Griffin v. Maye

Filing 3

MEMORANDUM AND ORDER ENTERED: Petitioner is granted thirty (30) days in which to either pay the filing fee or submit a properly supported motion to proceed without prepayment of fees, and to show cause why this action should not be dismissed for failure to state a claim for federal habeas corpus relief under 28 U.S.C. 2241. Signed by Senior District Judge Richard D. Rogers on 6/17/2013. (Mailed to pro se party Dee C. Griffin by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
DEE C. GRIFFIN,
Petitioner,
v.

CASE NO. 13-3070-RDR

CLAUDE MAYE,
Warden, USP-Leavenworth,
Respondent.
MEMORANDUM AND ORDER
This pro se petition for writ of habeas corpus was filed pursuant
to 28 U.S.C. § 2241 by an inmate of the United States Penitentiary,
Leavenworth, Kansas.

Petitioner challenges the U.S. Bureau of

Prisons (BOP) denial of his request for a nunc pro tunc designation
that would have allowed him to receive credit against the federal
sentence he is currently serving for time previously spent serving
an Indiana state sentence.

He believes he is entitled to such credit

because the state judge ordered that his Indiana sentence be served
concurrent with his previously-imposed federal sentence.

The court

finds that petitioner fails to state a claim for relief under § 2241.
He is given time to show good cause why this action should not be
dismissed for failure to state a claim.

FILING FEE
The statutory fee for filing a habeas corpus petition is $5.00.
1

Petitioner has neither paid the fee nor submitted a motion to proceed
in forma pauperis.

This action may not proceed until the filing fee

is satisfied in one of these two ways.

Local court rule requires

that a motion to proceed in forma pauperis be submitted upon
court-approved forms and that a certified statement of the current
balance in the inmate’s prison account be provided.
9.1(g).

D. Kan. Rule

If petitioner fails to satisfy the filing fee within the

time allotted, this action may be dismissed without prejudice and
without further notice.

FACTUAL BACKGROUND AND CLAIMS
Having screened all materials filed and having reviewed the
1

the court tentatively finds the

following factual background.

In April 2009, Mr. Griffin was

federal criminal case file,

stopped by police officers in Indiana for a traffic violation.
Griffin

(Doc.

23)(Sentencing

Memorandum)(12/29/09).

He

was

arrested by local authorities at that time and taken into state
custody.

He was charged with five state offenses including two

handgun violations.

The state charges were amended and the handgun

charges were dropped by the State.

However, federal authorities

charged Mr. Griffin with felon in possession of a firearm arising

1

The court takes judicial notice of the records in United States v. Griffin,
Case No. 3:09-cr-00069 (N.D. Ind.)(hereinafter Griffin).
2

from this incident.

A federal warrant was issued on June 12, 2009.

On July 21, 2009, the federal court issued a writ of habeas corpus
ad prosequendum directed to the Sheriff, St. Joseph County Jail,
South Bend, Indiana, so that he could be produced by U.S. Marshals
for his initial appearance in federal court scheduled for July 23,
2009.

Mr. Griffin was arrested on the federal warrant on July 23,

2009.

On November 3, 2009, he was found guilty in federal court upon

his plea of being a felon in possession of a firearm in violation
of 18 U.S.C. § 922(g)(1).

Id.

At sentencing, the federal court

found that Mr. Griffin was released from prison to parole authorities
in August 2008; “he was on parole at the time of this crime”; “there
is currently a hold on him for a parole violation”; and “his current
projected release date for his state parole violation is September
2010.”

The court also found that this was Mr. Griffin’s eighth

felony conviction, and that “all told, Mr. Griffin has had about
eighty prior state court cases for various infractions, misdemeanors
and felonies.”

He was sentenced to federal prison for 46 months to

be followed by a 3-year supervised release term.

Petitioner

acknowledges and the record in his federal case shows that the federal
court’s judgment was silent as to whether the federal term was to
run concurrent or consecutive to Mr. Griffin’s impending state
sentence.

Griffin (Doc 25) Judgment (Dec. 29, 2009).

He was

“remanded to the custody of the USM/SB” on December 29, 2009, and
taken by writ of habeas corpus ad prosequendum back to the county
3

jail in Indiana.
In January 2010, Mr. Griffin moved the Indiana state court to
accept his plea to two of the state counts: Operating a Motor Vehicle
After a Lifetime Suspension of Driving Privileges and Operating a
Motor Vehicle with Eight-Hundredths (.08) or More Grams of Alcohol
in the Breath.

Id.

Petitioner exhibits a portion of the docket

sheet from his state criminal case.

It indicates that the state

court judge took the motion under advisement and set sentencing for
February 4, 2010.

When Griffin appeared for this sentencing, the

state judge “decline(d) to proceed to sentencing until it is
determined when the Defendant was indicted and arrested in federal
case” and continued sentencing for 20 days.

Following this hearing,

the state judge phoned the federal judge’s office and was informed
that Mr. Griffin had been indicted and was arrested on the federal
warrant on July 23, 2009.

The exhibited docket provides: “Court

therefore finds that the sentence in 09FC87 may be concurrent with
the federal sentence.”

It further provides that “[t]his court

requested that the federal authorities not remove the Defendant from
the St. Joseph County Jail until after the sentencing set for
2/24/10.”

Id. at 10.

The docket also reveals that on February 24,

2010, the state judge found that Mr. Griffin “had 312 days class one
credit through 2/23/10,” had a federal detainer, and “had never been
released on this case.”
2) at 11.

Petitioner’s Memorandum in Support (Doc.

The state court accepted Griffin’s plea on this date and
4

sentenced him to sixty days on the alcohol count, which was satisfied
by pre-sentence credit, and to five years incarceration on the
driving suspension count “which begins today.”

The judge ruled that

“[t]his sentence is concurrent with the federal sentence imposed in
3:09CR69-1.”

He then remanded the defendant “to the Sheriff for

transfer to the Department of Correction but request(ed) the Sheriff
to notify federal authorities,” and added that “[i]f the federal
authorities exercise their detainer, the Defendant’s custody is
transferred to the federal marshal.”

The U.S. Marshal did not pick

up Mr. Griffin, and he was transported to the Indiana DOC.
Mr. Griffin asks the court to find that his state and federal
sentences were concurrent, and to order the BOP to issue a nunc pro
tunc designation to credit his federal sentence with the time he
served in state custody prior to the BOP taking physical custody from
Indiana.

He alleges that he exhausted his administrative remedies,

and that during this process the BOP considered and denied his request
for nunc pro tunc designation.

RELEVANT LEGAL AUTHORITY
28 U.S.C. § 2241(c)(3) pertinently provides: “The writ of habeas
corpus shall not extend to a prisoner unless . . . he is in custody
in violation of the Constitution or laws or treaties of the United
States . . . .”

Calculation of a federal prison sentence is governed

by federal statutes.

18 U.S.C. § 3585 provides as follows:
5

(a) Commencement of sentence.—A sentence to a term of
imprisonment commences on the date the defendant is
received in custody awaiting transportation to, or arrives
voluntarily to commence service of sentence at, the
official detention facility at which the sentence is to
be served.
(b)Credit for prior custody.—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.
Id.

The Tenth Circuit has instructed that “[t]he computation of a

federal sentence requires consideration of two separate issues.”
Binford v. United States, 436 F.3d 1252, 1254 (10th Cir. 2006).
First, the commencement date of the federal sentence must be
determined under § 3585(a), and then “the extent to which a defendant
can receive credit for time spent in custody prior to commencement”
of the federal sentence is determined under § 3585(b).3

Id. (citing

Weekes v. Fleming, 301 F.3d 1175, 1179 (10th Cir. 2002), cert. denied,
537 U.S. 1146 (2003)).
A federal sentence is also calculated in accord with 18 U.S.C.
§ 3584(a), which pertinently provides:
(a) Imposition of Concurrent or Consecutive Terms. -If
multiple terms of imprisonment are imposed on a defendant
at the same time, or if a term of imprisonment is imposed
6

on a defendant who is already subject to an undischarged
term of imprisonment, the terms may run concurrently or
consecutively. . . .
Multiple terms of imprisonment
imposed at different times run consecutively unless the
court orders that the terms are to run concurrently.
Id.

Thus, when a federal Judgment and Commitment Order is silent

as to the concurrent or consecutive nature of a federal sentence it
is consecutive under federal law.

The Tenth Circuit has held that

“no language in section 3584(a) prohibit[s] a district court from
ordering that a federal sentence be served consecutively to a state
sentence that has not yet been imposed.”

Binford, 436 F.3d at 1254

(quoting United States v. Williams, 46 F.3d 57 (10th Cir. 1995)); see
also United States v. Crawford, 217 Fed.Appx. 774, 776 (10th Cir.
2007)(unpublished) 2 (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.”).

The determination

by a federal judge that a defendant’s “federal sentence would run
consecutively to his state sentence is a federal matter which cannot
be overridden by a state court provision for concurrent sentencing
on a subsequently-obtained state conviction.”

See Bloomgren v.

Belaski, 948 F.2d 688, 691 (10th Cir. 1991); see also United States
v. Eccleston, 521 F.3d 1249, 1254 (10th Cir.), cert. denied, 555 U.S.
958 (2008); Still v. Milyard, 361 Fed.Appx. 908, 910 (10th Cir.
2010)(“[E]ven when a state court imposes a state sentence to be served
2

Unpublished opinions are not cited herein as binding precedent, but for
persuasive value. See Fed.R.App.P. 32.1 and 10th Cir.R. 32.1.
7

concurrently with a federal sentence, commencement of the federal
sentence remains a matter of federal authority.”).

The U.S. Supreme

Court recently discussed § 3584, which it found addresses the
“concurrent-vs.-consecutive
sentences.

decision”

regarding

multiple

Setser v. United States, ---U.S.---, 132 S.Ct. 1463,

2012 WL 1019970 (Mar. 28, 2012).

The Court explained that federal

district courts make this decision with respect to federal sentences:
Judges have long been understood to have discretion to
select whether the sentences they impose will run
concurrently or consecutively with respect to other
sentences that they impose, or that have been imposed in
other proceedings, including state proceedings.
See
Oregon v. Ice, 555 U.S. 160, 168–169, 129 S.Ct. 711, 172
L.Ed.2d 517 (2009).
Id. at 1468.

The Court further explained:

The first sentence in § 3584(a) addresses the most common
situations in which the decision between concurrent and
consecutive sentences must be made: where two sentences
are imposed at the same time, and where a sentence is
imposed subsequent to a prior sentence that has not yet
been fully served. It says that the district court has
discretion whether to make the sentences concurrent or
consecutive. . . . And the last two sentences of § 3584(a)
say what will be assumed in those two common situations
if the court does not specify that the sentence is
concurrent or consecutive.
Id. at 1470.

The Supreme Court held that a federal sentencing court

has discretion to decide whether or not the sentences it imposes will
run concurrently with respect to an anticipated state court sentence
and to order a federal sentence to run consecutively with an
anticipated state sentence.

Id. at 1468.

The BOP has no authority to ignore the sentencing order of a
8

federal court in favor of a contrary order by a state court or to
execute a federal sentence as concurrent to state sentences when a
federal sentencing court has imposed its sentence as consecutive.
See

Carroll

v.

Peterson,

105

Fed.Appx.

988,

990

(10th

Cir.

2004)(unpublished)(BOP was within its discretion in denying inmate’s
request for a nunc pro tunc order designating state prison as his
place of confinement which would have allowed state and federal
sentences to run concurrently, where federal sentencing judge was
silent

as

to

whether

state

and

federal

charges

would

run

concurrently.); Miller v. Scibana, 260 Fed.Appx. 80 (10th Cir. 2008)
(unpublished)(BOP denial of petitioner’s request for a nunc pro tunc
concurrent designation of his federal and state sentences proper
where federal court did not indicate whether the federal and state
sentences should run consecutively or concurrently); Bloomgren, 948
F.2d at 691 (The determination by federal authorities that a
defendant’s federal sentence would run consecutive to his prior state
sentence is a federal matter, which cannot be overridden by a state
court provision for concurrent sentencing).

As the U.S. Supreme

Court held in Setser, the BOP simply is not authorized by Congress
to make concurrent-vs.-consecutive decisions.
S.Ct. at 1472, fn. 5.

See Setser, 132

The Supreme Court explicitly rejected the

arguments that the BOP is not bound by the default rules in § 3584
and that the BOP has discretion to execute sentences differently than
as ordered by the federal sentencing judge:
9

The Government contends that the Bureau applies the
default rules in § 3584(a) “[a]s a matter of discretion”
but is not “bound” by that subsection. Reply Brief for
United States 15, n. 5. We think it implausible that the
effectiveness of those rules-of § 3584(a)’s prescription,
for example, that “[m]ultiple terms of imprisonment
imposed at different times run consecutively unless the
court
orders
that
the
terms
are
to
run
concurrently”—depends upon the “discretion” of the
Bureau.
Id. at 1469, n. 3.

The Court reasoned:

When § 3584(a) specifically addresses decisions about
concurrent and consecutive sentences, and makes no mention
of the Bureau’s role in the process, the implication is
that no such role exists.
And that conclusion is
reinforced by application of the same maxim (properly, in
this instance) to § 3621(b)-which is a conferral of
authority on the Bureau of Prisons, but does not confer
authority to choose between concurrent and consecutive
sentences.
Id. at 1470.

The Tenth Circuit explained in United States v.

Ellsworth, 296 Fed.Appx. 612, 613–14 (10th Cir. 2008)(unpublished):
“[a]lthough [petitioner’s] state sentence provides for
concurrent service of the federal and state sentences, the
state court’s decision cannot alter the federal-court
sentence,” which was run consecutively to, not
concurrently with, the state sentence.
Id. (quoting Eccleston, 521 F.3d at 1254)(citing Bloomgren, 948 F.2d
at 691)); see also United States v. Miller, 594 F.3d 1240, 1242 (10th
Cir. 2010)(Requiring the BOP to take a state inmate into federal
custody before he was released from his state sentence “would void
the district court’s valid sentence, and undermine the (district)
court’s authority under 18 U.S.C. § 3584(a).”).

In short, “neither

the federal courts nor the [BOP] are bound in any way by the state
10

court’s

direction

concurrently.”

that

the

state

and

federal

sentences

run

See also Barden v. Keohane, 921 F.2d 476, 478 n. 4

(3rd Cir. 1990); see also Abdul–Malik, 403 F.3d 72, 75 (2nd Cir.
2005)(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).

DISCUSSION
Applying § 3584(a) to the facts of this case, the court finds
that the sentencing order in Mr. Griffin’s federal criminal case
effectively provided that his federal sentence was to run consecutive
to his state sentence.

The federal district judge that sentenced

petitioner was undoubtedly aware of his or her discretionary
authority to impose concurrent sentencing

and

of

the

§

3584

presumption of consecutive sentences if that authority is not
exercised.

Like in Setser, the difficulty in this case arises not

from the federal sentence, but from the state court’s decision to
order its sentences to run concurrent with the federal sentence after
the federal sentence had already been entered as consecutive.
Setser, 132 S.Ct. at 1472.

As the Supreme Court opined, this is

“indeed a problem,” but not “one that shows the District Court’s
sentence to be unlawful.”

Id.

Applying § 3585(a) to the facts of this case, petitioner’s
federal sentence did not commence until he was actually received into
11

federal custody for the purpose of service of his federal sentence.
It did not commence upon sentencing as he suggests, since he was in
temporary federal custody at the time pursuant to a writ of habeas
corpus ad prosequendum.

No facts are alleged to show that the

Indiana DOC and the BOP ever actually arranged or even agreed to
transfer physical custody of Mr. Griffin to the BOP while he was still
serving his state sentence.

Instead, after Mr. Griffin’s federal

sentencing he was returned to Indiana custody and began service of
his state sentence.

Thus, petitioner does not show that he is

entitled to an earlier sentence commencement date under § 3585(a).
Nor has petitioner shown his entitlement to “prior custody
credit” under § 3585(b).

Petitioner contends that he is entitled

to prior custody credit against his federal sentence for time spent
in state prison because the state judge ordered that the sentences
run concurrently and directed that Mr. Griffin be relinquished to
federal custody.

Even though the state judge expressed his intent

for and attempted to facilitate petitioner’s immediate transfer to
federal custody, federal authorities had no duty to take Mr. Griffin
into custody until he was released from state custody on completion
of

his

state

sentence.

See

Bloomgren,

948

F.2d

at

691.

Furthermore, it is clear from the legal authority set forth above
that the state judge’s intention does not control the operation of

12

petitioner’s

federal

sentence.

3

See

Thomas

v.

Ledezma,

341

Fed.Appx. 407, 412–13 (10th Cir. 2009)(unpublished); Bloomgren, 948
F.2d at 690–91 (Bloomgren not entitled to credit on his federal
sentence for time spent incarcerated on the state charges even though
he served his federal sentence after his state sentence, rather than
serving them concurrently as anticipated by the state court.);
Reynolds

v.

Thomas,

603

F.3d

1144,

1149

(9th

Cir.

2010)(“[C]concurrent sentences imposed by state judges are nothing
more than recommendations to federal officials.”)(citing Taylor v.
Sawyer, 284 F.3d 1143, 1150 (9th Cir. 2002), cert. denied, 537 U.S.
1119 (2003)).
Finally, the court notes the last phrase of § 3585(b) and
well-settled law that a federal defendant is not entitled to “double
credit” against his federal sentence for time credited toward a state
sentence, when the federal sentencing order does not provide for such
credit.

See U.S. v. Wilson, 503 U.S. 329, 337 (1992)(In enacting

§ 3585(b), “Congress made clear that a defendant could not receive
a double credit for his detention time.”); Weekes, 301 F.3d at 1178
(Petitioner “received credit against his state sentence for all the
time served prior to the date his federal sentence commenced . . .
. [and he] is not entitled to pre-sentence credit under § 3585(b).”);
3

To the extent that Mr. Griffin may be complaining that the state court imposed
a sentence it lacked authority to implement and misled him to believe that he would
be allowed to serve his state and federal sentences at the same time, this was
a claim for the state courts. It does not evince a violation of federal statutory
or constitutional law.
13

Cathcart v. U.S. Bureau of Prisons, 211 F.3d 1277, at *2 (10th Cir.
2000)(Table)(affirming

district

court’s

dismissal

of

habeas

petition on ground that § 3585(b) prohibited petitioner from
receiving credit for time served in federal custody where that time
had been credited to his state sentence).

Mr. Griffin is not

entitled to the “double credit” he seeks for the reason that this
time was “credited against another sentence.”
Based upon the foregoing findings and authority, the court finds
that Mr. Griffin has failed to allege facts demonstrating that BOP
officials have incorrectly calculated either the start date or the
prior custody credit of his federal sentence or that the BOP’s
calculation of his federal sentence as consecutive violated either
the U.S. Constitution or federal law.
Mr. Griffin also claims that his federal sentence violated the
United States Sentencing Guidelines and asserts that under the
guidelines, sentences arising from the same arrest should be ordered
to run concurrently.

This claim is a challenge to petitioner’s

sentence itself rather than its execution.

If he has grounds to

challenge his federal sentence, they must be presented to the
sentencing court by way of a motion under § 2255.

See Carroll, 105

Fed.Appx. at 990 (finding petitioner’s contention that federal
sentencing court should have provided for concurrent federal and
state sentences pursuant to U.S.S.G. § 5G1.3(c) challenged the
validity of his sentence and must be brought under § 2255); see also
14

Garrett

v.

Snyder,

41

Fed.Appx.

756,

758

(6th

Cir.

2002)(unpublished)(holding that 28 U.S.C. § 2255, rather than 28
U.S.C. § 2241, was the proper vehicle because “Garrett’s U.S.S.G.
§ 5G1.3 argument constitutes a challenge to the imposition of his
sentence, not the execution or manner in which his sentence is being
served”);

Easley

v.

Stepp,

5

Fed.Appx.

541,

543

(7th

Cir.

2001)(unpublished)(holding that the “appropriate vehicle” is a
motion under 28 U.S.C. § 2255 when a person challenges how the
sentencing guidelines were applied in his case).

Petitioner makes

no argument showing that the remedy under § 2255 has been or would
be inadequate or ineffective to test the lawfulness of his sentence
under the USGS.
Petitioner is given time to satisfy the filing fee and to show
cause why this action should not be dismissed with prejudice for
failure to state a claim.
865-66 (10th Cir. 2012).

Still v. Herndon, 496 Fed.Appx. 860,

If he fails to adequately respond within

the time allotted, this action may be dismissed without further
notice.
IT IS THEREFORE ORDERED that petitioner is granted thirty (30)
days in which to either pay the filing fee or submit a properly
supported motion to proceed without prepayment of fees, and to show
cause why this action should not be dismissed for failure state a
claim for federal habeas corpus relief under 28 U.S.C. § 2241.
The clerk of the court is directed to transmit forms for filing
15

an IFP Motion to petitioner.
IT IS SO ORDERED.
DATED:

This 17th day of June, 2013, at Topeka, Kansas.

s/RICHARD D. ROGERS
United States District Judge

16