Ray v. Garrett

Filing 12

RECOMMENDED DISPOSITION recommending 1 petition for a writ of habeas corpus be dismissed, with prejudice and the requested relief be denied. Objections due within 14 days. Signed by Magistrate Judge Edie R. Ervin on 08/28/2024. (llg)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
DELTA DIVISION
LESLIE TODD RAY
Reg. #34161-045
VS.

PETITIONER
No. 2:24-CV-00098-BSM-ERE

CHAD GARRETT, Warden,
FCI-Forrest City

RESPONDENT

RECOMMENDED DISPOSITION
The following Recommended Disposition (“Recommendation”) has been sent
to United States District Judge Brian S. Miller. You may file written objections to
all or part of this Recommendation. Objections, if filed, should be specific, include
the factual or legal basis for the objection, and must be filed within fourteen days. If
you do not file objections, you risk waiving the right to appeal questions of fact, and
Judge Miller can adopt this Recommendation without independently reviewing the
record.
I.

Introduction
Leslie Todd Ray, a Bureau of Prisons [“BOP”] inmate housed in Forrest City,

Arkansas, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241.
He seeks credit toward his federal sentence for time spent in state custody. For
reasons that follow, the Court should deny habeas relief and dismiss the petition with
prejudice.

II.

Background
On October 20, 2017, Mr. Ray was arrested in Taney County, Missouri and

charged with drug trafficking and unlawful possession of a firearm in Case No. 1746CR02182-01 (“Missouri Case No. 1”). Doc. 7-3 at 1; Doc. 7-5 at 3. On October 22,
2017, Mr. Ray was released on bond. Id.
On June 1, 2018, Mr. Ray was arrested in Christian County, Missouri and
charged with delivery of marijuana in case number 18CT-CR01820-01 (“Missouri
Case No. 2”). Doc. 7-4. On June 3, 2018, Mr. Ray was released on bond (Doc. 7-4),
and on July 31, 2019, all charges in Missouri Case No. 2 were nolle prossed. Docs.
7-5, 7-6.
On July 23, 2018, Mr. Ray was arrested in Taney County, Missouri and
charged with drug trafficking in case number 1846-CR01715-01 (“Missouri Case
No. 3). Docs. 7-3, 7-5. Mr. Ray remained detained in state custody at that time. Id.
On March 7, 2019, Mr. Ray was sentenced in Missouri Case No. 1 to an 8year prison term, and in Missouri Case No. 3, to a 7-year prison term. Docs. 7-3, 75. These state sentences were ordered to run concurrently, with prior custody credit
for the time Mr. Ray spent in state pretrial custody. Doc. 7-5.
On May 9, 2019, Mr. Ray was charged in the United States District Court for
the Western District of Missouri with conspiracy to distribute methamphetamine and
possession with intent to distribute methamphetamine. United States v. Ray, No. 192

03044-10-CR-S-BP, ECF No. 29 (W.D. Mo.). On December 1, 2021, Mr. Ray, then
in the primary custody of Missouri, appeared via writ of habeas corpus ad
prosequendum in the Western District of Missouri and pleaded guilty to the federal
conspiracy charge. Id., ECF Nos. 51, 500-505.
On September 21, 2022, Mr. Ray, still in primary state custody, appeared via
writ in the Western District Missouri and received a 144-month prison sentence,
ordered to run concurrently with his concurrent sentences in Missouri Case Nos. 1
and 3.1 Doc. 7-2. After receiving his federal sentence, Mr. Ray returned to the
Missouri Department of Correction to serve out his state sentences. Mr. Ray
completed his state prison time on February 15, 2023, at which time he was released
on parole to BOP custody to serve his federal sentence. Docs. 7-9, 7-10.
On April 24, 2023, Mr. Ray began the BOP’s administrative review process
seeking credit for time he spent in state custody. Doc. 2 at 13. The Regional
Director’s decision denying relief stated that the BOP had already credited Mr. Ray
for the time he spent in state pretrial custody.2 Doc. 2 at 17.

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At sentencing, the judge stated, “I’m going to go ahead and run this case concurrent with
the Taney County cases. I do think that they’re relevant conduct in this case . . . . ” Doc. 2 at 40.
The Regional Director’s decision stated that Mr. Ray received credit against his federal
sentence for time he spent in state custody during the periods October 20-22, 2017; July 1-3, 2018;
and July 20, 2018 through March 6, 2019. Doc. 2 at 17; Doc. 7-7 at 3 (BOP sentence calculation
showing jail credit). Mr. Ray does not dispute the credit he received for time spent in state custody
before March 7, 2019, when he was sentenced in the state cases.
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In his final appeal to the Office of General Counsel, Mr. Ray argued that his
state and federal sentences were ordered to run “fully concurrent,” and the BOP had
“arbitrarily changed the . . . sentencing order by failing to give him credit from
March 7, 2019 through September 20, 2022.” Id. at 18. The Office of General
Counsel denied relief, explaining that Mr. Ray’s time in state custody from March 7,
2019 through September 20, 2022 had been applied toward his state sentence and
therefore could not be applied a second time to his federal sentence. Id. at 19-20.
On May 23, 2024, Mr. Ray filed the § 2241 habeas petition and supporting
brief now before the Court. Docs. 1, 2. He argues that because his federal sentence
was ordered to run concurrently with his state sentences, he is entitled to credit for
the time he spent serving his state sentence from March 7, 2019 through September
20, 2022, or “at the very least[,] . . . for the time [he] served in federal detention
awaiting his federal sentence.” Doc. 5 at 57.
On July 8, 2024, Respondent filed a response, asserting that Mr. Ray is not
entitled to the custody credit claimed. Doc. 7. Respondent argues that Mr. Ray’s
federal sentence cannot begin earlier than the date imposed and runs concurrently
with his state sentences only so far as the undischarged portion of the state sentences
as of September 21, 2022, Mr. Ray’s federal sentence date. Id. at 5-6. In addition,
Respondent argues that Mr. Ray is not entitled to credit toward his federal sentence

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for time he spent in secondary federal custody pursuant to a writ of habeas corpus
ad prosequendum. Id. at 6.
On August 22, 2024, Mr. Ray filed a reply, addressing Respondent’s
arguments for dismissal. Doc. 11.
III.

Discussion
A.

Mr. Ray Is Not Entitled to Credit On His Federal Sentence for the
Period March 7, 2019 to September 20, 2022

Mr. Ray argues that faithful execution of the order that his federal sentence
run concurrently with his state sentences requires that the BOP credit him for the
time he spent serving his state sentences from March 7, 2019 through September 20,
2022. Mr. Ray is mistaken.
The statutory bar against double credit under 18 U.S.C. § 3585(b) precludes
the requested relief. A defendant receives credit toward a federal sentence for time
spent in custody “prior to the date the sentence commences . . . that has not been
credited against another sentence.” 18 U.S.C. § 3585(b) (emphasis added); see also
U.S. v. Wilson, 503 U.S. 329, 333 (1992) (explaining that credit for time spent in
official detention prior to the commencement of a federal sentence must be
computed by the BOP after the defendant begins his federal sentence and cannot
include time already credited to another sentence). Here, Mr. Ray seeks credit toward
his federal sentence for time he spent in state prison before his federal sentenced

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commenced. But Mr. Ray had already received credit for that time against state
sentence.
Mr. Ray insists that the federal sentencing court intended that his federal and
state sentences run “fully concurrent.” Doc. 2 at 2. However, when a federal
sentencing court orders that a sentence run concurrently with a previously imposed
sentence, “it does not mean that the two sentences ‘have the same starting date
because a federal sentence cannot commence prior to the date it is pronounced, even
if made concurrent with a sentence already being served.’” Coloma v. Holder, 445
F.3d 1282, 1284 (11th Cir. 2006) (cleaned up) (quoting United States v. Flores, 616
F.2d 840, 841 (5th Cir.1980)). Because a federal sentence cannot commence before
it is pronounced, “it can only run concurrently with that part of the prior sentence
remaining to be served.” United States v. McLean, No. 88-5506, 1989 WL 5457, at
*1 (4th Cir. 1989).
Mr. Ray’s federal sentence began on September 21, 2022, and it could run
concurrently with his previously imposed state sentences only to the extent that
unserved time remained on the latter. Normally, “[a] sentence to a term of
imprisonment commences on the date the defendant is received in custody . . . at the
official detention facility at which the sentence is to be served.” 18 U.S.C. § 3585.
In Mr. Ray’s case, however, the BOP calculated his sentence to begin running
September 21, 2022, while he was still serving his state sentence in the Missouri
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Department of Correction. Doc. 7-7 at 3 (BOP sentence computation beginning 0921-2022).
To the extent that Mr. Ray’s federal and state sentences overlapped, the BOP
gave effect to the order that his federal sentence run concurrently with his state
sentences. Mr. Ray is not entitled to additional credit toward his federal sentence.
B.

Mr. Ray Is Not Entitled to Credit on His Federal Sentence for the
Time He Spent on a Federal Writ

Under the doctrine of primary jurisdiction, a prisoner serving a term in state
custody begins his federal sentence when the United States assumes primary
jurisdiction over the prisoner. Elwell v. Fisher, 716 F.3d 477, 481 (8th Cir. 2013).
The first sovereign to establish physical custody has primary jurisdiction over a
prisoner until relinquished by, for example, release on bail, dismissal of charges,
parole, or the expiration of a sentence. United States v. Cole, 416 F.3d 894, 897 (8th
Cir. 2005).
When a state prisoner is transferred to the temporary custody of the United
States Marshal Service pursuant to a writ of habeas corpus ad prosequendum, the
state’s primary jurisdiction over the prisoner continues and remains uninterrupted.
Elwell, 716 F.3d at 482; see also United States v. Hayes, 535 F.3d 907, 910 (8th Cir.
2008) (holding that federal sentence did not commence during the period that
defendant was “on loan” from the State of Missouri pursuant to a writ of habeas

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corpus ad prosequendum for the purposes of his federal prosecution and
sentencing.).
Missouri was the first sovereign to obtain physical custody over Mr. Ray. The
United States then borrowed physical custody of Mr. Ray solely for the purpose of
conducting pretrial proceedings in the federal criminal case. Docs. 7-8, 7-9. Soon
after receiving his federal sentence, Mr. Ray returned to the physical custody of his
primary custodian, Missouri, which retained primary jurisdiction until February 15,
2023, when it released Mr. Ray on parole and relinquished his custody to the United
States. Doc. 7-10.
Mr. Ray is not entitled to additional credit on his federal sentence because of
time he spent in the physical custody of the United States pursuant to a federal writ.
IV.

Conclusion
IT IS THEREFORE RECOMMENDED that the petition for a writ of habeas

corpus (Doc. 1) be DISMISSED, WITH PREJUDICE and the requested relief be
DENIED.
Dated 28 August 2024.

____________________________________
UNITED STATES MAGISTRATE JUDGE

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