Opinion
CIVIL ACTION NO. 4:03-CV-821-Y
February 2, 2004
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Defendant Todd William Gay, by and through his attorney of record, has filed a motion for an order nunc pro tune clarifying judgment or, in the alternative, for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. For the reasons stated herein, the motion should be denied.
I.
Defendant was charged by a federal grand jury with one count of conspiracy to commit bank robbery, two counts of bank robbery, two counts of carrying a firearm during a crime of violence, and two counts of possession of a firearm by a felon. At the time of his indictment, defendant was in state custody serving a 20-year sentence for burglary of a habitation and concurrent 10-year sentences for two thefts and unauthorized use of a motor vehicle. On December 10, 1992, the U.S. Marshals Service assumed temporary custody of defendant pursuant to a writ of habeas corpus ad prosequendum. Defendant subsequently pled guilty to six of the seven counts alleged in the federal indictment. On May 18, 1993, the district court sentenced defendant to 60 months confinement on the conspiracy count and 110 months confinement on the two bank robbery and two gun possession counts, to run concurrently. The court also imposed a mandatory consecutive 60-month prison term for carrying a firearm during a crime of violence, for a total punishment of 170 months confinement. The judgment does not specify whether defendant's federal sentence runs concurrent with or consecutive to his state sentences. Immediately following his federal sentencing, petitioner was returned to state custody. On April 21, 2000, after serving more than eight years on his state sentences, defendant was paroled from state custody to federal custody and began serving his 170-month federal sentence.
Defendant now seeks credit on his federal sentence from December 10, 1992, the date he was taken into temporary federal custody, until May 18, 1993, the date of sentencing. In addition, defendant maintains that his federal and state sentences should run concurrently. The court will address each claim in turn.
As a preliminary matter, the government correctly notes that defendant has failed to name the proper custodian for purposes of seeking federal habeas relief. Because defendant is not entitled to relief in any event, the court will consider his claims on the merits.
II.
Defendant first contends that he is entitled to credit for time served while in the temporary custody of the U.S. Marshals Service. At his sentencing hearing on May 18, 1993, the judge expressed his belief that defendant "should be entitled [to credit] for time served from December 10, 1992 until today." (Def. App., Exh. F at 21). However, only the Attorney General, through the Bureau of Prisons, is empowered to award sentence credit for time spent in pretrial custody. See United States v. Wilson, 503 U.S. 329, 334-35, 112 S.Ct. 1351, 1354-55, 117 L.Ed.2d 593 (1992). 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." Beasley v. Wendt, 2003 WL 22952226 at *1 n. 1 (N.D. Tex. Dec. 11, 2003) (Kaplan, M.J.), citing Sentencing Computation Manual, Policy Statement 5880.28 (CCCA 1984). Moreover, the record suggests that defendant received credit on his state sentences while in temporary federal custody. Under 18 U.S.C. § 3585(b):
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). In his brief, defendant tacitly concedes that he received credit on his state sentences for time served between December 10, 1992 and May 18, 1993. Consequently, he is not entitled to have that time credited toward his federal sentence.
III.
Defendant also seeks to have his federal sentence run concurrently with his state sentence. 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). In its original judgment, the district court did not specify whether defendant's federal sentence should run concurrent with or consecutive to his state sentences. To the extent that defendant contends the district court abused its discretion by ordering him to serve consecutive sentences, such a claim could have been raised on direct appeal. Defendant 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. See also Beasley, 2003 WL 22952226 at *2.
Defendant did not appeal his federal conviction and sentence.
RECOMMENDATION
Petitioner's motion for an order nunc pro tune clarifying judgment or, in the alternative, for a writ of habeas corpus should be denied.