Opinion
CIV-20-236-R
08-21-2020
RICKY LYNN FORE, Petitioner, v. S. R. GRANT, Warden, Respondent.
REPORT AND RECOMMENDATION
Petitioner, a federal inmate appearing pro se, brings this habeas action under 28 U.S.C. § 2241 challenging the effectiveness of his trial counsel and the Bureau of Prison's ("BOP") calculation of his federal sentence. The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B).
Petitioner's grounds for relief are asserted in his Second Amended Petition for Habeas Relief. Doc. No. 14. Respondent has filed a Motion to Dismiss Petitioner's Second Amended Petition for a Writ of Habeas Corpus. Doc. No. 17. Respondent's Motion is construed as a Response, to which Petitioner has replied. Doc. No. 20. For the following reasons, it is recommended Petitioner's Second Amended Petition be denied.
I. Background
The following procedural background is based primarily on Respondent's Statement of Facts, which is supported by an Affidavit signed under penalty of perjury by Kneyse Martin, Correctional Program Specialist for the BOP, and other exhibits attached thereto. Doc. Nos. 17, 17-1. Petitioner has not disputed the truth of any asserted fact.
Petitioner, currently incarcerated at the Federal Correctional Institution located in El Reno, Oklahoma, has a criminal history stretching back to 1998 when he was charged in the Oklahoma District Court for Pontotoc County, Case No. CF-1998-212, with manufacture of methamphetamine with intent to distribute. Petitioner was convicted and sentenced to twenty years' imprisonment.
The docket sheet, for Case No. CF-98-212, Oklahoma District Court for Pontotoc County, may be viewed at www.oscn.net (last accessed August 13, 2020).
In 1999, Petitioner was again charged in the Oklahoma District Court for Pontotoc County, Case No. CF-99-85, this time for "endeavoring to manufacture methamphetamine." Although Petitioner's status in 1999 is not entirely clear from Respondent's brief, the undersigned extrapolates from the record that Petitioner was on parole when he committed the crime charged in Case No. CF-1999-85, chiefly because the State of Oklahoma issued an arrest warrant for Petitioner for parole violations. Officers from the Lamar County, Texas, Sheriff's Department executed the Oklahoma warrants and arrested Petitioner in Paris, Texas, on March 16, 2010. Petitioner remained incarcerated in the Lamar County Jail until March 25, 2010, when he was transferred to the custody of the Oklahoma Department of Corrections ("ODOC"). Doc. No. 17-1 at 3, 13. In the course of arresting Petitioner, the officers observed several firearms in his residence, ultimately leading to the federal charge of felon in possession of a firearm. Id. at 3.
The docket sheet for Case No. CF-99-85, Oklahoma District Court for Pontotoc County, may be viewed at www.oscn.net (last accessed August 13, 2020).
Respondent refers to "Case No. CF-1995-85." Doc. No. 17 at 2. It appears this reference is a scrivener's error and that Respondent intended to refer to Case No. CF-1999-85.
On May 28, 2010, Petitioner, still in ODOC custody, was arrested by federal marshals and temporarily transferred, pursuant to a writ of habeas corpus ad prosequendum, to face the felon in possession of a firearm charge in the United States District Court for the Eastern District of Texas. Id.
Petitioner ultimately pled guilty to the federal charge, and on September 7, 2012, the United States District Court for the Eastern District of Texas sentenced him to a sixty-month term of imprisonment to be followed by a three-year term of supervised release. Id. at 3, 15. The judgment did not state that Petitioner's federal sentence should run concurrently with his state sentences. Given the judgment's silence regarding administration of the sentences, the BOP, under its policy, determined Petitioner's federal sentence should be served consecutively to any previously imposed sentences. Id. at 3, 19-21. See also 18 U.S.C. § 3584(a) ("Multiple terms of imprisonment imposed at different times run consecutively unless the court orders that the terms are to run concurrently.").
On September 27, 2012, Petitioner was returned to Oklahoma to serve the remainder of his Oklahoma sentences. Doc. No. 17-1 at 4, 16. Upon Petitioner's return to state confinement, the United States Marshal for the Eastern District of Oklahoma issued a detainer to the John Lilley Correctional Center ("JLCC"), where Petitioner was serving the remainder of his Oklahoma sentence. The detainer advised JLCC of the judgment imposed by the United States District Court for the Eastern District of Texas and requested notice, prior to Petitioner's release from state custody, "so that we may assume custody of the subject for service of his Federal sentence of imprisonment." Id. at 27.
Petitioner was released on parole from State custody, and federal authorities assumed custody of him on May 31, 2013, pursuant to the federal detainer that had previously been lodged against him. Id. at 16. The State of Oklahoma granted Petitioner credit for the period from March 25, 2010 to May 31, 2013—the time during which he was awaiting his federal trial—and applied that credit to his state sentences. Id. at 4, 32.
The time during which Petitioner was confined in Paris, Texas after his arrest on March 16, 2010, until the date he was transported to Oklahoma on March 24, 2010, initially was overlooked and not credited to either his state sentence, or to his federal sentence. The BOP subsequently corrected this error and has since given Petitioner credit for that time against his federal sentence. Id. at 4, 11 (reflecting jail credit from March 16, 2010 through March 24, 2010).
II. Petitioner's Grounds for Habeas Relief
Petitioner challenges the effectiveness of counsel representing him in the federal case. He claims his attorney orally informed him that he would get "dual credit" for service of the federal and state sentences. Petitioner further complains that his counsel neither filed a motion seeking to have his pretrial detention time applied against his federal sentence, nor requesting the court to grant Petitioner "dual credits." Doc. No. 14 at 3.
Petitioner also contends that his federal sentence should be calculated to run from the day the federal detainer was lodged against him. Id. at 11. Further, Petitioner contends that while he was in the temporary custody of the BOP, he missed a parole hearing concerning revocation of his parole in Oklahoma. He contends that had he had the chance to attend the parole hearing he would have been paroled. Id. at 12.
Generally, there is no constitutional right to parole. Both the Tenth Circuit and the Oklahoma Supreme Court have found that Oklahoma's parole statutes do not create a liberty interest in early release. Shirley v. Chestnut, 603 F.2d 805, 807 (10th Cir. 1979); Shabazz v. Keating, 977 P.2d 1089, 1093 (Okla. 1999). Absent a liberty interest in parole, Petitioner is not entitled to due process protection. Shirley, 603 F.2d at 807. Thus, his complaints concerning the parole hearing do not rise to the level of a constitutional violation. --------
III. Analysis
A. Ineffective Assistance of Counsel
According to Petitioner, before he pled guilty to the federal felon in possession of a firearm charge, his counsel assured him that he would receive "dual credits" in addition to credit against his federal sentence for the time he had spent awaiting federal proceedings. Doc. No. 14 at 6-7. Because Petitioner implies that he would not have pled guilty had he known these credits would not be applied to his federal sentence, Petitioner's ground for relief is construed as a claim that his guilty plea was not knowingly and voluntarily made.
While a petitioner's claim of ineffective assistance of counsel is generally not barred from collateral review, such review should be sought by motion under 28 U.S.C. § 2255. See Prost v. Anderson, 636 F.3d 578, 580 (10th Cir. 2011) ("Congress has told us that federal prisoners challenging the validity of their convictions or sentences may seek and win relief only under the pathways prescribed by § 2255."). The lone exception to § 2255(a)'s exclusivity is found in § 2255(e), known as "the savings clause," providing that a federal prisoner may challenge his conviction or sentence by other means if his remedy under § 2255 is inadequate or ineffective. Accordingly, under § 2255(e), "a federal prisoner may resort to § 2241 to contest his conviction if but only if the § 2255 remedial mechanism is 'inadequate or ineffective to test the legality of his detention.'" Prost, 636 F.3d at 580 (quoting § 2255(e)). Notably, it is the petitioner's burden to show the § 2255 remedy is inadequate or ineffective. See Abernathy v. Wandes, 713 F.3d 538, 549 (10th Cir. 2013) ("It is Mr. Abernathy's burden to show that he meets § 2255(e)'s savings clause.").
As an initial matter, the fact that Petitioner may have waited until after the statute of limitations for bringing a § 2255 motion expired does not render § 2255 inadequate or ineffective. See Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996) ("Failure to obtain [or seek] relief under [§] 2255 does not establish that the remedy so provided is either inadequate or ineffective." (quotations omitted)); Raines v. Fox, No. CIV-16-1036-R, 2016 WL 6269621, at *1 (W.D. Okla. Oct. 28, 2016) (noting that "the statute of limitations does not render a § 2255 motion inadequate or ineffective" (citing Hale v. Fox, 829 F.3d 1162, 1171 (10th Cir. 2016)). The relevant inquiry as to whether § 2255 would have been an adequate and effective mechanism to challenge Petitioner's sentence enhancement is to determine if he could have raised the same arguments he raises herein had he brought the action under § 2255. Jones v. Goetz, 712 F. App'x 722, 727 (10th Cir. 2017) (citing Prost, 636 F.3d at 584). "If the answer is yes, then the petitioner may not resort to the savings clause and § 2241." Goetz, 712 F. App'x at 727 (quoting Prost, 636 F.3d at 584).
Petitioner has acknowledged that he did not file a § 2255 motion. Doc. 14 at 4. He does not explain why he chose to file a § 2241 petition rather than a motion under § 2255. He states only that allowing him to proceed under § 2241 would "promote respect for the law and rules and integrity, fairness." Id. at 5. This vague, non-legal explanation is insufficient to demonstrate that a § 2255 motion is inadequate or ineffective to address Petitioner's ineffective assistance of counsel claim. Thus, this Court lacks jurisdiction to consider Petitioner's ineffective assistance of counsel claim in this § 2241 action.
B. The BOP's Calculation of Petitioner's Sentence
Petitioner's challenge to the calculation of his sentence is without merit. Respondent has established, with the support of the Affidavit of Kneyse Martin, that Petitioner was given credit towards either his state or federal sentence for every day he was incarcerated. Petitioner's argument—that he was denied dual credits—results from his lack of understanding of the law regarding sentence computation.
Under federal law, "dual credit" for time served in state custody cannot be credited toward a federal sentence:
(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;18 U.S.C. § 3585 (emphasis provided). Thus, awarding Petitioner what he calls "dual credit" against both his state and federal sentences for the time spent in state custody is clearly prohibited by federal law.
that has not been credited against another sentence.
First, Petitioner's situation does not meet the requirements of § 3585(b)(2). He was kept in "official detention" as a result of state charges for which he was arrested before he was arrested for the federal offense. Second, the time Petitioner spent in state and temporary federal custody was credited against his state sentences and, therefore, could not also be credited against his federal sentence.
Petitioner then argues that he is entitled to credit against his federal sentence for the time he was confined awaiting his trial on the federal charge. He contends he was in federal custody before he was in state custody. If this were true, he would have been entitled to credit against his federal sentence for the time he spent in custody awaiting his federal trial. The facts demonstrate, however, that he was first arrested on an Oklahoma arrest warrant for a parole violation. Oklahoma, therefore, had primary custody over Petitioner even though the federal government was afforded temporary physical custody of Petitioner so that he could be tried on the federal charge. The law is clear regarding primary jurisdiction over detainees and prisoners:
It is well settled that in our two systems of courts, the one which first takes custody of a prisoner in criminal cases is entitled to the custody of the prisoner until final disposition of the proceedings in that court, but during this time the prisoner is not immune from prosecution by the other sovereign. When a state surrenders one of its prisoners to the federal government for the purpose of trial on charges pending there, a judgment and sentence upon conviction in the federal court does not begin to run, if the prisoner is delivered back to state authorities, until the prisoner is thereafter returned to federal custody and received at a federal penal institution for service of his sentence.Williams v. Taylor, 327 F.2d 322, 323 (10th Cir. 1964) (citations omitted).
Finally, Petitioner's contention that his federal sentence began to run the day the federal detainer was filed is equally without merit. Under federal law, a federal sentence 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). Accordingly, because Petitioner's grounds for relief are without merit, it is recommended his Petition brought pursuant to 28 U.S.C. § 2241 be denied.
RECOMMENDATION
Based on the foregoing findings, it is recommended that the Petition for a Writ of Habeas Corpus, brought pursuant to 28 U.S.C. § 2241, be DENIED. Petitioner is advised of his right to file an objection to this Report and Recommendation with the Clerk of this Court by September 10th , 2020, in accordance with 28 U.S.C. § 636 and Fed. R. Civ. P. 72. The failure to timely object to this 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 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.
ENTERED this 21st day of August, 2020.
/s/_________
GARY M. PURCELL
UNITED STATES MAGISTRATE JUDGE