White v. Ormond
MEMORANDUM OPINION & ORDER: 1. White's petition for a writ of habeas corpus [R. 1 ] is DENIED. 2. The Court will enter a judgment contemporaneously with this order. 3. This matter is DISMISSED and STRICKEN from the docket. Signed by Judge Karen K. Caldwell on 9/18/17.(SYD)cc: mailed to pro se filer
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION at LONDON
Civil Action No. 6: 16-223-KKC
J. RAY ORMOND, Warden.
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Federal inmate Corey White has filed a pro se petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2241. [R. 1] This matter is before the Court to conduct an initial screening of
White’s petition. 28 U.S.C. § 2243; Alexander v. Northern Bureau of Prisons, 419 F. App’x 544, 545 (6th
In August 2004, White was arrested by Arkansas police on numerous criminal charges, one
of which was for unlawful possession of a firearm. The firearms charge was nolle prossed, and
White pled guilty to the remaining charges. In his petition, White contends that he did so based
upon the understanding that by pleading guilty to the other state charges, no other charges –
including federal charges – would be brought related to his possession of the firearm. [R. 1 at 2]
However, during the state sentencing hearing White expressly stated that there were no conditions
to his guilty plea other than the length of his state sentence. [R. 1-1 at 34-35, 37] On April 26, 2005,
White was sentenced to 480 months imprisonment by the state court. [R. 1-1 at 3-5]
In June 2005, a federal grand jury issued an indictment charging White with being a felon in
possession of a firearm in violation of 18 U.S.C. § 922(g). In February 2007 White changed his plea
to guilty without a written agreement, a plea that was accepted following a hearing before the trial
court. Because White had previously been convicted of three or more violent felonies or serious
drug offenses – including those for burglary, possession with intent to deliver marijuana, attempted
capital murder, battery, and murder – he faced a statutory mandatory minimum sentence of 15 years
pursuant to 18 U.S.C. § 924(e)(2)(B). White acknowledged this fact during the hearing.
In November 2007, during the sentencing hearing White reiterated that when he agreed to
plead guilty to the state charges, he believed that no other charges would be brought against him.
As a result, he asked the federal court to run its sentence concurrently with the pre-existing state
sentence. In response, the government stated that:
I have spoken with the deputy prosecuting attorney who handled this case, as well as
with other people who were involved in negotiating the plea that the defendant took
in state court. None of them confirmed ... the defendant’s understanding that he
would not be prosecuted in federal court, and as a matter of fact, they carved this
offense out so that it would not be pled guilty in state court, so it would be able to be
prosecuted in federal court.
The trial judge noted that the federal offense was for different conduct than that charged in the state
court, as well as White’s lengthy history of serious criminal conduct, and imposed the 15-year
mandatory minimum sentence to run consecutively to his undischarged 40-year state sentence.
In July 2008, White filed a motion to vacate his sentence pursuant to 28 U.S.C. § 2255 in
which he asserted that when he agreed to plead guilty, his defense counsel told him that he faced no
more than five years imprisonment.
However, during the change of plea hearing White was
expressly told that he was subject to a mandatory minimum 15-year sentence, and faced up to life
imprisonment. Because White’s assertions were flatly refuted by the record, the trial court denied
his motion. United States v. White, No. 4: 05-CR-166-JMM (E.D. Ark. 2005).
Six years later in 2014, White filed a motion for a nunc pro tunc reduction of his sentence
pursuant to U.S.S.G. § 5G1.3, essentially arguing for the second time that his federal sentence
should have been run concurrently with his state sentence because both offenses were for the same
conduct. The trial court promptly denied the motion, and the Eighth Circuit summarily affirmed.
White served approximately ten years of his forty-year sentence when he was paroled by
Arkansas authorities on November 25, 2015. [R. 1-1 at 50] He was then transferred into the
custody of the Bureau of Prisons to commence service of his federal sentence. White promptly filed
an inmate grievance with the BOP, again seeking a nunc pro tunc designation of his state prison as
the place of service of his federal sentence, the effect of which would be to run his state and federal
sentences concurrently. The BOP rejected that request, noting that White could not be eligible for
such a designation because his federal sentence was expressly ordered to run consecutively to his
state sentence. [R. 1-1 at 53]
In his petition, White asks the Court “to correct a fundamental miscarriage of justice,” by, at
a minimum, ordering the BOP to credit the time he spent in state custody against his federal
sentence. [R. 1 at 4] In effect, White asks the Court to partially invalidate his state plea agreement
and the resulting sentence by reducing his federal sentence. [R. 1 at 4-5] White argues that this
should be done as a matter of fairness, and makes a passing reference to the 2013 amendments to
the § 5G1.3 of sentencing guidelines in light of the Supreme Court’s decision in Setser v. United States,
__ U.S. __, 132 S. Ct. 1463 (2012).
The Court will deny White’s petition as entirely without merit. Having received credit for
time he spent in state prison against his state sentence, White is plainly not entitled to credit against
his consecutive federal sentence pursuant to 18 U.S.C. § 3585(b). United States v. Wilson, 503 U.S.
329, 335, 337 (1992). Nor is he entitled to a nunc pro tunc designation pursuant to Barden v. Keohane,
921 F.2d 476 (3d Cir. 1990), as his federal sentence was imposed after, not before, his state sentence,
and was expressly ordered to run consecutively to it.
Finally, neither Setser nor the 2013 amendments to U.S.S.G. § 5G1.3 assist White. Setser held
that a federal court may impose its sentence consecutively to or concurrently with an anticipated but
not yet imposed state sentence; the corresponding amendments to the guidelines merely
incorporated that discretion into the application notes and commentary. Regardless, Setser does not
apply to White’s case because his state sentence was already imposed before the federal court issued
its own sentence and the federal court expressly ordered its sentence to run consecutively to his state
sentence. In addition, relief based upon changes to the guidelines must be sought, if at all, in the
Because the BOP has correctly calculated White’s sentence, and because this Court’s
authority “to do justice” is rightfully constrained by both the cognizability limitations that inhere in
§ 2241 and the substantive requirements of the law, White’s petition must be denied.
Accordingly, it is ORDERED as follows:
White’s petition for a writ of habeas corpus [R. 1] is DENIED.
The Court will enter a judgment contemporaneously with this order.
This matter is DISMISSED and STRICKEN from the docket.
Dated September 18, 2017.
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