Barker v. Barnhart
Filing
10
MEMORANDUM OPINION & ORDER: 1. Barker's petition [Record No. 1] is DENIED. 2. This action is DISMISSED and STRICKEN from the Court's docket. Signed by Judge Danny C. Reeves on 08/29/2018.(KJA)cc: COR, mailed paper copy to pro se filer
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
(at London)
DANIEL BARKER,
Petitioner,
v.
J. A. BARNHART, Warden of FCI
Manchester,
Respondent.
)
)
)
)
)
)
)
)
)
)
Civil Action No. 6: 18-166-DCR
MEMORANDUM OPINION
AND ORDER
*** *** *** ***
Petitioner Daniel Barker is presently confined at the Federal Correctional Institution
(“FCI”)-Manchester, in Manchester, Kentucky. Barker has filed a petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2241, in which he challenges the Bureau of Prisons’ (“BOP”)
calculation of prior custody credits under 18 U.S.C. § 3585(b). [Record No. 1] The matter
has been fully briefed and is ripe for review.
I.
On September 6, 2009, Barker was arrested by state authorities in Louisville, Kentucky,
and charged with burglary, wanton endangerment, and firearms offenses.
Barker was
sentenced on October 19, 2009, by the Jefferson County Circuit Court to a term of five years
imprisonment for second degree burglary. The Kentucky Parole Board approved Barker’s
parole from his Kentucky sentence on November 23, 2010, although Barker’s parole certificate
specifies that his parole is not effective until on or after May 18, 2011. [Record No. 8]
On November 1, 2010, and while Barker was in state custody, a federal grand jury
sitting in the United States District Court for the Western District of Kentucky indicted Barker
-1-
for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and 924(e).
On June 20, 2011, Barker was sentenced in federal court to a term of imprisonment of 180
months. United States v. Barker, No. 3:10-cr-140-TBR-1 (W.D. Ky. 2010).
II.
Barker’s § 2241 petition challenges the BOP’s calculation of his prior custody credits
under 18 U.S.C. § 3585(b). The sentence computation prepared by the BOP commences
Barker’s 180-month federal sentence on the date it was imposed (i.e., June 20, 2011). [Record
No. 8-1 at p. 6] It awards him prior custody credit for his time spent in custody from May 20,
2011 (the date he was paroled from his Kentucky sentence), through June 19, 2011 (the day
before his federal sentence was imposed). [Id. at p. 7]
Barker argues that the BOP’s computation is incorrect because it fails to give him prior
custody credit for the period from November 24, 2010, through May 18, 2011. [Record No. 1]
Essentially, Barker seeks prior custody credit from the date that his parole was approved by
the Parole Board, rather than the date that his parole was effective.
However, the respondent argues that Barker did not begin to serve his federal sentence
until Kentucky officially relinquished jurisdiction over him (May 19, 2011). [Record No. 8 at
p. 5-7] The respondent has also attached a copy of Barker’s “External Movements Report”
prepared by the Kentucky Department of Corrections (“KDOC”). This report states that
Barker was confined in the Grayson County Jail until he was paroled on May 19, 2011. [R. 81 at p. 9] The respondent also attaches Barker’s “Resident Record Card” prepared by the
KDOC, indicating that Barker was awarded meritorious good time credit against his Kentucky
sentence through at least April 30, 2011. [Record No. 8-1 at p. 16-17]
-2-
III.
Calculation of a federal prisoner’s sentence, including both its commencement date and
any credits for custody before the sentence is imposed, is determined 18 U.S.C. § 3585. This
statutory section provides:
(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.
Notwithstanding the Parole Board’s approval of Barker’s parole on November 23,
2011, his parole certificate clearly states that parole is not effective until on or after May 18,
2011. [Record No. 8-1 at p. 10] Moreover, the Kentucky Parole Board Policies and Procedures
provide that, “[i]f the Board makes a parole recommendation . . . [p]arole shall not become
effective until the home placements are approved, the parole certificate is signed, and the
inmate leaves the institution.” Kentucky Parole Board Policies and Procedures 10-01, Parole
Release
Hearings
O(2),
available
at
https://justice.ky.gov/Pages/Statutes-and-
Regulations.aspx. Barker did not sign his parole certificate until May 19, 2011; therefore, his
parole was not effective until that date.
-3-
Although Barker faults state authorities for failing to timely provide him with his parole
papers to sign, he does not dispute that he continued to receive credit on his state sentence until
the effective date of his parole. [Record No. 8-1 at p. 9, 16-17] And because Barker’s time in
custody from November 24, 2010, through May 18, 2011, was credited against his state
sentence, section 3585(b) plainly forbids counting it a second time against his federal sentence.
United States v. Wilson, 503 U.S. 329, 337 (1992) (“. . . Congress made clear that a defendant
could not receive a double credit for his detention time.”). See also Huffman v. Perez, No. 996700, 2000 WL 1478368 (6th Cir. Sept. 27, 2000); Broadwater v. Sanders, 59 F. App’x 112,
113-14 (6th Cir. 2003).
Moreover, Kentucky authorities retained primary jurisdiction over Barker until he was
relinquished to federal custody. “A consecutive [federal] sentence imposed on a defendant
already in state custody . . . cannot commence until the state authorities relinquish the prisoner
on satisfaction of the state obligation.” 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)). Barker’s transfer into federal custody for purposes of his federal court proceedings
did not cause Kentucky to lose its priority of jurisdiction. A state surrenders its primary
jurisdiction only through acts clearly reflecting its intention to do so by: (1) dismissing its
charges against the defendant; (2) releasing him on bail; (3) paroling his sentence; or (4)
through the natural expiration of his sentence. Cf. Elwell v. Fisher, 716 F.3d 477, 481-82 (8th
Cir. 2013); Berry v. Sullivan, No. 07-5965(JAP), 2007 WL 4570315, at *3 (D.N.J. 2007). For
that reason, a temporary transfer of a state prisoner into federal custody through a writ of
habeas corpus ad prosequendum will not subordinate the state’s primary jurisdiction. Rios v.
Wiley, 201 F.3d 257, 274 (3d Cir. 2000) (“[A] prisoner detained pursuant to a writ of habeas
-4-
corpus ad prosequendum remains in the primary custody of the first jurisdiction unless and
until the first sovereign relinquishes jurisdiction over the prisoner.”) (superseded on other
grounds by statute as recognized in United States v. Saintville, 218 F.3d 246 (3d Cir. 2000)).
Barker argues that, because the writ of habeas corpus ad prosequendum issued on
November 17, 2010, by the federal court was returned as unexecuted, the state had relinquished
jurisdiction over him. On November 24, 2010, the writ was returned unexecuted, with a
handwritten note stating: “Return unexecuted Made parole [and] arrested on 11/23/2010 by
ATF.” United States v. Barker, No. 3:10-cr-140-TBR-1 (W.D. Ky. 2010) at Record No. 11.
But despite this note on the returned writ, the fact remains that Barker’s parole was not yet
effective in November 2010 and Barker was continuing to receive credit against his state
sentence at that time.
The fact that Barker may have been taken into federal custody pursuant to a warrant
rather than a writ makes no difference. The KDOC’s “External Movements” report for Barker
shows that the state permitted the transfer of Barker to the custody of the United States Marshal
Service only for purposes a court appearance on November 24, 2010 at 10:00 A.M. [Record
8-1 at p. 9] The report gives no indication that this transfer represented an intent to relinquish
jurisdiction over him. Rather, this report is evidence that Barker remained in custody at the
Grayson County, Kentucky jail until he was paroled on May 19, 2011. [Id.] Thus, these
circumstances establish Kentucky’s intent to retain its jurisdiction, and not to waive it.
IV.
Because Barker continued to receive credit against his state sentence for his time in
custody from November 24, 2010, through May 18, 2011, and because the Commonwealth of
Kentucky did not relinquish its jurisdiction over Barker until May 19, 2011 (i.e., the date that
-5-
his parole was effective), the BOP has properly denied Barker’s request for additional custody
credits under Section 3585(b). Accordingly, it is hereby
ORDERED as follows:
1.
Barker’s petition [Record No. 1] is DENIED.
2.
This action is DISMISSED and STRICKEN from the Court’s docket.
Dated: August 29, 2018.
-6-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?