Caston v. Pearson

Filing 19

ORDER adopting 13 Report and Recommendations re: sec. 2241 petition. Signed by Honorable David C. Bramlette, III on 2/7/2012 (ECW)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
RUSSELL CASTON, # 08816-043
VS.

PETITIONER
CIVIL ACTION NO. 5:09-cv-131(DCB)(RHW)

BRUCE PEARSON, WARDEN

RESPONDENT

ORDER ADOPTING REPORT AND RECOMMENDATION
This cause is before the Court on a Petition pursuant to 28
U.S.C. § 2241 filed by Russell Caston (“Caston”). Before the Court
is the Report and Recommendation of Magistrate Judge Michael T.
Parker (docket entry 13), and the petitioner’s objections thereto
(docket entries 15 and 16).

Having carefully considered the

petition, the report and recommendations of the magistrate judge,
and the petitioner’s objections, and being fully advised in the
premises, the Court finds as follows:
The petitioner was arrested by state authorities in Hinds
County, Mississippi, on August 1, 2005, on state charges of
convicted felon in possession of a firearm and possession of a
controlled substance.

The circumstances of this arrest also

resulted in a federal charge of felon in possession of a firearm.
Caston was booked into the Hinds County Jail on August 2, 2005, and
was sentenced in Hinds County Circuit Court to an eight-month term
of imprisonment for probation violation, with credit for time
served.
District

On November 8, 2005, Caston appeared in the United States
Court

for

the

Southern

District

of

Mississippi

for

arraignment, and returned to state custody the same day for
completion of his eight-month state sentence.
The petitioner completed his state sentence on March 31, 2006.
On June 29, 2006, he was sentenced in the United States District
Court for the Southern District of Mississippi to a 100-month term
of imprisonment for felon in possession of a firearm.

On July 12,

2006, Caston was released to the physical custody of the federal
authorities.

He

is

currently

incarcerated

in

the

Federal

Correctional Complex in Yazoo City, Mississippi.
The petitioner alleges that he is being denied credit for time
served on his federal sentence.

Specifically, he claims that his

federal sentence actually began on August 1, 2005, and that he
should receive approximately 240 days of credit against his federal
sentence. Alternatively, he asks that the Court amend the judgment
nunc pro tunc to August 2005.
The respondent replies that Caston’s petition should be denied
because the Bureau of Prisons (“BOP”) has properly calculated
Caston’s sentence.
not

entitled

to

Under 18 U.S.C. § 3585(b), the petitioner is
credit

against

both

his

state

and

federal

sentences.
Magistrate Judge Parker’s Report and Recommendation finds that
the petitioner’s federal sentence commenced on July 12, 2006, the
date Caston was received in exclusive federal custody.

While the

records reflect that Caston committed his federal crime on August

2

1, 2005, he was not indicted for the crime until October 12, 2005.
The earliest a federal sentence can commence is the date it is
imposed. A federal sentence 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.

Caston

was sentenced for his federal crime on June 29, 2006, but was not
received into exclusive federal custody until July 12, 2006.
Pursuant to Program Statement 5880.28, “if a state sentence is
imposed either before or after the time that the federal sentence
commences, it is presumed that the state has awarded, or will
award, presentence time off the state sentences for time spent in
state custody in connection with the state offense ... staff need
make no further inquiry about it unless the inmate claims that no
state credit was, or will be, given.” The record reflects that the
petitioner was in primary state custody from August 1, 2005, when
he was arrested by state authorities, until March 31, 2006, when he
completed his eight-month sentence.

Thus, it is presumed that the

petitioner received credit for this time period toward his eightmonth state sentence, and he may not receive credit against his
federal sentence. He has been properly awarded all prior credit to
which he is entitled.

Nor is the petitioner entitled to a nunc pro

tunc designation, which requires that the prisoner be in custody
and in service of another non-federal sentence.

3

The petitioner’s objections to the Report and Recommendation
do not add any arguments not previously raised, and are without
merit. The Report and Recommendation shall therefore be adopted in
its

entirety,

and

the

petition

dismissed

with

prejudice.

Accordingly,
IT IS HEREBY ORDERED that the Report and Recommendation of
United States Magistrate Judge Michael T. Parker (docket entry 13)
is

hereby

adopted

as

the

finding

of

this

Court,

and

the

petitioner’s objections thereto are denied;
FURTHER
dismissed.

ORDERED

that

the

28

U.S.C.

§

2241

petition

is

A separate judgment will be entered in accordance with

Rule 58 of the Federal Rules of Civil Procedure, dismissing this
action with prejudice.
SO ORDERED, this the 7th day of February, 2012.

/s/ David Bramlette
UNITED STATES DISTRICT JUDGE

4