Newman v. Cozza-Rhodes

Filing 18

ORDER Denying Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. 2241. ORDERED that Applicant Richard Allen Newmans Application for a Writ ofHabeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 1). ORDERED that leave to proceed in forma pauperis on appeal is denied by Chief Judge Wiley Y. Daniel on 05/29/12. (jjhsl, ) Modified on 5/29/2012 to correct spelling error (jjhsl, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Wiley Y. Daniel
Civil Action No. 11-cv-03262-WYD
RICHARD ALLEN NEWMAN,
Applicant,
v.
T.K. COZZA-RHODES,
Respondent.

ORDER DENYING APPLICATION FOR A WRIT OF HABEAS CORPUS
PURSUANT TO 28 U.S.C. § 2241

This matter is before the Court on Applicant Richard Allen Newman’s pro se
Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241,1 filed on
December 13, 2011. Respondents have filed a Response to Order to Show Cause2 and
Applicant has filed a Reply.3 Having considered the same, the Court concludes that the
Application should be denied.
I.

Background
Mr. Newman is a federal prisoner incarcerated at the Federal Correctional

Institution in Florence, Colorado. On December 26, 2006, federal and state authorities
executed a search warrant at Applicant’s residence in Julesburg, Colorado.4 He was

1

ECF No. 1; see also Memorandum in Support (ECF No. 2).

2

ECF No. 14.

3

ECF No. 17.

4

ECF No. 2, at 18 of 47.

taken into custody by the Sedgewick County, Colorado, authorities and charged with
theft, burglary, criminal mischief and possession of a weapon by a felon.5 Applicant was
arraigned in the Sedgewick County District Court on December 27, 2006.6 He was
released on a personal recognizance (PR) bond on October 11, 2007.7
On February 7, 2007, a federal Indictment was filed in the United States District
Court for the District of Colorado Case No. 07-CR-00054-DME, charging Mr. Newman
with Burglary of a United States Post Office, in violation of 18 U.S.C. § 2115, Interstate
Transportation of Motor Vehicles, in violation of 18 U.S.C. § 2312, Interstate
Transportation of Stolen Property, in violation of 18 U.S.C. § 2314, Felon in Possession
of a Firearm and Armed Career Criminal, in violation of 18 U.S.C. § 18 U.S.C. § 2, and
Aiding and Abetting, in violation of 18 U.S.C. § 2.8 On April 19, 2007, the United States
Marshal Service obtained temporary custody of Mr. Newman, pursuant to a writ of
federal habeas corpus ad prosequendum, to respond to the charges.9 Applicant
pleaded guilty and was sentenced on November 27, 2007 to an aggregate 120-month
term of imprisonment.10 The federal court judgment was silent as to whether the

5

Id. at 11-12 of 47.

6

Id. at 12 of 47.

7

Id. at 14, 15 of 47.

8

Id. at 21 of 47.

9

ECF No. 2, at 45-47; ECF No. 14-6.

10

ECF No. 2, at 28-29 of 47.

2

sentence would run consecutively to or concurrently with any future state court
sentence.11
Mr. Newman was returned to state custody for a hearing in his state case on
December 10, 2007.12 The state court judge ordered that Mr. Newman be detained
pending disposition of the state charges.13 On January 9, 2008, Applicant was
sentenced in the state district court to a six-year term of imprisonment, based on his
convictions in Sedgewick and Phillip Counties, to Theft, Burglary, Criminal Mischief, and
Possession of a Weapon By a Felon. The state court ordered his sentence to run
concurrently with his federal prison term.14 Mr. Newman was credited with 285 days of
pre-trial confinement, from December 26, 2006 to October 11, 2007.15 Applicant
thereafter remained in state custody until he was released from his state sentence on
August 10, 2010.16
On August 10, 2010, Mr. Newman was taken into the custody of the United
States Marshals Service to commence service of his federal sentence.17 The Bureau of

11

Id. at 29 of 47.

12

Id. at 31-36 of 47; ECF No. 14-6, at 2.

13

ECF No. 2, at 33 of 47.

14

Id. at 15 of 47.

15

Id. at 11, 15 of 47; ECF No. 14-7.

16

ECF No. 14-6, at 2.

17

Id. at 2; ECF No. 14-3, at 2.

3

Prisons prepared a sentence computation for Mr. Newman and awarded him 94 days of
prior custody credit.18
On March 8, 2011, the Bureau sent a letter to Senior United States Circuit Judge
David E. Ebel, who sentenced Mr. Newman in the federal case.19 The letter explained
that Applicant had requested nunc pro tunc designation of his state facility for
concurrent service of his federal sentence and asked Judge Ebel for his position with
respect to the retroactive designation.20 The Bureau did not receive a response from
Judge Ebel to the March 9, 2011 letter.21 On May 11, 2011, Bureau staff conducted a
review of Mr. Newman’s request for retroactive designation, pursuant to 18 U.S.C.
§ 3621(b), and denied the request.22
II.

Application
Mr. Newman initiated this action by filing pro se his 28 U.S.C. § 2241 Application

on December 13, 2011. After being ordered to file a preliminary response, Respondent
informed the Court that Applicant has exhausted his administrative remedies pertaining
to his challenge to the calculation of his term of imprisonment.23 The case was drawn to
a district judge and a magistrate judge on January 31, 2012.

18

ECF No. 14-3, at 2.

19

ECF No. 14-5.

20

Id.

21

ECF No. 2, at 42 of 47.

22

Id.; ECF. No. 14-8.

23

ECF No. 10.

4

Applicant seeks an order, pursuant to 18 U.S.C. § 3585, requiring the Bureau of
Prisons to grant him credit towards his federal sentence for the period December 26,
2006 to August 10, 2010, on the asserted ground that he was in primary federal custody
during that time.24
III.

Legal Standard
A section 2241 habeas proceeding is “an attack by a person in custody upon the

legality of that custody, and . . . the traditional function of the writ is to secure release
from illegal custody.” McIntosh v. U.S. Parole Common, 115 F.3d 809, 811 (10th
Cir.1997) (quoting Preiser v. Rodriguez, 411 U.S. 475, 484 (1973)). “A motion pursuant
to § 2241 generally . . . [includes] such matters as the administration of parole,
computation of a prisoner's sentence by prison officials, prison disciplinary actions,
prison transfers, type of detention and prison conditions.” Hernandez v. Davis, No.
07–cv–02406–REB–ME, 2008 WL 2955856, at *7 (D. Colo. July 30, 1998) (quoting
Jiminian v. Nash, 245 F.3d 144, 146 (2d Cir. 2001)); see also United States v. Miller,
594 F.3d 1240, 1242 (10th Cir. 2010) (construing petitioner’s request for nunc pro tunc
designation of his state facility for service of his federal sentence as a petition for a writ
of habeas corpus challenging the execution of his sentence under 28 U.S.C. § 2241);
“A petition under 28 U.S.C. § 2241 attacks the execution of a sentence rather than its
validity and must be filed in the district where the prisoner is confined.” Bradshaw v.
Story, 86 F.3d 164, 166 (10th Cir.1996).

24

ECF No. 1, at 3 of 5; ECF No. 2 at 4-5, of 47.

5

IV.

Analysis
Applicant claims that he is entitled to credit against his federal sentence for his

period of incarceration from December 26, 2006 to August 10, 2010, because he was
primarily in the custody of the federal authorities.
A.

Time Federal Sentence Began

Computation of a federal sentence requires consideration of two separate issues:
(1) the commencement date of the federal sentence, and (2) the extent to which a
defendant can receive credit for time spent in custody prior to commencement of his
sentence.25 Under 18 U.S.C. § 3585(a), a federal sentence “commences on the date
the defendant is received in custody awaiting transportation to, . . . the official detention
facility at which the sentence is to be served.” The Tenth Circuit has emphasized that
“[a] federal sentence does not commence until a prisoner is actually received into
federal custody for that purpose.”26
Respondents assert that Mr. Newman’s federal sentence began on August 10,
2010, when the State of Colorado released him to federal marshals to be transported to
federal prison. Applicant argues that his federal sentence commenced on December
26, 2006, based on the following: (1) the federal authorities initiated the search of his
residence which resulted in his arrest on December 26, 2006; (2) on March 23, 2007, a
writ of habeas corpus ad prosequendum was issued by the United States Marshals
Service to transfer him from state custody to federal custody; (3) on September 5, 2007,

25

See Binford v. United States, 436 F.3d 1252, 1254 (10th Cir. 2006).

26

Id. at 1255.

6

a writ of habeas corpus ad prosequendum was issue by state authorities to transfer
Applicant to state custody for prosecution of state charges; (3) on October 11, 2007,
Applicant was released on a PR bond in the state case; (4) on November 6, 2007, the
state authorities issued a writ of habeas corpus ad prosequendum to the United States
Marshal Service to secure Applicant’s presence at a state court hearing; (5) on
November 30, 2007, Applicant was sentenced in the federal district court case and
remanded to the custody of the United States Marshals Service; and, (6) he was
convicted in the state case on January 9, 2008, and sentenced to a term of
imprisonment to run concurrently with his federal term.27
When two sovereigns may claim custody over a prisoner, “[t]he sovereign that
first acquires custody of a defendant in a criminal case is entitled to custody until it has
exhausted its remedy against the defendant.”28 This “rule of comity” requires the
second sovereign “to postpone its exercise of jurisdiction until the first sovereign is
through with [the defendant] or until the first sovereign agrees to temporarily or
permanently relinquish custody.”29 When a state transfers a person in custody to the
federal government pursuant to a writ of habeas corpus ad prosequendum, the
detention is generally recognized as being temporary; the defendant is not regarded as
being in “official detention” by the federal authorities.30 The time spent in federal

27

ECF No. 2, at 2-5 of 47.

28

Weekes v. Fleming, 301 F.3d 1175, 1180 (10th Cir. 2002).

29

Id.

30

See Brown v. Perrill, 28 F.3d 1073, at 1073-1074 (10th Cir. 1994) (citing and quoting Hernandez
v. United States Attorney General, 689 F.2d 915, 918-19 (10th Cir. 1982)).

7

detention under such a writ is credited against the state sentence but not against the
federal sentence.31
It is undisputed that Mr. Newman was in state custody initially. The federal
authorities obtained custody over Mr. Newman on April 19, 2007, pursuant to a writ of
habeas corpus ad prosequendum, for the purpose of answering the federal charges.32
Mr. Newman was sentenced in the federal case on November 27, 2007 and was
returned to state custody on December 10, 2012. His time in federal detention is
properly characterized as temporary. Even if Applicant was transferred back to state
custody for one or more hearings pursuant to writs of habeas corpus ad prosequendum,
the fact remains that he was in federal custody on loan from the state authorities and
“was at all times held pursuant to the original writ and order.”33
Mr. Newman emphasizes that while he was in temporary federal custody to
answer the federal charges, the state court released him on a PR bond on October 11,
2007. Clearly, Applicant was no longer in “state custody” following his release on the
PR bond. However, Mr. Newman was in federal custody pursuant to a writ of habeas
corpus ad prosequendum when he was sentenced on November 27, 2007 and
remained in federal custody for only two more weeks. On December 10, 2007, state
authorities regained custody of Applicant pursuant to the state trial court’s order that he
be detained pending trial. There is nothing in the record to suggest that after December

31

See Binford, 436 F.3d at 1256; United States v. Welch, 928 F .2d 915, 916 n. 2 (10th Cir.1991);
Hernandez, 689 F.2d at 918-19.
32

ECF No. 2, at 45-46 of 47; ECF No. 14-6, at 2.

33

Binford, 436 F.3d at 1256.

8

10, 2007, the state or federal authorities believed that the federal government had
primary custody over Mr. Newman. Instead, Mr. Newman remained in state custody
until he completed his sentence on August 10, 2007. Applicant’s period of federal
custody prior to August 10, 2007 was temporary.34
Moreover, contrary to Mr. Newman’s assertions, primary federal jurisdiction is not
indicated by the federal and state court judgments. The federal sentencing judgment is
silent as to whether the federal sentence is to run concurrently with any future state
sentence. As such, there is a presumption that the federal and state sentences run
consecutively.35
I find that Mr. Newman’s federal sentence commenced on August 10, 2010, the
date he was received into federal custody to commence service of his federal
sentence.36 I further find that Applicant was under the primary jurisdiction of state
authorities during the period December 26, 2006 through August 10, 2010. The brief
period that Applicant remained in federal custody after he was released by the state

34

See Binford, 436 F.3d at 1253, 1256 (rejecting argument that petitioner’s federal sentence
commenced on the day of federal sentencing, where record demonstrated that petitioner was transferred
from state to federal custody pursuant to a writ of habeas corpus ad prosequendum for federal sentencing
and was thereafter mistakenly delivered by the U.S. Marshals Service to a federal penitentiary, and where
prison staff realized within three weeks that he was in federal custody pursuant to a writ of habeas corpus
ad prosequendum and returned him immediately to state authorities); cf. Weekes, 301 F.3d at 1177, 118081 (concluding that petitioner was in primary federal custody where Idaho allowed United States to take
exclusive physical custody of petitioner without presenting either a written request for temporary custody
or a writ of habeas corpus prosequendum and then lodged a state detainer with the federal authorities
requesting the petitioner’s return to state prison system upon completion of his federal sentence).
35

See 18 U.S.C. § 3584(a) (stating that “[m]ultiple terms of imprisonment imposed at different
times run consecutively unless the court orders that the terms are to run concurrently); see also United
States v. Williams, 46 F.3d 57, 59 (10th Cir. 1995) (“The plain meaning of this provision is that multiple
terms of imprisonment imposed at different times will normally run consecutively, unless the district court
affirmatively orders that the terms be served concurrently.”).
36

18 U.S.C. § 3585(a); Binford, 436 F.3d at 1255.

9

court on a PR bond does not by itself support a conclusion that Mr. Newman was in
official (as opposed to temporary) federal detention. And, the Bureau has credited that
time against Applicant’s federal sentence.37
B.

Credit for Time Served

Pursuant to 18 U.S.C. § 3585(b), “[a] defendant shall be given credit toward the
service of a term of imprisonment for any time he has spent in official detention prior to
the date the sentence commences. . . that has not been credited against another
sentence.” Mr. Newman received credit toward his state sentence for 285 days he
spent in state custody between December 26, 2006 and October 11, 2007. The state
district court declined to award him an additional 94 days of pre-sentence confinement
credit.38 However, the Bureau of Prisons has credited those 94 days toward his federal
sentence.39 Because Mr. Newman has received full credit for his prior custody, I find
and conclude that he is not entitled to additional sentencing credit against his current
sentence for time he spent incarcerated between December 26, 2006 and August 10,
2010.40

37

ECF No. 14-3.

38

ECF No. 2, at 15 of 47.

39

Doc. No. 14-3.

40

See United States v. Wilson, 503 U.S. 329, 337 (1992) (“Congress made clear [in enacting
§ 3585(b) ] that a defendant could not receive a double credit for his detention time.”).

10

C.

Concurrent v. Consecutive Sentencing

Finally, the Bureau of Prisons reviewed Mr. Newman’s claims to determine
whether he should be afforded nunc pro tunc concurrent service of his state court
sentence.
As discussed above, because the federal district court made no determination
that the federal term would run concurrently with any future state sentence, there is a
statutory presumption that Mr. Newman’s federal sentence ran consecutively to his
state court sentence.41 Further, although Tenth Circuit precedent is not entirely clear on
this issue, at least one published decision has recognized the federal district court’s
authority to impose a sentence that will run consecutively or concurrently with a state
sentence not yet imposed.42 Presumably, the sentencing court was aware of its
authority to order concurrent sentencing, but declined to do so. Moreover, “neither the

41

See 18 U.S.C. § 3584(a).

42

See Williams, 46 F.3d at 59 (“We find no language in section 3584(a) prohibiting a district court
from ordering that a federal sentence be served consecutively to a state sentence that has not yet been
imposed.”); see also United States v. Crawford, No. 06-5203, 217 F. App’x 774, 776 (10th Cir. Feb. 21,
2007) (unpublished) (stating that “under Williams, the district court had the authority to order Mr.
Crawford’s sentence to run concurrently with the sentences he was to receive in state court.”); but cf.
Miller, 594 F.3d at 1242 (observing that because the petitioner “received his federal sentence before his
state sentence, . . .neither court could order concurrent sentencing,” citing Abdul-Malik v. Hawk-Sawyer,
403 F.3d 72, 75 (2d Cir. 2005) (discussing split among the United States Circuit Courts of Appeals as to
whether federal district court has authority to order sentence imposed to run concurrently with anticipated
state court sentence). Notably, Abdul-Malik cites Williams for the proposition that the federal court has
authority to order a sentence to run concurrently with a state sentence not yet imposed. Abdul-Malik, 403
F.3d at 75 (citing Williams, 46 F.3d at 59).
Furthermore, the Supreme Court held recently in Setser v. United States,
U.S.
, 132 S.Ct.
1463 (2012), that a federal district court has discretion to order a federal sentence to run consecutively
with an anticipated state sentence that has not yet been imposed. The Court further recognized that a
federal sentencing court also has inherent discretion to decide whether the sentences it imposes will run
concurrently with respect to an anticipated state court sentence. Id. at 1468.

11

federal courts nor the [BOP] are bound in any way by the state court's direction that the
state and federal sentences run concurrently.”43
In Barden, the United States Court of Appeals for the Third Circuit recognized
that the Bureau of Prisons has the statutory authority to designate nunc pro tunc a
prisoner’s state facility as the place of confinement for his federal sentence where: the
petitioner asserts that the designation is necessary to carry out the intention of the state
sentencing court that his state sentence be served concurrently with his existing federal
sentence; and, the federal judgment is silent as to whether the federal sentence would
run consecutively to or concurrent with any future state sentence.44 The Barden court
held that the “federal authorities have an obligation [to] exercise the discretion the
applicable statute grants the Bureau to decide whether the state prison in which he
served his sentence should be designated as a place of federal confinement nunc pro
tunc.”45
The Bureau of Prisons considered Mr. Newman’s request for administrative
remedy, in part, as a request for nunc pro tunc designation under Barden. The BOP
determined, based on the five factors listed in 18 U.S.C. § 3621(b), that a retroactive
designation for Mr. Newman was not appropriate, based on his extensive criminal
43

Barden v. Keohane, 921 F.2d 476, 478 n. 4 (3d Cir. 1990) (citing U.S. Const. art. VI, cl. 2); see
also Abdul-Malik, 403 F.3d at 75 (state court determination of concurrent state and federal sentences is
not binding on federal authorities); Fegans v. United States, 506 F.3d 1101, 1104 (8th Cir. 2007) (same).
44

Barden, 921 F.2d at 477-478 (citing 18 U.S.C. § 3621(b), which affords the BOP wide discretion
to designate an inmate’s place of confinement).
45

Id. The Court of Appeals for the Tenth Circuit has not expressly adopted Barden. See United
States v. Miller, 594 F.3d 1240, 1242 (10th Cir. 2010). However, the Circuit Court has implicitly
recognized in an unpublished opinion that the BOP has discretion to designate a state institution for
service of an offender’s federal sentence. See McCarthy v. Warden, USP Leavenworth, 168 F. App’x 276,
277-78 (10th Cir. 2006) (unpublished).

12

history, the nature of his offense, and the silence of the federal sentencing court
regarding the imposition of his federal sentence.46 The BOP's denial of nunc pro tunc
designation is reviewed for abuse of the agency's substantial discretion under 18 U.S.C.
§ 3621.47
The designation of an appropriate state institution for service of a “concurrent”
federal sentence must be “consistent with the intent of the federal sentencing court or
the goals of the criminal justice system.48 Here, the federal sentencing judge was given
notice of the nunc pro tunc designation request pursuant to PS 5160.05(9)(b)(4)(c),49
but he remained silent on the issue. In light of this fact and Mr. Newman’s criminal
history, I find and conclude that the Bureau did not abuse its discretion in denying the
request.50 Applicant is not entitled to federal habeas relief from this court to the extent
he challenges his federal sentence computation.

46

Doc. No. 14-8.

47

See Fegans v. United States, 506 F.3d 1101, 1105 (10th Cir. 2007) (citation omitted); Taylor v.
Sawyer, 284 F.3d 1143, 1149 (9th Cir. 2002); McCarthy v. Doe, 146 F.3d 118, 123 n. 4 (2d Cir. 1998);
Barden, 921 F.2d at 478; see also McCarthy v. Florence, Case No. 08-CV-00961-REB, 2010 WL 2163781
at *2 (D. Colo. May 26, 2010).
48

See U.S. v. Dotson, No. 11-6001, 430 F. App’x. 679, 684 (10th Cir. July 13, 2011) (unpublished)
(quoting Bureau of Prisons Program Statement § 5160.05, § 8).
49

See McCarthy, 2010 WL 2163781 at *2 (citing PS 5160.05(9)(b)(4)(c) (requiring the Bureau to
give the federal sentencing judge notice of the nunc pro tunc designation request and an opportunity to
comment).
50

McCarthy, 2010 WL 2163781 at *3; see also Taylor, 284 F.3d at 1149 (the Bureau’s decision “is
plainly and unmistakably within the BOP's discretion and we cannot lightly second guess a deliberate and
informed determination by the agency charged with administering federal prison policy”).

13

V.

Conclusion
Accordingly, it is hereby
ORDERED that Applicant Richard Allen Newman’s Application for a Writ of

Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 1), filed on December 13,
2011, is denied and this action is dismissed with prejudice.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this
order would not be taken in good faith and therefore in forma pauperis status will be
denied for the purpose of appeal. See Coppedge v. United States, 369 U.S. 438
(1962). If Applicant files a notice of appeal he must also pay the full $455 appellate
filing fee or file a motion to proceed in forma pauperis in the United States Court of
Appeals for the Tenth Circuit within thirty days in accordance with Fed. R. App. P. 24.
Accordingly, it is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied.
Dated: May 29, 2012
BY THE COURT:

s/ Wiley Y. Daniel
Wiley Y. Daniel
Chief United States District Judge

14