Gerard v. Fox
ORDER overruling objections and adopting 17 Report and Recommendation. Signed by Judge Ron Clark on 8/21/17. (tkd, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
CHARLES RAY GERARD
JOHN B. FOX
CIVIL ACTION NO. 1:13cv333
ORDER OVERRULING OBJECTIONS AND ADOPTING
THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Petitioner Charles Ray Gerard, proceeding pro se, filed the above-styled petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2241. The Court previously referred this matter to the
Honorable Keith F. Giblin, United States Magistrate Judge, for consideration pursuant to applicable
orders of this court. The Magistrate Judge has submitted a Report and Recommendation of United
States Magistrate Judge recommending that the petition be denied.
The Court has received and considered the Report and Recommendation of United States
Magistrate Judge, along with the record and pleadings. Petitioner filed objections to the Report and
Recommendation. The Court must therefore conduct a de novo review of the objections in relation
to the pleadings and the applicable law.
In 1981, petitioner was convicted of the state offense of burglary of a habitation. He was
sentenced to 15 years of imprisonment. He was subsequently released on parole on three occasions.
Petitioner was arrested by Texas law enforcement officials on June 3, 1990, based on allegations that
he had violated the terms of his release on parole and committed the offenses of kidnapping and
aggravated sexual assault. Petitioner’s release on state parole was later revoked, effective June 5,
1990. On March 23, 1992, the state charges of kidnapping and aggravated sexual assault were
dismissed. On March 25, 1992, petitioner was convicted of a federal offense and sentenced to 360
months of imprisonment.
Petitioner contends the Bureau of Prisons (“BOP”) has not properly calculated his sentence.
He contends he should receive credit towards his federal sentence for the 641 day period beginning
on June 3, 1990, when he was arrested by Texas officials, and ending on March 5, 1992, when his
federal sentence was imposed (the “Contested Period”). Petitioner asserted the following ground
for review in support of his contention: (1) the primary reason for his detention during the Contested
Period was his federal charge; (2) since the BOP originally gave him credit towards his federal
sentence for the Contested Period, it was not fair for the BOP to reverse this determination; (3) the
federal sentencing judge intended his federal sentence to be served concurrently with his expired
state sentence and (4) construing his federal sentence as not running concurrently with his state
sentence means he served approximately 17 years on his 15 year state sentence. The Magistrate
Judge analyzed each ground for review and concluded each ground was without merit.
In addition to considering the grounds for review described above, the Magistrate Judge,
citing 18 U.S.C. § 3585(b), stated petitioner was not entitled to credit towards his federal sentence
for the Contested Period because he had already received credit towards his state sentence for such
period.1 In his objections, petitioner disputes the statement that he received credit towards his state
sentence for the Contested Period.
The respondent has demonstrated that the BOP has determined petitioner received credit
towards his state sentence for the Contested Period.2 Petitioner has submitted no evidence that
would call this determination into question. In the absence of any contradictory evidence, it cannot
be concluded the BOP’s determination was erroneous. Section 3585(b) therefore prohibits petitioner
from also receiving credit towards his federal sentence for the Contested Period.
In his objections, petitioner also complains about the state’s revocation of his release on
parole. He states the revocation was improper because it was based on charges of kidnapping and
aggravated sexual assault that were subsequently dismissed. Petitioner asserts that as his release on
Section 3585(b) provides that “[a] defendant is to be given credit towards the service of a term of
imprisonment for any time he has spent in official detention prior to the date the sentence commences . . . that has
not been credited towards another sentence.”
This determination is supported by a memorandum provided to the court by petitioner as part of docket
entry 16. This memorandum, which is dated April 28, 1999, is to petitioner from BOP employee Sannie Antsey.
Ms. Antsey stated she contacted employees of the Texas Department of Criminal Justice who informed her petitioner
received credit towards his state sentence for the Contested Period.
parole was improperly revoked, he did not receive credit towards his state sentence for the Contested
Period because there was no valid state sentence to be served. Accordingly, the Contested Period
should be credited towards his federal sentence.
The Proclamation of Revocation and Warrant of Arrest issued by the Texas Department of
Criminal Justice on June 28, 1990, indicated the revocation of petitioner’s release on parole was
based on charges of aggravated kidnapping and aggravated sexual assault. Petitioner correctly states
these charges were later dismissed. However, the dismissal of the charges does not entitle petitioner
to relief. In revoking a criminal defendant’s release on parole, authorities may consider criminal
activities for which the individual was never charged, indicted or convicted. See Maddox v. U.S.
Parole Commission, 821 F.2d 997, 999 (5th Cir. 1987) (“the commission may consider . . .
allegations of criminal activity for which the prisoner has not even been charged”); Villarreal v. U.S.
Parole Commission, 985 F.2d 835, 839 (5th Cir. 1993) (parole boards may consider charges which
were dismissed by the state); Else v. Johnson, 104 F.3d 82, 83 (5th Cir. 1997) (no due process
violation when the sate considered dismissed criminal charges during parole revocation
proceedings). As a criminal conviction was not necessary in order for the revocation of petitioner’s
release on parole to be valid, the fact that the state charges against petitioner were subsequently
dismissed is of no benefit to him in this proceeding. Petitioner’s contention that there was no valid
state sentence for him to be serving during the Contested Period is therefore without merit.
Accordingly, petitioner’s objections are OVERRULED.
The findings of fact and
conclusions of law of the Magistrate Judge are correct and the report of the Magistrate Judge is
ADOPTED. A final judgment will be entered denying the petition.
So ORDERED and SIGNED this 21 day of August, 2017.
Ron Clark, United States District Judge
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