Valdez v. Beasley
ORDER adopting with modification 15 the recommended disposition; and denying and dismissing with prejudice Valdez's petition for a writ of habeas corpus. Signed by Chief Judge Brian S. Miller on 7/5/2017. (kdr)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF ARKANSAS
CASE NO. 2:17-CV-00045 BSM
GENE BEASLEY, Warden,
Federal Correctional Complex
Forrest City, AR
The recommended disposition (“RD”) submitted by United States Magistrate Judge
Beth Deere [Doc. No. 15] and petitioner Lorenzo Valdez’s objections [Doc. No. 16] have
been reviewed. After reviewing the record, the RD is adopted with modification.
Valdez’s objections are based on the state court’s intention to have his state sentence
run concurrently with his federal sentence. He points to the state court’s commitment order,
which was filed after receiving his federal sentence, that said his state sentence was “to be
served concurrently with [the] sentence rendered in Tarrant County and [in] federal custody.”
Doc. No. 16 at 7 (formatting omitted).
When the state court issued its order, Valdez had not yet begun serving his federal
sentence. The state of Texas had primary jurisdiction over Valdez, and his federal sentence
could not begin until the United States took jurisdiction over him, which occurred when
Texas relinquished jurisdiction by releasing Valdez on parole. Elwell v. Fisher, 716 F.3d
477, 482 (8th Cir. 2013); United States v. Cole, 416 F.3d 894, 897 (8th Cir. 2005). Indeed,
under federal law, Valdez’s federal sentence was to run consecutive to his state sentence.
Free v. Miles, 333 F.3d 550, 553 (5th Cir. 2003) (“Well-settled federal law presumes that
when multiple terms of imprisonment are imposed at different times, they will run
consecutive unless the district court specifically orders that they run concurrently.” (emphasis
in original)); Doc. No. 13-1 at 19-23 (federal commitment order silent on order of
The caveat here is that the BOP considered issuing a nunc pro tunc facility
designation, which the agency denied while this case was pending. The BOP can designate
a state facility as a person’s place of confinement while in state custody, which essentially
commences a person’s federal sentence even though the state has primary jurisdiction.
Fegans v. United States, 506 F.3d 1101, 1103 (8th Cir. 2007) (quoting Romandine v. United
States, 206 F.3d 731, 738 (7th Cir. 2000)); see, e.g., Dunn v. Sanders, 247 F. App’x 853, 854
(8th Cir. 2007) (designation can be done in advance or through nunc pro tunc order afterthe-fact). The BOP was correct to deny the designation because doing so would have
effectively ignored the federal court’s order for consecutive sentences. See Setser v. United
States, 566 U.S. 231, 239 (2012) (BOP has no authority to decide order of sentences).
Valdez’s frustrations based on the state judge’s intent are understandable. “The
nonbinding nature of the state court’s intentions are, understandably, frustrating to criminal
defendants because the state court’s action raises the defendant’s expectations but does not
resolve the issue.” Elwell, 716 F.3d at 477 (quotations omitted). It is well-settled that a state
judge “ha[s] no authority to designate the federal sentence to run concurrent to the state
sentence.” United States v. Hayes, 535 F.3d 907, 912 (8th Cir. 2008). Valdez’s federal
sentence could not have begun until he was released on parole, and the BOP was correct to
not award him credit or issue a nunc pro tunc designation.
Accordingly, the RD is adopted and modified to include the above explanation. The
BOP was correct to not award Valdez sentencing credit for multiple reasons, and the state
court’s intention has no impact on that analysis. Valdez’s petition for a writ of habeas corpus
is denied and dismissed with prejudice.
IT IS SO ORDERED this 5th day of July 2017.
UNITED STATES DISTRICT JUDGE
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