Opinion
Civil Action 3:23-cv-370-HTW-LGI
05-29-2024
ANTHONY L. WARD, #28774-001 PETITIONER v. WARDEN BAYSHORE RESPONDENT
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
LAKEYSHA GREER ISAAC, UNITED STATES MAGISTRATE JUDGE.
Anthony Ward petitions this Court for writ of habeas corpus under 28 U.S.C. § 2241. Ward is a federal prisoner incarcerated at FCI in Yazoo City, Mississippi, serving an aggregate term of imprisonment imposed by the United States District Court for the Northern District of Alabama. Having considered the submissions of the parties and the applicable law, the undersigned recommends that the petition should be denied and dismissed with prejudice.
On October 13, 2016, Ward was arrested while on supervised release. On November 16, 2016, he was revoked and sentenced to 18-months for the violation with credit for time served- a total of 34 days from October 13, 2016 - November 15, 2016. By its terms, the sentence expired on January 31, 2018, and Ward remained in custody pending sentencing on the charges stemming from the 2016 arrest. On April 24, 2018, he was sentenced on those charges to a 240-month term of imprisonment.All counts were ordered to run concurrently except one-Use and Carry of a Firearm During and in Relation to a Drug Trafficking Crime-which was ordered to run consecutively to his sentence revocation. In calculating the current sentence, the BOP awarded Ward presentence credit from February 1, 2018, the day after completing his supervised violation term, through April 23, 2018, the day before the new sentence was imposed. Barring any code violations, Ward is projected to be released in 2027.
A year later, the court reduced the 240-month term to 125 months.
In the petition, Ward asserts that the BOP has miscalculated his sentence computation by failing to apply all eligible credit to his sentence. He requests that this Court direct BOP to grant him presentence credit for time served from the date he was arrested on the supervised-release violation, October 13, 2016.
Disposition
The United States Attorney General, through the BOP, “determines what credit, if any, will be awarded to prisoners for time spent in custody prior to the start of their sentences.” Leal v. Tombone, 341 F.3d 427, 428 (5th Cir. 2003) (citing United States v. Wilson, 503 U.S. 329, 331-32, 334, 112 S.Ct. 1351, 117 L.Ed.2d 593 (1992)). The computation is governed by 18 U.S.C. § 3585, and consists of a two-step determination: first, the BOP determines the date on which the federal sentence commences and, second, the BOP determines whether the prisoner is entitled to any credit for time spent in custody before the commencement of the sentence, i.e., prior-custody credit. Section 3585 provides:
(a) Commencement of sentence. - A sentence to a term of imprisonment 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.
(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;
that has not been credited against another sentence.18 U.S.C. § 3585. Based on the plain language of the statute, “Congress made clear that a defendant could not receive a double credit for his detention time.” Wilson, 503 U.S. at 337.
Relevant here, Ward maintains that he is entitled to habeas relief because BOP failed to apply the same 34-day presentence credit to his current term for time spent in service of his sentence revocation (October 13, 2016-November 15, 2016). Not so. First, a defendant has a right to credit for time in official detention only if it has not been credited against another sentence. 18 U.S.C. § 3585. This credit had been applied to the sentence revocation. Second, Ward's revocation sentence expired on January 31, 2018, four months before the current sentence was imposed on April 24, 2018. The terms of the new sentencing order notwithstanding, there was no active sentence running to support a request for concurrence as of April 2018. Shaw v. Boulet, No. 3:22CV261-CWR-FKB, 2023 WL 8288299, at *1 (S.D.Miss. Oct. 17, 2023), report and recommendation adopted, No. 3:22-CV-261-CWR-FKB, 2023 WL 8283623 (S.D.Miss. Nov. 30, 2023) (“Although the judgment on the second sentence provided it was to run concurrently with the earlier sentence, the BOP could not give effect to this provision, as Petitioner had already completed his first sentence by the time his second sentence was imposed.”). Moreover, “a federal sentence cannot commence prior to the date it is pronounced, even if made concurrent with a sentence already being served.” Roach v. United States, 732 Fed.Appx. 325, 326 (5th Cir. 2018) (quoting United States v. Flores, 616 F.2d 840, 841 (5th Cir. 1980)).
Contrary to what Ward argues, he is not entitled to have the time spent in service of his expired revocation sentence applied toward his new sentence. In compliance with the governing statutes, the BOP applied the only presentence credit available-time served between the expiration of his revocation sentence and commencement of the new sentence. (February 1, 2018-April 24, 2018). His claim that the BOP has denied him additional credit to which he is entitled fails. For these reasons, the undersigned recommends that the petition be dismissed with prejudice.
NOTICE OF RIGHT TO APPEAL/OBJECT
Under Rule 72(a)(3) of the Local Uniform Civil Rules of the United States District Courts for the Northern District of Mississippi and the Southern District of Mississippi, any party may serve and file written objections within 14 days after being served with a copy of this Report and Recommendation. Within 7 days of the service of the objection, the opposing party must either serve and file a response or notify the District Judge that he or she does not intend to respond to the objection.
The parties are notified that failure to file timely written objections to the proposed findings, conclusions, and recommendations contained within this report and recommendation, will bar that party from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court, except upon grounds of plain error. 28 U.S.C. § 636, Fed.R.Civ.P. 72(b) (as amended, effective December 1, 2009); Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996).