Carr v. Snyder-Norris

Filing 8

MEMORANDUM OPINION & ORDER: 1) Petitioner Carr's petition for a writ of habeas corpus pursuant to 28 USC 2241 DEs 1 4 are DENIED. 2. This action is DISMISSED and STRICKEN from the Court's docket. 3. Judgment shall be entered contemporaneously with this Memorandum Opinion and Order. Signed by Judge Henry R. Wilhoit, Jr on 2/17/17.(KSS)cc: COR, Carr (via US Mail)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION
ASHLAND
JOHN EVERETT CARR,

)
)
)
)

Petitioner,

v.

Civil No. 16-90-HRW

)

JODIE L. SNYDER-NORRIS,
Respondent.

)
)
)
)

MEMORANDUM OPINION
AND ORDER

*** *** *** ***
Inmate John Everett Carr is confined at the Federal Correctional Institution in
Ashland, Kentucky. Proceeding without an attorney, Carr has filed an original and
supplemental petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, as
well as a narrative description of the pertinent facts. [D. E. Nos. 1, 4, 5]
On November 21, 2013, a federal grand jury sitting in London, Kentucky
issued an indictment charging Carr and four others with conspiracy to own, operate,
maintain and control a chop shop in violation of 18 U.S.C. §§ 2322, 371, and related
offenses. While Carr was arrested for his initial arraignment on December 13, 2013,
he was immediately released from federal custody subject to several conditions.
On June 4, 2014, Carr reached a plea agreement with the government with
respect to his federal charges. State comi records show that on June 30, 2014, a
grand jury in Whitley County, Kentucky issued an indictment charging Carr with

first degree trafficking in a controlled substance in violation of Ky. Rev. Stat.
218A.1412. Commonwealth v. Carr, No. 14-CR-186 (Whitley Co. 2014). See
https://kcoj .kycourts.net/CourtNet/Search/CaseAtAGlance?county= l l 8&court= 1&
division=CI&caseNumber= l 4-CR-00 l 86&caseTypeCode=CR&client id=O

(last

visited on February 2, 2017). In his petition, Carr states that Kentucky police
arrested him on July 23, 2014 on these charges, and he was confined at the Whitley
County Jail. Carr alleges that on July 24, 2014, the federal government lodged a
detainer with the county jail related to the pending federal charges.
Carr alleges that on July 28, 2014, he was granted release on bond in Case No.
14-CR-186, but remained in jail because of the federal detainer. On August 18,
2014, Carr was arraigned on his state drug trafficking charges. On the same day, he
was arraigned in Whitley District Court on charges of Theft by Unlawful Taking Auto in Commonwealth v. Carr, No. 14-F-280 (Whitley Co. 2014).

See

https://kcoj .kycourts.net/CourtNet/Search/CaseAtAGlance?county= 118&court= 1&
division=DI&caseNumber= l 4-F-00280&caseTypeCode=FE&client id=O

(last

visited on February 2, 2017). In Case No. 14-F-280, Carr asserts that he was granted
bond on August 21, 2014, and the charges were later dismissed on October 20, 2014.
Carr was taken into federal custody pursuant to a writ of habeas corpus ad

prosequendum on October 28, 2014. On March 19, 2015, Carr was sentenced to a
36-month term of incarceration in United States v. Carr, No. 6: 13-CR-44-GFVT-3
2

(E.D. Ky. 2013). After his federal sentence was imposed, Carr was returned to state
custody on March 23, 2015. On April 20, 2015, the Whitley Circuit Court sentenced
Carr to an 18-month prison term in Case No. 14-CR-186 to be served concurrently
with his federal sentence. On June 8, 2015, Carr was paroled from this sentence,
and was released into federal custody to begin his federal sentence with the Bureau
of Prisons. [D. E. No. 4-1 at 3]
In March 2016, Carr filed a motion in his federal criminal case to compel the
Bureau of Prisons ("BOP") to recalculate his prior custody credits. The Court denied
relief on July 29, 2016, directing Carr to first file inmate grievances with the prison
and, if unsatisfied, seek relief under§ 2241. However, Carr had already started that
process by filing an inmate grievance on May 12, 2016, although he was unable to
obtain relief from either the warden or the BO P's regional office. [D. E. No. 4-1 at
2-9] Carr filed an appeal to the BOP's Central Office on July 12, 2016 [D. E. No.
5-1 at 1], but before receiving a response, filed this action two weeks later seeking
habeas relief from the BO P's preliminary determination that his prior custody credits
had been properly calculated. [D. E. No. l]
The BOP's Central Office denied relief on September 12, 2016, for essentially
the same reasons as the warden and the regional office. In doing so, it noted that
Kentucky had given Carr credit towards his state sentences from July 23, 2014,
through December 15, 2014, and from March 25, 2015, through June 8, 2015. The
3

BOP awarded Carr credit towards his federal sentence from December 16, 2014 until
March 24, 2015, as Kentucky had not credited that period against his state sentences.
[D. E. No. 5-1 at 2-3)

While Carr did not completely exhaust his administrative remedies until after
he filed his petition, the Court adheres to its prior conclusion that Carr substantially
exhausted his administrative remedies prior to filing suit and that there is an adequate
record upon which to reach a decision. Therefore, under the unique circumstances
of this case, the Court concludes that the purposes of the exhaustion requirement
have been served and will be deemed satisfied. [D. E. No. 6)
In his petition, Carr contends that because he was released on bond on July
28, 2014 in state case No. 14-CR-186 but was retained in custody solely pursuant to
the federal detainer, the federal government obtained "primary custody" over him
on that date. Therefore, he argues, he is entitled to prior custody credits pursuant to
18 U.S.C. § 3585(b) starting from that date until March 18, 2015, the date his federal
sentence was imposed. [D. E. No. 1 at 3-4, No. 4 at 5) He therefore requests that
his federal sentence be deemed to have commenced on March 19, 2015, with prior
custody credits from July 28, 2014 to March 18, 2015. [D. E. No. 5 at 4)
The Court conducts an initial review of habeas corpus petitions. 28 U.S.C.
§ 2243; Alexander v. Northern Bureau of Prisons, 419 F. App'x 544, 545 (6th Cir.
2011 ). A petition will be denied "if it plainly appears from the petition and any
4

attached exhibits that the petitioner is not entitled to relief." Rule 4 of the Rules
Governing§ 2254 Cases in the United States District Courts (applicable to § 2241
petitions pursuant to Rule l(b)). The Court evaluates Carr's petition under a more
lenient standard because he is not represented by an attorney. Erickson v. Pardus,
551 U.S. 89, 94 (2007). At this stage of the proceedings, the Court accepts the
petitioner's factual allegations as true and construes all legal claims in his favor. Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007).

Calculation

of a

federal

prisoner's

sentence,

including

both

its

commencement date and any credits for custody before the sentence is imposed, is
determined by federal statute:
(a)
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) 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.

The BOP implements § 3585 through Program Statement

5880.28.
5

Under Section 3585(a), Carr's sentence commenced when he was received
into federal custody to begin service of it on June 9, 2015, following his release by
state authorities. Jones v. Eichenlaub, No. 08-CV-13624, 2010 WL 2670920, at *2
(E.D. Mich. 2010) (citing Thomas v. Whalen, 962 F.2d 358, 361 n.3 (4th Cir.1992).
Carr seeks credit for time he spent in custody preceding this date; its availability is
therefore governed solely by Section 3585(b).
Because Section 3585(b) only permits federal sentence credits if the time
spent in custody "has not been credited against another sentence," periods in spent
custody that have already been credited against a state sentence may not be "double
counted" against a federal sentence. Huffinan v. Perez, No. 99-6700, 2000 WL
1478368 (6th Cir. Sept. 27, 2000); Broadwater v. Sanders, 59 F. App'x 112, 113-14
(6th Cir. 2003). The BOP has noted that Kentucky did not credit the time period
from December 16, 2014, through March 24, 2015, against his state sentence, and
therefore it has already applied§ 3585(b) to credit this 102-day period against Carr's
federal sentence. [D. E. No. 5-1 at 3] However, Kentucky did credit two time
periods-from July 23, 2014, through December 15, 2014, and from March 25, 2015,
through June 8, 2015 - against his 18-month sentence in Case No. l 4-CR-186. This
time having already been applied to Carr's state sentence, § 3585(b) does not permit
it to be double-counted against his federal prison term.

6

Carr's argument for federal credit for these time periods is premised upon his
assertion that the federal government obtained primary jurisdiction over him solely
by virtue of its previously-filed detainer when Kentucky granted him bond on July
28, 2014, from his state charges. [D. E. No. 5] The Court has reviewed this
contention thoroughly, but concludes that it cannot be sustained.
In this case, the federal government temporarily obtained primary jurisdiction
over Carr when he was first taken into federal custody for his federal arraignment,
but it relinquished that priority when it released him from custody on December 13,
2013. United States v. Cole, 416 F. 3d 894, 897 (8th Cir. 2005) (noting that release
on bail is one of four ways a sovereign relinquishes primary jurisdiction). For its
part, Kentucky then obtained primary jurisdiction over Carr when it arrested him six
months later on July 23, 2014, but it too relinquished that priority when it granted
bond on July 28, 2014. Carr's argument is based upon the unexplained assumption
that Kentucky's act of granting bond and/or the prior filing of the federal detainer
had the legal effect of transferring primary jurisdiction back to the United States,
notwithstanding its prior relinquishment of that primary jurisdiction six months
before.
A sovereign ordinarily obtains pnmary jurisdiction through the act of
physically arresting the defendant. Cole at 897 (citing United States v. Vann, 207 F.
Supp. 108, 111 (E.D.N.Y. 1962) ("The controlling factor in determining the power
7

to proceed as between two contesting sovereigns is the actual physical custody of
the accused.")). Here, Kentucky retained actual physical custody of Carr after July
28, 2014. But he contends that the federal government implicitly regained primary
custody over him not by arrest, but by lodging a detainer against him.
The long-established general rule is that "a state prisoner who is also on
detainer for federal violations should not receive credit on his federal sentence when .
he was given credit on the state sentence for the same period of time." Mcintyre v.
United States, 308 F. 2d 403, 404 (8th Cir. 1975). There used to be exceptions to

the rule. For instance, if the lodging of a federal detainer caused the state court to
deny bail, the time in state custody was deemed 'spent in custody in connection with
the (federal) offense,' the quoted language being found in Section 3585(b)'s
predecessor statute, 18 U.S.C. § 3568. Willis v. United States, 438 F. 2d 923, 925
(5th Cir. 1971 ). This was true unless the federal government could demonstrate that
the defendant would have remained in state custody even without the federal
detainer. United States v. Haney, 711 F. 2d 113, 114-15 (8th Cir. 1983).
But those exceptions were grounded in language found in Section 3568 that
permitted double counting in some circumstances, language that was deleted when
Section 3568 was replaced by Section 3585(b). With that pivotal language now
gone, the fact that a federal detainer prevents a state prisoner from being released on
bond or bail does not overcome Section 3585(b)'s express statutory prohibition
8

against counting time credited against a state sentence a second time against his or
her federal sentence. Elwell v. Fisher, 716 F. 3d 477, 485-86 (8th Cir. 2013).
In addition, Carr has filed documentation suggesting that he was entitled to
release as of July 28, 2014 if he obtained a surety bond for $7,500. [D. E. No. 4-1
at 1] However, the surety bond required Carr himself to sign the form twice, and
that his signature be witnessed, neither of which were done. The surety's signature
was also not notarized as required by the terms of the bond. Id. Without the surety
bond's proper execution and delivery, Kentucky retained primary jurisdiction over
Carr, and the prior custody credits sought by the petitioner are barred by Section
3585(b). Elwell, 716 F. 3d at 485.
Accordingly, IT IS ORDERED that:
1.

Petitioner Carr's petition for a writ of habeas corpus pursuant to 28

U.S.C. § 2241 [D. E. Nos. 1, 4] are DENIED.
2.

This action is DISMISSED and STRICKEN from the Court's docket.

3.

Judgment shall be entered contemporaneously with this Memorandum

Opinion and Order.
This the 17th day of February, 2017.

9