O'Bryan v. Terris

Filing 11

OPINION and ORDER Denying Petition for Writ of Habeas Corpus 1 . Signed by District Judge Denise Page Hood. (LSau)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

KERRY DEVIN O’BRYAN,
Case Number: 2:16-CV-12591
HON. DENISE PAGE HOOD

Petitioner,
v.
J.A. TERRIS,
Respondent.
/

OPINION AND ORDER
DENYING PETITION FOR WRIT OF HABEAS CORPUS
Kerry Devin O’Bryan, a federal prisoner currently incarcerated at the
Federal Correctional Institution in Milan, Michigan, has filed a pro se petition for a
writ of habeas corpus under 28 U.S.C. § 2241, challenging the execution of his
sentence. O’Bryan claims that the Bureau of Prisons miscalculated his release date
by failing to give him credit for time spent in state custody on a state court
conviction. For the reasons set forth below, the petition for a writ of habeas corpus
is denied.
I. BACKGROUND
On November 14, 1996, O’Bryan was arrested on state burglary and theft
charges in Finney County, Kansas. He pleaded guilty and, on June 12, 1997, was

sentenced to 12 months’ imprisonment and 24 months’ probation. (ECF No. 8, Pg.
ID 71-74). He was given 211 days of jail credit and immediately placed on
probation. Id. However, he was not released from custody because, on November
20, 1996, a federal detainer was lodged by the United States Marshals Service.
(ECF No. 8-2, Pg. ID. 57). O’Bryan was released to the United States Marshals
Service pursuant to the pending federal charges on June 23, 1997. (Id.). O’Bryan
was convicted of manufacturing counterfeit currency, passing counterfeit currency,
two counts of bank robbery, and two counts of carrying or using a firearm during
the bank robberies. On December 18, 1998, he was sentenced to a 351-month term
of imprisonment. He was given 533 days sentencing credit for the time period
June 13, 1997 (the day after his state sentence was satisfied) and December 17,
1998 (the day after he was sentenced to time served and probation on the state
charges and the day before his federal sentence commenced). (Id. at Pg. ID 58).
In 2015, O’Bryan filed a request for administrative remedy with the warden
at FCI Milan, seeking jail credit toward his federal sentence for the time held in
state custody from the date the federal detainer was placed against him –
November 20, 1996 – to the date he was sentenced on state charges – June 12,
1997. (ECF No. 1, Pg. ID 12-13). The warden denied his request. Id. O’Bryan
appealed to the BOP’s Regional and Central Offices, both appeals were denied.
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(ECF No. 1, Pg. ID 15-20). O’Bryan then filed this habeas corpus petition
challenging the computation of his sentence.
II. DISCUSSION
In his application for habeas relief, O’Bryan claims that he is entitled to
receive presentence credit against his federal sentence from the time the federal
detainer was placed against him until the day he was discharged from the state
court sentence. Respondent contends that Petitioner is not entitled to any
presentence credit against his federal sentence, because this time was credited
against his state sentence. The Court finds that the BOP did not err in its
calculation of O’Bryan’s sentence.
A writ of habeas corpus may be granted to a federal prisoner who is in
custody in violation of the Constitution or laws or treaties of the United States. 28
U.S.C. § 2241(b)(3). The United States Attorney General, through the Bureau of
Prisons, is responsible for administering the sentences of federal prisoners. United
States v. Wilson, 503 U.S. 329, 335 (1992). However, a federal district court may
consider the propriety of the BOP’s sentencing computation once a prisoner has
exhausted available administrative remedies. Id. at 335-336. A federal prisoner
may be entitled to habeas relief under 28 U.S.C. § 2241 if the federal court
determines that the BOP miscalculated the prisoner’s sentence.
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O’Bryan challenges the BOP’s decision to deny him credit on his federal
sentence for the time he spent in state custody from November 20, 1996 (when the
federal detainer was placed against him) through June 12, 1997 (the day his state
court sentence was discharged). Petitioner believes that he is entitled to credit for
this time because he would not have otherwise been incarcerated.
Title 18 U.S.C. § 3585(b) states in pertinent part:
(b) Credit for prior custody.-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.

Id.
That is, § 3585(b) authorizes credit only for time “that has not been credited
against another sentence.” United States v. Wilson, 503 U.S. at 334. In the present
case, O’Bryan is not entitled to credit towards his federal sentence for the time that
he was in custody between November 20, 1996 to June 12, 1997, because he
received credit on his state sentence for the time that he spent in state custody
between these two dates. The Sixth Circuit has rejected claims on numerous
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occasions under § 3585(b) where the federal prisoner received credit against a state
sentence for the time claimed. See e.g. Woody v. Marberry, 178 Fed. App’x 468,
471 (6th Cir.2006) (federal prisoner not entitled to credit towards federal sentence
for time spent in state custody on a detainer awaiting sentencing on a probation
violation); Bridgeman v. Bureau of Prisons, 112 F. App’x 411, 413 (6th Cir. 2004)
(same); Broadwater v. Sanders, 59 Fed. App’x 112, 113-14 (6th Cir. 2003) (same).
Because O’Bryan received credit on his state sentences for the time he spent in
state custody before his federal sentences were imposed, he is not entitled to credit
on his federal sentence for that same period of time. Habeas relief is denied.
III. Conclusion
Accordingly, IT IS ORDERED that the petition for writ of habeas corpus
filed under 28 U.S.C. § 2241 is DENIED. Because a certificate of appealability is
not needed to appeal the dismissal of a habeas petition filed under 28 U.S.C. §
2241, Witham v. United States, 355 F.3d 501, 504 (6th Cir. 2004), Petitioner need
not apply for one with this Court or with the United States Court of Appeals for

the Sixth Circuit before seeking to appeal this decision.

S/Denise Page Hood
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Denise Page Hood
Chief Judge, United States District Court
Dated: July 31, 2017
I hereby certify that a copy of the foregoing document was served upon counsel of
record on July 31, 2017, by electronic and/or ordinary mail.
S/LaShawn R. Saulsberry
Case Manager

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