Hines v. Rivera
MEMORANDUM AND ORDER dismissing 1 Mr. Hines's Petition for Writ of Habeas Corpus with prejudice; and denying the requested relief. Signed by Magistrate Judge Joe J. Volpe on 12/11/2014. (srw)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
KEITH HINES, Reg. #22514-076
C. V. RIVERA, Warden, FCI-Forrest City,
MEMORANDUM AND ORDER
Before the Court is the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241,
filed by Keith Hines, an inmate at FCI - Forrest City of the Federal Bureau of Prisons.
Mr. Hines filed the instant Petition on June 5, 2014. (Doc. No. 1.) He claims the Bureau of
Prisons (BOP) abused its discretion by denying the application of credit for time spent in official
custody while awaiting disposition of his federal charges. (Id. at 1.) The Respondent has responded
(Doc. No. 5), and this matter is now ripe for review.
Mr. Hines alleges the BOP did not properly give him credit for time spent in temporary
federal custody from August 14, 2008, through October 13, 2009. (Id. at 2.) Since he “received zero
days of jail credit applied to his sentence,” he requests the Court order the BOP to credit him those
426 days. (Id.)
Respondent has provided the declaration of James D. Crook, Supervisory Attorney at the
United States Department of Justice, Federal Bureau of Prisons Consolidated Legal Center in
Oklahoma City, Oklahoma. (Doc. No. 5-1.) Mr. Crook reports that Petitioner was arrested by
Jackson, Tennessee, police on August 24, 2008, for possession of cocaine, possession of drug
paraphernalia, felony evading arrest, driving on a suspended license and violation of financial
responsibility law. (Doc. No. 5-1.)1 On August 29, 2008, pursuant to a federal writ, Mr. Hines was
temporarily released from the Madison County, Tennessee, jail to the U.S. Marshals Service. (Id.
at 13.) He was returned to the Madison County jail and temporarily released to the U.S. Marshals
Service on several different occasions. (Doc. No. 5-1.)
On December 15, 2008, Mr. Hines, while on federal writ, was sentenced in the Criminal
Circuit Court of Madison County, Tennessee, to three years for felony evading arrest, case number
08-648. (Id.) At the same time, Mr. Hines was also sentenced to eleven months and twenty-nine
days for possession of cocaine, possession of drug paraphernalia, driving on a suspended license, and
thirty days confinement for violation of financial responsibility law. (Id.)
Mr. Hines was sentenced in U.S. District Court for the Western District of Tennessee on
October 13, 2009, to 210 months imprisonment for possession with intent to distribute and
distribution of cocaine in case number 1:08-10083-01-JDB. (Id.) He was then returned to the
Tennessee Department of Correction pursuant to conditions of the writ. (Id.)
On June 3, 2010, Mr. Hines was released on parole from the Tennessee Department of
Correction to the U.S. Marshals Service for commencement of the federal sentence in accordance
with Title 18 U.S.C. § 3583(a). (Id.) The same day, a sentence computation was completed and his
210-month federal sentence began running June 3, 2010 - the date he was released from the
Tennessee state sentence. (Id.) Mr. Hines received no prior custody credit because all the time he
spent in custody was credited toward his Tennessee state sentence. (Id.) His projected statutory
release date was computed to be February 18, 2019. (Id. at 34.)
The Court notes Mr. Hines claims the time spent in custody began on August 14, 2008, and
Mr. Crook’s Affidavit and the Respondent’s Response state August 24, 2008, was date of arrest. The
Presentence Investigation Report from the United States District Court for the Western District of
Tennessee, citing the indictment and affidavit of the case, has an August 4, 2008, date of arrest.
It is the responsibility of the BOP, when a prison sentence has been imposed, to determine
how much credit an inmate should receive for any time spent in custody before service of the present
BOP sentence. United States v. Wilson, 503 U.S. 329, 333-35 (1992). Prior custody credit is
governed by 18 U.S.C. § 3585(b), which provides:
A defendant shall be given credit towards 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(b) (emphasis added).
Understandably, Mr. Hines believes he was improperly denied credit for time served. From
Mr. Hines’s viewpoint, it appears he was placed in federal custody several times. However, as
Respondent correctly asserts, Mr. Hines was only in temporary federal placement pursuant to a
federal writ. The writ allowed Mr. Hines to be borrowed from state custody to appear for his federal
court proceedings. His custody still remained with the state and no time toward his federal sentence
began to run. So Mr. Hines is not entitled to additional credit for time in custody between August
2008 and October 2009.
The Sentence Computation Manual New Law/CCCA, Program Statement 5880.28, clearly
states: “Time spent in custody under a writ of habeas corpus from non-federal custody will not in
and of itself be considered for the purpose of crediting pre-sentence time. The primary reason for the
‘writ’ custody is not the federal charge. The federal court merely ‘borrows’ the prisoner under the
provisions of the writ for secondary custody.” (Doc. No. 5-1 at 37.)
Mr. Hines was transferred under a writ of habeas corpus ad prosequendum; that writ does
not alter a prisoner’s custody status, but rather merely changes the location of the custody. Munz v.
Michael, 28 F.3d 795, 798 (8th Cir. 1994). Furthermore, credit for the time Mr. Hines is seeking in
his Petition was spent in service of his state sentence and is precluded under 18 U.S.C. § 3585 (b).
A federal prisoner is not entitled to credit on a federal sentence when he has received credit on a state
sentence for the same time period. U.S. v. Kramer, 12 F.3d 130, 132 (8th Cir. 1993).
The Respondent notes that as a result of the decision in Barden v. Keohane, 921 F.2d 476,
478 (3rd Cir. 1990), the BOP considers an inmate’s request for prior custody credit for time spent
in state custody as a request for a nunc pro tunc designation. However, the Bureau was correct when
it reviewed Mr. Hines’s case and determined that, because he was already serving a state sentence
at the time the federal sentence was imposed, a review for concurrent designation was not
appropriate under Barden. (Doc. No. 5-1.) In Mr. Hines’s case, the federal sentencing court was
silent as to whether his sentences were concurrent. And because he was already serving a Tennessee
state sentence, pursuant to 18 U.S.C. §3584, his terms must be served consecutively.
Accordingly, the Court finds the BOP has properly calculated Mr. Hines’s sentence and his
Petition must be dismissed.
IT IS, THEREFORE, ORDERED that:
Mr. Hines’s Petition for Writ of Habeas Corpus (Doc. No. 1) is DISMISSED with
prejudice and the requested relief is DENIED.
DATED this 11th day of December, 2014.
JOE J. VOLPE
UNITED STATES MAGISTRATE JUDGE
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