Brock v. Pearson
Filing
27
ORDER finding as moot 16 Motion for final judgment ; finding as moot 20 Motion for Writ of Mandamus; adopting Report and Recommendations re 22 Report and Recommendations. Signed by Honorable David C. Bramlette, III on 8/13/2012 (ECW)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
KENNICE BROCK
VS.
PETITIONER
CIVIL ACTION NO. 5:10-cv-173(DCB)(RHW)
BRUCE PEARSON
RESPONDENT
ORDER ADOPTING REPORT AND RECOMMENDATION
This cause is before the Court on the petitioner’s petition
challenging execution of sentence pursuant to 28 U.S.C. § 2241 and
the
respondent’s
response;
the
petitioner’s
motion
for
final
judgment (docket entry 16), the respondent’s response, and the
petitioner’s reply; the petitioner’s motion for writ of mandamus
(docket entry 20); and the Report and Recommendation of Magistrate
Judge Robert H. Walker (docket entry 22) and the objections thereto
by the petitioner.
Having considered the pleadings, records on
file, briefs and arguments of the parties, and the relevant legal
authority, the Court is of the opinion that the petition for writ
of habeas corpus pursuant to 28 U.S.C. § 2241 should be denied.
In his § 2241 petition challenging the calculation of his
sentence, Brock argues that he should have received credit towards
his federal sentence for time spent in state custody in Tennessee
from December 5, 2007, through January 7, 2010.
He argues that he
should receive credit for the 767 days he spent in state custody.
Respondent counters that pursuant to 18 U.S.C. § 3585(b), the time
Brock spent in state custody actually was credited against his
state sentence as “time served”; therefore, Brock is not entitled
to credit towards his federal sentence.
Brock also filed motions for final judgment and for writ of
mandamus, asserting that his petition is fully briefed and ripe for
review. Magistrate Judge Walker filed a Report and Recommendation,
finding as follows:
Brock
is
a
federal
inmate
incarcerated
Correctional Complex in Yazoo City, Mississippi.
at
the
Federal
Brock is serving
a 57-month sentence with two years of supervised release following
his conviction for being a convicted felon in possession of a
firearm.
Brock’s projected release date is November 7, 2013.
Beginning in November 1, 2006, Brock was in and out of state
custody
in
Tennessee
for
various
offenses.
Relevant
to
consideration of Brock’s petition, he was arrested on December 5,
2007, for driving without a license and remained in Tennessee
custody until January 7, 2010.
On January 7, 2010, the Circuit
Court of Shelby County, Tennessee sentenced Brock to time served
(which included 767 days of jail credit) and one day.
With
respect
to
sentencing
credit,
18
U.S.C.
§
3585(b)
provides that
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
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(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 any other sentence.
In interpreting § 3585(b), the Supreme Court has held that Congress
did not intend for a defendant to receive double credit for his
detention time.
See United States v. Wilson, 503 U.S. 329, 337
(1992); Leal v. Tombone, 341 F.3d 427, 430 (5th Cir. 2003); Blood
v. Bledsoe, 648 F.3d 203, 209 (6th Cir. 2011).
Moreover, when a
prisoner is in primary state custody and taken on writ into federal
custody to answer federal charges, he is not entitled to have that
time credited against his federal sentence.
See Chaplin v. United
States, 451 F.2d 179, 181 (5th Cir. 1971); Howard v. United States,
420 F.2d 478, 480 (5th Cir. 1970).
The judgment entered by the criminal court in Tennessee
indicates that Brock received jail credit for 767 days, which
included the time frame of December 5, 2007, through January 7,
2010.
Thus, he was not sentenced to only one day, as he contends
in his petition.
Rather, he was sentenced to “time served” (767
days) plus one day.
As indicated in the judgment, the 767 days
were applied towards his state court sentence as “Pretrial Jail
Credit.”
Because
this
time
was
“credited
against
another
sentence,” Brock is not entitled to have the 767 days credited
against his federal sentence as well.
Leal, 341 F.3d at 430.
See 18 U.S.C. § 3585(b);
To do so would result in a double credit to
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Brock.
See Wilson, 503 U.S. at 337; Blood, 648 F.3d at 209.
In his objections to the Report and Recommendation, the
petitioner continues to assert that he was sentenced to only one
day rather than to “time served” (767 days) plus one day.
petitioner is mistaken.
The
Thus, the objections are not well taken,
and the Report and Recommendation shall be adopted.
The petition
pursuant to 28 U.S.C. § 2241 shall be dismissed with prejudice.
Accordingly,
IT IS HEREBY ORDERED that Magistrate Judge Robert H. Walker’s
Report and Recommendation (docket entry 22) is ADOPTED as the
findings and conclusions of this Court;
FURTHER
ORDERED
that
the
petitioner’s
motion
for
final
judgment (docket entry 16) and motion for writ of mandamus (docket
entry 20) are DENIED AS MOOT;
FURTHER ORDERED that the petitioner’s petition challenging
execution of sentence pursuant 28 U.S.C. § 2241
is DENIED.
A final judgment dismissing the Petition in accordance with
Rule 58 of the Federal Rules of Civil Procedure shall follow.
SO ORDERED, this the 13th day of August, 2012.
/s/ David Bramlette
UNITED STATES DISTRICT JUDGE
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