COSTNER v. UNITED STATES OF AMERICA

Filing 10

ORDER signed by JUDGE CATHERINE C. EAGLES on 08/14/2017 accepting the Recommendation of the Magistrate Judge, that the petitioner's motion for clarification of sentence, Doc. 1 , is DENIED without prejudice to an action brought in the appropriate district pursuant to 28 USC § 2241. (Garland, Leah)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

CURTIS WAYNE COSTNER,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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1:17-CV-376
1:15-CR-383

ORDER
The petitioner Curtis Wayne Costner, a federal prisoner, has filed a “Motion for
Clarification of Sentence” asking the Court for a written clarification of the
concurrent/consecutive components of his sentence. He also asks the Court to order his
immediate release from prison because he has served his complete sentence. The
Magistrate Judge recommended that the motion be treated as a petition under 28 U.S.C. §
2241 and dismissed as filed in the wrong district. Mr. Costner objects to the
consideration of his motion as a § 2241 petition and asks that the Court treat it as a
motion to clarify.

While the Court is appreciative of the procedural difficulties Mr.

Costner is experiencing in raising his legal claims, the Court accepts the
Recommendation of the Magistrate Judge and will deny his motion without prejudice.
BACKGROUND
On July 9, 2015, Mr. Costner was arrested on state charges in Guilford County
Superior Court of Felony Indecent Liberties With a Child (Docket No. 15CRS79343) and

Misdemeanor Sexual Battery (Docket No. 15CRS79844). At the time of his arrest Mr.
Costner was in possession of a stolen firearm. As such, he was charged in Guilford
County Superior Court with the additional offenses of Felony Possession of a Stolen
Firearm (Docket No. 15CRS79876) and Felony Possession of a Firearm by a Felon
(Docket No. 15CRS79877). Mr. Costner was taken into state custody at the time of his
July 9 arrest and he has remained in custody since that time.
Later that year, and while his state charges were still pending, Mr. Costner was
indicted in this court on one count of Possession of a Firearm by a Felon based on his
firearms possession on July 9, 2015 – the same conduct at issue on the pending state
firearms charges. On February 4, 2016, Mr. Costner pled guilty in this court to the
charge in the federal indictment. See Minute Entry; see also Doc. 16. That summer, the
court sentenced him to a term of twenty-two months in the custody of the Bureau of
Prisons. See Minute Entry June 27, 2016; Doc. 29.
At the time of his federal change of plea and sentencing, Mr. Costner was still in
state custody on the pending state charges. See Doc. 24 at ¶ ¶ 27, 34. As noted, two of
those pending charges arose from the same acts which formed the basis for his federal
conviction: Mr. Costner’s possession of the same firearm on the same date. Other
pending charges were unrelated. This court, in its judgment, ordered that if Mr. Costner
were convicted of any of the related charges in state court, the sentence should run
concurrently, and that if he were convicted of any unrelated charges in state court, the
sentence should run consecutively. Doc. 29.

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Thereafter, Mr. Costner’s pending state charges were resolved. On October 12,
2016, the charges for Felony Possession of a Stolen Firearm (No. 15CRS79876) and
Felony Indecent Liberties With a Child (No. 15CRS79843) were dismissed and Mr.
Costner pled guilty to the Felony Possession of a Firearm by a Felon and Misdemeanor
Sexual Battery. The Superior Court imposed a consolidated judgment and a unified
sentence of 17 to 30 months, crediting Mr. Costner with 461 days spent in custody as the
result of these charges.
Following his state court sentencing hearing, Mr. Costner completed his state
sentence in the custody of state authorities and on March 21, 2017, he was surrendered to
the custody of the federal Bureau of Prisons. Doc. 36-10 (Federal Bureau of Prisons
Sentence Monitoring Computation Data For; see “Date Committed” Entry). Consistent
with the state court judgment, Mr. Costner served approximately 18 months as the result
of the 17-30 month state sentence.
Upon his commitment to federal custody, the Bureau of Prisons advised Mr.
Costner through its Sentence Monitoring Computation System that his projected release
date is October 15, 2018, approximately 19 months after he was moved into federal
custody. Id. This decision gives him no credit for any time spent in state custody.
Believing that he was entitled to credit against his federal sentence for time spent
in state custody because of the Court’s judgment that his federal sentence should run
concurrently to any state sentence imposed on the state firearms charge, Mr. Costner filed

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the pending “Motion for Clarification of Sentence,” Doc. 1,1 asking the Court for a
written clarification of the concurrent/consecutive components of his sentence. He also
asks the Court to order his immediate release from prison because he has served his
complete sentence.
The Magistrate Judge recommended that the motion be treated as a petition under
28 U.S.C. § 2241 and dismissed as filed in the wrong district. Doc. 2. Mr. Costner
objects to consideration of his motion as a § 2241 petition and asks that the Court treat it
as a motion to clarify. Doc. 4 at 2. Upon review, the Court appointed counsel for Mr.
Costner and extended the time for supplemental objections. Doc. 5. After counsel
indicated that the Bureau of Prisons would be asking the Court informally to clarify its
sentence, Doc. 7 at 4, the Court explained how Mr. Costner’s state sentence affected his
federal sentence. Doc. 8. Counsel has now supplemented his objections, indicating that
the BoP has decided to run Mr. Costner’s sentence partially concurrent and asking for
further clarification. Doc. 9. The government has filed no response.
ANALYSIS
To the extent Mr. Costner seeks an order from this Court directing the Bureau of
Prisons to release him because he has served his sentence, the motion will be denied. As
the Magistrate Judge correctly noted, such a request is appropriately brought only
pursuant to § 2241 in the district where a petitioner is held in custody.

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This citation and all subsequent citations refer to docket entries in the civil action, 1:17-CV-376. Preceding
cites were to the criminal docket.

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To the extent Mr. Costner seeks an order from this Court as to how the Bureau of
Prisons should apply credit due for time served in state custody before conviction on state
charges, such a matter is also appropriately addressed by a § 2241 petition. “A claim for
credit against a sentence attacks the computation and execution of the sentence rather
than the sentence itself. Judicial review must be sought under 28 U.S.C. § 2241 in the
district of confinement rather than in the sentencing court.” United States v. Miller, 871
F.2d 488, 490 (4th Cir. 1989); see Dean v. United States, No. 3:13cv715, 2014 WL
1316061 at *4 (W.D.N.C. Apr. 1, 2014) (the decision in Setser v. United States, 132 S.
Ct. 1463 does not authorize post-judgment modification of a sentence in order to deal
with concurrent/consecutive issues).
To the extent Mr. Costner asks the Court to clarify its judgment in light of
developments occurring in state court after it imposed judgment, the Court concludes it is
without authority to issue a corrected judgment. Once a term of imprisonment has been
imposed it is generally considered to be “final for all purposes.” 18 U.S.C. § 3582(b).
Narrow exceptions exist that permit a court to modify a term of imprisonment, but none
exist here. See 18 U.S.C. § 3582(b), (c). Nor do the exceptions in Rule 35 and Rule 36
of the Federal Rules of Criminal Procedure apply in these circumstances. See Dean,
2014 WL 1316061 at *3.
The Court appreciates the arguments raised by able appointed counsel and the
assistance he has provided to Mr. Costner. The Court has no disagreements with his
interpretation of the Court’s judgment. See Docs. 8, 9. Nonetheless, the Court concludes
that it is without jurisdiction to order the relief the petitioner seeks.
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IT IS THEREFORE ORDERED AND ADJUDGED that the petitioner’s
motion for clarification of sentence, Doc. 1, is DENIED without prejudice to an action
brought in the appropriate district pursuant to 28 USC § 2241.
This the 14th day of August, 2017.

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UNITED STATES DISTRICT JUDGE

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