Brown v. McClintock

Filing 17

ORDER that Petitioner's 1 Petition for Writ of Habeas Corpus (Fed/2241) is dismissed. It is further Ordered that the Clerk of Court should enter judgment and close this case. Signed by Magistrate Judge D Thomas Ferraro on 11/7/2013. (MFR)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Lindell Brown,
Petitioner,

10
11

vs.

12

Warden Susan G. McClintock,

13

Respondent.

14

)
)
)
)
)
)
)
)
)
)
)

No. CV-12-0763-TUC-DTF
ORDER

15

Pending before the Court is a Petition for Writ of Habeas Corpus brought pursuant to 28

16

U.S.C. § 2241. Petitioner Lindell Brown, while confined in the Federal Correctional Institution

17

in Safford, AZ, alleges that the Bureau of Prisons (BOP) failed to credit his federal sentence

18

with 41 months of time served. Before the Court are the Petition (Doc. 1), Respondent’s Answer

19

(Doc. 8), and a Reply (Doc. 16). After review of the filings and record, the Court finds

20

Petitioner is not entitled to relief.

21

Background

22

Brown was arrested on June 11, 2005, by Michigan state authorities. After entering a

23

guilty plea for delivery/manufacturing of a controlled substance, on November 18, 2005, Brown

24

was sentenced to 9 years and 6 months to 20 years, with 159 days credit for time served. (Doc.

25

8, Ex. 1, Attach. 2.) On March 13, 2008, the United States District Court for the Western

26

District of Michigan issued a writ to the state authorities to turn Brown over to the U.S. Marshal

27

to appear in federal court. (Id., Attach. 3.) The writ provided that Brown would be returned to

28

the warden at his state facility at the conclusion of his federal case. (Id.) After pleading guilty

1

in federal court to conspiracy to distribute and possess with intent to distribute 5 kilograms or

2

more of cocaine, Brown was sentenced on November 17, 2008, to 204 months federal

3

imprisonment to run concurrently with his state sentence.1 (Id., Attach. 4.) His sentence

4

subsequently was amended to 180 months, still to run concurrently. (Id., Attach. 7.) On

5

November 18, Brown was returned to state custody, and the U.S. Marshal issued a detainer

6

against him to assume custody of him at the conclusion of his state incarceration. (Doc. 1 at 31.)

7

On November 9, 2010, Brown was paroled from state custody and began serving his sentence

8

in federal custody. (Doc. 8, Ex. 1, Attach. 6 at 2.) On December 8, 2010, the BOP Designation

9

and Sentence Computation Center notified the U.S. Marshal that it had designated the Michigan

10

Department of Corrections as the location for Brown to serve his federal sentence that had

11

begun on November 14, 2008. (Doc. 8, Ex. 1, Attach. 5.)

12

BOP has calculated Brown’s federal prison term to begin on the date of his sentencing,

13

November 14, 2008, without credit for the time served from June 11, 2005 to November 13,

14

2008. (Doc. 8, Ex. 1, ¶¶ 10, 11.) Based on that premise, Brown is projected to be released on

15

December 8, 2021, via good conduct time credit. (Id., ¶ 10.)
Analysis

16
17

The premise of both of Brown’s claims is his contention that he should have been given

18

credit for the 41 months he spent in state custody prior to his federal sentence, from June 11,

19

2005, to November 14, 2008. Brown argues that (1) BOP acted arbitrarily and capriciously

20

regarding his request for 41 months credit of time served and (2) BOP should have granted him

21

the 41 months credit. Respondent acknowledges that Brown administratively exhausted the

22

claims he now presents to this Court. (Doc. 8 at 4.)

23

By statute, Petitioner’s federal sentence commenced on the date he was received into

24
25
26
27
28

1

According to Petitioner, at sentencing the judge stated, “this Court believes that a
sentence that takes into account all these characteristics would be a sentence of 204 months in the
custody of the Bureau of Prisons, that it be served concurrent with and that credit be given for time
served on Docket No. 05-07434 in the Third Circuit Court of Michigan and for time awaiting
sentencing in this matter.” (Doc. 1 at 11.) This Court does not have the sentencing transcript but takes
Petitioner’s assertion to be true.
-2-

1

custody at the facility at which his detention was to be served. 18 U.S.C. § 3585(a). Because

2

BOP designated the Michigan Department of Corrections as the facility at which Brown’s

3

detention was to be served, his federal sentence commenced on November 14, 2008, the day he

4

was sentenced, rather than on November 9, 2010, when he was transferred to federal custody.

5

(Doc. 8, Ex. 1, Attach. 5.) BOP had the authority to designate Brown’s place of imprisonment

6

based on 18 U.S.C. § 3621(b). BOP’s designation complied with the statute in that it was based

7

on the federal sentencing judge’s order that Brown’s sentence run concurrently with the

8

previously imposed state sentence. (Doc. 8, Ex. 1, Attach. 5.)

9
10

Brown contends he should receive credit for time served before imposition of his
sentence as well. This is prohibited by a governing statute:

14

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.

15

18 U.S.C. § 3585(b). Here, the time for which Petitioner is seeking credit, June 11, 2005 to

16

November 13, 2008, was credited toward or spent in service of his state sentence. (Doc. 8, Ex.

17

1, ¶ 10.) The Supreme Court holds that § 3585 precludes double credit for detention time.

18

United States v. Wilson, 503 U.S. 329, 337 (1992).

11
12
13

19

The Attorney General, through BOP, is responsible for administering inmate sentences

20

and computation of credit pursuant to § 3585(b), which cannot be done by the court at the time

21

of sentencing. Wilson, 503 U.S. at 334, 336. Brown argues that BOP acted arbitrarily and

22

capriciously in not contacting the sentencing court when Petitioner requested nunc pro tunc

23

designation for time spent in state custody. Petitioner relies upon BOP Program Statement

24

5160.05 (PS 5160.05), which covers BOP policy for concurrent service of federal and state

25

sentences.2 It provides, first, that concurrent service of state and federal sentences occurs when

26
27
28

2

A Program Statement is an internal, interpretive rule promulgated by BOP. See Muniz
v. Sabol, 517 F.3d 29, 39-40 (1st Cir. 2008). Program Statement 5160.05 is available at
http://www.bop.gov/policy/progstat/5160_005.pdf (last viewed 11/1/2013).
-3-

1

BOP designates the state institution for service of the federal sentence. PS 5160.05, ¶ 9.a. It next

2

states that BOP normally takes this action because it is consistent with the sentencing court’s

3

intent, which is evidenced in various ways, including by court order designating the sentences

4

concurrent or inmate request. Id., ¶ 9.b. BOP must consider an inmate request for concurrent

5

service and it will send a letter to the sentencing judge inquiring if there is an objection, but only

6

if it is determined that “designation for concurrent service may be appropriate.” Id. ¶ 9.b(4)(c)

7

& (e).

8

Here, based on the Court’s order, BOP had determined that designation for concurrent

9

service was appropriate for Brown prior to his nunc pro tunc request. Because the judge had

10

explicitly ordered concurrent service and BOP had designated a state institution, Brown had

11

been given full credit for the time he spent in state custody. A further letter would have been

12

to no effect.3

13

Even if the sentencing judge intended Petitioner to receive the credit he seeks, see supra

14

note 1, he did not have the power to impose such a sentence. A federal sentence cannot

15

commence prior to its imposition, even if the judge intended it as concurrent with a sentence

16

already being served. See United States v. Flores, 616 F.2d 840, 841 (5th Cir. 1980). Such a

17

sentence is not “fully concurrent”; “[r]ather, the second sentence runs together with the

18

remainder of the one then being served.” Shevly v. Whitfield, 718 F.2d 441, 444 (D.C. Cir.

19

1983). Because Brown received the maximum amount of concurrent sentencing time statutorily

20

allowed, his arguments are without merit.

21

Brown notes there are limited exceptions in which an inmate may receive what amounts

22

to “double credit” for time credited to another sentence, citing Kayfez v. Gasele, 993 F.2d 1288

23

(7th Cir. 1993) and Willis v. United States, 438 F.2d 923 (5th Cir. 1971). However, he does not

24

contend he is entitled to credit based on the narrow exceptions in these cases (Doc. 16 at 6),

25
26
27
28

3

This is similar to another situation addressed by PS 5160.05, which states that if a
sentencing judge has previously indicated “that its language on judgments is sufficient for designation
of a state institution for service of a federal sentence, then no further letters need be written.”
¶ 9.b(4)(e).
-4-

1

only that he should receive credit based on the sentencing judge’s intent. As thoroughly

2

discussed above, he has received the maximum credit to which he is entitled under the

3

governing statutory law regardless of the court’s intent. Additionally, according to Petitioner,

4

the sentencing judge informed Brown that he could make a recommendation for concurrent

5

sentences but BOP was responsible for calculating the sentence in light of all the relevant

6

information. (Doc. 1 at 2-3.) Finally, the court’s intent that Brown receive credit for time served

7

on his state case and time awaiting federal sentencing was satisfied because Brown’s state

8

sentence was credited for all of this time. There is no basis for awarding him double credit for

9

this time.

10

Accordingly,

11

IT IS ORDERED that Petitioner’s Petition for a Writ of Habeas Corpus (Doc. 1) is

12
13
14
15

DISMISSED.
IT IS FURTHER ORDERED that the Clerk of Court should enter judgment and close
this case.
DATED this 7th day of November, 2013.

16
17
18
19
20
21
22
23
24
25
26
27
28
-5-