Opinion
NO. 3-03-CV-2102-R
December 10, 2003
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Petitioner Rickie Lee Beasley, appearing pro se, has filed an application for writ of habeas corpus pursuant to 28 U.S.C. § 2241. For the reasons stated herein, the application should be denied.
I.
On March 20, 1994, petitioner was arrested for a state parole violation. At the time of his arrest, petitioner was in possession of a firearm. He was subsequently charged by a federal grand jury with possession of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1). On May 20, 1994, the U.S. Marshals Service assumed temporary custody of petitioner pursuant to a writ of habeas corpus ad prosequendum. Petitioner subsequently pled guilty to the federal gun charge and was sentenced to 105 months confinement. The judgment does not specify whether petitioner's federal sentence runs concurrent with or consecutive to his state sentence. Immediately following his federal sentencing on November 18, 1994, petitioner was returned to state custody to serve the remainder of his 25-year sentence for unauthorized use of a motor vehicle. The federal judgment was filed as a detainer. On August 3, 1998, petitioner was paroled from state custody and began serving his federal sentence.
Federal prison regulations provide that time spent in federal custody pursuant to a writ of habeas corpus will not, in itself, be considered for the purpose of determining custody credits. This is because the primary reason for custody is not the federal charge. Rather, "[i]t is considered that the federal court `borrows' an individual under the provisions of the writ for the purpose of court appearance." (Gov't App. at 2 n. 2, citing Sentencing Computation Manual Policy Statement 5880.28 (CCCA 1984)).
Petitioner now seeks credit on his federal sentence from March 20, 1994, the date of his arrest, until August 3, 1998, the date he was taken into federal custody to begin his sentence. Alternatively, petitioner argues that his federal and state sentences should run concurrently. Petitioner has exhausted his administrative remedies and is properly before this court. United States v. Gabor 905 F.2d 76, 78 n. 2 (5th Cir. 1990).
II.
Petitioner's claims are governed by two distinct statutes. With respect to his claim for credit on his federal sentence from the date of his arrest until the date of sentencing, the applicable statute provides:
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(b) (emphasis added). Thus, a federal prisoner is only entitled to credit for time that has not been credited toward another sentence. The record shows that petitioner received credit on his state sentence for time served between March 20, 1994 and November 18, 1994. ( See Gov't App. at 3, ¶ 6). Consequently, he is not entitled to have that time credited toward his federal sentence.
III.
Petitioner also seeks credit for the time he was in state custody following his federal sentencing. This claim implicates 18 U.S.C. § 3584, which provides, in pertinent part:
(a) 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 . . .
* * * *
(b) The court, in determining whether the terms imposed are to be ordered to run concurrently or consecutively, shall consider, as to each offense for which a term of imprisonment is being imposed, the factors set forth in section 3553(a).18 U.S.C. § 3584(a) (b). Although the plain language of this statute suggests otherwise, the Fifth Circuit has held that a district court has discretion to order that a federal term of imprisonment run concurrent with a yet-to-be-imposed state sentence. United States v. Hernandez, 234 F.3d 252, 256 (5th Cir. 2000) (citing cases); see also United States v. Esquivel, 78 Fed. Appx. 964, 2003 WL 22430514 at *1 (5th Cir. Oct. 27, 2003) (district court has authority to order that federal sentence run concurrently with not yet imposed state sentence for revocation of probation).
In its original judgment, the district court did not specify whether petitioner's federal sentence should run concurrent with or consecutive to his state sentence. The judge subsequently clarified his intent to impose consecutive sentences, but did not explain his reasons therefor. ( See Gov't App. at 36). To the extent that petitioner contends the district court abused its discretion by ordering him to serve consecutive sentences, such a claim could have been raised on direct appeal. Petitioner has failed to demonstrate "cause" for his procedural default or "actual prejudice" resulting from the error. See United States v. Frady 456 U.S. 152, 165, 102 S.Ct. 1584, 1593, 71 L.Ed.2d 816 (1982) (collateral challenge may not substitute for direct appeal). As a result, he is precluded from raising this claim on collateral review.
Petitioner appealed his conviction and sentence, but did not challenge the judgment on this ground. See United States v. Beasley 68 F.3d 465 (5th Cir. 1995) (Table), cert. denied 116 S.Ct. 744 (1996).
RECOMMENDATION
Petitioner's application for writ of habeas corpus should be denied.