Cleveland v. Pierce

Filing 10

REPORT AND RECOMMENDATIONS that the Court DISMISS Cleveland's 1 Petition for Writ of Habeas Corpus and that the Court WARN Cleveland re: abusive filings. Signed by Judge Andrew W. Austin. (klw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
TJ JONES CLEVELAND
v.
MIKE PEARCE, WARDEN, FEDERAL
CORRECTIONAL INSTITUTE,
BASTROP, TEXAS

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A-13-CV-319 SS

REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
TO:

THE HONORABLE SAM SPARKS
UNITED STATES DISTRICT JUDGE
Before the Court are TJ Jones Cleveland’s Petition for Writ of Habeas Corpus pursuant to

28 U.S.C. § 2241, filed on April 18, 2003 (Dkt. # 1), and Respondent’s Response and Memorandum
in Support of Motion to Deny Petition, filed on October 21, 2013 (Dkt. # 9).
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 November 15, 1999, in Case No. 99 417691-D, Petitioner TJ Jones Cleveland or Thomas
Cleveland (“Cleveland”) was sentenced by the 377th District Court in Victoria, Texas to a term of
imprisonment of 10 years for “Manufacture/Delivery of a Controlled Substance.” On October 31,
2001, Cleveland was released on parole from the Texas Department of Criminal Justice Clemency
and Parole. On December 15, 2004, Cleveland was arrested again by the Victoria Police Department
on a warrant for a state parole violation.

Shortly after his arrest for the state parole violation, a grand jury in the United States District
Court for the Southern District of Texas indicted Cleveland on three counts of federal gun and drug
charges. See Case No. 6:05-CR-00005, in the U.S. District Court for the Southern District of Texas.
On February 15, 2005, Cleveland was temporarily taken into federal custody by the U.S. Marshals
Service on a Writ of Habeas Corpus Ad Prosequendum. Pursuant to a Plea Agreement, Cleveland
then pled guilty to possession with intent to distribute 119 grams of Cocaine base, in violation of
21U.S.C. § 841(a)(1) and (b)(1)(A), and possession of a firearm in furtherance of a drug trafficking
crime, in violation of 18 U.S.C. § 924(c)(1)(A)(I). On May 1, 2006, the United States District Court
for the Southern District of Texas sentenced Cleveland to 185-month term of imprisonment, a fiveyear term of supervised release, participation in a drug treatment program, and a $200 special
assessment fee.
On July 24, 2006, Cleveland was released from federal custody and was returned to Victoria
County Jail to complete his 10-year state sentence. On October 5, 2007, Cleveland was released
from the state of Texas on parole and was placed into the custody of the U. S. Bureau of Prisons to
complete his federal sentence. On August 8, 2008, the Sentencing Court issued an “Order Regarding
Motion for Sentence Reduction” pursuant to 18 U.S.C. § 3583(c)(2), reducing his sentence from 185
months to 158 months imprisonment. See Dkt. # 74 in 6:05-CR-00005.
Cleveland is currently incarcerated at the Federal Correctional Institute in Bastrop, Texas.
The Bureau of Prisons (“BOP”) has calculated his release date to be October 19, 2017 (based on his
158 month term of imprisonment commencing on May 1, 2006). In this action, Cleveland is
challenging the BOP’s calculation of his release date, contending that he is entitled to credit for time
spent in federal custody from February 15, 2005, to April 30, 2006, when he was temporarily taken
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into custody by the U.S. Marshall Service to face his federal charges pursuant to the federal writ of
habeas corpus ad prosequendum.
II. ANALYSIS
A.

Cleveland’s sentence has correctly been computed by the BOP
As noted, in this writ, Cleveland is seeking credit for time from February 15, 2005, to April

30, 2006, during which he was in federal custody pending the disposition of his federal charges.
Cleveland ignores the fact that during this time period he was in the primary custody of the State of
Texas and was merely on “loan” to the federal officials pursuant to the 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, Cleveland remained in state custody when he was on loan
to the federal authorities during this time period, and his federal sentence did not commence until
May 1, 2006, the date of the nunc pro tunc designation by the Sentencing Court. 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) (finding that petitioner was not due any credit toward his
federal sentence for short intervals while “on loan” to federal authorities pursuant to writ of habeas
corpus ad prosequendum since the state's custody over him remained uninterrupted, and he was
therefore due no § 3568 credit).
Moreover, the time period for which Cleveland seeks credit, February 5, 2005 to April 30,
2006, has already been credited toward his Texas state sentence. See Declaration of Alan Ray at ¶
16, Exh. A to Government’s Response. A defendant is only given credit toward his term of
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imprisonment for any time he spent in official detention prior to the commencement of his federal
sentence “that has not been credited against another sentence.” 18 U.S.C. § 3585(b). Accordingly,
the BOP has properly determined that Cleveland was not entitled to credit for the time period from
February 5, 2005, to April 30, 2006, pursuant to § 3585.
B.

Abuse of the Writ
In addition to raising a meritless claim, Cleveland is also guilty of abusing the writ. When

Cleveland was incarcerated in the Eastern District of Texas, he filed two previous petitions under
28 U.S.C. § 2241, which raised the same argument as raised in the instant § 2241 Petition—that the
BOP wrongly denied him credit for time spent in state custody. See 1:08-cv-00886 TH-KFG; and
1:10-cv-00485-MAC-ESH. The Eastern District of Texas rejected Cleveland’s arguments and
dismissed both of his petitions. Id. Cleveland appealed the later dismissal and the Fifth Circuit
affirmed, finding that “the BOP properly determined that Cleveland was not entitled to credit under
§ 3585(b) against his federal sentence” since “the period for which Cleveland seeks credit against
his federal sentence was credited against his state sentence.” Cleveland v. Fox, No. 11-40276, 450
F. App’x 379; 2011 WL 5598298 (5th Cir. Nov. 17, 2011).
A § 2241 petition is considered to be abusive if it raises “the same legal issue” addressed and
resolved in a prior filing. United States v. Tubwell, 37 F.3d 175, 177–78 (5th Cir.1994); see also
Williams v. Tamez, 466 F. App’x. 326, 327 (5th Cir. 2012) (finding that district court did not abuse
its discretion in dismissing a § 2241 petition as an abuse of the writ where the petition raised the
same legal issue as a prior petition). Because Cleveland has raised the same argument as he has
raised in his two previous unsuccessful § 2241 petitions, the instant petition could be found to be an
abuse of the writ. Accordingly, the Court will recommend that the District Court warn Cleveland
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that any future abusive filings will result in the imposition of sanctions, including monetary sanctions
and restrictions on his ability to file any future pleadings in this Court.
III. RECOMMENDATION
The Magistrate Court RECOMMENDS that the District Judge DISMISS T.J. Jones
Cleveland’s Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241(Dkt. # 1). The
Magistrate Court FURTHER RECOMMENDS that the District Court WARN Cleveland that any
future abusive filings will result in the imposition of sanctions, including monetary sanctions and
restrictions on his ability to file any future pleadings in this Court.
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 11th day of February, 2014.

_____________________________________
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE

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