Mays v. Chandler
Filing
12
Opinion and Order... Since Petitioners federal sentence was intended to run consecutively to any yet-to-be-imposed state sentence, no further crediting for time served is available to Petitioner. His state revocation sentence was already credited fo r the time he spent in both federal and state custody from July 13, 2005, to August 24, 2009, and he is prohibited from receiving credit toward his federal sentence for this same period. See 18 U.S.C. § 3585(b). For the reasons discussed, the Court DENIES Petitioners petition for a writ of habeas corpus and DENIES a certificate of appealability. (Ordered by Senior Judge Terry R Means on 11/7/2016) (wxc)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
CEDRIC L. MAYS,
§
§
§
§
§
§
§
§
§
§
Petitioner,
VS.
RODNEY W. CHANDLER, Warden,
FCI-Fort Worth,
Respondent.
Civil Action No. 4:15-CV-910-Y
OPINION AND ORDER
Before the Court is petitioner Cedric L. Mays’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 denied.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Petitioner is serving a 240-month term of imprisonment on his
2006 conviction in this Court for possession of a firearm by a
convicted
felon.
(Resp’t’s
App.
15-20,
ECF
No.
8.)
In
this
petition, Petitioner seeks “more than three years of pretrial jail
credit [toward his federal sentence for time spent in state
custody, for which the Bureau of Prisons (BOP) is precluded from
awarding him under 18 U.S.C. § 3585(b),] in light of the newly
amended U.S.S.G. 5G1.3.” (Pet. 5, ECF No. 1.)
To
establish
government
has
the
provided
factual
the
background
declaration
of
of
the
J.R.
case,
the
Johnson,
a
Correctional Programs Specialist at the Designation and Sentence
Computation Center of the Bureau of Prisons (BOP), providing:
.
.
.
2.
In this position, I have access to inmates’
records, Judgment and Commitment Orders, sentence
computation letters, electronic data maintained on
BOP’s SENTRY computer system 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.
On December 9, 2015, I reviewed the sentence
computation for Petitioner, Cedric L. Mays, Federal
Register Number 34013-177. The review revealed that
Petitioner’s federal term has been computed in
accordance with the Federal Judgment and Commitment
Order. Petitioner is not entitled to prior custody
credit from July 13, 2005, through September 27,
2006, because that time has been credited toward a
state term of imprisonment.
5.
Petitioner avers he is entitled to more than 3
years of prior custody credit for time spent in
state custody due to an amended United States
Sentencing Guidelines (“USSG”) Section 5G1.3, that
BOP will not award due to 18 U.S.C. § 3583(b)
precluding double-credit.
6.
On July 13, 2005, while on parole from the Texas
Department of Criminal Justice in Case Number
0727561D, Petitioner was arrested by Fort Worth,
Texas police for Possession of a Controlled
Substance, Possession of a Controlled Substance:
Manufacturing/Delivery/Intent, Unlawful Possession
of a Firearm by a Felon, and Unlawful Possession of
Body Armor/Metal resulting in Case Numbers 0970334,
0985899, 0986198, and 0986202 in Tarrant County,
Texas Criminal District Court.
7.
On February 2, 2006, Petitioner was temporarily
loaned to the United States Marshals Service
(“USMS”) pursuant to a federal writ of Habeas
2
Corpus Ad Prosequendum.
8.
On August 28, 2006, Petitioner was sentenced in the
United States District Court for the Northern
District of Texas by the Honorable Terry R. Means
to a 240 month term of imprisonment for a violation
of 18 U.S.C. §§ 922(g) and 924(e)(1), Possession of
a Firearm by a Convicted Felon, a Class A Felony.
The federal term was ordered to run concurrently to
any state term that may be imposed in case numbers
0970334, 0985899, 0986198, and 0986102. It was
further ordered that the federal term run
consecutively
to
any
other
undischarged
or
thereafter imposed state or federal term.
9.
On September 27, 2006, Petitioner was returned to
Tarrant County Jail because Texas retained primary
jurisdiction over Petitioner and a federal detainer
was lodged.
10.
While out on writ and following the federal
conviction, on September 6, 2006, Petitioner’s
state charges in Case Numbers 0986198 and 0985899
were dismissed. Similarly, on September 7, 2006,
the state charges in Case Numbers 0970334 and
0986202 were dismissed.
11.
On January 18, 2007, Petitioner’s parole from state
Case Number 0727561D was revoked and he received
credit toward his revocation term from July 13,
2005, the date of his arrest, until September 27,
2006, when he returned from federal writ to state
custody.
12.
On August 25, 2009, Petitioner released on parole
from the Texas Department of criminal Justice
(“TDCJ”) to the federal detainer.
13.
A sentence computation was completed commencing the
federal sentence on August 25, 2009, the date
Petitioner paroled from his Texas state term.
Petitioner received no prior custody credit, as all
time spent in custody from July 13, 2005, until
August 24, 2009, had been applied to his Texas
revocation term. Petitioner’s projected Good
Conduct Time release date is February 19, 2027.
14.
On
December
18,
2014,
3
Petitioner
filed
Administrative Remedy Number 804915-F1 at FCI Fort
Worth requesting his federal term run concurrent to
a [sic] his state revocation term, in essence
requesting a nunc pro tunc designation. On February
6, 2015, the institution denied the request and he
did not appeal the institution denial at either the
Regional or Central Office levels. Petitioner did
not file any other administrative remedies at any
level regarding his sentence computation or request
for prior custody credit.
. . .
(Resp’t’s App. 1-4, ECF No. 8.)
II.
DISCUSSION
Respondent asserts that the petition should be dismissed for
failure to exhaust administrative remedies or, alternatively,
dismissed on the merits. (Resp’t’s Resp. 1, ECF No. 7.) Because
adherence to the exhaustion requirement would serve no purpose
other than delay, the Court will consider Petitioner’s claim.
Petitioner’s argument that the Court can adjust his federal
sentence retroactively in light of the newly amended USSG § 5G1.3
is vague and ambiguous. He fails to direct the Court to a specific
amendment
to
§
5G1.3
or
to
authority
that
the
amendment
is
retroactive. Instead, he merely cites Setser v. United States, 132
S. Ct. 1463, 1468 (2012), in which the Supreme Court determined
that, under § 5G1.3, a district court has the authority to order a
federal
sentence
consecutively,
to
to
a
be
served
concurrently,
yet-to-be-imposed
state
rather
than
parole-revocation
sentence at the time of original sentencing. Thus, under Setser, a
4
court has the discretion, but is not required, to render a federal
sentence concurrent to a yet-to-be-imposed state sentence. The
Court, however, finds no support that Setser applies retroactively
or that this Court has the authority to impose a retroactively
concurrent sentence under § 5G1.3(d). Further, the guidelines
specifically provide that § 5G1.3(d) applies when the undischarged
sentence is based on a revocation. U.S. SENTENCING GUIDELINES MANUAL §
5G1.3(d) cmt. n.4(C). This is so even when the revocation is
prompted by or based on the instant federal-offense conduct. See,
e.g., United States v. Vales, 272 Fed. App’x 204, 206-07 (3d Cir.
2008); United States v. Fifield, 432 F.3d 1056, 1062-63 (9th Cir.
2005). Under these circumstances, the guidelines recommend that the
sentence for the federal offense run consecutively to the sentence
imposed for the parole revocation. U.S. SENTENCING GUIDELINES MANUAL §
5G1.3(d) cmt. n.4(C) (emphasis added).
Since
Petitioner’s
federal
sentence
was
intended
to
run
consecutively to any yet-to-be-imposed state sentence, no further
crediting for time served is available to Petitioner. His state
revocation sentence was already credited for the time he spent in
both federal and state custody from July 13, 2005, to August 24,
2009, and he is prohibited from receiving credit toward his federal
sentence for this same period. See 18 U.S.C. § 3585(b).
For the reasons discussed, the Court DENIES Petitioner’s
petition for a writ of habeas corpus and DENIES a certificate of
5
appealability.
SIGNED November 7, 2016.
____________________________
TERRY R. MEANS
UNITED STATES DISTRICT JUDGE
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