Carter v. Pearce

Filing 6

REPORT AND RECOMMENDATION: that the District Judge DENY Daryl DewayneCarter's 1 Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. Signed by Judge Andrew W. Austin. (kkc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
DARYL DEWAYNE CARTER
v.
MIKE PEARCE, WARDEN, FEDERAL
CORRECTIONAL INSTITUTE,
BASTROP, TEXAS

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A-12-CV-841 SS

REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
TO:

THE HONORABLE SAM SPARKS
UNITED STATES DISTRICT JUDGE
Before the Court are Petitioner Daryl Dewayne Carter’s Petition for Writ of Habeas Corpus

pursuant to 28 U.S.C. § 2241, filed on September 10, 2012 (Dkt. # 1); Warden Mike Pearce’s
Response to the Petition for Writ of Habeas Corpus, filed December 3, 2012 (Dkt. # 4); and
Petitioner’s Answer to the Response, filed on December 26, 2012 (Dkt. # 5).
The Magistrate Judge submits this Report and Recommendation to the United States District
Court pursuant to 28 U.S.C. §636(b) and Rule 1 of Appendix C of the Local Court Rules of the
United States District Court for the Western District of Texas, Local Rules for the Assignment of
Duties to United States Magistrate Judges.
I. GENERAL BACKGROUND
On December 16, 1999, Smith County, Texas issued an arrest warrant for Petitioner Daryl
Dewayne Carter (“Carter”) for a parole violation. On December 29, 1999, Smith County Sheriff’s
Office arrested Carter for selling crack cocaine and for the parole violation. On February 1, 2000,
Carter was charged in the United States District Court for the Eastern District of Texas with
conspiracy to distribute narcotics and distributing narcotics, in violation of 21 U.S.C. § 846 and

§ 841(1). On February 24, 2000, state authorities loaned Carter to the Eastern District of Texas
pursuant to a writ of habeas corpus ad prosequendum. On April 18, 2000, Carter pled guilty
pursuant to a plea agreement to conspiracy with intent to distribute cocaine base, in violation of 21
U.S.C. § 846. On August 21, 2000, United States District Judge T. John Ward sentenced Carter to
a 260-month term of imprisonment, followed by a five-year term of supervised release, a $100
special assessment fee and an order of forfeiture. See 6:00-cr-00005-MHS-JDL, Dkt. # 54. The
Judgement did not specify whether the sentence should be served consecutively to or concurrently
with any state sentence. Carter filed a direct appeal of his sentence, which the Fifth Circuit
dismissed as frivolous.
On September 19, 2000, the Texas Department of Criminal Justice Parole Division revoked
Carter’s parole pursuant to the December 16, 1999 warrant. The next day, the federal authorities
released Carter from the federal writ and he was returned to Smith County Jail. See Attachment 7
to Government’s Response. Carter remained in state custody until he was paroled on June 15, 2005,
and released to the United States Marshals Service. See Attachment 8 to Government’s Response.
On August 11, 2005, Carter arrived at FCI- Beaumont in Beaumont, Texas to begin serving his
federal sentence. See Attachment 9 to Government’s Response.
On March 19, 2010,United States District Judge T. John Ward granted Carter’s motion for
retroactive application of the sentencing guidelines to crack cocaine offenses and reduced his
sentence from 260 to 188 months imprisonment. See Dkt. # 114. On February 6, 2012, Carter filed
another motion for retroactive application of the sentencing guidelines to crack cocaine offenses.
On April 13, 2012, Judge Ward further reduced Carter’s sentence from 188 to 130 months

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imprisonment. See Dkt. # 124. Carter is currently serving his sentence at the Federal Correctional
Institute in Bastrop, Texas, and has a projected release date of December 15, 2014.
In the instant petition Carter contends that the Bureau of Prisons have erroneously calculated
his sentence. Carter contends that he is entitled to credit against his federal sentence for time spent
in state custody following his federal sentencing (from February 24, 2000, through June 15, 2005).
Carter has exhausted his administrative remedies with regard to this issue.
II. ANALYSIS
Title 18 U.S.C. § 3585, determines when a federal sentence of imprisonment commences
and whether credit against that sentence must be granted for time spent in “official detention” before
the sentence began. It provides the following:
(a) Commencement of sentence.—A sentence to a term of imprisonment commences
on the date the defendant is received in custody awaiting transportation to, or arrives
voluntarily to commence service of sentence at, the official detention facility at
which the sentence is to be served.
(b) Credit for prior custody.—A defendant shall be given credit toward the service
of a term of imprisonment for any time he has spent in official detention prior to the
date the sentence commences—
(1) as a result of the offense for which the sentence was imposed; or
(2) as a result of any other charge for which the defendant was
arrested after the commission of the offense for which the sentence
was imposed;
that has not been credited against another sentence.
18 U.S.C. § 3585 (emphasis added).
The Bureau of Prisons (“BOP”) is responsible for calculating a prisoner’s sentence and for
determining what credit, if any, will be awarded to prisoners for time spent in custody prior to the

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start of their sentences. United States v. Wilson, 503 U.S. 329, 331–32, 334 (1992); Leal v.
Tombone, 341 F.3d 427, 428 (5th Cir. 2003). Pursuant to 28 U.S.C. § 3621(b), “the BOP may
indirectly award credit for time served in state prison by designating nunc pro tunc the state prison
as the place in which the prisoner serves a portion of his federal sentence.” Pierce v. Holder, 614
F.3d 158, 160 (5th Cir. 2010) (citing Barden v. Keohane, 921 F.2d 476, 480 (3d Cir. 1990)). When
an inmate requests a nunc pro tunc designation to the state prison, the BOP reviews the request in
light of the factors set out in § 3621(b)1 and the BOP’s Program Statements. The BOP, however,
will only make such a designation “when it is consistent with the intent of the sentencing Federal
court, or with the goals of the criminal justice system.” BOP Program Statement 5160.05. “The
decision whether to designate a [state] facility as a place of federal detention [pursuant to 18 U.S.C.
§ 3621(b)] ‘is plainly and unmistakably within the BOP’s discretion and we cannot lightly second
guess a deliberate and informed determination by the agency charged with administering federal
prison policy.’” Abdul–Malik v. Hawk–Sawyer, 403 F.3d 72, 76 (2d Cir. 2005) (citing Taylor v.
Sawyer, 284 F.3d 1143, 1149 (9th Cir. 2002)).
The record in this case shows that the BOP reviewed Carter’s request for nunc pro tunc
designation under the relevant factors set out in 18 U.S.C. § 3621(b), and in accordance with case
law and their own polices, and determined that Carter’s case was not appropriate for a nunc pro tunc
designation. The record in this case shows that the BOP properly determined that Carter’s federal

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These factors are: (1) the resources of the facility contemplated; (2) the nature and
circumstances of the offense; (3) the history and characteristics of the prisoner; (4) any statement by
the court that imposed the sentence— (A) concerning the purposes for which the sentence to
imprisonment was determined to be warranted; or (B) recommending a type or penal or correctional
facility as appropriate; and (5) any pertinent policy statement issued by the Sentencing Commission.
18 U.S.C. § 3621(b).
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sentence commenced on June 15, 2005, when he was paroled from his state sentence and released
to federal custody to begin serving his federal sentence. Carter argues that his sentence commenced
on the day he was sentenced by the District Court, on August 17, 2000, and relies on the District
Court’s statement at sentencing that “[t]he defendant is remanded into the custody of the Untied
States Marshal to commence serving the sentence imposed.” Sentencing Tr. at p. 38. However,
Carter ignores the fact that at the time of his sentencing, he was in the primary custody of the State
of Texas and was merely on “loan” to the federal officials pursuant to a writ of habeas corpus ad
prosequendum. See Causey v. Civiletti, 621 F.2d 691, 693 (5th Cir. 1980) (“A writ of habeas corpus
ad prosequendum is only a “loan” of the prisoner to another jurisdiction for criminal proceedings in
the receiving jurisdiction.”). Accordingly, Carter’s federal sentence did not commence until he was
released to federal officials on June 15, 2005, to begin serving his federal sentence. See Jones v.
Joslin, 635 F.3d 673, 675 (5th Cir. 2011) (finding that petitioner’s federal sentence commenced on
the day he was officially released from state custody and released to federal officials); United States
v. Brown, 753 F.2d 455, 456 (5th Cir. 1985) (holding that prisoner’s sentence commenced following
the declaration of his federal prison term, when he was received at a the facility designated for
service of his federal sentence).
The BOP in this case was also correct in finding that the period of time for which Carter
seeks credit against his federal sentence (from August 17, 2000, to June 15, 2005) has already been
credited against his state sentence. See Declaration of Henry Davis at p. 4, Exh. to Government’s
Response (citing and attaching the Texas documents demonstrating Carter received credit for the
time in question). As quoted above, § 3585(b) clearly and unambiguously prohibits the BOP from
giving a prisoner credit toward his federal sentence for time that has already been credited toward
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another sentence.2 See Wilson, 503 U.S. at 337 (“Congress made clear that a defendant could not
receive a double credit for his detention time”). Accordingly, Carter is not entitled to receive credit
again toward his federal sentence under § 3585(b). See Jones, 635 F.3d at 675 (holding that BOP
was not required to credit the time defendant spent in state custody toward his federal sentence since
that time was already credited against his state sentence); Leal, 341 F.3d at 430 (same); United
States v. Moore, 2001 WL 1692476 at *4 (5th Cir. 2001) (same); Brown, 753 F.2d at 456 (same).
In addition, because the judgment in Carter’s case did not specify whether the federal
sentence would run concurrently with his state sentence,3 the BOP properly sought the opinion of
the sentencing court on whether or not it would object to a retroactive designation under § 3621(b).
See Attach. 17 to Government’s Response. The sentencing court did not respond to the letter. Given
the above factors, the Court finds that the BOP acted within its clear discretion when it denied
Carter’s request for nunc pro tunc designation. See Puga v. Sherrod, 462 F. App’x 470, 473, 2012
WL 573419 at * 2 (5th Cir. 2012) (finding that the BOP acted within its discretion when it denied
nunc pro tunc designation given the intent of the sentencing court and the lack of statutory
entitlement to credit for the expired state sentence). Based upon the foregoing, the Court finds that

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In his Reply Brief, Carter argues that his state custody was “exclusively the product” of the
federal action, relying on the Fifth Circuit’s opinion in Ballard v. Blackwell, 449 F.2d 868, 869 (5th
Cir. 1971). However, Ballard was interpreting the time-crediting statute in effect at the time, 18
U.S.C. § 3568. Section 3568 was repealed by the Sentencing Reform Act of 1984 and replaced by
§ 3585. Wahl v. Bureau of Prisons Officers, 281 F. App’x 359, 360 (5th Cir. 2008). Section 3585
applies to cases, like Carter’s, where the offense was committed after November 1, 1987. Id. Thus,
as discussed above, under § 3585, a prisoner is only entitled to federal credit if he has not already
received credit against another sentence, such as his state sentence. See 18 U.S.C. § 3585(b).
Accordingly, Carter’s argument is without merit.
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“[W]hen the sentencing court makes no mention of a prior state sentence, the federal
sentence shall run consecutive to the state sentence.” Jones, 635 F.3d at 674-75.
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the BOP gave “full and fair” consideration to Carter’s request, which is all that it is required to do.
Estrada v. Tamez, 2012 WL 4458689 at * 5 (N.D. Tex. Aug. 20, 2012). Accordingly, Carter has
failed to demonstrate that he is entitled to any further credit against his federal sentence and,
therefore, his § 2241 Petition should be denied.
III. RECOMMENDATION
The Magistrate Judge RECOMMENDS that the District Judge DENY Daryl Dewayne
Carter’s Petition (Dkt. # 1) for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241.
IV. WARNINGS
The parties may file objections to this Report and Recommendation. A party filing
objections must specifically identify those findings or recommendations to which objections are
being made. The District Court need not consider frivolous, conclusive, or general objections.
Battles v. U. S. Parole Comm’n, 834 F.2d 419, 421 (5th Cir. 1987).
A party’s failure to file written objections to the proposed findings and recommendations
contained in this Report within fourteen days after the party is served with a copy of the Report shall
bar that party from de novo review by the district court of the proposed findings and
recommendations in the Report and, except upon grounds of plain error, shall bar the party from
appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the
district court. See 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 150–153 (1985);
Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428–29 (5th Cir. 1996).
To the extent that a party has not been served by the Clerk with this Report &
Recommendation electronically pursuant to the CM/ECF procedures of this District, the Clerk is

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directed to mail such party a copy of this Report and Recommendation by certified mail, return
receipt requested.
SIGNED this 30th day of April, 2013.

_____________________________________
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE

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