Barnett v. Upton

Filing 8

OPINION AND ORDER dismissing petition for a writ of habeas corpus for failure to exhaust administrative remedies. Further, for the reasons discussed, a certificate of appealability is DENIED. (Ordered by Judge Terry R Means on 4/10/2015) (npk)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
DELISA M. BARNETT,

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Petitioner,
VS.
JODY R. UPTON, Warden,
FMC-Carswell,
Respondent.

Civil Action No. 4:14-CV-616-Y

OPINION AND ORDER
Before the Court is petitioner Delisa M. Barnett’s petition
for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2241.
After

having

considered

the

petition

and

relief

sought

by

Petitioner, the Court has concluded that the petition should be
dismissed for failure to exhaust administrative remedies.
I.

Factual and Procedural Background

Petitioner is serving a 41-month term of imprisonment on her
2012 conviction in the United States District Court for the Eastern
District of Texas.

(Resp’t’s App. 17-18, ECF No. 7.)

By way of

this petition, she seeks additional prior-custody-time credit.
(Pet. 1-2, ECF NO. 1.)

To establish the factual background of the

case, the government provided the declaration of Christobal Mandes,
a management analyst at the Designation and Sentence Computation
Center of the Bureau of Prisons (BOP), providing:
. . .
2.

In this position, I have access to official records

compiled and maintained by the Federal Bureau of
Prisons
(BOP),
inmate
files,
Judgment
and
Commitment Orders, sentence computation letters,
records created by state and local officials,
Presentence Investigation Reports, and BOP Program
Statements.
3.

My responsibilities include providing litigation
assistance to the U.S. Attorney’s Office when
federal inmates challenge their sentence computations. This responsibility includes reviewing the
accuracy of challenged sentence computations.

4.

It is my understanding that the petitioner, Delisa
M. Barnett, Federal Register Number 19157-078,
alleges she is entitled to prior custody credit
from September 22, 2011, through May 5, 2014.

5.

I have reviewed the sentence computation for Ms.
Barnett. In the course of my review, I obtained
documents from the State of Nevada and the Clark
County Detention Center indicating that Ms. Barnett
did not receive credit against her state sentence
for 428 days that she spent in official detention,
while she was in federal custody pursuant to a
federal writ of habeas corpus ad prosequendum. On
September
12,
2014,
Ms.
Barnett’s
sentence
computation was updated with an award of 428 days
of prior custody credit from October 3, 2011,
through December 3, 2012.

6.

On September 22, 2011, Ms. Barnett was arrested by
the
Las
Vegas,
Nevada,
Metropolitan
Police
Department
for
possession
of
marijuana
and
possession with intent to sell. These charges were
brought in Case No. 11F16825X which was dismissed
on February 15, 2013.

7.

On October 3, 2011, Ms. Barnett was borrowed from
state custody pursuant to a federal writ of habeas
corpus ad prosequendum.

8.

On November 1, 2012, the United States District
Court for the Eastern District of Texas sentenced
Ms. Barnett to a forty-one month term of imprisonment, to be followed by three years of supervised release, for violating 18 U.S.C. § 1349,
Attempt and Conspiracy to Commit Fraud by Wire.
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9.

On December 3, 2012, the United States Marshals
returned Ms. Barnett to the custody of the State of
Nevada, with the federal sentence lodged as a
detainer.
She was booked by the Clark County
Detention Center in Clark County, Nevada, on the
same date.

10.

On December 27, 2013, Ms. Barnett was arraigned by
the Clark County, Nevada, District Court on state
charges of theft and burglary and entered a guilty
plea in Case Number C286294.

11.

On February 27, 2013, Ms. Barnett was sentenced by
the Clark County, Nevada, District Court to a
twelve- to thirty-month term of imprisonment with
ninety-six days of prior custody credit, in Case
Number C286294, after being convicted of one count
of burglary and one count of theft.

12.

On April 10, 2013, Ms. Barnett’s sentence in Case
Number C286294 was vacated pending resentencing.

13.

On April 12, 2013, Ms. Barnett was taken into
federal custody by the U.S. Marshals Service.

14.

On May 29, 2013, Ms. Barnett was resentenced in
absentia by the Clark County, Nevada, District
Court to a twelve- to thirty-month term of
incarceration with 187 days of prior custody
credit, in Case Number C286294.

15.

On August 19, 2013, the U.S. Marshals
returned Ms. Barnett to state custody.

16.

On January 14, 2014, Ms. Barnett was released on
parole from the custody of the State of Nevada and
was taken into federal custody by the U.S. Marshals
Service.

17.

Ms. Barnett’s federal sentence was computed to
commence on January 14, 2014, the date she was in
the primary jurisdiction of the federal government
to begin serving her federal sentence.
She was
awarded prior custody credit against her federal
sentence for a total of 433 days.
This prior
custody credit includes 2 days of credit from
September 27, 2007, through September 28, 2007, and
3

Service

3 days of credit from April 15, 2008, through April
17, 2008, that are not the subject of Ms. Barnett’s
current petition. This prior custody credit also
includes 428 days of prior custody credit for the
period of time from October 3, 2011, through
December 3, 2012.
18.

From September 22, 2011, through May 28, 2013, the
day prior to the imposition of her state sentence,
Ms. Barnett was in official detention for a total
of 615 days. On May 29, 2013, when Ms. Barnett was
sentenced by the state, she received 187 days of
prior custody credit. She did not receive credit
against her state sentence for 428 days that she
spent in official detention.
Review of state
records indicates that Ms. Barnett did not receive
credit against her state sentence for the 428-day
period when she was in federal custody pursuant to
the writ of habeas corpus ad prosequendum, from
October 3, 2011, through December 3, 3012.

19.

Because Ms. Barnett did not receive credit toward
her state sentence for the period of time from
October 3, 2011, through December 3, 2012, the BOP
awarded her 428 days of prior custody credit
against her federal sentence.

20.

If Ms. Barnett receives all good conduct time
projected, it is anticipated that she will be
released from BOP custody via good conduct time on
October 29, 2015.

21.

Ms. Barnett has not filed any administrative
remedies regarding her sentence computation or
prior custody credit.

22.

On September 12, 2014, the BOP’s DSCC sent a letter
to Ms. Barnett’s federal sentencing court asking
whether the court wished to retroactively designate
the state institution where Ms. Barnett was
imprisoned prior to entering BOP custody for
service of her federal sentence. The BOP has not
yet received a response from the federal court.
Once the BOP receives a response, or if the BOP has
not received a response within sixty days of the
date of the letter, the BOP will review Ms.
Barnett’s case under the five factors delineated in
18 U.S.C. § 3621(b) to determine whether such
4

designation is appropriate If the state institution
is designed for service of Ms. Barnett’s federal
sentence, she will be awarded additional credit
against her federal sentence and may be entitled to
immediate release.
. . .
(Resp’t’s App. 2-6, ECF No. 7 (footnote omitted) (emphasis added)).
II.

Discussion

Respondent asserts inter alia that the petition should be
dismissed

because

Petitioner

administrative remedies.

has

failed

to

exhaust

her

(Resp’t’s Resp. 1, 3-4, ECF No. 6.)

Federal prisoners must exhaust administrative remedies before
seeking habeas relief in federal court under 28 U.S.C. § 2241.
United States v. Dowling, 962 F.2d 390, 393 (5th Cir. 1992);
Fuller v. Rich, 11 F.3d 61, 62 (5th Cir. 1994).

Exceptions to the

exhaustion requirement apply only in “extraordinary circumstances”
when

administrative

remedies

are

unavailable

or

wholly

inappropriate to the relief sought, or where the attempt to exhaust
such remedies would itself be a patently futile course of action.”
Fuller, 11 F.3d at 62.
Petitioner asserts in her petition that she has exhausted her
administrative
However,

remedies

Respondent

to

no

provides

avail.
proof

(Pet.

2,

discrediting

ECF

No.

1.)

Petitioner’s

assertion and Petitioner fails to allege or demonstrate that any
attempt to do so would be futile. Accordingly, the petition should
be dismissed.
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For the reasons discussed, Petitioner’s petition for a writ of
habeas corpus is DISMISSED for failure to exhaust administrative
remedies.

Further, for the reasons discussed, a certificate of

appealability is DENIED.
SIGNED April 10, 2015.

____________________________
TERRY R. MEANS
UNITED STATES DISTRICT JUDGE

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