Williams v. Willis

Filing 10

MEMORANDUM OPINION AND ORDER. Signed by Judge Kathleen Cardone. (dc)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
EL PASO DIVISION
DION LEVERING WILLIAMS,
Reg. No. 80352-083,
Petitioner,
v.
WARDEN SCOTT WILLIS,
Respondent.

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EP-17-CV-184-KC

MEMORANDUM OPINION AND ORDER
Petitioner Dion Levering Williams, a federal prisoner at the La Tuna Federal Correctional
Institution in Anthony, Texas,1 seeks credit toward his federal sentence through a pro se “Petition
to Receive Credit for Time Spent in Official Detention Prior to the Date Federal Sentence
Commences Pursuant to 18 U.S.C. Section 3585(b).” Williams claims Respondent Warden Scott
Willis has improperly denied him credit toward his federal sentence for the 425 days he spent in
state custody between his arrest on June 15, 2012, and his commitment to a federal prison on
August 14, 2013. Williams “avers” a petition for a writ of habeas corpus under 28 U.S.C. ' 2241
“is the proper means to challenge the execution of his sentence . . .”2 The Court agrees. Because
Williams attacks the manner in which the Bureau of Prisons (“BOP”) has calculated his sentence
and projected release date, the Court will discuss his pleading as a petition for a writ of habeas
corpus pursuant to ' 2241.3
1

Anthony is located in El Paso County, Texas, which is within the territorial confines of the
Western District of Texas. 28 U.S.C. ' 124(d)(3) (2012).
2

3

Pet’r’s Pet. at 4, ECF No. 1.

See Jeffers v. Chandler, 253 F.3d 827, 830 (5th Cir. 2001) (explaining a ' 2241 petition is
ordinarily used to challenge the method in which a sentence is being executed); Davis v. Fechtel,
-1-

Before the Court are William’s original petition (ECF No. 1), Willis’s “Motion to Dismiss
or, in the Alternative, Motion for Summary Judgment” (ECF No. 3), William’s “Opposition to
Respondent’s Motion to Dismiss and Summary Judgment and Petitioner’s Cross-Motion for
Summary Judgment” (ECF No. 7), Willis’s “Response to Petitioner’s Cross-Motion for Summary
Judgment” (ECF No. 8), and William’s “Response to Respondent’s Response to Petitioner’s Cross
Motion for Summary Judgment (ECF No. 9). For the reasons outlined below, the Court will grant
Willis’ motion, deny William’s cross-motion, deny William’s petition, and dismiss William’s
cause with prejudice.
BACKGROUND AND PROCEDURAL HISTORY
On January 27, 2012, Maryland state authorities arrested Williams on firearm charges.4
On February 8, 2012, they released him on bond.5 State authorities later decided not to prosecute
Williams on these charges.6
On April 3, 2012, a grand jury in the United States District Court for the Eastern District of
Virginia returned a two-count indictment in case number 3:12-cr-47-HEH charging Williams with
conspiring to possess with intent to distribute five kilograms or more of cocaine and attempting to
possess with intent to distribute five kilograms or more of cocaine.7
150 F.3d 486, 487 (5th Cir. 1998) (explaining a district court may liberally construe a prisoner’s
pro se pleading and treat it as a habeas corpus petition, where appropriate).
4

Mot. for Summ. J., Ex. A (Decl. of Bryan Erickson), ¶ 6, ECF No. 3-2; Id., Attach. 1
(Designation and Sentence Computation Center (DSCC)–Jail Credit Memo).
5

Id.

6

Id., Ex. A (Decl. of Bryan Erickson), ¶¶ 35–36.

7

Id., Ex. A (Decl. of Bryan Erickson), ¶ 7; United States v. Williams, 3:12-cr-00047-HEH (E.D.
Va.), ECF No. 3 (Indictment).
-2-

On June 15, 2012, authorities in Riverside, California, arrested Williams for evading a
peace officer.8
On August 29, 2012, the Eastern District of Virginia issued a writ of habeas corpus ad
prosequendum.9 On September 11, 2012, the United States Marshals Service (“USMS”) assumed
temporary custody of Williams pursuant to the writ.10
On November 7, 2012, the Eastern District of Virginia issued a superseding indictment
charging Williams with conspiring to possess with intent to distribute five kilograms or more of
cocaine and attempting to possess with intent to distribute five kilograms or more of cocaine.11
On January 17, 2013, Williams pleaded guilty, pursuant to a plea agreement, to count one of a
superseding indictment.12 On April 19, 2013, the Court sentenced Williams to a 252-month term
of imprisonment followed by five years of supervised release.13
The judgment was silent on whether William’s sentence would run consecutively or

8

Id., Ex. A (Decl. of Bryan Erickson), ¶ 8; Attach. 1 (Designation and Sentence Computation
Center (DSCC) - Jail Credit Memo), Section 2; Attach. 2 (DSCC State Sentence Credit).
9

Id., Ex. A (Decl. of Bryan Erickson), ¶ 9; Williams, 3:12-cr-47-HEH (E.D. Va.), ECF No. 98
(Writ of Habeas Corpus Ad Prosequendum).
10

Id., Ex. A (Decl. of Bryan Erickson), ¶ 10; Attach. 3 (Individual Custody and Detention Report
USM 129 at Section III, Writ Habeas Corpus Ad Prosequendum (“WHCAP”)).
11

Id., Ex. A (Decl. of Bryan Erickson), ¶ 11; Williams, 3:12-cr-00047-HEH (E.D. Va.), ECF No.
156 (First Superseding Indictment).
12

See United States v. Williams, 3:12-cr-47-HEH, 2016 WL 6821093, *2 (E.D. Va. Nov. 17,
2016), R. & R. adopted, 2016 WL 6821095 (E.D. Va. Nov. 11, 2016), appeal dismissed, No.
17-6050, 2017 WL 2703646 (4th Cir. June 22, 2017).
13

Mot. for Summ. J., Ex. A (Decl. of Bryan Erickson), ¶ 12; Williams, 3:12-cr-00047-HEH (E.D.
Va.), ECF No. 315 (Judgment in a Criminal Case).
-3-

concurrently to any other sentence. According to 18 U.S.C. § 3584(a), multiple terms of
imprisonment imposed at different times run consecutively unless the sentencing court orders the
terms to run concurrently.14 Nevertheless, the BOP contacted the sentencing court for a statement
concerning its position. In response, the sentencing court advised the BOP “this case involved a
100 kilogram drug transaction and the seizure of over $1.5 million dollars, two electric money
counters, two handguns, and 15 cell phones. Accordingly, this Court opposes a concurrent
sentence by retroactive designation in Mr. Williams’ case.”15 Based on this response, the BOP
determined a retroactive designation that the federal and state sentences ran concurrently was not
appropriate in William’s case.
On June 12, 2013, the USMS returned Williams to the custody of state officials in
California with a federal detainer.16 On July 9, 2013, a California Superior Court sentenced
Williams to a two-year term of imprisonment for evading a peace officer.17 The Court granted
Williams presentence credit for 390 days spent in state custody between June 15, 2012 and July 9,
2013, and 390 days of good time pursuant to California Penal Code § 4019.18 These actions

14

See 18 U.S.C. § 3584(a) (2012) (“Multiple terms of imprisonment imposed at different times
run consecutively unless the court orders that the terms are to run concurrently.”).
15

See Pet’r’s Pet, Ex. 3 (Resp. from Angelica M. Peterson), ECF No. 1-1.

16

Mot. Summ. J., Ex. A (Decl. of Bryan Erickson), ¶ 13; Attach. 3 (Individual Custody and
Detention Report USM 129 at Section III, Writ Habeas Corpus Ad Prosequendum (“WHCAP”)),
p. 1–2.
17

Id., Ex. A, ¶ 14; Attach. 4 (State v. Williams, Superior Court of California, County of Riverside,
Minute Order); Attach. 5 (State v. Williams, Superior Court of California, County of Riverside,
Criminal Docket).
18

Id., Ex. A (Decl. of Bryan Erickson), ¶ 14; Attach. 4 (State v. Williams, Superior Court of
California, County of Riverside, Minute Order); Attach. 2 (DSCC State Sentence Credit); Attach.
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effectively discharged Williams’s state sentence.19
The following day, on July 10, 2013, the USMS took Williams into its custody to serve of
his federal sentence.20 The District Court for the Eastern District of Virginia subsequently issued
an order reducing Williams’s sentence to 202 months’ confinement, pursuant to 18 U.S.C. §
3582(c)(2) and revisions to the United States Sentencing Guidelines.21
According to the BOP’s current computations for Williams’s sentence:
DATE COMPUTATION BEGAN.........................: 07-10-2013
TOTAL TERM IN EFFECT...................................: 202 MONTHS
TOTAL TERM IN EFFECT CONVERTED…......: 16 YEARS 10 MONTHS
EARLIEST DATE OF OFFENSE..........................: 03-08-2012
JAIL CREDIT..........................................................: FROM DATE THRU DATE
01-27-2012
02-08-2012
TOTAL PRIOR CREDIT TIME.............................: 13
TOTAL INOPERATIVE TIME…………..............: 0
TOTAL GCT EARNED AND PROJECTED….....: 792
TOTAL GCT EARNED..........................................: 216
STATUTORY RELEASE DATE PROJECTED….: 02-24-2028
EXPIRATION FULL TERM DATE.......................: 04-26-2030
TIME SERVED........................................................: 4 YEARS 11 DAYS
PERCENTAGE OF FULL TERM SERVED……..: 23.9
PROJECTED SATISFACTION DATE…………...: 02-24-2028
PROJECTED SATISFACTION METHOD….…...: GCT REL22

6 (California State Jail Credit Check).
19

Id., Ex. A, Attach. 5 (Case Print), p. 17 (“Paper Commitment Only”).

20

Id., Ex. A, (Decl. of Bryan Erickson), ¶ 15; Attach. 3, Section IV (entry for San Bernardino
County Jail from July 10, 2013 until August 9, 2013); Attach. 7 (Public Information - Inmate
Data).
21

Id., Ex. A (Decl. of Bryan Erickson), ¶ 16; Williams, 3:12-cr-00047-HEH (E.D. Va.), ECF No.
418 (Order Reducing Sentence). See also Williams, 3:12-cr-47-HEH, 2016 WL 6821093, at *2.
22

Id., Ex. A (Decl. of Bryan Erickson), ¶ 17; Attach. 7, (Public Information - Inmate Data), p. 003.
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To summarize, according to the BOP calculations, Williams’s 202-month federal sentence
began on July 10, 2013, when he was transferred to exclusive federal custody to serve his federal
sentence.23 The BOP awarded him 13 days of prior custody credit for the time he spent in state
custody in Maryland from January 27, 2012, through February 8, 2012.24 Assuming he earns 792
days of good conduct time, his projected release date is February 24, 2028.25
In his § 2241 petition, Williams asserts Willis has improperly denied him credit toward his
federal sentence for the 425 days he spent in state custody:
Petitioner Williams, Dion Levering was arrested in Riverside County on the 15th of
June, 2012 and held without bond on the state charges. Upon arrest on the above
state charges, Petitioner was informed that the United States Marshals had a hold
on him in lien of pending federal charges coincident on the same day 15th of June,
2012. As a Consequence of the above, Petitioner could not post bond and
remained in state custody, pursuant to the federal hold. The Transit Inmate
History Log (Exhibit 1) establishes the period Petitioner was under federal hold
without the ability to bond out of state custody;
6/15/2012 to 8/14/2013
Petitioner based on the above is entitled to a total of 425 days credit due him as a
result of the state custodial hold on behalf of federal authorities.26
Willis makes three claims in his motion to dismiss for failure to state a claim on which
relief may be granted under Federal Rule of Civil Procedure 12(b)(6) or, in the alternative, motion

23

Id.

24

Id.

25

Id.

26

Pet’r’s Pet., pp. 5–6, ECF No. 1.
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for summary judgment under Federal Rule of Civil Procedure 56.27 First, he asserts Williams
failed to exhaust his administrative remedies. Second, he maintains the BOP properly
commenced William’s federal sentence on July 10, 2013, when Williams completed his state
sentence and transferred to federal custody. Finally, he argues the BOP properly denied Williams
credit for the time spent in custody before his federal sentence commenced.
Williams asks the Court to excuse his failure to exhaust his administrative remedies in his
cross-motion for summary judgment.28 He notes “[t]he Fifth Circuit has recognized as an excuse
from the exhaustion requirement ‘circumstances where administrative remedies are inadequate
because prison officials have ignored or interfered with a prisoner’s pursuit of an administrative
remedy.”29 He also maintains “there is authority that a defendant is entitled to credit for time
served in state custody once a federal detainer has been lodged, as in the case at bar, the state
confinement must be the product of action by federal law enforcement officials. See, United
States v. Garcia-Gutierrez, 835 F.2d 585, 586 (5th Cir. 1988).”30
APPLICABLE LAW
A petitioner may attack the manner in which his sentence is executed in the district court
with jurisdiction over his custodian pursuant to a petition for a writ of habeas corpus under 28
U.S.C. ' 2241.31 However, “[h]abeas corpus relief is extraordinary and ‘is reserved for
27

Mot. Summ. J., pp. 4–12. ECF No. 3.

28

Pet’r’s Pet., p. 7.

29

Id.

30

Id. at 10.

31

Reyes-Requena v. United States, 243 F.3d 893, 900–01 (5th Cir. 2001); Tolliver v. Dobre, 211
F.3d 876, 877 (5th Cir. 2000); United States v. Cleto, 956 F.2d 83, 84 (5th Cir. 1992).
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transgressions of constitutional rights and for a narrow range of injuries that . . . if condoned, result
in a complete miscarriage of justice.’”32 A petitioner is entitled to § 2241 relief only to remedy a
restraint of liberty in violation of the constitution, treaties, or laws of the United States.33 To
prevail, a habeas corpus petitioner must show that he is “in custody in violation of the Constitution
or laws or treaties of the United States.”34
Motions to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a
claim are appropriate when a defendant attacks the complaint because it fails to state a legally
cognizable claim.35 In order to survive a Rule 12(b)(6) motion, the pleading must allege “enough
facts to state a claim to relief that is plausible on its face.”36 “A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”37
Motions for summary judgment are proper pursuant to Federal Rule of Civil Procedure 56
when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as
a matter of law.”38 A party moving for summary judgment “must ‘demonstrate the absence of a

32

Kinder v. Purdy, 222 F.3d 209, 213 (5th Cir. 2000) (quoting United States v. Vaughn, 955 F.2d
367, 368 (5th Cir. 1992)).
33

United States v. Hayman, 342 U.S. 205, 211–12 & n.11 (1952).

34

28 U.S.C. ' 2241(c) (2012).

35

Fed. R. Civ. P. 12(b)(6); Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001).

36

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).

37

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 570).

38

Quality Infusion Care, Inc. v. Health Care Serv. Corp., 628 F.3d 725, 728 (5th Cir. 2010)
(quoting Fed. R. Civ. P.56(a)).
-8-

genuine issue of material fact,’ but need not negate the elements of the nonmovant’s case.”39
“The movant accomplishes this by informing the court of the basis for its motion, and by
identifying portions of the record which highlight the absence of genuine factual issues.”40 There
is no genuine issue for trial if the record taken as a whole could not lead a rational trier of fact to
find for the non-moving party.41 The court resolves factual controversies in favor of the
nonmoving party; however, factual controversies require more than “conclusory allegations,”
“unsubstantiated assertions,” or “a ‘scintilla’ of evidence.”42
ANALYSIS
A. Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(6)
A court reads Rule 12(b)(6) in conjunction with Rule 8(a), which requires “a short and
plain statement of the claim showing that the pleader is entitled to relief.”43 Rule 8 “does not
require ‘detailed factual allegations,’ but it demands more than an unadorned,
the-defendant-unlawfully-harmed-me accusation.”44 A court should not dismiss a claim under
Rule 12(b)(6) “unless it appears beyond doubt that the plaintiff can prove no set of facts in support
of his claim which would entitle him to relief.”45

39

Little v. Liquid Air Corp., 37F.3d 1069, 1075 (5th Cir. 1994) (en banc).

40

Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir. 1992) (citing Fed. R. Civ. P. 56(c)).

41

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986).
42

Id.

43

Fed. R. Civ. P. 8(a)(2).

44

Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555).

45

Conley v. Gibson, 355 U.S. 41, 45–46, abrogated by Twombly, 550 U.S. 544.
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Further, the rules governing habeas proceedings provide guidance on when a respondent
should answer a habeas petition and what the answer should contain.46 Where—as here—a court
orders a respondent to answer, the petitioner has presumably stated a claim which may entitle him
to relief. As a result, it is generally inappropriate to grant a motion to dismiss under Rule 12(b)(6)
in a habeas matter.47 This case is not extraordinary. The Court will deny Willis’s motion to
dismiss.
B. Williams has not exhausted his administrative remedies
An initial issue a court must address when reviewing a ' 2241 petition is whether the
petitioner exhausted his administrative remedies.48 Exhaustion requires the petitioner to “fairly
present all of his claims” through appropriate channels prior to pursuing federal habeas relief.49
Exhaustion “serves the twin purposes of protecting administrative agency authority and promoting
judicial efficiency.”50 Indeed, “[w]hen an agency has the opportunity to correct its own errors, a
46

See Fed. R. Civ. P. 84(a)(4)(A) (“These rules apply to proceedings for habeas corpus . . . to the
extent that the practice in those proceedings: (A) is not specified in a federal statute, the Rules
Governing Section 2254 Cases, or the Rules Governing Section 2255 Cases . . .”); 28 U.S.C. foll. §
2254 Rule 5 (“(a) When Required. The respondent is not required to answer the petition unless a
judge so orders. (b) Contents: Addressing the Allegations; Stating a Bar. The answer must
address the allegations in the petition. In addition, it must state whether any claim in the petition
is barred by a failure to exhaust state remedies, a procedural bar, non-retroactivity, or a statute of
limitation.”). See also Order for Service and Advisory at 2, ECF No. 2 (explaining the Court may
apply any or all of the Rules Governing Section 2254 to this case).
47

Miramontes v. Driver, 243 F. App’x 855, 856 (5th Cir. 2007) (citing Browder v. Director, Dep’t
of Corrections of Ill., 434 U.S. 257, 269 n.14 (1978)).
48

See Fuller v. Rich, 11 F.3d 61, 62 (5th Cir. 1994) (per curiam) (addressing exhaustion in context
of a ' 2241 challenge by a federal prisoner to a parole decision).
49

See Dickerson v. Louisiana, 816 F.2d 220, 228 (5th Cir. 1987) (addressing a ' 2241 petition
filed by a state pre-trial detainee).
50

McCarthy v. Madigan, 503 U.S. 140, 145 (1992).
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judicial controversy may well be mooted, or at least piecemeal appeals may be avoided.”51
Additionally, “exhaustion of the administrative procedure may produce a useful record for
subsequent judicial consideration.”52 As a result, a court will generally not allow a petitioner to
proceed until he first exhausts administrative remedies, which may provide appropriate relief.53
A court will permit “[e]xceptions to the exhaustion requirement . . . where the available
administrative remedies either 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.”54
However, a court will allow such exceptions only in “extraordinary circumstances” established by
the petitioner himself.55
The BOP uses a multi-tiered administrative remedy program whereby inmates can “seek
formal review of an issue relating to any aspect of [their] own confinement.”56 First, the inmate
must present his particular complaint to the prison staff on an “Inmate Request to Staff” form and
attempt to resolve the issue in an informal manner.57 If the complaint cannot be resolved
informally, the inmate must file a formal written administrative remedy request on a BP-9 form

51

Id. (citing Parisi v. Davidson, 405 U.S. 34, 37 (1972); McKart v. United States, 395 U.S. 185,
194 (1969)).
52

McCarthy, 503 U.S. at 145 (citing Weinberger v. Salfi, 422 U.S. 749, 765 (1975).

53

Id.; Rourke v. Thompson, 11 F.3d 47, 49 (5th Cir. 1993).

54

Fuller, 11 F.3d at 62 (internal citations omitted).

55

Id.

56

28 C.F.R. ' 542.10(a).

57

Id. ' 542.13(a).
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with the prison warden.58 Any adverse decision by the warden must be appealed to the
appropriate regional director by filing a BP-10 form.59 The final step in the administrative review
process is an appeal to the Office of General Counsel on a BP-11 form.60 A federal prisoner must
pursue the procedures set forth in the program prior to seeking relief in a district court.61
Willis maintains that Williams has not exhausted his BOP administrative remedies:
Petitioner filed only one request for administrative remedy at the facility level and
he withdrew that request. On May 11, 2016, the Designation and Sentence
Computation Center (“DSCC”) wrote to Petitioner to explain his request for prior
custody credit for time spent in state custody would be reviewed under 18 U.S.C. §
3621(b) and [Policy Statement] 5160.05. The DSCC’s response to Petitioner
specifically states that “[t]here is no need to file an Administrative Remedy in
regards to this issue unless you are unsatisfied with the final decision.” Petitioner
was put on notice that, if he was dissatisfied with the DSCC’s final decision, he was
still required to complete the administrative remedy process. . . . He did not file
any other requests after he received the DSCC’s determination dated July 27, 2016
regarding his request.62
Williams posits “further attempts at administrative remedies would be futile.”63 He cites
Fraley v. United States Bureau of Prisons, 1 F.3d 924 (9th Cir. 1993) (per curiam), a Ninth Circuit
Court of Appeals case, to support his claim.
Williams’s reliance on Fraley is misplaced. In Fraley, the defendant filed an
administrative remedy seeking credit toward her federal sentence for time spent under house arrest

58

Id. ' 542.14.

59

Id. ' 542.15(a).

60

Id.

61

Rourke, 11 F.3d at 49.

62

Mot. Summ. J., pp. 6, 8.

63

Pet’r’s Pet., p. 9.
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prior to trial.64 The BOP denied her request at the unit level and instructed her, if she was
dissatisfied, to appeal to the regional office.65 The Ninth Circuit waived the petitioner’s failure to
exhaust because the decision-maker at the unit level relied on a rigid BOP policy to deny credit for
house arrest.66 The Court held that any additional attempt to exhaust administrative remedies was
futile because her request would “almost certainly” have been denied on the same grounds.67 The
Court then denied her relief, explaining “the conditions governing Fraley’s release did not
‘approach those of incarceration.’ Fraley [was] therefore not entitled to credit for the time she
spent under pre-trial house arrest.”68
Fraley was not factually analogous to Williams’s case. In Fraley, the decision-maker
exercised no discretion, relied on a rigid BOP policy, and denied her relief. In the instant case, if
Williams had not withdrawn his request, the decision-maker at the facility level would have
exercised discretion and conducted an individualized assessment based on the five criteria in the
statute.69 There is no reason to believe with certainty that officials at regional office and office of

64

Fraley, 1 F.3d at 925.

65

Id.

66

Id.

67

Id.

68

Id. at 926.

69

See Lee v. Zuniga, 115-cv-297-LJO-MJS, 2017 WL 2628101, at *3 (E.D. Cal. June 19, 2017)
(holding that exhaustion was not waived when the denial of the petitioner’s request turned on the
unique facts and circumstances of his particular request and the documentation submitted in
support thereof, not on BOP policy); Bristow v. Johnson, No. CV 15-2793-JLS PLA, 2015 WL
1823184, at *3 (C.D. Cal. Apr. 22, 2015) (holding that Fraley did not apply where response to
remedy request was based on an individualized assessment of statutory factors rather than a rigid
refusal based on BOP policy).
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general counsel would have made the same determination. Williams’s disagreement with the
BOP’s calculation of time credits is exactly the type of dispute that the administrative review
process may best resolve.70
Furthermore, Overshown v. Upton, 466 F. App’x 361 (5th Cir. 2012), a Fifth Circuit Court
of Appeals case, is more instructive than Farley. In Overshown, Petitioner argued he had not
received proper credit towards his federal sentence for time spent in state custody. The Fifth
Circuit affirmed the district court’s dismissal of Overshown’s § 2241 petition for failure to
exhaust, explaining “Overshown does not dispute that he failed to properly exhaust his
administrative remedies, and he has not demonstrated that properly exhausting those remedies
would have been an exercise in futility. Accordingly, the district court did not abuse its discretion
in dismissing his § 2241 petition.”71
In this case, Williams concedes he did not exhaust his administrative remedies. He fails to
meet his burden of producing credible evidence of an extraordinary circumstance necessary to
justify his failure to exhaust his administrative remedies.72 The Court could grant Willis’s motion
for summary judgment on this ground alone. However, the Court concludes that even if Williams
had exhausted his administrative remedies, he would not be entitled to relief.
C. Williams is not entitled to credit for time served against a state sentence
70

See Parisi v. Davidson, 405 U.S. 34, 37 (1972) (AThe basic purpose of the exhaustion doctrine is
to allow an administrative agency to perform functions within its special competence—to make a
factual record, to apply its expertise, and to correct its own errors so as to moot judicial
controversies.@ (citing McKart v. United States, 395 U.S. 185, 193 (1969)).
71

Overshown, 466 F. App’x at 361–62.

72

See Rivkin v. Tamez, 351 F. App’x 876, 877–78 (5th Cir. 2009) (per curiam) (affirming
dismissal of prisoner’s § 2241 petition arguing violation of the Second Chance Act for failure to
exhaust administrative remedies).
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“After a district court sentences a federal offender, the Attorney General, through the BOP,
has the responsibility for administering the sentence.”73 Thus the BOP, not the judiciary, is
responsible for implementing the statutes concerning the computation of a federal sentence.
According to 18 U.S.C. ' 3585(a), federal sentence does not commence until the BOP
receives a defendant into its custody to serve a sentence:
(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.74
The BOP may grant credit, according to 18 U.S.C. ' 3585(b), against a federal sentence for
time spent in pretrial custody if the time is not credited against another sentence:
(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.75
The Supreme Court explains that when Congress enacted ' 3585(b), it “made clear that a
73

See United States v. Wilson, 503 U.S. 329, 335 (1992) (citing 18 U.S.C. ' 3621(a) (“A person
who has been sentenced to a term of imprisonment . . . shall be committed to the custody of the
Bureau of Prisons until the expiration of the term imposed”)); 28 C.F.R. ' 0.96 (“The Director of
the Bureau of Prisons is authorized to exercise or perform any of the authority, functions, or duties
conferred or imposed upon the Attorney General by any law relating to the commitment, control,
or treatment of persons (including insane prisoners and juvenile delinquents) charged with or
convicted of offenses against the United States.”).
74

18 U.S.C. ' 3585(a) (2012).

75

Id. ' 3585(b) (emphasis added).
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defendant could not receive a double credit for his detention time.”76
A defendant’s time spent in custody under a writ of habeas corpus ad prosequendum is not
considered for prior custody credit because, when a defendant in state custody is turned over to
federal officials for a federal prosecution, the state government’s “loss of jurisdiction is only
temporary.”77 A writ of habeas corpus ad prosequendum “is only a ‘loan’ of the prisoner to the
federal jurisdiction.”78
Williams received credit toward his California state sentence for the period from June 15,
2012, through July 9, 2013.79 Consequently, in accordance with 18 U.S.C. ' 3585(b), Williams is
not entitled to pretrial custody credit against his federal sentence for this time credited to his state
sentence.80
Williams argues he should receive credit from June 15, 2012 to August 14, 2013, anyway
because a federal detainer prevented him from posting bond during that time.81 He maintains
“there is authority that a defendant is entitled to credit for time served in state custody once a

76

United States v. Wilson, 503 U.S. 329, 337 (1992).

77

United States v. Londono, 285 F.3d 348, 356 (5th Cir. 2002) (citing Causey v. Civiletti, 621 F.2d
691, 693 (5th Cir. 1980)).
78

Bush v. Fox, 453 F. App’x 494, 495 (5th Cir. 2011) (citing Causey, 621 F.2d at 693).

79

Mot. for Summ. J., Ex. A (Decl. of Bryan Erickson), ¶¶ 14, 37; Attach. 2 (DSCC State Sentence
Credit); Attach. 4 (State v. Williams, Superior Court of California, County of Riverside, Minute
Order; Attach. 5 (State v. Williams, Superior Court of California, County of Riverside, Criminal
Docket); Attach. 6 (California State Jail Credit Check).
80

Leal v. Tombone, 341 F.3d 427, 430 (5th Cir. 2003) (holding that BOP was not required to credit
the time defendant spent in state custody, which was credited toward his state sentence, toward his
federal sentence because that time was already credited against state sentence).
81

Pet’r’s Pet., pp. 5–6.
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federal detainer has been lodged. . . . See, United States v. Garcia-Gutierrez, 835 F.2d 585, 586
(5th Cir. 1988).”82
Williams’s reliance on Garcia-Gutierrez is misplaced. In Garcia-Gutierrez, the Fifth
Circuit explained “[t]here is neither statutory nor jurisprudential authority for the granting of
federal prison credit for time served in state custody on an unrelated charge prior to a federal
charge or federal detainer.”83 It added, a prisoner could receive credit for time spent in state
custody “only if the Attorney General . . . exercised the power granted by 18 U.S.C. § 4082 and
designated the involved state and local facilities as places of confinement for service of a federal
sentence.”84
“Section 4082(b) was replaced by [18 U.S.C.] § 3621(b), effective November 2, 1987.”85
Section 3621(b) grants the BOP the “discretion to designate a state prison as a place of federal
confinement.”86 Under this authority, “[T]he BOP may . . . 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.”87 The BOP satisfies its obligation to review a prisoner’s request
for nunc pro tunc designation in part by submitting it to the federal sentencing court and

82

Id. at 10.

83

Garcia-Gutierrez, 835 F.2d at 586 (citing United States v. Eidum, 474 F.2d 579 (9th Cir.1973))
(emphasis added).
84

Id. at 587.

85

Barden v. Keohane, 921 F.2d 476, 481 (3d Cir. 1990).

86

Id. at 482.

87

Pierce v. Holder, 614 F.3d 158, 160 (5th Cir. 2010).
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ascertaining whether the court wanted the state and federal sentences to run concurrently or
consecutively.88 The BOP’s decision is “entitled to substantial deference.”89 A court may
overturn that decision only for abuse of discretion.90
The BOP exercised its discretion and considered Williams’s case for a possible nunc pro
tunc designation.91 Williams’s sentencing court indicated that it opposed a concurrent sentence.92
The BOP then reviewed the other § 3621(b) factors and determined that a designation was not
appropriate.93 Williams does not suggest the BOP abused its discretion. The record does not
support a conclusion the BOP abused its discretion. The denial was well within the BOP’s
discretion.94
Williams cannot meet his burden of showing that he is “in custody in violation of the
Constitution or laws or treaties of the United States.”95 He is not entitled to § 2241 relief.
CONCLUSION AND ORDERS
After examining the pleadings and the record, the Court concludes that Williams has not
exhausted his administrative remedies and, in the alternative, is not entitled to § 2241 relief on the
88

Rodriguez v. Pitzer, 76 F. App’x 519 (5th Cir. 2003).

89

Fegans v. United States, 506 F.3d 1101, 1105 (8th Cir. 2007).

90

Id.; accord Barden, 921 F.2d at 483 (emphasizing the BOP’s “broad discretion”).

91

Mot. for Summ. J., Ex. A (Decl. of Bryan Erickson), Attach 10 (BOP Letter).

92

Mot. for Summ. J., Ex. A (Decl. of Bryan Erickson), ¶ 27; Id., Attach 12 (E.D. Va. Letter).

93

Id., Ex. A (Decl. of Bryan Erickson), ¶ 29; Id., Attach. 14 (BOP Letter).

94

Arreola-Amaya v. Fed. Bureau of Prisons, 623 F. App’x 710, 711 (5th Cir. 2015).

95

28 U.S.C. ' 2241(c).
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merits of his claims. Accordingly, the Court enters the following orders:
IT IS ORDERED that Willis’s “Motion to Dismiss” is DENIED, but his “Motion for
Summary Judgment” (ECF No. 3) is GRANTED.
IT IS FURTHER ORDERED that William’s “Cross-Motion for Summary Judgment”
(ECF No. 7) is DENIED.
IT IS ALSO ORDERED that Williams’s “Petition [under 28 U.S.C. § 2241] to Receive
Credit for Time Spent in Official Detention Prior to the Date Federal Sentence Commences
Pursuant to 18 U.S.C. Section 3585(b)” (ECF No. 1) is DENIED and Williams’s civil case is
DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that all pending motions, if any, are DENIED as moot.
IT IS FINALLY ORDERED that the Clerk shall CLOSE this case.
SO ORDERED.
SIGNED this 13th day of February, 2018.

KATHLEEN CARDONE
UNITED STATES DISTRICT JUDGE

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