Sullivan, Jimmy v. Williams II, Louis

Filing 2

ORDER dismissing 1 petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. The clerk of court is directed to enter judgment and close this case. Signed by District Judge James D. Peterson on 4/17/2017. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

JIMMY DONALD SULLIVAN,
Petitioner,
v.

OPINION & ORDER
17-cv-107-jdp

LOUIS WILLIAMS, II,
Respondent.

Pro se petitioner Jimmy Donald Sullivan is a prisoner in the custody of the Federal
Bureau of Prisons (BOP) currently housed at the Federal Correctional Institution in Oxford,
Wisconsin (FCI-Oxford). Sullivan has filed a petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2241, contending that the BOP has miscalculated his sentence and refused to
give him credit for time served in federal custody before he received his sentence.
The petition is before the court for preliminary review, pursuant to Rule 4 of the
Rules Governing Section 2254 Cases. (Courts may apply this rule to habeas petitions not
brought pursuant to § 2254, including § 2241 petitions. Rule 1(b), Rules Governing Section
2254 Cases; see also 28 U.S.C. § 2243.) Under Rule 4, I will dismiss the petition only if it
plainly appears that Sullivan is not entitled to relief. As discussed below, Sullivan is not
entitled to the relief he seeks, so I will dismiss the petition.

ALLEGATIONS OF FACT
I draw the following facts from Sullivan’s petition. Dkt. 1.
On August 3, 2012, the Salt Lake County Sheriff’s Office arrested Sullivan for
violating his probation; Sullivan received a state sentence for the violation. On December 19,

2012, Sullivan was removed from state custody to federal custody (via a writ of habeas
corpus ad prosequendum), to be arraigned on federal charges. From December 19, 2012, to
August 8, 2014, Sullivan was detained—on the writ—at the Weber County Correctional
Facility “for his federal offense.” Id. at 6. On August 8, 2014, the United States District
Court for the District of Utah sentenced Sullivan to 72 months of imprisonment for
conspiracy to distribute oxycodone.
On August 25, 2014, Sullivan returned to state custody. He received credit towards
his state sentence for the time he served in federal custody and was granted parole. So then
Sullivan returned to federal custody to serve his federal sentence. It was around then that
Sullivan learned that he would not receive credit towards his federal sentence for the time he
served at the Weber County Correctional Facility. Sullivan filed a grievance and pursued
administrative remedies with the BOP but was denied relief.
On January 26, 2016, Sullivan filed a motion to vacate, set aside, or correct his federal
sentence pursuant to 28 U.S.C. § 2255: he requested that the district court amend its
judgment to reflect its intention that Sullivan receive credit for time served pending
sentencing. The court granted the petition and amended the judgment, explicitly stating that
Sullivan’s prison term was “72 months, WITH CREDIT FOR TIME SERVED IN FEDERAL
CUSTODY.” Dkt. 1-1, at 17.
But, according to Sullivan, the BOP did not “honor” that order or properly calculate
Sullivan’s credit. And so Sullivan filed this petition.

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ANALYSIS
District courts cannot award or calculate credit for time served at sentencing; the
Attorney General, via the BOP, computes credit and otherwise administers federal sentences.
United States v. Wilson, 503 U.S. 329, 334-35 (1992). But “[a] § 2241 petition allows [the
court] to adjudicate whether the BOP is correctly administering federal sentences that . . . are
being served in this circuit.” Taylor v. Lariva, 638 F. App’x 539, 541 (7th Cir. 2016); see also
Romandine v. United States, 206 F.3d 731, 736 (7th Cir. 2000) (“Requests for sentence credit,
or for recalculation of time yet to serve, . . . must be presented to the Attorney General (or
her delegate, the Bureau of Prisons), and adverse decisions may be reviewed by an action
under 28 U.S.C. § 2241.”).
Here, Sullivan identifies two potential paths to success (i.e., credit for the time he
served at the Weber County Correctional Facility between December 19, 2012, and August
25, 2014, towards his federal sentence): either the BOP must count the time served towards
his federal sentence because the district court said so, or the BOP should retroactively
designate the Weber County Correctional Facility as a place where Sullivan served a portion
of his federal sentence. But both paths are dead ends.
First, the BOP cannot double count time served. Sullivan concedes that he received
credit for the time he served at the Weber County Correctional Facility towards his state
sentence and that “[t]he BOP did not give . . . Sullivan credit for this time toward his federal
sentence for this amount of time because it was credited towards another sentence.” Dkt. 1,
at 7. 18 U.S.C. § 3585(b) provides that “[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 . . . that has not been credited against another sentence.”

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When it denied Sullivan administrative relief, the BOP explained that “this time was already
applied towards your Utah state sentence. . . . The time spent in custody while on federal
writ from December 19, 2012, through August 25, 2014, was applied to your state sentence
and cannot be applied to your federal sentence.” Dkt. 1-1, at 12. So Sullivan is not entitled
to have the time credited towards his federal sentence, despite the fact that this conclusion
appears to be tension with the district court’s sentencing statement (“with credit for time
served in federal custody”). As discussed, the BOP—not the sentencing court—calculates
credit. And § 3585 prohibits the BOP from double counting time served.
Second, Sullivan is not entitled to the retroactive designation he seeks. “Under
§ 3621, the BOP may designate nunc pro tunc a state prison that once housed an inmate as
the place of confinement for the inmate’s federal sentence, effectively allowing the state and
federal sentences to run concurrently. And the BOP has ‘wide discretion’ over that
designation.” Taylor, 638 F. App’x at 541 (citations omitted). The BOP did not abuse its
discretion in declining to make the designation because the district court did not intend
Sullivan’s federal sentence to run concurrent with his state sentence. Under 18 U.S.C.
§ 3584(a), “Multiple terms of imprisonment imposed at different times run consecutively
unless the court orders that the terms are to run concurrently.” Sullivan’s state and federal
sentences were imposed at different times, and the district court did not order the sentences
to run concurrently. Recently, the district court confirmed that “while the court did state that
Mr. Sullivan was to ‘receive credit for time served in federal custody,’ there was no discussion
of his state sentence or the possibility of the state and federal sentence running
concurrently.” Sullivan v. United States, No. 16-cv-61 (D. Utah filed Jan. 26, 2016), Dkt. 6, at
3. In fact, the court explicitly stated that “to the extent that Mr. Sullivan suggests that the

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court represented or intended his federal and state sentences to run concurrently, he is
mistaken.” Id. at 2. Significantly, Sullivan asked the district court to recommend that the
BOP issue the retroactive designation, and the district court declined to do so. And so the
BOP did not abuse its discretion when it declined to grant Sullivan the requested
designation. See, e.g., Page v. Bureau of Prisons, No. 12-cv-31, 2013 WL 5596799, at *3 (E.D.
Wis. Oct. 11, 2013) (“[T]he [BOP’s] decision to deny the Barden request under § 3621(b)
did not appear to be an abuse of discretion, given the state judge’s order for consecutive
sentences and the absence of any contrary view from [the federal sentencing judge].”).
Sullivan thinks that the federal sentencing judge explicitly intended that he receive
credit for the time he served at the Weber County Correctional Facility towards his federal
sentence. But as discussed, the BOP, not the district court, calculates credit and administers
federal sentences. The BOP could not double count the credit, and the BOP declined to
retroactively designate the Weber County Correctional Facility because it would not have
been consistent with the federal sentencing judge’s intentions regarding the consecutive
nature of the federal sentence.
Because the BOP did not violate federal law when it computed Sullivan’s sentence, I
will deny Sullivan’s petition.

ORDER
IT IS ORDERED that:
1. Petitioner Jimmy Donald Sullivan’s petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2241 is DISMISSED.

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2. The clerk of court is directed to enter judgment and close this case.
Entered April 17, 2017.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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