Opinion
CIV-20-1209-F
03-24-2021
ANGELO WASHINGTON, Petitioner, v. WARDEN S.R. GRANT, Respondent.
REPORT AND RECOMMENDATION
SUZANNE MITCHELL, UNITED STATES MAGISTRATE JUDGE.
Petitioner, a federal prisoner appearing pro se, filed a petition for habeas corpus relief under 28 U.S.C. § 2241 “challenging that [he] did not receive credit for time [he] served in U.S. Marshal custody from on or about 12/12/08 until 8/28/09” while awaiting sentencing in his federal case. Doc. 8, at 2.Petitioner, who was at the time also serving state sentences, alleges he was in federal custody during this time but did not receive credit for those months in the form of a reduction of his federal sentence. Id. Respondent argues the Court should deny his petition because the time in question “was applied to [Petitioner's] state sentence and is not creditable to his federal sentence” . Doc. 11, at 9. The undersigned agrees and recommends the Court deny the petition.
United States District Judge Stephen P. Friot has referred the matter to the undersigned Magistrate Judge for proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). Doc. 4.
Citations to a court document are to its CM/ECF designation and pagination. Except for capitalization, quotations are verbatim unless otherwise indicated.
I. This Court convicted and sentenced Petitioner while he was serving state sentences.
In December 2003 and January 2004, the Oklahoma County District Court convicted and sentenced Petitioner in three drug-related cases-Nos. CF-2002-5003 and CF-2002-6299 (“2003 state sentences”), and CF-2002-4574 (“2004 state sentence”). Doc. 11, Ex. 1, at 10. The court sentenced Petitioner to serve the 2003 sentences concurrently, but consecutive to the 2004 sentence. Id.
See https://www.oscn.net/dockets/GetCaseInformation.aspx?db=oklahomaνmb er=CF-2002-5003&cmid=1566080 (last accessed February 22, 2021); https://www.oscn.net/dockets/GetCaseInformation.aspx?db=oklahomaνmb er=CF-2002-6299&cmid=1588304 (last accessed February 22, 2021); https://www.oscn.net/dockets/GetCaseInformation.aspx?db=oklahomaνmb er=CF-2002-4574&cmid=1558344 (last accessed February 22, 2021). The undersigned takes judicial notice of Petitioner's criminal docket sheet in Oklahoma County District Court Nos. CF-2002-5003, CF-2002-6299, and CF-2002-4574. See United States v. Pursley, 577 F.3d 1204, 1214 n.6 (10th Cir. 2009) (exercising discretion “to take judicial notice of publicly-filed records in [this] court and certain other courts concerning matters that bear directly upon the disposition of the case at hand”) (citation omitted).
In December 2008, while Petitioner was serving his 2004 sentence, this Court issued a Writ of Habeas Corpus Ad Prosequendum in No. CR-09-25-F, directing the U.S. Marshals Service (Marshals) to take Petitioner into custody for an appearance in this Court on December 23, 2008. See United States v. Washington, No. CR-09-25-F, Doc. 83 (W.D. Okla. Dec. 12, 2008). Pursuant to the writ, the Marshals took Petitioner from the custody of the Oklahoma Department of Corrections on December 19, 2003, and Petitioner remained in federal custody while the case in this Court was pending. Doc. 11, Ex. 1, at 14. After a federal grand jury indicted Petitioner with drug offenses and Petitioner pleaded guilty, this Court sentenced him to a forty-eight-month sentence (“federal sentence”) to be served consecutively to his state sentences. Id. Ex. 1, at 16. On August 25, 2009, the Marshals returned Petitioner to Oklahoma Department of Corrections custody. Id. Ex. 1, at 14.
While Petitioner uses CR-09-25-M to refer to his federal case in the petition, the correct case number designation is currently CR-09-25-F, as it was reassigned to U.S. District Judge Stephen P. Friot on December 1, 2020.
On August 24, 2012, Petitioner received parole in the 2004 state sentence and began serving the concurrent 2003 state sentences, for which he received parole on May 7, 2020. The next day, the Marshals took Petitioner into federal custody to begin serving his federal sentence.
II. Petitioner claims the calculation of credit for time served prior to his federal sentence was incorrect.
Petitioner contends “on or about 12/12/08, [he] was picked up an[d] held in federal custody until on or about 8/28/09.” Doc. 8, at 2. He claims he “was physically in federal custody” because he “was held in Grady County Jail for sentencing on CR-09-25-M” during this time and “Grady County Jail is a federal holding facility.” Id. at 8. He is now serving the forty-eight-month federal sentence and asks the Court to decrease his sentence by the amount of time he spent in the Grady County Jail while he awaited sentencing. Id.
Respondent argues “Petitioner is not entitled to federal sentence credit for the time he was in temporary federal custody pursuant to the writ of habeas corpus ad prosequendum” because “[t]ime that a prisoner spends in state custody and temporary federal custody which is credited against his state sentence cannot also be credited against his federal sentence.” Doc. 11, at 7-8. Indeed, a Federal Bureau of Prisons sentence computation found that “no prior jail time credit was available for Petitioner's federal sentence, as all of his custody prior to May 8, 2020, was applied to his sentences imposed by the State of Oklahoma.” Id. Ex. 1, at 4, ¶ 16.
III. Analysis.
The computation of a federal sentence requires determining (1) “the commencement date of the federal sentence” and (2) “the extent to which a defendant can receive credit for time spent in custody prior to commencement of sentence.” Binford v. United States, 436 F.3d 1252, 1254 (10th Cir. 2006).
A. Petitioner's federal sentence commenced on May 8, 2020.
Generally, a federal sentence “commences on the date the defendant is received in custody awaiting transportation to . . . the official detention facility at which the sentence is to be served.” 18 U.S.C. § 3585(a). But “[w]hen 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). Thus, “[a] federal sentence does not commence until a prisoner is actually received into federal custody for that purpose.” Binford, 436 F.3d at 1255.
Respondent argues “Petitioner was not taken into federal custody for purposes of his federal sentence until May 8, 2020.” Doc. 11, at 9. The undersigned agrees-and Petitioner does not argue otherwise-that Petitioner's federal sentence began to run on May 8, 2020, when the Marshals took him into federal custody after he received parole from his 2003 sentences. See Binford, 436 F.3d at 1256 (finding the petitioner's “federal sentence never began until he was finally received into federal custody for the purpose of serving his federal sentence, after completing his state sentence” because he was at all times held pursuant to an ad prosequendum writ while in temporary federal custody awaiting sentencing).
This Court construes a pro se litigant's pleadings liberally and holds them “to a less stringent standard than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991); see Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam). The Court, however, may not serve as Plaintiff's advocate, creating arguments on his behalf. See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).
B. Petitioner is not entitled to credit for time he spent in federal custody awaiting sentencing that he also received towards his state sentences.
“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 . . . that has not been credited against another sentence.” 18 U.S.C. § 3585(b). Petitioner claims he should receive credit for the time he spent in federal custody awaiting sentencing in his federal case. But Respondent argues Petitioner was only in temporary federal custody pursuant to the writ during that time, and the State of Oklahoma already applied that time to the state sentences for which Petitioner received parole.
“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.” Williams, 327 F.2d at 323 (citations omitted). Petitioner came into temporary federal custody pursuant to an ad prosequendum writ and remained in federal custody only until this Court sentenced him and disposed of his federal case, at which point the Marshals returned him to state custody; he came into federal custody once again only after he received parole in his state sentences.
So, the State of Oklahoma had custody of Petitioner, who was serving multiple state sentences, when it released him into temporary federal custody for prosecution. See Fore v. Grant, No. CIV-20-236-R, 2020 WL 5554260, at *4 (W.D. Okla. Aug. 21, 2020) (“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.”), report & recommendation adopted, 2020 WL 5549617 (W.D. Okla. Sept. 16, 2020).
Relying on Bureau of Prisons computations Respondent asserts that the time Petitioner was in federal custody awaiting sentencing was credited towards his state sentences, so he cannot receive credit for that time again. See Doc. 11, Ex. 1, at 4, 6-8. Petitioner does not refute that he already received that time credit in his state sentences. Since under 18 U.S.C. § 3585(b) Petitioner can only receive credit “that has not been credited against another sentence, ” Petitioner cannot receive habeas relief based on the months he spent at the Grady County jail awaiting sentencing in his federal case. See Fore, 2020 WL 5554260, at *3-4 (“Respondent has established that Petitioner was given credit towards either his state or federal sentence for every day he was incarcerated. . . . [Petitioner] was kept in ‘official detention' as a result of state charges for which he was arrested before he was arrested for the federal offense [and] 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.”).
As in Binford, Petitioner “does not contend he did not receive credit on his state sentence for the time he spent in federal custody prior to his return to the state after the federal proceedings had concluded.” 436 F.3d at 1255 n.5.
IV. Recommendation and notice of right to object.
For these reasons, the undersigned recommends that the Court deny Petitioner's 2241 habeas petition.
The undersigned advises Petitioner of his right to file an objection to this Report and Recommendation with the Clerk of Court on or before April 14, 2021, under 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(2). The undersigned further advises Petitioner that the failure to file a timely objection to this Report and Recommendation waives the right to appellate review of both the factual and legal issues contained herein. Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation disposes of all issues referred to the undersigned in the captioned matter.