Cobb v. Smith
Filing
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MEMORANDUM OPINION & ORDER: 1) Petitioner Cobb's petition for writ of habeas corpus is DENIED; 2) the action is DISMISSED and STRICKEN from the Court's active docket. Signed by Judge Henry R. Wilhoit, Jr on 5/3/18.(JLS)cc: COR, pro se Cobb (via US Mail)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION at ASHLAND
WILLIAM COBB,
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Petitioner,
Civil No. 0: 18-33-HRW
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v.
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THOMAS B. SMITH, Warden,
Respondent.
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)
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MEMORANDUM OPINION
AND ORDER
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Federal inmate William Cobb has filed a pro se petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2241 to challenge the Bureau of Prisons'
calculation of his prior custody credits. [D. E. No. I] This matter is before the
Court to conduct the screening required by 28 U.S.C. § 2243.
Alexander v.
Northern Bureau of Prisons, 419 F. App'x 544, 545 (6th Cir. 2011).
On May 3, 2004 in Syracuse, New York, Cobb was sentenced to 120 months
imprisonment for trafficking in crack cocaine. United States v. Cobb, No. 1: 02CR-403-LEK-l (N.D.N.Y. 2002). While serving that sentence, on June 7, 2005
Cobb was taken into federal custody pursuant to a writ of habeas corpus ad
prosequendum to face similar charges in Brooklyn, New York.
Following his
conviction, on August 15, 2006 the trial court imposed a 240-month sentence to
run concurrently with Cobb's first federal sentence. United States v. Cobb, 1: 04CR-203-ARR-4 (E.D.N.Y. 2004).
In May 2015, Cobb penned two letters to the trial judge who imposed his
second sentence, expressing his belief that (1) because his 20-year sentence had
been ordered to run concurrently with his 10-year sentence, he would serve a total
of 20 years in prison, and (2) that the BOP was not crediting him with 18 months
spent in pretrial custody before his first sentence was imposed. The trial judge
responded that his 20-year sentence did not begin to run until it was imposed, and
thus was only concurrent with the undischarged portion of his first sentence. [D.
E. No. 228-231 therein]
In his petition, Cobb now asserts that he is entitled to prior custody credits
for 458 days he spent in pretrial custody from June 2005 until his second sentence
was imposed in August 2006. [D. E. No. 1-1] Contrary to Cobb's assertions, the
BOP properly understood the nature of his claim and correctly refused to "double
count" the time period in question against both his first and second federal
sentence.
Cobb's second federal sentence commenced on August 15, 2006, the date it
was imposed. 18 U.S.C. § 3585(a).
As correctly explained by the trial judge,
because of this rule even when a subsequent sentence is ordered to run
concurrently with a pre-existing sentence, it only does so with respect to the
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undischarged portion of the prior sentence. Cf. United States v. Wells, 473 F.3d
640, 645 (6th Cir. 2007) ("The district judge had no statutory authority to order
that the defendant's federal sentence should 'commence' [before the date his
sentence was imposed]."). Cobb therefore faced a 20-year sentence beginning in
August 2006. 1
Had Cobb not already been serving his first sentence, prior custody credits
pursuant to 18 U.S.C. § 3585(b) might have been appropriate. But that section
only permits application of prior custody credits where the time "has not been
credited against another sentence." Here, Cobb continued to be in custody and
receiving credits towards his first sentence during this time period even though he
had been transferred to Brooklyn awaiting trial in his second case. When Cobb
was taken into custody in June 2005 pursuant to a writ of habeas corpus ad
prosequendum, this did not effect a transfer of jurisdiction to the Eastern District of
New York for the second prosecution.
Rather, he remained in BOP custody
serving the sentence imposed by the Northern District of New York, and was only
temporarily borrowed for purposes of the second prosecution.
Evans, 159 F.3d 908, 911-12 (4th Cir. 1998).
United States v.
Because was serving his first
For administrative convenience, pursuant to 18 U.S.C. § 3584( c) the BOP
aggregated the two sentences into a single sentence of 22 years and nearly four
months commencing in April 21, 2004. This is done to ensure proper calculation
of such matters as good conduct time earned under 18 U.S.C. § 3584(c). But the
full term date of the two sentences combined is the same under either approach.
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sentence during this period, Section 3585(b) precludes it from being double
counted as prior custody credits for the second sentence. United States v. Wilson,
503 U.S. 329, 337 (1992); Broadwater v. Sanders, 59 F. App'x 112, 113-14 (6th
Cir. 2003).
Accordingly, it is ORDERED as follows:
1.
Petitioner William Cobb's petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2241 [D. E. No. 1] is DENIED.
2.
This action is DISMISSED and STRICKEN from the Court's
docket.
This~
4--
day of May, 2018.
Signed By:
Henry & Wiihoit. Jr.
United States District Judge
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