Fletcher v. Attorney General for the United States of America et al

Filing 37

MEMORANDUM ORDER: IT IS ORDERED that Fletcher's 32 Rule 60(b) Motion is DENIED. Signed by Judge Karen K. Caldwell on March 19, 2014. (MWZ) cc: COR (Pla via U.S. Mail)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION AT LEXINGTON

LAMARR FLETCHER,
Petitioner,
V.
ATTORNEY GENERAL OF THE
UNITED STATES OF AMERICA, et al.,

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Civil Action No. 09-379-KKC

MEMORANDUM ORDER

Respondents.
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This matter is before the Court on Petitioner Lamarr Fletcher’s motion for relief from
judgment, pursuant to Fed. R. Civ. P. 60(b) [DE 32], concerning the dismissal of his habeas petition
filed pursuant to 28 U.S.C. § 2241. [DE 19, 20]
FACTUAL AND PROCEDURAL BACKGROUND
For the reasons stated in the Memorandum Opinion and Order (“MOO”) entered on October
5, 2010, the Court denied Fletcher’s § 2241 habeas petition. [DE 19] Fletcher appealed that denial
to the Court of Appeals for the Sixth Circuit. While Fletcher’s appeal was still pending, in a letter
addressed to the undersigned dated October 16, 2012, Fletcher provided the Court with a copy of his
State Sentencing Information sheet [DE 25-1] reflecting certain jail credit the State of Tennessee had
given him on his state sentence relevant to his § 2241 habeas petition. Fletcher advised the Court
that he considered this information to be newly discovered evidence, which was not previously
available to him, and he claimed that this newly discovered evidence was proof that Tennessee had
not awarded him the jail credit that he was seeking in his § 2241 habeas petition. Fletcher’s letter

acknowledged that his appeal was still pending1, and he requested the Court to certify his attached
copy of the State Sentencing Information and forward it to the Sixth Circuit for its consideration.
Fletcher’s letter was filed of record. [DE 25]
For the reasons stated in the Order of October 23, 2012 [DE 26], the Court construed
Fletcher’s letter as a Rule 60(b) motion for relief from judgment and denied that motion because as
a general rule, the district court loses jurisdiction over an action once a party files a notice of appeal,
and jurisdiction transfers to the appellate court.2 Pittock v. Otis Elevator Co., 8 F.3d 325, 327 (6th
Cir. 1993). Fletcher appealed, but the Sixth Circuit Court of Appeals affirmed the denial of
Fletcher’s construed Rule 60(b) motion. [DE 35]
On April 8, 2013, Fletcher filed the present motion for relief from judgment, pursuant to Rule
60(b), concerning both the denial of his § 2241 habeas petition and the denial of his prior construed
Rule 60(b) motion. [DE 32] Having been fully briefed [DE 33, 34], this motion is ripe for review.
DISCUSSION
Subsequent to the denial of his § 2241 habeas petition, Fletcher obtained information
concerning the jail credit he had received from the State of Tennessee on the state parole violation
sentence applicable at the time he was removed from state custody on a federal writ of habeas corpus
ad prosequendum. Fletcher advised that he did not have and was unaware of this information
previously and that it was not in the record before the Court when it dismissed Fletcher’s habeas
petition in October 2010. At that time, the only information that was of record concerning the jail
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On October 31, 2012, the Sixth Circuit affirmed the denial of Fletcher’s habeas petition. [DE 29]

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Although the Sixth Circuit has noted an exception to this rule, which allows a district court to entertain a
motion for relief from judgment after an appeal has been filed, First Nat’l Bank of Salem, Ohio v. Hirsch, 535 F.2d 343,
346 (6th Cir. 1976), the choice to entertain a post-judgment motion while an appeal is pending is a decision within the
district court’s discretion. LSJ Inv. Co. v. O.L.D., Inc., 167 F.3d 320, 324 (6th Cir. 1999).

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credit Fletcher had received on his state sentence was information contained in an e-mail exchange
between Nancy Davis, Legal Instruments Examiner, at the BOP’s Designations & Sentence
Computation Center (“DSCC”) in Grand Prairie, Texas, and Jeannetta Kimbro at the Tennessee
Department of Corrections in January 2008, detailed below:
The Nancy Davis e-mail to Jeannetta Kimbro, dated 1/22/2008, stated:
It looks as if he was arrested on 10-21-2003 and detained since that date, I am not
sure when he was revoked by TN DOC. Please let me know the date is [sic] was
revoked, the date he came back into your system, any jail credit or any other credit
applied to his sentence, the actual term in effect of his sentence and the date that you
expect him to expire.
The Jeannetta Kimbro response e-mail to Nancy Davis, dated 1/25/2008, stated:
He was paroled 6-7-99 on case #8501981 ct 1 and ct 2. He was returned to the
county jail on a parole violation warrant 10-21-03, he was transferred to DOC 11-1803 and his parole was revoked 1-9-07. He received all parole time and time served
credits from 10-21-03.
When convicted he was sentenced as a Habitual offender, which has no expiration
date. It is calculated like a life sentence. It will never expire, but he can be paroled
on this type of sentence.
Mr. Fletcher has just had a parole hearing on 1-17-08, but the decision on the hearing
has not been entered in the system.
Hope this is what you need.
Jeannetta
[DE 32-1, page 15]
It appears that the information contained in the e-mail from Jeannetta Kimbro to Nancy Davis
at the BOP’s DSCC is the only information the Tennessee DOC provided to the BOP concerning the
amount of jail credit Tennessee had given Fletcher on his state sentence. Based on that information,
J.R. Johnson, the BOP’s Correctional Programs Specialist at the DSCC, concluded that Fletcher was
not entitled to any additional jail credit on his federal sentence because all of the time Fletcher had

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been in custody following his arrest in Tennessee on October 21, 2003, had been credited to his state
sentence. [DE 8-3, page 5, ¶ 11]
The Offender Sentence Letter on which Fletcher relies indicates that he received 213 days
of pretrial jail credit on his state sentence relating to his 1985 case #8501981. [DE 32-1, pp. 6-7]
Based on this Offender Sentence Letter [DE 32-1] and the e-mail Jeannetta Kimbro sent to Nancy
Davis on January 25, 2008, Fletcher came to believe that had received only 213 days of jail credit
on his state sentence between October 21, 2003, the date he was arrested on a state parole violation
warrant, and September 21, 2006, the date he was sentenced on the federal charges and received a
168-month sentence.
To rectify this perceived sentencing credit error that Fletcher thought had occurred
concerning his state parole violation sentence, on December 23, 2012, Fletcher wrote a letter to
Jeannetta Kimbro, Manager, Sentence Information Services, at the Tennessee DOC, revisiting this
matter with her and requesting her assistance in getting this perceived sentencing credit error
corrected. [DE 32-1, pp. 12-13] On March 7, 2013, Ms. Kimbro responded to Fletcher’s letter,
stating that when responding to Ms. Davis’s e-mail, she “forgot to add your pre-trial jail credit of 213
days to the e-mail message that was sent.” [DE 32-1, p. 3] Ms. Kimbro also advised that she would
send a corrected e-mail to Ms. Davis listing his pre-trial jail credit of 213 days. Id.
In response to Fletcher’s Rule 60(b) motion, Respondent’s counsel communicated with
Jeannetta Kimbro, Manager, Sentence Information Services, Tennessee DOC., first by telephone and
followed-up with an e-mail. [DE 33-1] In his e-mail, counsel provided Ms. Kimbro with the same
documents on which Fletcher had relied in support of his Rule 60(b) motion. Based on those

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documents and any other documents Ms. Kimbro might have, counsel posed the following questions
to her:
Did Tennessee credit the time that Lamarr Fletcher was being held by federal
authorities pursuant to a writ of Habeas Corpus ad Prosequendum, from 11-18-03 up
through his return to state corrections (9-26-06) against his state sentence?
Would that time be credited as “time served” or as “pretrial”?
Does a TOMIS printout show credits for time served? (I understand this to be “no”)
Thank you.
DE 33-1.
In her response, Ms. Kimbro stated:
Mr. Fletcher received time serve[d] credit from 11-18-03 to 7-20-08 when he was
released on parole to his Federal detainer. This includes when he was out to court
to Federal authorities from 7-24-04 to 9-27-06.
Tomis printouts do not have a field to show time serve[d] credit.
If you need anything further just let me know.
Id.
ANALYSIS
First, Ms. Kimbro’s e-mail to Nancy Davis on January 25, 2008, states that Fletcher
“received all parole time and time served credits from 10-21-03.” While this e-mail does not itemize
the various types of credit received (Behavior Credit, Program Credit, Pretrial Credit, etc), it clearly
states that Fletcher received all parole time and time served credits on his state sentence, beginning
on October 21, 2003, the date of his arrest.
Second, Fletcher is of the mistaken belief that the TOMIS printout establishes that he only
received 213 days of pretrial credit on his state sentence. In responding to Fletcher’s letter, Ms.
Kimbro advised that in her e-mail to Nancy Davis, she forgot to include his pre-trial jail credit of 213
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days and that she would send an e-mail to Ms. Davis to correct that omission. [DE 32-1, p. 3]
Contrary to Fletcher’s argument, Ms. Kimbro did not state that Fletcher received only 213 days of
pretrial credit on his state sentence; she simply stated that she forgot to itemize it as one of the types
of credit Fletcher had received on his state sentence.
Third, as Ms. Kimbro clarified in her e-mail to Respondent’s counsel, the time spent on a
writ of habeas corpus ad prosequendum is credited by Tennessee as “time served” and does not
appear in any of the categories of time tracked by TOMIS.
The central issue in this case has been whether Tennessee had given Fletcher credit on his
state sentence for all of the time he was in secondary federal custody on a writ of habeas corpus ad
prosequendum, a period of approximately two years and eleven months, prior to his return to the
Tennessee DOC after he was sentenced in federal court on September 21, 2006. Contrary to
Fletcher’s contention, it is clear that he did receive jail credit on his state sentence for all of the time
he was in secondary federal custody pursuant to the federal writ of habeas corpus ad prosequendum.
The BOP has correctly determined that he is not entitled to any additional time on his federal
sentence because all the time that he has requested has been credited to his state sentence.
Accordingly, IT IS ORDERED that Fletcher’s Rule 60(b) motion [DE 32] is DENIED.
Dated this 19th day of March, 2014.

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