Kerr v. Outlaw

Filing 20

RECOMMENDED DISPOSITION recommending that the District Court dismiss Michael Dione Kerrs petition for writ of habeas corpus and amended petition for writ of habeas corpus in their entirety, with prejudice. Objections to R&R due no more than 14 days from the date the Recommended Disposition is received. Signed by Magistrate Judge Beth Deere on 2/12/10. (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 M I C H A E L DIONE KERR R e g # 15244-180 VS. NO. 2:09CV00020-SWW-BD PETITIONER

T .C . OUTLAW, Warden, Federal Correctional Complex, F o r r e s t City, Arkansas

R ESPO N D EN T

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 fourteen (14) 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: C lerk , 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 Michael Dione Kerr is currently serving a one hundred month sentence in the Bureau of Prisons ("BOP"). Petitioner was arrested on April 3, 2001, in Austin, T ex as by the Austin, Texas police department. At the time of Petitioner's arrest, there w a s an outstanding bench warrant for Petitioner from the United States District Court for th e Western District of Texas, Austin Division. On August 20, 2001, federal authorities obtained temporary custody of Petitioner f ro m Texas state authorities pursuant to a writ of habeas corpus prosequendum. On O ctob er 4, 2001, Petitioner appeared in the United States District Court for the Western D is tric t of Texas and entered a plea of guilty to the offense of felon in possession of a f ire a rm . (#15-2 at p. 13) On November 30, 2001, the Court held a sentencing hearing an d imposed a sentence of one hundred months in the BOP followed by a three-year term o f supervised release. The Court did not order Petitioner's federal sentence to run c o n c u rr e n t with any other sentence. At Petitioner's sentencing hearing, the Court noted that Petitioner would "probably n o t get credit" for time he had served since April, 2001, because he was appearing p u rs u a n t to a writ of habeas corpus prosequendum. (#19-2 at p. 53) The Court stated 2

th a t by imposing a sentence in the middle of the guideline range, when Petitioner was e lig ib le for an upward departure, he was giving him "credit on that." (#19-2 at p. 53) On D e c e m b e r 3, 2001, federal authorities returned Petitioner to the state authorities. O n February 2, 2002, the District Court of Travis Count, Texas entered judgment ag ains t Petitioner after a plea of guilty to possession of a controlled substance. The court s e n te n c ed Petitioner to two years in a state jail facility to "run concurrent with other s e n te n c es imposed on the defendant." (#15-2 at p. 19) Petitioner was given credit for tim e served from "April 4, 2001 through February 11, 2002." (#15-2 at p. 19) On February 11, 2002, the same state court entered a judgment after Petitioner e n te re d a plea of guilty to one count of family violence assault. The court sentenced P e titio n e r to four years in the Texas Department of Correction and again noted the sen tenc e was to "run concurrent with other sentences imposed on the defendant." (#15-2 a t p. 20) The court gave Petitioner credit toward the sentence for time served from J a n u a ry 9, 2001 through January 10, 2001, February 5, 2001 through February 5, 2002, a n d April 4, 2001 through February 11, 2002. (#15-2 at p. 20) O n February 4, 2005, Petitioner was discharged from his state sentences and was re le a s e d to federal custody. (#15-2 at p. 8, 22) The BOP awarded Petitioner twelve days o f credit toward his federal sentence. (#15-2 at p. 8)

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T h ro u g h the BOP's administrative process, the Petitioner requested credit on his f e d e ra l sentence for the time he spent in the custody of the State of Texas. The BOP co n stru ed his request as one for nunc pro tunc designation of the Texas Department of C o rre c tio n for service of his federal sentence from February 11, 2002, the day he received h is state sentences, through February 3, 2005, the day prior to his release to federal c u sto d y. The BOP sent a letter to the federal sentencing judge requesting his position on n u n c pro tunc designation. (#15-2 at p. 38) The sentencing judge responded with a letter to the BOP stating that he "took into consideration that he [Petitioner] had been and w o u ld be in state custody" when he "gave him a sentence of 100 months." (#15-2 at p. 4 1 ) The Court went on to state that he did not "recommend any reduction in Mr. Kerr's s e n te n c e." (#15-2 at p. 41) P e titio n e r 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 credit for time served f ro m April 4, 2001 through February 3, 2005, during which he contends he was in federal c u sto d y. (#2 at p. 5)

From the documents provided by the parties, it appears that Petitioner has fully e x h a u s te d his administrative remedies. 4

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R e sp o n d e n t argues that it has appropriately calculated Petitioner's sentence and a sk s the Court to dismiss the petition with prejudice. For the reasons that follow, the C o u rt recommends that the District Court dismiss the petition with prejudice. III. S e n te n c e 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: 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 arrested after the commission of the offense for which the sentence w a s imposed; th a t has not been credited against another sentence. 18 U.S.C. § 3585 (emphasis added). The Attorney General, through the BOP, has the a u th o rity to award credit under section 3585(b) for time served. United States v. Wilson, 5 0 3 U.S. 329, 333-36, 112 S.Ct. 1351 (1992).

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A u th o rities for the State of Texas awarded Petitioner credit toward his state s e n te n c e s for the time he served from April 4, 2001 through February 3, 2005. Because P e titio n e r already received credit for this time toward his state sentences, under the a p p lic a b le 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 a d e clear that a defendant could not receive a double credit for his detention time"); see a ls o Potwin v. Sanders, 231 Fed. Appx. 538, 539 (8th Cir. 2007) (unpub.) (federal inmate n o t entitled to credit where "time at issue had been credited by the State of Texas to his sta te parole-violation sentence and may not be double counted"); United States v. K r a m e r, 12 F.3d 130, 132 (8th Cir. 1993) (federal defendant not entitled to credit for time s p e n t in state custody where he received credit against his state sentence for that period). Consequently, Petitioner is not entitled to any credit toward his federal sentence for the tim e served on his Texas sentences from April 4, 2001 through February 3, 2005. P e titio n e r also claims he is entitled to credit for time he served on his Texas s e n te n c es because after April 3, 2001, he was in "exclusive federal custody." Petitioner m is u n d e rs ta n d s his status. Petitioner was transferred to temporary custody on August 20, 2 0 0 1 , under a writ of habeas corpus ad prosequendum until December 3, 2001, when f e d e r a l authorities returned Petitioner to state authorities. A writ of habeas corpus ad p r o s e q u e n d u m does not alter a prisoner's custody status, but merely changes the location o f the custody. Munz v. Michael, 28 F.3d 795, 798 (8th Cir. 1994). Consequently,

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P e titio n e r remained in the primary custody of the Texas Department of Correction, and th e time served was properly credited toward his state sentences, and not toward his f e d e ra l sentence, until he was released to the custody of the BOP on February 4, 2005. Baker v. Tippy, No. 99-2841, 230 F.3d 1362 (8th Cir. 2000) (unpub. table op.) (federal d e f en d a n t not entitled to additional credit against federal sentence for time served b e t w e e n date he was transferred via writ of habeas corpus ad prosequendum from state to f e d e ra l custody to face federal charges on a federal offense, and the date his state sen tenc e expired). F in a lly, Petitioner claims that by specifying that his sentence would run concurrent w ith other sentences imposed, the state court awarded him credit toward his federal s e n te n c e for all of the time served on his state sentences. The state court does not have a u th o rity to give Petitioner credit toward his federal sentence. Only the Attorney General, th ro u g h the BOP, has the authority to award credit under section 3585(b) for time served. U n ite d States v. Wilson, 503 U.S. 329, 333-36, 112 S.Ct. 1351 (1992). Moreover, although the state court stated that it intended for his state sentences to run concurrently with "other sentences imposed" (#15-2 at pp. 19-20), the District Court d id not specify that Petitioner's federal sentence would run concurrently with any s e n te n c e. As set forth above, the BOP sent a letter to the sentencing court seeking c la rif ic a tio n as to the court's position on retroactive designation of a state institution for s e rv ic e of Petitioner's 100-month federal sentence. (#15-2 at p. 38) The court replied

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th a t it took into consideration the time Petitioner spent in state custody when it sentenced P etitio n er and did not "recommend any reduction in Mr. Kerr's sentence." (#15-2) BOP program statement 5160.05 outlines the procedures the BOP follows to d e te rm in e whether it will designate a state facility for service of a federal sentence. (#152 at pp. 24-36) In this case, the BOP determined Petitioner should not be allowed credit a g a in st his federal sentence for time he spent in state custody based on three factors: (1) the nature and circumstances of his offense; (2) the history and characteristics of P etitio n er; and (3) the District Court's statement opposing a reduction to Petitioner's s e n te n c e . 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 M ic h a el Dione Kerr's petition for writ of habeas corpus and amended petition for writ of h a b e a s corpus in their entirety, with prejudice. IT IS SO ORDERED this 12th day of February, 2010.

____________________________________ U N IT E D STATES MAGISTRATE JUDGE

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