Killough v. Chandler
Filing
14
Memorandum Opinion and Order...the petition for writ of habeas corpus pursuant to 28 USC 2241 is denied. cy to petitioner (Ordered by Judge John McBryde on 12/2/2013) (wrb)
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NORTHERNDISTRICT OF TEXAS
IN THE UNITED sTATEs DISTRI ?;.··:c9n~fl~ FILED
NORTHERN DISTRICT OF T XAS 1
FORT WORTH
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SCOTTY WAYNE KILLOUGH,
§
Petitioner,
CLERK. u~s. DISTRICT COURT
§
BY--~~~~~~-Deputy
§
§
vs.
§
NO. 4:13-CV-611-A
§
RODNEY W. CHANDLER,
§
§
Respondent.
§
MEMORANDUM OPINION
and
ORDER
Now before the court for consideration is the petition for
writ of habeas corpus pursuant to 28 U.S.C.
§
2241 filed by
petitioner, Scotty Wayne Killough, who is presently incarcerated
at Federal Correctional Institution--Fort Worth.
Having
considered the petition, the response, petitioner's "response to
opposition" (filed as a reply to the response), and the
applicable legal authorities, the court concludes that the
petition should be denied.
I.
Background
On October 26, 2006, in case number 8168-D, petitioner was
convicted of a state charge of possession of methamphetamine with
intent to deliver, and sentenced to eight years' incarceration in
a facility of the Texas Department of Criminal Justice ("TDCJ").
On November 29, 2007, petitioner began his community supervision
in case number 8168-D.
On September 14, 2011, a two-count indictment was filed
against petitioner in case number 6:11-CR-037-C in the United
States District Court for the Northern District of Texas, San
Angelo Division.
On September 18, 2011, petitioner was arrested
in Sweetwater, Texas, by Nolan County sheriff's deputies for
resisting arrest.
On September 21, 2011, petitioner appeared in
federal court pursuant to a writ of habeas corpus ad
proseguendum.
Petitioner remained in federal custody, and on
December 22, 2011, he pleaded guilty to count one of the
indictment, felon in possession of firearms, in violation of 18
U.S.C.
§§
922 (g) (1) and 924 (a) (2).
On March 23, 2012, the court
in case number 6:11-CR-037-C sentenced petitioner to a term of
imprisonment of thirty-seven months, to be followed by a threeyear term of supervised release.
On April 9, 2012, petitioner
was returned to state custody.
On May 22, 2012, petitioner pleaded guilty in case number
17602 to the state charge of resisting arrest on September 18,
2011, and was sentenced in County Court at Law in Nolan County,
Texas, to a sixty-day term of imprisonment.
Petitioner received
forty-one days' credit for time served following his arrest on
September 18, 2011, until October 28, 2011.
On June 20, 2012,
petitioner's state community supervision was revoked in case
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number 8168-D, and petitioner was sentenced to an additional term
of imprisonment of five years.
Petitioner received 377 days of
credit towards his state sentence, including the period from
April 9, 2012, when petitioner was returned to state custody
following the sentencing in case number 6:11-CR-037-C, to June
20, 2012, the date his state term began in case number 8168-D.
On June 4, 2013, petitioner completed his term of imprisonment in
the TDCJ, and was released to federal custody to begin the term
of imprisonment imposed in case number 6:11-CR-037-A.
II.
Grounds of the Petition
In the instant action, petitioner asks to receive credit
towards his federal sentence for his entire period of
incarceration from September 16, 2011 to June 2013, even though
he served a substantial portion of that time in state custody for
state charges.
As grounds for this relief, petitioner relies on
the Fifth Circuit Court of Appeals's decision in Pierce v.
Holder, 614 F.3d 158 (5th Cir. 2010)
(per curiam), and the Bureau
of Prisons's program statement 5160.05.
III.
Analysis
The court first addresses petitioner's reliance on program
statement 5160.05, which authorizes the Bureau of Prisons, under
3
certain circumstances, to designate a state institution for
concurrent service of a federal sentence.
In particular, section
5160.05(9) (b) (4) allows an inmate to request a nunc pro tune
designation, which the Bureau of Prisons considers as a "request
for pre-sentence credit towards a federal sentence for time spent
in service of a state sentence."
Upon receipt of such a request,
the Bureau of Prisons reviews the prisoner's record, including
consideration of whether the federal judgment of conviction
orders that the federal sentence be served consecutive to, or
concurrent with, the state sentence.
If the federal judgment of
conviction is silent on the subject, the Bureau of Prisons
contacts the sentencing court to determine the court's position
on how the federal sentence is to run in relation to the state
sentence.
In the instant action, petitioner, while still in state
custody, submitted a request to the Bureau of Prisons for nunc
pro tune designation.
Upon receipt of petitioner's request, the
Bureau of Prisons gathered the pertinent records, including the
March 23, 2012 judgment of conviction in case number 6:11-CR-037C.
Because that judgment was silent as to whether the federal
sentence was to run consecutive to, or concurrent with,
petitioner's state sentence, the Bureau of Prisons contacted the
sentencing court to determine whether the court had any
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objections to a retroactive designation, the effect of which
would be to run petitioner's federal sentence concurrently with
his state sentence.
The judge of that court responded
unambiguously: "I oppose any running of the federal sentence
concurrently to the state sentence."
App. in Supp. of Resp. in
Opp'n to Pet. for Writ of Habeas Corpus at 20.
After
considering the relevant factors, including the sentencing
court's opposition, the Bureau of Prisons denied petitioner's
request for nunc pro tune designation.
In this action, petitioner objects to the Bureau of
Prisons's denial of his request for nunc pro tune designation.
However, he has cited no authority that would authorize or
require the court to overturn that decision.
Petitioner's reliance on the Fifth Circuit's decision in
Pierce is unavailing.
In that case, the Fifth Circuit found that
the district court did not have jurisdiction to rule on a
prisoner's application for writ of habeas corpus pursuant to 28
U.S.C.
§
2241 because the Bureau of Prisons had not yet decided
the prisoner's nunc pro tune request at the time the court made
its ruling.
Pierce, 614 F.3d at 160.
In contrast, the Bureau of
Prisons in the instant action made its decision on petitioner's
nunc pro tune request before petitioner filed his application
pursuant to
§
2241.
Additionally, the sentencing court in the
5
instant action clearly stated his objection to running
petitioner's federal sentence concurrently with his state
sentence.
Under these circumstances, petitioner is entitled to
no relief from the Bureau of Prison's denial of his nunc pro tune
request.
See Washington v. Chandler,
F. App'x
12-10857, 2013 WL 3240029 (5th Cir. May 14, 2013)
~-'
No.
(per curiam)
(affirming denial of petitioner's motion pursuant to
§
2241
challenging Bureau of Prison's denial of request for nunc pro
tune designation) .
An additional basis for denying the motion is that the
Bureau of Prisons reviewed petitioner's record following the
filing of the instant petition, and subsequently credited
petitioner with 163 days' credit towards his federal sentence for
the time he spent in federal custody from October 29, 2011,
through April 8, 2012. 1
From April 9, 2012, through June 4,
2013, petitioner was in the custody of the TDCJ on his state
charges.
Petitioner received credit towards his state sentence
for that time served, and he is not also entitled to duplicate
1
Respondent argues that the State of Texas had primary jurisdiction over petitioner from the time
of his arrest on September 18, 2011, through April 8, 2012, and that he was only "loaned" to the federal
government on a writ of habeas corpus ad prosequendum. In his reply, petitioner contends that the
September 18, 2011 arrest was accomplished by the sheriffs deputies on behalf of the federal
government, so he was really under federal jurisdiction during that time. Pages from petitioner's
sentencing transcript appear to support petitioner's position. However, inasmuch as the Bureau of
Prisons has now credited petitioner's federal sentence with the time spent in federal custody during the
foregoing time period, it appears petitioner would be not be entitled to any additional relief.
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credit towards his federal sentence for the same period.
Hence,
it appears that petitioner has received all the relief to which
he is entitled.
IV.
Order
Therefore,
The court ORDERS that the petition for writ of habeas corpus
pursuant to 28 U.S.C.
§
2241 filed by Scotty Wayne Killough be,
and is hereby, denied.
SIGNED December 2, 2013.
Judge
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