence, he must pursue such relief in the district of conviction, i.e., the United States District Court for the Western District of Texas, Waco Division.
B. Sentence Credit
Petitioner also claims that the BOP has wrongly denied him 366 days credit to his federal sentence. This claim implicates 18 U.S.C. § 3585 — the federal statute that governs the calculation of a federal term of imprisonment. Specifically, the statute "determines when a federal sentence of imprisonment commences and whether credit against that sentence must be granted for time spent in `official detention' before the sentence began." Reno v. Koray, 515 U.S. 50, 55 (1995). Section 3585 provides:
(a) Commencement of sentence. — A sentence to a term of imprisonment commences on the date the defendant is received in custody awaiting transportation to, or arrives voluntarily at, the official detention facility at which the sentence is to be served.
(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.
This statute covers two distinct sentencing situations. Subsection (a) determines the time at which a defendant's sentence commences for purposes of executing his or her federal sentence. Subsection (b), in contrast, determines whether a defendant will receive credit toward his or her federal sentence for time spent in "official detention" prior to the time the federal sentence "commences" within the meaning of subsection (a). Subsection (b) makes clear "that credit is awarded only for presentence restraints on liberty." Reno v. Koray, 515 U.S. 50, 56 (1995).
"[T]he phrase `official detention' in § 3585(b) refers to a court order detaining a defendant and committing him to the custody of the Attorney General for confinement." Koray, 515 U.S. at 56. In addition, "[t]he phrase `official detention facility' in § 3585(a) . . . refer[s] to a correctional facility designated by the Bureau for the service of federal sentences, where the Bureau retains the discretion to `direct the transfer of a prisoner from one penal or correctional facility to another.'" Id. at 58. The words "official detention" have the same meaning under both subsection (a) and (b). Id. Thus, "credit for time spent in `official detention' under § 3585(b) is available only to those defendants who were detained in a `penal or correctional facility,' and who were subject to BOP's control." Id. (citation omitted).
Furthermore, prisoners are entitled to no credit toward their federal sentences for any period of time they are on loan to federal authorities on a writ of habeas corpus ad prosequendum from state custody. See Ruggiano v. Reish, 307 F.3d 121, 125 n. 1 (3d Cir. 2002); Meyer v. United States, No. 3:03-CV-2234-P, 2004 WL 637931, at *1 n. 1 (N.D. Tex. Feb. 19, 2004) (accepting findings of Magistrate Judge that cites BOP Program Statement 5880.28, Sentencing Computation Manual (CCCA 1984)). "The receiving sovereign — in this case, the federal government — is considered simply to be `borrowing' the prisoner from the sending sovereign for the purposes of indicting, arraigning, trying, and sentencing him." Ruggiano, 307 F.3d at 125 n. 1. Consequently, when calculating the time to be credited to petitioner's federal sentence, "the time spent in federal custody pursuant to a writ ad prosequendum is credited toward his state sentence, not his federal sentence." Id.
In this instance, prior to January 18, 2000, petitioner was in federal custody only on a writ of habeas corpus ad prosequendum. He was merely on temporary loan to the federal government prior to that date. Until January 18, 2000, the BOP through the Attorney General had not yet designated a facility where petitioner would serve his federal sentence. Furthermore, until that date, petitioner was not subject to the BOP's control. Under a strict reading of Koray, therefore, he was not in "official detention" within the meaning of § 3585(b). Consequently, he is entitled to no "credit against his sentence of imprisonment" for time prior to January 18, 2000. See Koray, 515 U.S. at 65.
Nevertheless, the Koray court specifically indicated that it was not addressing the propriety of awarding sentence credit to a federal sentence for time spent in state custody. 515 U.S. at 63 n. 5. The Supreme Court stated:
because the only question before us is whether a defendant is in `official detention' under § 3585(b) during the time he is `released' on bail pursuant to the Bail Reform Act of 1984, we need not and do not rule here on the propriety of BOP's decision to grant credit under § 3585(b) to a defendant who is denied bail pursuant to state law and held in the custody of state authorities.Id. In light of this language, the Court further notes that there appears to be no violation of § 3585(b) in this instance, even if petitioner is considered to have been in "official detention" within the meaning of § 3585(b) when he was in state pre-sentence custody, including his time on loan to the federal authorities because petitioner has already received state credit for that time.
The Court notes that the state court awarded petitioner credit for time during which he was out on bond between May 30, 1996, and June 23, 1996.
Section 3585(b) specifically excludes from the calculation time that has been "credited against another sentence." In this case, the state court initially credited petitioner's state sentence with the 366 days that petitioner now wants credited to his federal sentence. Apparently, when petitioner realized that the state credit prevented him from obtaining federal credit for those days, he requested that the state trial court rescind and withdraw the credits — a request that the trial court granted long after petitioner had been paroled from state custody and placed into federal custody. However, despite such withdrawal, the government provides persuasive documentation that petitioner has received all legal benefit of the credit prior to its withdrawal and has never lost the benefit of such credit. Although the state trial court ordered the credit withdrawn and petitioner's sentence recalculated, nothing of record indicates that petitioner's state sentence was actually recalculated.
In fact, the record before the Court shows that petitioner's state sentence was not recalculated. The Texas Department of Criminal Justice has verified that it applied the 366 days towards petitioner's state sentence, and that such credit was used in determining his parole eligibility date from the state sentence. ( See Decl. of Gail Haynes at 4, contained in App. to Answer.) No change has been made to petitioner's parole eligibility date despite the order withdrawing the credit already given. Furthermore, in February and August 2003, the Texas Department of Criminal Justice verified that petitioner's maximum date on his state ten-year sentence has remained unchanged since the date he was released from state custody. ( Id.) This lack of change reflects that the 366 days is still being applied to reduce petitioner's state sentence. The withdrawal order has had no effect on petitioner's state sentence. The status of his state sentence was not changed subsequent to that order.
Because the trial court's withdrawal of the 366 days credit has not been applied retroactively to recompute petitioner's parole eligibility date or his maximum date on his state ten-year sentence, petitioner has received the full benefit of the 366 days, notwithstanding its later recission and withdrawal. The Court thus finds that those 366 days have been credited to his state sentence within the meaning of § 3585(b). The language of § 3585(b) precludes the award of the same 366 days credit to reduce petitioner's federal sentence. Accordingly, the Court can find no violation of that statute, even assuming that Koray's definition of "official detention" does not dictate an outcome in this case.
For all of these reasons, petitioner is not entitled to the requested 366-day credit to his federal sentence.
III. RECOMMENDATION
For the foregoing reasons, the undersigned Magistrate Judge RECOMMENDS that the Court DENY the instant petition filed pursuant to 28 U.S.C. § 2241.