Opinion
No. 3:02-CV-1026-H
November 8, 2002
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
This action was referred to the United States Magistrate Judge pursuant to the provisions of Title 28, United States Code, Section 636(b), as implemented by an Order of the United States District Court for the Northern District of Texas. The Findings, Conclusions and Recommendation of the United States Magistrate Judge follow:
FINDINGS AND CONCLUSIONS I. Factual Background
Petitioner has filed a habeas corpus petition pursuant to 28 U.S.C. § 2241. Petitioner is an inmate in the federal prison system.
On July 16, 2001, Petitioner was sentenced to 18 months imprisonment for mail fraud. In determining relevant conduct for sentencing, the Pre-Sentence Investigation Report included three convictions in Louisiana state court. In each of these state cases, Petitioner was sentenced to three years imprisonment, with sentences suspended, and Petitioner was placed on five years probation, to run concurrently.
Petitioner argues the Bureau of Prisons ("BOP") has erroneously refused to credit his federal sentence with time he spent in state custody prior to the imposition of his state sentences — from January 27, 1997, to August 8, 1997. Petitioner argues that because the Louisiana state court ultimately imposed suspended sentences and probation for his state convictions, the period in question has not been credited against any other sentence. Petitioner argues, therefore, that this period should be credited against his federal sentence under both 18 U.S.C. § 3585(b) and relevant BOP policy.
Petitioner has also filed a motion for bail pending the determination of his petition. On August 14, 2002, Respondent filed a response to the motion for bail. The Court finds that the petition and the motion for bail should be denied.
II. Discussion
Petitioner argues he is entitled to credit for the time served in Louisiana state jail pursuant to 18 U.S.C. § 3585(b). That section states:
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.
Petitioner argues that his state convictions were counted as relevant conduct in his federal sentence, but the time he spent in state jail prior to his state convictions was never credited towards either his state sentences or his federal sentence. Respondent argues, however, that the state court did credit Petitioner for the time he spent in state pre-sentence custody.
Petitioner submits a copy of the final judgment in one of his state cases. The final judgment states that the court:
sentences [defendant] to serve a period of three (3) years at hard labor . . . but suspends said sentence and places him on probation for a period of three (3) years.
Court further ordered that the sentence imposed herein is to run concurrent with the sentence the defendant is currently serving in the Tangipahoa Parish and with any federal sentence and the defendant be given credit for time served. . . .
(Pet. Ex. 5) (emphasis added).
Petitioner argues that if his probation had been revoked, he would have received credit on his sentence for time served. Since his probation was never revoked, however, Petitioner argues he never received the time credit.
Petitioner further argues that BOP policy statement PS 5880.28 shows he was not credited with time he spent in state custody. That policy states that in order to determine whether a non-federal entity granted a defendant detention credit, BOP officials should consider, inter alia, whether non-federal probation was granted. The policy states:
2. Failure by the non-federal government to grant official detention credit (or the credit granted was of no benefit) on a non-federal sentence, can be determined if: (b) non-federal probation was granted.
(BOP PS 5880.28). Because Petitioner was granted probation on his state sentences, Petitioner argues he did not receive state credit on the time he served in state custody.
Respondent, however, argues that the applicable BOP policy statement is Program Statement 5880.28 which states that:
A sentence imposed by a court for "Time Served," means that all time spent in official detention (prior custody time), as a result of the offense for which sentence was imposed, is included in the "Time Served" sentence which the court imposed and cannot be awarded to any other sentences.
(BOP PS 5880.28).
Respondent also submits a copy of the minutes from the state judgments. The minute orders state:
Accused to serve 003 Year(s). Credit for time served. Sentence is to be served at Hard Labor. Each count, consecutive with 81196. Sentence is to run consecutive. Sentence suspended, IN EXCESS OF TIME SERVED Accused placed on Supervised probation through the Probation Parole Board 005 Year(s). . . .
(Resp. Mot. to Dismiss, Appendix. pp. 26-28).
Petitioner argues Respondent's state judgment exhibits should not be considered because the judgment minutes are not signed. The judgment minutes contain the language "in excess of time served." The Court notes that both Petitioner's and Respondent's exhibits are not authenticated. Further, Petitioner does not argue that the state judgments do not contain the "in excess of time served" language. In fact, Petitioner addresses this language in his petition and argues that the language indicates only that Petitioner was entitled to time served if his probation was ever revoked. ( See pet. p. 9 n. 3). The Court will therefore consider both Petitioner's and Respondent's exhibits.
Respondent argues that Petitioner's state sentence was credited with the time he spent in in state pre-sentence custody. Respondent argues that because the judgment states Petitioner's sentences were suspended "in excess of time served," Petitioner was credited with time spent in pre-sentence custody and the balance of Petitioner's sentences were suspended.
The Court finds the state records show Petitioner was credited on his state sentence for time spent in pre-sentence custody. The state judgment submitted by Petitioner orders that Petitioner be credited with time served. (Pet. Ex. 5). The judgment minutes state that Petitioner's sentence was suspended "in excess of time served." The plain language of"in excess of time served" shows that Petitioner was credited with time he spent in pre-sentence custody on his state sentences and the balance of this state sentences were suspended.
Finally, Petitioner argues that the "in excess of time served" language "indicates only the legal requirement that Mr. Barnett was entitled to credit for time served if his sentence was ever revoked." (bet. p. 9). Petitioner states this language was redundant because under Louisiana Code of Criminal Procedure § 880, if Petitioner's probation had been revoked, he would have been entitled to time served by operation of law, regardless of whether the judgment contained the "time served" language. Section 880, however, does not address the " in excess of time served" language of Petitioner's sentence. Section 880 merely states that a court "shall give a defendant credit toward service of his sentence for time spent in actual custody prior to the imposition of his sentence." That section does not state that a sentence that is suspended in excess of time served operates as time served only upon revocation of probation. Petitioner has not shown he did not receive credit on his state sentence for the time he spent in state pre-sentence custody. The petition should therefore be denied.
RECOMMENDATION
For the foregoing reasons, the Court recommends that Petitioner's habeas corpus petition under 28 U.S.C. § 2241 be denied with prejudice.