Carter v. United States of America

Filing 5

REPORT AND RECOMMENDATIONS denying re 1 Motion to Vacate/Set Aside/Correct Sentence (2255) filed by Joe V. Carter. Objections to R&R due by 11/27/2013. Signed by Magistrate Judge G. R. Smith on 11/13/2013. (loh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION

JOE CARTER,
Movant,
Case No.

V.

CV413-098
CR41O-271

UNITED STATES OF AMERICA,
Respondent.

REPORT AND RECOMMENDATION
Joe Carter moves to vacate his sentence for possession of a firearm
as a felon and seeks re-sentencing on the ground that the district judge
acted "contrary to the provisions of 18 U.S.C. § 3585(b)" by
recommending that the Bureau of Prisons ("BOP") credit him with all
time served in federal detention prior to sentencing, doc. 1 at 3, rather
than taking other appropriate measures to ensure that defendant was
awarded the credit that the Court "intended" that he receive. Doe. 1-1 at
20. For the reasons which follow, Carter is not entitled to re-sentencing,
and thus his motion must be DENIED.

At the time his federal sentence was imposed on October 5, 2011,
Carter was then serving a state prison sentence.' This Court secured his
appearance for prosecution on the federal indictment through a writ of
habeas corpus ad prosequendum. Doc. 1-1 at 14. The United States
Marshal acquired temporary custody of Carter pursuant to that writ on
November 23, 2010. Carter thus was "on loan" from the state, which
retained primary jurisdiction throughout the federal proceedings.
Causey v. Civiletti, 621 F.2d 691, 693 (5th Cir. 1980) ("A writ of habeas
corpus ad prosequendum is only a 'loan' of the prisoner . . . ."). Carter
does not dispute that his state sentence continued to run while he was in
the marshal's custody.
During Carter's sentencing hearing on October 5, 2011, his attorney
mentioned that he had been in "federal custody" since November 23, 2010
and indicated that his client was seeking credit on his federal sentence for
all time spent in custody since his arrest by the state authorities on

1

Carter's state parole (on a conviction for robbery, carrying a concealed
weapon and obstruction by fleeing) had been revoked on October 22, 2010 after state
probation officials found him in possession of a firearm and marijuana (on August 10,
2010). Presentence Investigation Report ("PSI") at 6-7. His possession of that
firearm as a felon also led to his federal indictment.
2

August 10, 20 10.2 Sent. Tr. at 5-6. In pronouncing sentence, the
district judge indicated that he would "recommend to the Federal Bureau
of Prisons that the defendant receive credit for all time in federal custody.
." Id. at 9. The criminal judgment entered that same date reflected
that recommendation. Doc. 1-1 at 22.
After his federal sentencing proceeding, Carter "was returned to the
State of Georgia to complete his State sentence." Doc. 1-1 (Carter's
brief) at 14. Upon the completion of that custodial sentence on May 24,
2012, Carter was "paroled" by the state and thus began service of his
federal sentence. Id. Carter asserts that it was not until he arrived at
the Federal Correctional Institution at Marianna, Florida in June 2012
that he learned that he would not be credited with the time he spent in the
custody of the U.S. Marshal prior to his federal sentencing, "as requested
by the Court." Id. at 15; see id. at 25 (BOP sentencing computation

2

Counsel indicated that he had informed his client of his "legal opinion" that
while "he would probably get credit for time served in federal custody," Sent. Tr. at 5
(emphasis added), the Court likely would be unable to award him credit for time spent
in state custody prior to securing his appearance on the federal writ. The district
judge made no attempt to resolve that issue but did note in passing that Carter had
been "picked up by state authorities" and reincarcerated for violating his state
probation (actually, parole) prior to coming to federal court. Id. at 6.
3

reflecting that Carter's federal time did not commence until May 24,
2012).
Carter then sought administrative review of that BOP
determination, requesting that he be credited with all time between the
date of his federal sentencing proceeding (on October 5, 2011) and the day
he completed service of his state custodial sentence (on May 24, 2012).
Id. at 26-31. Carter argued that his "State time. . . was supposed to run

concurrent with [his] federal sentence." Id. at 26; id. at 27 (stating that it
was his "understanding . . . that his federal sentence would run
concurrent with [his] state sentence"); see also id. at 29 (asserting that
both he "and the Court. . . understood that [he] would get credit from the
date of federal sentencing"). The BOP determined that Carter was not
entitled to receive credit against his federal sentence for the period of his
"temporary custody" by the marshal prior to his federal sentencing, as 18
U.S.C. § 3585(b) prohibits such credit where the time has been credited
toward the service of another sentence.

Id. at 30. The BOP further

noted that while the federal court "had the opportunity to order" that his
federal sentence be concurrent to his state sentence, it "chose not to do

4

so." Id. Accordingly, the BOP found that Carter's federal sentence had
been correctly computed.
In the § 2255 motion which he has filed with this Court, Carter
demands credit on his federal sentence only for the time that he spent in
federal detention prior to his sentencing by the district judge, i.e., from
November 23, 2010 to October 5, 2011. Doc. 1 at 3; doc. 1-1 at 4, 14,
18- 19.3 Carter readily concedes that during his period of detention by the
marshal prior to federal sentencing, he "never legally left custody of the
State" and that § 3585(b) "preclude[d] the B.O.P." from counting this
time toward his federal sentence, as he had already received credit for that
time against his state sentence. Doc. 1-1 at 4; id. at 18 (where Carter
notes that " 3585(b) prohibits a defendant from receiving credit on his
federal sentence for the time that has been credited against his prior state
sentence and, thus, prevents defendant from receiving 'double credit");

id. at 19 ("because Petitioner received credit toward his state sentence for
At one point in his brief Carter references the fact that the time following the
imposition of his federal sentence until the completion of his state sentence on May 24,
2011 "also has not been credited toward his federal sentence." Doc.1-lat20. While
Carter expresses "his understanding" that "the federal sentence was supposed to run
concurrent with his state sentence," he states that he "does not wish to seem greedy"
in demanding a legal right to credit for that period of state custody but rather "leaves
to the Court" whether it intended for him to receive this credit. Id.
5

the time he served in federal custody on the writ, he cannot benefit from
18 U.S.C. § 3585(b)."). That is a correct interpretation of the law.
Carter nonetheless argues that because the district judge clearly
"intended" that he be credited with the time spent in the custody of the
marshal, doc. 1-1 at 20, the judge acted "contrary to federal law" in relying
upon the BOP to effectuate that intent under § 3585(b), as it was not
empowered to do what the statute specifically forbids. Doc. 1 at 3; doc.
1-1 at 4, 20. carter reasons that but for the court's mistaken
understanding of this statute, it would have "departed downward"
pursuant to U.S.S.G. § 5G1.3, thereby guaranteeing that he receive the
intended credit. Id. at 4; see also id. at 19, 20. Even if this claim is
properly before this Court (and it isn't), nothing in the record supports
this contention.'

The government asserts that Carter's claim is not cognizable under § 2255
and therefore is not properly before this Court, for a claim that the BOP failed to
award him proper credit for time spent in federal custody may only be brought under
28 U.S.C. § 2241 and must be filed in the district of the prisoner's confinement. Doc.
3 at 3-4. The Court finds that this argument rests upon a misreading of Carter's
motion. As noted, Carter readily concedes that § 3585(b) "preclude[d]" the BOP with
crediting him with time that was applied toward his state sentence. Doc. 1-1 at 4, 19.
Carter's challenge, therefore, is not that the BOP erred in computing the execution of
his sentence but that the district judge erred at the time of sentencing by failing to
give effect to his presumed "intention" that the time he spent in pre-sentence
detention of the marshal he credited toward his federal sentence. That is not a mere

Although Carter's claim of a district judge sentencing error is
properly brought under § 2255, it appears that his motion is both
untimely filed and procedurally defaulted. Carter contends that the
district judge committed error at sentencing when he failed to give effect
to his supposed intention that Carter be credited on his federal sentence
with the time he spent in marshal's custody while awaiting sentencing.
Carter contends that this error was premised upon the district judge's
misinterpretation of § 3585(b), which led to the judge's belief that the
BOP was bound to follow the Court's recommendation that Carter receive
such credit. But that error should have been apparent immediately upon
pronouncing sentence, for as defendant states, it rests upon an
interpretation of § 3585(b) that is "contrary to law." Doc. 1-1 at 4, 20.
Carter knew very well that his state sentence continued to run during the
entire time that he was in federal custody pursuant to a writ of habeas
corpus ad pro sequendum. And he further knew that, by the plain
language of § 3585(b), he could not be credited on his federal sentence "for
any time . . . spent in official detention prior to the date the sentence
execution-of-the-sentence argument that is properly brought under § 2241 but rather
asserts a fundamental error by the sentencing judge. Such a claim may only be
brought pursuant to § 2255.
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commences. . . that has. . . been credited against another sentence." 18
U.S.C. § 3585(b). Thus, at the time his sentence was imposed Carter had
all the information necessary to bring to the district judge's attention (or
to the attention of the court of appeals on direct appeal) that the sentence
pronounced by the district judge would not have the effect of "awarding
the credit intended by the Court." Doc. 1-1 at 20. The fact that Carter
did not realize the legal effect of this alleged error until he arrived at his
federal prison in June 2012 did not serve to reset the 1-year period of
limitation imposed by § 2255(f).

See, e.g., Wallace v. United States,

F. Supp. 2d -' 2013 WL 5952100 at *4 (N.D. Ala. Nov. 8, 2013)
(collecting cases showing that ignorance of the law neither resets the clock
nor supports equitable tolling).
If, as Carter alleges, the district judge had intended to require the
BOP to credit him with time spent in pre-sentence detention by the
marshal, the judge's inability to do so through a recommendation to the
BOP would have been apparent on the day of sentencing, for the district
judge clearly lacked the power to order the BOP to award a credit that is
statutorily prohibited. As Carter filed no direct appeal, the 1-year clock

8

for filing a § 2255 motion attacking his sentence commenced on October 5,
2011. As Carter's § 2255 motion was not filed until April 19, 2013, it is
untimely. And because Carter did not assert this available claim on
direct appeal, it is now procedurally defaulted.

Lynn v. United States,

365 F. 3d 1225 1 1234 (11th Cir. 2004) (a defendant's failure to advance an
available challenge to a criminal conviction or sentence on direct appeal
prevents him raising that claim in a § 2255 proceeding, absent a showing
of cause and prejudice or a fundamental miscarriage of justice arising
from the conviction of one who is actually innocent).
But even if timely filed and not defaulted, his § 2255 motion is
clearly unmeritorious, for it rests on an assumption that is not supported
by the record. Carter's motion hinges upon his assertion that the district
judge "intended" that he be credited with the time he spent in the custody
of the marshal prior to sentencing. Doc. 1-1 at 20. But the district judge
never expressed any such intention, either at sentencing or in the criminal
judgment. When Carter's attorney mentioned that his client was
requesting credit on his federal sentence for all time spent in custody
since his arrest by state officials on August 10, 2010, the district judge did

not attempt to resolve the issue of how much presentence credit Carter
was entitled to receive. (Nor was the judge even authorized to make this
calculation. 5) Instead, the judge brushed the issue aside with this
comment: "[W]asn't he picked up by state authorities, and didn't that
have something to do with either this offense or a probation violation?"
Sent. Tr. at 6. Then, in pronouncing sentence and in the judgment itself,
the district judge simply indicated that he would "recommend" to the
BOP that Carter "receive credit for all time in federal custody."

Id. at 9.

Nowhere did the judge indicate that he intended to require the BOP to
award such credit. Nor is there anything in the record to suggest that
the district judge failed to appreciate that § 3585(b) specifically precluded
crediting Carter with time spent in marshal's custody that had been
counted toward his existing state sentence.
Carter is correct that, had the district judge wished to do so, he could
have imposed a federal sentence that was to run concurrently with his
existing state sentence: 18 U.S.C. § 3584(a); U.S.S.G. § 5G1.3. The
United States v. Wilson, 503 U.S. 329, 334-35 (1992) (a district court is not
authorized to compute a defendant's credit for time spent in official detention at
sentencing; rather, the task of computing the credit under § 3585(b) is reserved to the
Attorney General, through the BOP, as an administrative matter after defendant is
imprisoned).
10

district judge elected not to impose a concurrent sentence, however, and
both § 3584 and § 5G1.3 "evince a preference for consecutive sentences
when imprisonment terms are imposed at different times."

United

States v. Ballard, 6 F.3d 1502, 1506 (11th Cir. 1993). Federal judges are
well familiar with their power to order that a federal sentence be made
consecutive or concurrent to an existing state sentence (or, for that
matter, "to an anticipated state sentence that has not yet been imposed."
Setser v. United States, 132 S. Ct. 1463 2 1466 (2012)). That historic
power is routinely exercised by district judges, including the sentencing
judge in this case.
Despite Carter's assertion that the district judge "intended" that he
receive credit on his federal sentence for all time spent in marshal's
custody awaiting the imposition of that sentence, the judge never
expressed any such intention. His recommendation to the BOP was just
that, a recommendation. Nothing in the record indicates that the district
judge was laboring under some misinterpretation of § 3585(b) or reflects
any belief on his part that his recommendation was somehow binding on
the BOP regardless of the requirements of that statute.

11

If the district judge had wanted to guarantee that defendant be
credited with the time he spent in marshal's custody even though that
time was also being credited against his state sentence, he could have done
so. He did not. The record suggests that the district judge simply
wanted defendant's federal sentence to be correctly calculated, by
counting any days spent in federal custody that were not counted toward
his state sentence. From years of experience (and countless § 2255
motions like this one), the district judge knew very well that the task of
computing credit for time served is assigned to the Attorney General and
thence to the BOP.

Wilson, 503 U.S. at 334 ("§ 3585(b) does not

authorize a district court to compute the credit at sentencing."). Carter's
assertion that the district judge "intended" for him to receive credit that
the BOP was precluded from awarding by statutory mandate finds no
basis in this record. Accordingly, Carter's § 2255 motion, even if timely
and not defaulted, should be DENIED.
SO REPORTED AND RECOMMENDED this

/3

November, 2013.
UNITE* STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA
12

day of