Richardson v. United States of America

Filing 2

REPORT AND RECOMMENDATIONS dismissing with prejudice 1 Motion to Vacate/Set Aside/Correct Sentence (2255) filed by Jeremiah Jones Richardson. Objections to R&R due by 9/4/2017. Signed by Magistrate Judge G. R. Smith on 8/21/17. (jlm)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
STATESBORO DIVISION
JEREMIAH JONES RICHARDSON,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent.

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CV617-108
CR616-010

REPORT AND RECOMMENDATION
Jeremiah Jones Richardson pled guilty to one count of conspiracy
to possess with intent to distribute a controlled substance in violation of
21 U.S.C. § 846, docs. 1 & 160, 1 and was sentenced to 70 months’
imprisonment, doc. 235.

Nothing in either the plea agreement or

judgment indicated that his federal sentence should be served
concurrently to any sentence to be later imposed by the state of Georgia.

See docs. 1 & 235.
Richardson was remanded back to state custody, see doc. 19 (writ
of habeas corpus to procure him from state custody for federal
proceedings), and three months later he was sentenced by a state court

1

The Court is citing to the criminal docket in CR616-010 unless otherwise noted,
and all page numbers are those imprinted by the Court’s docketing software.

to 12 years’ incarceration on related charges, to be served concurrently
with

his

federal

sentence.

Doc.

327

at

4;

see

also

http://www.dcor.state.ga.us /GDC/Offender/Query (noting 3 concurrent
sentences for possession with intent to distribute and trafficking of
methamphetamine). He has begun serving his state sentence at Coffee
Correctional Facility, in Coffee County, Georgia, and asks the Court to
order his “federal time to run concurrently with the state time” through
a 28 U.S.C. §2255 motion to vacate, set aside, or correct his sentence.
Doc. 327 at 4.
But § 2255 offers Richardson no succor here. That section only
permits a challenge to the validity of the federal conviction or sentence
itself, and Richardson mounts no such challenge.

Thus, he must

proceed under 28 U.S.C. § 2241, which allows challenges to the

execution of a federal sentence, rather than its validity. See Antonelli
v. Warden, 542 F.3d 1348, 1352 (11th Cir. 2006); Bishop v. Reno, 210
F.3d 1295, 1304 (11th Cir. 2000). But Richardson has no such claim.
Richardson asks for his federal sentence to be rewritten to be
served concurrently with his state sentence, which he is now serving.
But nothing in his federal sentence suggests that it is to be served
2

concurrently with any state sentence, and his later-imposed state
sentence cannot alter the federal sentence. See Bloomgren v. Belaski,
948 F.2d 688, 691 (10th Cir. 1991).

Because Richardson’s federal

sentence does not affirmatively order concurrent service of his federal
and state sentences, it has not been executed unlawfully. He has no
claim for relief this Court can provide, and his motion should be
DISMISSED with prejudice.2
This Report and Recommendation (R&R) is submitted to the
district judge assigned to this action, pursuant to 28 U.S.C.

2

That is not to say that Richardson lacks administrative options for the relief he
seeks. He may ask his state custodians to request the Bureau of Prisons (BOP) to
designate the state institution as the place to serve his federal sentence concurrently
with his state sentence. BOP Program Statement 5160.05(9)(b)(5) states:
State Request. Occasionally, a Regional Office receives a request from a state
jurisdiction indicating that the state and federal sentences are to be served
concurrently, whether by state court order or department of corrections referral.
(a) The [Regional Inmate Systems Administrator (RISA)] will gather and
review all information pertaining to the federal and state sentences. After
reviewing this information carefully, if necessary, the RISA will correspond
with the federal sentencing court to ascertain whether it has any objections to
the federal and state sentences running concurrently. A courtesy copy of this
correspondence will be forwarded to the appropriate U.S. Attorney. . . .
(b) If the court has no objections, the state institution may be designated as
the place to serve the federal sentence concurrently with the state sentence,
according to the procedures detailed in this Program Statement.
“The [BOP] will not, under ordinary circumstances, such as overcrowding in a state
institution, accept transfer of the inmate into federal custody for concurrent service.”
United States v. Eccleston, 521 F.3d 1249, 1252 n. 1 (10th Cir. 2008).
3

§ 636(b)(1)(B) and this Court’s Local Rule 72.3.

Within 14 days of

service, any party may file written objections to this R&R with the
Court and serve a copy on all parties.
captioned

“Objections

to

Magistrate

The document should be
Judge’s

Report

and

Recommendations.” Any request for additional time to file objections
should be filed with the Clerk for consideration by the assigned district
judge.
After the objections period has ended, the Clerk shall submit this
R&R together with any objections to the assigned district judge. The
district judge will review the magistrate judge’s findings and
recommendations pursuant to 28 U.S.C. § 636(b)(1)(C). The parties are
advised that failure to timely file objections will result in the waiver of
rights on appeal. 11th Cir. R. 3-1; see Symonett v. V.A. Leasing Corp.,
648 F. App’x 787, 790 (11th Cir. 2016); Mitchell v. United States, 612 F.
App’x 542, 545 (11th Cir. 2015).
SO REPORTED AND RECOMMENDED, this
August, 2017.

4

21st

day of