Fuller v. Outlaw

Filing 9

RECOMMENDED DISPOSITION recommending that the District Court dismiss this 28 U.S.C. § 2241 petition in its entirety, with prejudice. Objections to R&R due by 12/22/2008. Signed by Magistrate Judge Beth Deere on 12/08/08. (hph)

IN THE UNITED STATES DISTRICT COURT E A S T E R N DISTRICT OF ARKANSAS E A S T E R N DIVISION T O M M Y FULLER R e g . #19624-076 v. CASE NO.: 2:08-CV-00055-SWW-BD R ESPO N D EN T PETITIONER

T .C . OUTLAW, W a rd en , FCI- Forrest City

R E C O M M E N D E D DISPOSITION I. P r o c e d u r e for Filing Objections: T h e following recommended disposition has been sent to United States District Ju d g e Susan Webber Wright. Any party may file written objections to this re c o m m e n d a tio n . Objections should be specific and should include the factual or legal b a sis for the objection. If the objection is to a factual finding, specifically identify that f in d in g and the evidence that supports your objection. An original and one copy of your o b je c tio n s must be received in the office of the United States District Court Clerk no later th a n eleven (11) days from the date you receive the Recommended Disposition. A copy w ill be furnished to the opposing party. Failure to file timely objections may result in w a iv e r of the right to appeal questions of fact. M a il your objections and "Statement of Necessity" to: Clerk, United States District Court E a ste rn District of Arkansas 6 0 0 West Capitol Avenue, Suite A149 L ittle Rock, AR 72201-3325

II.

B a c k gro u n d : P e titio n e r Tommy Fuller was arrested in Memphis, Tennessee by Tennessee state

a u th o ritie s on November 16, 2003. On June 7, 2004, a Shelby County, Tennessee Judge s e n te n c ed Petitioner to a three-year term of imprisonment for aggravated burglary, and a tw o -ye a r term for theft of property. Petitioner pled guilty to being a felon in possession of a firearm in the United S ta te s District Court for the Western District of Tennessee. (#2 at p. 3) He was tra n sf e rre d from the Tennessee Department of Correction to the custody of the United S ta te s Marshal Service for sentencing on the federal gun charge under a writ of habeas c o r p u s ad prosequendum on June 15, 2004. (#5-2 at p. 2) On July 6, 2005, the Federal D is tric t Court sentenced Petitioner to ninety-six months in the Bureau of Prisons ("BOP") to be served concurrent with the Tennessee sentences that had previously been imposed. Id. Petitioner never returned to the Tennessee Department of Correction. Id. After he w a s sentenced, Petitioner remained in the temporary custody of the United States Marshal S e rv ice until he was designated to go to the Federal Correctional Complex (Medium) in F o rr e s t City, Arkansas ("FCC-FC") to serve his sentence. Id. Petitioner completed s e rv ic e of his Tennessee sentences on November 5, 2005. The BOP gave Petitioner a nunc pro tunc designation for service of his federal se n ten c e . (#5-2 at p. 3) As a result, the BOP designated July 6, 2005, the date his

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s e n te n c e was imposed, as the beginning date for service of his federal sentence. Id. The B O P also awarded petitioner 204 days of jail time credit from November 16, 2003, the d a y he was arrested by Tennessee authorities, through June 6, 2004, the day prior to the d a te Petitioner received his Tennessee state sentences. Id. Petitioner brings this habeas petition under 28 U.S.C. § 2241 challenging the m a n n e r in which Respondent is executing his sentence.1 Specifically, Petitioner claims th a t Respondent should compute his sentence so as to give him pre-sentence credit for tim e served from June 6, 2004 through August 8, 2005 during which he contends he was in federal custody. (#2 at p. 5) R e sp o n d e n t contends that it has appropriately calculated Petitioner's sentence in a c co rd a n c e with Willis v. United States, 438 F.2d 923 (5th Cir. 1971) and 18 U.S.C. § 3585(b)(2), and asks the Court to dismiss the petition with prejudice. For the reasons th a t follow, the Court recommends that the District Court dismiss the petition with p re ju d ic e . III. S en ten ce Credit: W h e th e r a prisoner who committed a federal offense receives credit for time spent in custody is governed by 18 U.S.C. § 3585. Kendrick v. Carlson, 995 F.2d 1440, 1444 n. 3 (8th Cir. 1993). The statute provides:

From the documents attached to the petition, it appears that Petitioner has fully e x h a u s te d his administrative remedies. 3

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C a lc u la tio n of term of imprisonment (a ) Commencement of sentence. A sentence to a term of imprisonment c o m m e n c es on the date the defendant is received in custody awaiting tra n sp o rta tio n to, or arrives voluntarily to commence service of sentence at, th e official detention facility at which the sentence is to be served. (b ) Credit for prior custody. A defendant shall be given credit toward the s e rv ic e of a term of imprisonment for any time he has spent in official d e t e n tio n 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 a rre ste d after the commission of the offense for which the sentence was im p o s e d ; th a t has not been credited against another sentence. 18 U.S.C. § 3585 (emphasis added). The Respondent correctly contends that from June 7, 2 0 0 4 to July 5, 2005, Petitioner received credit toward his state sentences, and, therefore, u n d e r the statute he cannot receive credit toward his federal sentence for the same time s e rv e d . See United States v. Wilson, 503 U.S. at 337 (in enacting § 3585(b), "Congress m ad e clear that a defendant could not receive a double credit for his detention time"); U n ite d States v. Kramer, 12 F.3d 130, 132 (8th Cir. 1993). Consequently, Petitioner is n o t entitled to any credit toward his federal sentence for the time served on his Tennessee s e n te n c e s between June 7, 2004 and July 5, 2005. Petitioner claims he is entitled to jail time credit because after June 15, 2004, he w a s in the custody of the United States Marshal. Petitioner misunderstands his status. Petitioner was transferred to the temporary custody of the Marshal for sentencing under a 4

w r it of habeas corpus ad prosequendum. A writ of habeas corpus ad prosequendum does n o t alter a prisoner's custody status, but merely changes the location of the custody. Munz v. Michael, 28 F.3d 795, 798 (8th Cir. 1994). Consequently, Petitioner remained in th e primary custody of the Tennessee Department of Correction, and the time served was p ro p e rly credited toward his state sentences, and not toward his federal sentence until July 6 , 2005, when his federal sentence was imposed. Baker v. Tippy, No. 99-2841, 230 F.3d 1 3 6 2 (8th Cir. 2000) (unpub. table op.) (federal defendant not entitled to additional credit a g a in s t federal sentence for time served between date he was transferred via a writ of h a b e a s corpus ad prosequendum from state to federal custody in order to face federal ch arg es on a federal offense, and the date his state sentence expired). F in a lly, Petitioner claims that by specifying that his federal sentence would run c o n c u rre n t with his state sentence, the District Court awarded him credit for all of the tim e served on his state sentences. Section 3585 does not authorize a district court, h o w e v e r, to award "credit" at sentencing. See United States v. Wilson, 503 U.S. 329, 3 3 3 -3 3 5 (1992). The issue of credit is the responsibility of the Attorney General acting th ro u g h the BOP. Id. at 335. IV . C o n c lu s io n : P e titio n e r's challenge to the Respondent's computation of his federal sentence is w ith o u t merit. Accordingly, the Court recommends that the District Court dismiss this 28 U .S .C . § 2241 petition in its entirety, with prejudice.

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IT IS SO ORDERED this 8th day of December, 2008.

____________________________________ U N IT E D STATES MAGISTRATE JUDGE

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