Opinion
4:13cv538-WS/CAS
02-16-2016
MELISHA JOHNSON, Petitioner, v. J.V. FLOURNOY, Warden Federal Correctional Institution, Respondent.
ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
Before the court is the magistrate judge's report and recommendation docketed December 28, 2015. See Doc. 24. The magistrate judge recommends that the petitioner's petition for writ of habeas corpus be denied. The petitioner has filed objections (doc. 27) to the report and recommendation.
The petitioner seeks credit against her federal sentence for time spent serving a state sentence. The petitioner maintains that she is entitled to such credit because the state court expressly stated that her state sentence "will run concurrent with the Federal Sentence and may be served in the Federal Bureau of Prisons." A federal court, however, "is authorized to impose a federal sentence consecutive to a state sentence, although the state court "explicitly made its sentence concurrent with the federal sentence." Finch v. Vaughn, 67 F.3d 909, 915 (11th Cir. 1995). In Finch, the Eleventh Circuit explained that "[a] federal court is entitled to ignore a state court's imposition of such a sentence because adherence would encroach upon the federal court's sentencing authority, in effect, eliminating the federal sentence." Id. (internal quotation marks omitted); see also Barden v. Keohane, 921 F.2d 476, 478 n. 4 (3d Cir. 1990) (recognizing "that neither the federal courts nor the [BOP] are bound in any way by the state court's direction that the state and federal sentences run concurrently").
In this case, the federal sentencing judge informed the BOP that it was his "unequivocal intention that this federal sentence be served consecutive to any other State sentence." The BOP, moreover, determined in its discretion that a nunc pro tunc designation was not appropriate. The record thus firmly establishes that the petitioner is not entitled to the jail credit she seeks.
The court having reviewed the report and recommendation in light of the plaintiff's objections, it is ORDERED:
1. The magistrate judge's report and recommendation is ADOPTED and incorporated by reference into this order of the court.
2. The petitioner's petition for writ of habeas corpus is DISMISSED.
3. The clerk shall enter judgment stating: "All claims are dismissed."
DONE AND ORDERED this 16th day of February, 2016.
s/ William Stafford
WILLIAM STAFFORD
SENIOR UNITED STATES DISTRICT JUDGE