Dix v. Longino et al

Filing 14

ORDERED that the 13 Amended Petition for Writ of Habeas Corpus pursuant to 28:2241 filed by Eugene F Dix is DENIED. Signed by Judge Carl Barbier on 10/12/2011.(gec, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

EUGENE F. DIX

CIVIL ACTION

VERSUS

NO: 11-1376

GREGORY LONGINO, WARDEN

SECTION: J-2

ORDER
Before the Court is Plaintiff’s Amended Petition for Writ of
Habeas Corpus pursuant to 28 U.S.C. § 2241 (Rec. Doc. 13),
alleging that the Bureau of Prisons did not properly credit
Plaintiff with time served in federal custody before his sentence
was imposed.

I.

Background
On August 15, 2001, plaintiff pleaded guilty to conspiracy

to traffic cocaine before this Court. Dix was sentenced to 36
months imprisonment beginning in May of 2002, followed by four
years of supervised release.
Subsequently, in April, 2007, a warrant was issued for Mr.
Dix’s arrest, alleging that he had violated the conditions of his

supervised release.

The warrant was held in abeyance while Mr.

Dix faced unrelated state court charges.

On March 16, 2010

Defendant pled guilty to two counts of felony theft in the 24th
Judicial District Court for Jefferson Parish, Louisiana, for
which he was sentenced to two five-year terms of imprisonment to
run concurrently with each other and with his federal sentence.
Three days later, in the same court, he pled guilty to possessing
a firearm while in possession of a controlled substance, in
violation of La. R.S. 14:95(E), in violation of La. R.S.
14:67.10. Dix received a sentence of five years imprisonment as
to all counts, to be served concurrently with his prior sentence.
The sentencing judge also clarified that his two sentences were
to run concurrently and “coterminous” with any federal sentence
he may receive.
These state court convictions served as the basis for the
violation of Dix’s terms of supervised release.
Magistrate Judge issued a

A United States

writ of habeas corpus ad prosequendum

for Dix on April 9, 2010, ordering the Jackson Parish
Correctional Center to surrender Mr. Dix to the United States
Marshal on or before May 3, 2010. Dix was actually tendered to
the United States on April 16.

On June 3, 2010, the Court
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revoked the term of release and remanded Dix to the custody of
the Bureau of Prisons for a term of 21 months, to run
concurrently with his state sentences.

Dix was thereafter

transported to the federal tier in St. Tammany Parish jail to
serve his sentence.
Dix contends that he was improperly denied credit for time
served from April 16 to June 3rd of 2010. He prays that this
Court order the Bureau of Prisons to recalculate his Federal
Sentence to credit him with this period of detention, thus moving
his release date forward 49 days.
II.

Discussion
18 U.S.C. § 3558 provides the limited circumstances in which

a prisoner may receive credit for time served prior to the date
of his federal sentence.

However, credit for time served is to

be calculated and awarded by the Attorney General, through the
Bureau of Prisons ("BOP"). United States v. Wilson, 503 U.S. 329,
335 (1992); United States v. Rorex, 142 F. App'x 808, 808-09 (5th
Cir. 2005) ("[T]he district court did not err by refusing to
award [defendant] credit for time served in state confinement
because the Attorney General, through the Bureau of Prisons,
determines what credit, if any, will be awarded to prisoners for
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time spent in custody prior to the commencement of their federal
sentences.").

Thus, a court may review a claim relating to the

computation of a sentence only after the defendant exhausts his
administrative remedies through the Bureau of Prisons.

Fuller v.

Rich, 11 F.3d 61, 62 (5th Cir. 1994) (per curiam); see also
United States v. Gabor, 905 F.2d 76, 78 n.2 (5th Cir. 1990) ("Not
only must a petitioner seeking credit on his sentence file his
petition pursuant to § 2241, but he must first exhaust his
administrative remedies through the Bureau of Prisons.").
Here, Dix has presented no evidence or argument that he has
exhausted his administrative remedies with the BOP before filing
this motion, which normally would preclude judicial review.

The

Government, however, has failed to oppose his petition or argue
that he failed to exhaust his administrative remedies.

Courts

have recognized that, because the requirement of exhaustion of
administrative remedies is not a jurisdictional prerequisite, a
petitioner’s failure to exhaust will not preclude judicial review
where the Government fails to raise an objection.

See U.S v.

Woods, 888 F.2d 653, 654 (10th Cir. 1989); Brown v. Rison, 895
F.2d 533, 535 (9th Cir. 1990), overruled on other grounds by Reno
v. Koray, 515 U.S. 50, 54-55 (1995); Rodriguez v. Lamer
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60 F.3d

745, 747 (11th Cir. 1995); U.S. v. Davis, 763 F. Supp. 638, 63940 (D.D.C. 1991); see also Granberry v. Greer, 481 U.S. 129,
132-34(1987) (state may waive exhaustion requirement in federal
habeas corpus action under 2254).

Accordingly, the Court may

examine the merits of Dix’s petition.
28 U.S.C. § 2241 allows a prisoner to challenge the prison
administrator’s calculation of his sentence’s duration to the
extent that it is “in violation of the Constitution or laws or
treaties of the United States.”
448, 451 (5th Cir. 2000).

See Pack v. Yusuff, 218 F.3d

18 U.S.C. § 3585, in turn, governs the

calculation of a term of imprisonment.
Under 18 U.S.C. § 3585(a), the earliest date a federal
sentence may commence to run is the date it is imposed – even if
it is to run concurrent with a previously imposed term.
United States v. Flores, 616 F.2d 840, 841 (5th Cir. 1980).

Only

under limited circumstances may a defendant receive credit for
time served prior to the commencement of his federal sentence.
Specifically, a defendant is entitled to receive credit toward
his term of imprisonment for time spent in official detention
prior to the commencement of his sentence only when that time
“has not been credited against another sentence.” 18 U.S.C. §
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3585(b).

The Supreme Court has explained that this statute makes

clear that a defendant cannot receive “double credit for his
detention time." Wilson, 503 U.S. at 337.
Generally, the sovereign which first arrests an offender has
primary jurisdiction over the offender, unless and until that
sovereign relinquishes its primary jurisdiction over him by
dismissing the charges, releasing the prisoner on bail or on
parole, or the expiration of his sentence. United States v.
Cibrian, 374 Fed. App’x. 524, 529 (5th Cir. 2010); Weekes v.
Fleming, 301 F.3d 1175, 1180 (10th Cir. 2002).

The Fifth Circuit

has clearly held that when a state prisoner is on “loan” under a
federal writ of habeas corpus ad prosequendum, the state does not
relinquish its primary jurisdiction over the prisoner. Causey v.
Civilette, 621 F.2d 691, 693 (5th Cir.1980); see also Phillips v.
Kaiser, 47 Fed. App’x. 507, 511 (10th Cir. 2002)(explaining that
the state retained primary jurisdiction over prisoner even when
he was on supervised release for a federal conviction at the time
of his arrest by state authorities).

Thus, while it may

understandably appear to a defendant that he is actually in
federal custody, he technically remains in state custody while
awaiting federal prosecution and sentencing under a writ of
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habeas corpus ad prosequendeum.
The Fifth Circuit has held that a defendant may not receive
credit towards a federal sentence for time spent in federal
custody pursuant to a writ of habeas corpus ad prosequendum if
that time was credited towards his state sentence.

See Vignera

v. Attorney General of the United States, 455 F.2d 637, 638 (5th
Cir. 1972); Howard v. United States, 420 F.2d 478, 480 (5th Cir.
1970).
In this case, Dix was not actually in federal custody as he
alleges, but was instead still under state custody when he was
“borrowed” from the Jackson Parish Correctional Center pursuant
to the federal writ.

He has not alleged in his petition that he

did not receive credit against his state sentence for the 49 days
he was on loan prior to his federal sentencing.

Although the

Court acknowledges the theoretical possibility that state
officials may have refused to credit this time towards the
completion of his state sentence, Mr. Dix has offered no evidence
to suggest that this was the case.

As petitioner, Dix bears the

burden of establishing that he is entitled to credit for any time
served prior to the date his federal sentence commenced.

The

Court is not permitted to infer such evidence based solely on
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petitioner’s allegations, or the fact that the government has
failed to oppose petitioner’s motion.

III. Conclusion
Accordingly, for the foregoing reasons, Petitioner Dix’s
petition is DENIED.

New Orleans, Louisiana, this 12th day of October, 2011.

____________________________
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE

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