ALLEN v. ZYCH

Filing 20

ORDER DISMISSING PETITION re: 17 REPORT AND RECOMMENDATION. The clerk must enter judgment stating, The petition is denied with prejudice. Signed by JUDGE ROBERT L HINKLE on 12/3/11. (pll)

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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
PANAMA CITY DIVISION

RUSSELL ALLEN,
Petitioner,
v.

CASE NO. 5:09cv224-RH/GRJ

WARDEN, FCI MARIANNA,
Respondent.
_____________________________/

ORDER DISMISSING PETITION

The petitioner Russell Allen initiated this case in the Eastern District of
Michigan challenging the time the Bureau of Prisons is requiring him to serve on a
sentence imposed in that district. Mr. Allen asserted a right to relief under 28
U.S.C. § 2241. An incarcerated person’s § 2241 petition must be brought in the
district of confinement, not the district of conviction. The Eastern District of
Michigan therefore transferred the case to the Northern District of Florida, where
Mr. Allen is serving his sentence. The case is before the court on the magistrate
judge’s report and recommendation, ECF No. 17. No objections have been filed.
The facts—at least as suggested by this record—are these. Mr. Allen was
charged in the Eastern District with possessing a firearm as a convicted felon. He
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was released pending trial. While out, he committed the Michigan state crime of
armed robbery. He was arrested for the armed robbery and detained in state
custody. He pled guilty and was sentenced to state prison. While in custody on
the state charge, Mr. Allen was transferred into federal custody several times on
writs of habeas corpus ad prosequendum so that he could attend proceedings on the
federal charge. He ultimately pled guilty to the federal charge and was sentenced
to 92 months in the Bureau of Prisons. Apparently as contemplated by the plea
agreement, the Eastern District judge ordered the sentence to run “concurrently to
the undischarged term of imprisonment currently being served in a State Facility.”
ECF No. 13-4 at 3 (emphasis added). The judgment did not say that the federal
sentence should be concurrent with the portion of the state sentence that had
already been served.
Mr. Allen was returned to state custody. He eventually was paroled and
transferred to the Bureau of Prisons for service of the federal sentence. The
Bureau has given Mr. Allen credit for the time he spent in state custody after
imposition of the federal sentence, by designating the state facility for service of
the federal sentence. See Barden v. Keohane, 921 F.2d 476 (3d Cir. 1990). But
the Bureau has refused to give Mr. Allen credit for the time spent in either state or
federal custody before imposition of the federal sentence. The Bureau asserts that
the governing statute prohibits it from giving credit for that time:

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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—
(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). Read literally, all the statute says is that
the Bureau must give credit for time in detention—on the same charge or on a later
arrest—that has not been credited on another sentence. Read literally, the statute
does not address time in detention that has been credited on another sentence. But
the statute’s clear import is that the Bureau can give credit only for time that has
not been credited on another sentence. As set out in the report and
recommendation, courts have consistently read the statute that way.
The report and recommendation thus correctly concludes that, under
§ 3585(b), the Bureau cannot give Mr. Allen credit for the time he spent in state
and federal custody prior to imposition of the federal sentence.
This result seems to comport with the Eastern District judge’s intent. The
judgment provided only that the federal 92-month sentence was to run concurrently
with the “undischarged” term of the state sentence. ECF No. 13-4 at 3. The judge
was surely aware of § 3585(b) and the impact it would have on the implementation
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of this sentence. Had the judge intended for the federal sentence to be concurrent
with the entire state sentence, the judgment presumably would have said so. And
had that been the intent, the proper way to achieve it would have been to impose a
lower federal sentence—to reduce the 92-month sentence by the time already spent
in state and federal detention or custody. The sentencing guidelines expressly
recognize this as the proper way to achieve concurrency. See U.S. Sentencing
Guidelines Manual (“Guidelines Manual”) § 5G1.3(c) (2011) (allowing a court to
impose a sentence to run wholly or partly concurrently with, or consecutively to,
an undischarged term of imprisonment, if the undischarged term was imposed after
the offense of conviction and was not for relevant conduct); id. § 5G1.3(b)
(directing the court, in order to achieve concurrency, to “adjust the sentence for
any period of imprisonment already served on the undischarged term of
imprisonment if the court determines that such period of imprisonment will not be
credited . . . by the Bureau of Prisons”).
So the Bureau’s handling of this seems to comport with the judgment and,
presumably, the parties’ intent when they entered the plea agreement. If that was
not the parties’ or judge’s intent—if they actually intended for Mr. Allen’s federal
sentence to be concurrent with the entire state sentence, including the time served
prior to imposition of the federal sentence—then Mr. Allen’s remedy would have
been an appropriate motion attacking the judgment under 28 U.S.C. § 2255,

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perhaps on the ground that the plea agreement was violated, or perhaps on the
ground of ineffective assistance of counsel. Whatever the parties’ and judge’s
intent, Mr. Allen’s § 2241 attack on the Bureau’s implementation of the judgment
as entered is unfounded.
For these reasons and those set out in the report and recommendation,
IT IS ORDERED:
The clerk must enter judgment stating, “The petition is denied with
prejudice.” The clerk must close the file.
SO ORDERED on December 3, 2011.
s/Robert L. Hinkle
United States District Judge

Case No. 5:09cv224-RH/GRJ