United States District Court, E.D. Kentucky, Southern Division, London
MEMORANDUM OPINION AND ORDER
DANNY C. REEVES, District Judge.
Petitioner Gregory Barnes is an inmate confined at the Federal Correctional Institution in Manchester, Kentucky. Proceeding without an attorney, Barnes has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, alleging that he is entitled to various sentence credits and challenging the computation of his sentence. [Record No. 1] Having reviewed the petition, the record of his case, and his other filings, the Court determines that Barnes is not entitled to relief.
On January 9, 2010, Barnes was arrested by federal authorities while he was a defendant in an Ohio state court criminal proceeding. Five days later, he pleaded guilty in the state proceeding to carrying a concealed weapon and was sentenced to a one-year prison term to be served at the Lorain Correctional Institution in Ohio. On January 27, 2010, a federal grand jury in the Northern District of Ohio returned a federal indictment against Barnes, charging him with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). [ See United States v. Gregory L. Barnes, Criminal Action No. 1:10-42-CAB-1 (N.D. Ohio Jan. 27, 2010), Record No. 1 therein]
On February 4, 2010, a writ of habeas corpus ad prosequendum was issued to secure Barnes' appearance in the federal proceeding. [ Id., at Record Nos. 6-7] Barnes pleaded guilty to the federal Indictment and on August 3, 2010, was sentenced to a term of imprisonment of sixty-seven months, followed by three years of supervised release. [ Id., Record No. 15] On August 19, 2010, the United States Marshals Service ("USMS") returned Barnes to state custody at the Lorain Correctional Institution. [ Id., Record No. 17] Barnes was released from state custody, and USMS assumed custody of him on January 7, 2011 (one day before he completed his state sentence). Thus, Barnes began serving his sixty-seven month federal sentence on January 7, 2011. [ Id., Record No. 48-1, p. 5]
Barnes filed several motions in his criminal proceeding regarding sentence credits. On August 18, 2011, he filed a Petition for Nunc Pro Tunc and/or Coram Nobis, seeking a determination that his federal sentence be credited with eight months of jail time credit for "time-served." [ Id., Record No. 31] On September 20, 2011, the sentencing court entered an Amended Judgment, stating that Barnes "shall be given credit for time served in federal custody." [ Id., Record No. 35, p. 2] Barnes then filed a motion seeking a clarification of the credit he would receive. [ Id., Record No. 40] On February 22, 2012, the district court denied that motion, stating that "[t]he Court amended the [Judgment] and ordered credit for Federal time served. Further computations/credits for time are determined solely by the Bureau of Prisons." [ Id., Record No. 41]
Barnes has made a number of administrative filings, asking the Bureau of Prisons ("BOP") to credit his sentence in various ways. The BOP repeatedly denied his requests, determining that the time period between January 9, 2010, and August 3, 2010 could not be credited toward his federal sentence because that time had already been credited to his state sentence. [Record No. 1-2, pp. 5, 7, 12] The BOP further concluded that Barnes was not entitled to a retroactive designation of the facility where he served his state sentence as the place where he served his federal sentence between August 3, 2010, and January 7, 2011, because his federal sentence was not ordered to run concurrently with his state sentence. [ Id. ] Barnes then filed the current petition under § 2241, contending that he is improperly being denied credit against his federal sentence by the BOP.
In conducting an initial review of habeas petitions pursuant to 28 U.S.C. § 2243, the Court must deny the relief sought "if it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief." Rule 4 of the Rules Governing § 2254 Cases in the United States District Courts (applicable to § 2241 petitions pursuant to Rule 1(b)). Because Barnes is not represented by an attorney, the Court evaluates his petition under a more lenient standard. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Burton v. Jones, 321 F.3d 569, 573 (6th Cir. 2003). Thus, at this stage, the Court accepts Barnes' factual allegations as true, and liberally construes his legal claims in his favor.
Barnes argues that he should have received credit for the period of time when federal authorities took him into custody for his appearance regarding his federal criminal charges to his sentencing; that is, from January 9, 2010, to August 3, 2010. When a prisoner is taken into federal custody pursuant to a federal writ, the state retains primary jurisdiction over him. Huffman v. Perez, No. 99-6700, 2000 U.S.App. LEXIS 24837, at *5 (6th Cir. Sept. 27, 2000); United States v. Evans, 159 F.3d 908, 911-12 (4th Cir. 1998); Wardell v. Wilson, No. 10-CV-294-GFVT, 2011 WL 6027072, at *3 (E.D. Ky. Dec. 5, 2011). Thus, Barnes was only "borrowed" by federal authorities while in their custody under writ of habeas corpus ad prosequendum. He remained in the primary custody of the State of Ohio. The record establishes that Ohio fully credited his state sentence with the period of time Barnes remained in custody pursuant to the federal writ. [Record No. 1-2, p. 5]
Title 18 U.S.C. § 3585(b) permits credit against a federal sentence only for time "that has not been credited against another sentence." 18 U.S.C. § 3585(b). Time which has previously been credited towards service of a state sentence may not be "double counted" in credit against a federal sentence. See Nguyen v. Department of Justice, No. 97-6489, 1999 U.S.App. LEXIS 1700, at *3 (6th Cir. Feb. 3, 1999) (unpublished) (holding that time spent in federal custody pursuant to a writ of habeas corpus ad prosequendum, while serving a state sentence, cannot be applied to a federal sentence because the time has been credited to the state sentence); see also Broadwater v. Sanders, 59 F.Appx. 112, 113-14 (6th Cir. 2003). Therefore, crediting Barnes' federal sentence with the time spent in state custody between January 9, 2010, and August 3, 2010, and for which he received credit on his Ohio state sentence would result in Barnes improperly receiving double credit. See, e.g., McClain v. Bureau of Prisons, 9 F.3d 503, 505 (6th Cir. 1993); Garrett v. Snyder, 42 F.Appx. 756 (6th Cir. 2002).
Barnes alleges that at his federal sentencing on August 3, 2010, the court stated that he should receive eight months of credit on his federal sentence for this period of time, including the time that Barnes spent in federal custody pursuant to the federal writ. Barnes relies on the fact that in September 2011, his Judgment was amended to state that he should receive "eight months" of credit on his federal sentence. But such reliance is misplaced.
Under 18 U.S.C. § 3585(b), the award of credit against a federal sentence lies with the exclusive authority of the BOP. United States v. Wilson, 503 U.S. 329, 333-35 (1992); Castro v. Sniezek, 437 F.Appx. 70, 71 (3d Cir. 2011); Everett v. Ives, No. 6: 11-180-HRW, 2012 WL 2179097, at *2 (E.D. Ky. June 13, 2012) (explaining that the authority to calculate presentence credits "is vested exclusively with the BOP as the delegate of the Attorney General."). In this case, the sentencing court correctly held that the BOP should determine whether Barnes was entitled to sentencing credits. The BOP has not credited Barnes' sentence with federal time served because prior to January 7, 2011, Barnes had not served any time in federal custody. Instead, as explained above, he was in primary state custody and was ...