United States District Court, E.D. Kentucky, Central Division, Lexington
MEMORANDUM OPINION AND ORDER
C. Reeves United States District Judge.
Corey Fernando Russell is confined at the Federal Medical
Center in Lexington, Kentucky. Proceeding without an
attorney, Russell has filed an original and supplemental
petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2241. [Record No. 1, 5]
21, 2012, in Gwinnett County, Georgia, the State of Georgia
convicted Russell of credit card fraud and sentenced him to a
six-year prison term in State v. Russell, No.
11-B-1141-5 (Ga. 2011). [Record No. 1 at 8; Record No. 1-1 at
3] While Russell was serving that sentence in a Georgia
prison, a federal grand jury in Greeneville, Tennessee,
returned an indictment in June 2012 charging him with
conspiracy to commit access device (debit card) fraud in
violation of 18 U.S.C. § 1029(a)(2) and using and
trafficking in unauthorized access devices (PIN numbers) in
violation of 18 U.S.C. § 1029(a)(2), (c)(1)(B). On June
22, 2012, the federal court granted the government's
request to issue a writ of habeas corpus ad
prosequendum. Federal marshals took Russell into custody
on July 27, 2012, shortly before his initial appearance and
arraignment on August 7, 2012. Russell remained in the
physical custody of U.S. Marshals pursuant to the writ.
August 1, 2013, Russell entered into a plea agreement with
the government and, on November 26, 2013, the federal court
imposed a 72-month sentence. At the sentencing hearing and in
its judgment, the trial court ordered that its sentence run
consecutive to the sentences already imposed in Russell's
prior federal case, United States v. Johnson, No.
1:04-CR-461-1 (N.D.Ga. 2004), and to his six-year Georgia
sentence. After the sentencing hearing, the federal court
directed that Russell be returned to Georgia custody. He was
then delivered to Georgia's Coastal State Prison on
December 12, 2013, and a federal detainer was placed with
state corrections officials at that time.
the federal detainer, Georgia officials erroneously released
Russell from custody to parole on February 26, 2014. At the
government's request, on March 25, 2014, the federal
court ordered the U.S. Marshal to take Russell into custody
and deliver him to the Bureau of Prisons to begin service of
his federal sentence. Four months later, in July 2014 Russell
filed a request with the trial court, asking that the time he
spent in federal custody pursuant to the writ of habeas
corpus ad prosequendum be credited towards his
federal sentence. Russell alleged that, as a result of his
2012 removal to federal custody pursuant to the writ, he was
unable to complete a program offered by the Georgia
Department of Corrections that could have entitled him to an
earlier parole from his state sentence. The trial court
summarily denied that request, noting that such credit was
not warranted under 18 U.S.C. § 3585(b) because the time
period had been credited against Russell's Georgia
sentence, and because that statute did not permit additional
jail credit to be awarded because Russell's opportunity
for state parole was frustrated by the issuance of the
federal writ. United States v. Russell, No. 2:
12-CR-48-3 (E.D. Tenn. 2012) [Record Nos. 5, 11, 15, 19,
response to inmate grievances Russell filed in 2015 regarding
his renewed requests for prior custody credits, the BOP noted
that he was in Georgia state custody during this time period
and that all of this time was credited against his six-year
Georgia sentence. The BOP further noted that Russell was not
eligible for a nunc pro tunc designation of the
Georgia state prison as the location for service of his
federal sentence pursuant to Barden v. Keohane, 921
F.2d 476 (3d Cir. 1990), because his federal sentence was
ordered to run consecutively to his prior state sentence.
[Record No. 1 at 1, 3]
now seeks 515 days of prior custody credits under 18 U.S.C.
§ 3585(b) for the period beginning June 22, 2012 (the
date he incorrectly alleges that he was taken into federal
custody pursuant to the writ of habeas corpus ad
prosequendum), to November 26, 2013 (the date his
federal sentence was imposed). [Record No. 1 at 3, 7-8]
Russell again argues that his transfer to federal custody
pursuant to the writ of habeas corpus ad
prosequendum prevented him from completing programming
offered at the Georgia prison, which could have resulted in
his release to state parole in October 2012 rather than
February 2014. [Record No. 5 at 1-3; Record No. 5-1 at 2-3]
Russell also suggests that the BOP did not give fair and
careful consideration to the possibility of a nunc pro
tunc designation pursuant to Barden. [Record
No. 5 at 3; Record No. 5-1 at 3-5]
Court concludes that both the trial court and the BOP
correctly determined that there was no legal basis to award
Russell additional prior custody credits. Title 18 of the
United States Code, § 3585(b), permits a defendant to
receive credit towards his federal sentence for time spent in
custody before his sentence begins, but only if that jail
time has not been credited against another sentence. Where,
as here, the jail time had already credited against the
petitioner's state sentence, it may not be counted a
second time against his federal sentence. Huffman v.
Perez, No. 99-6700, 2000 WL 1478368, at *2 (6th Cir.
Sept. 27, 2000). Likewise, Russell is not entitled to more
credit because his transfer into federal custody prevented
him from being released earlier on state parole.
Broadwater v. Sanders, 59 F.App'x 112, 113-14
(6th Cir. 2003) (“Broadwater's contention that the
seventeen-month period of time that he served in federal
custody prevented him from being paroled from his state
sentence earlier does not compel a different result.”);
Cathey v. Ives, No. 11-192-GFVT, 2012 WL 1448126, at
*3-4 (E.D. Ky. Apr. 26, 2012) (citing Goodman v.
Grondolsky, 427 F.App'x 81, 82 (3d Cir. 2011)).
the retroactive designation available under Barden
is inapplicable here. In Barden, the Third Circuit
addressed the problem caused by the fact that the Supremacy
Clause renders unenforceable a state court order that its
sentence should run concurrently with a prior federal
sentence. The Third Circuit held that 18 U.S.C. §
3621(b) gives the BOP the discretion to retroactively
designate a state prison as the place of a prisoner's
confinement. This remedy gives practical effect to a state
court's unenforceable order of concurrency by effectively
shortening the state criminal defendant's
federal sentence. Barden, 921 F.2d at 478,
481-83; see Pitman v. U.S. Bureau of Prisons, No.
09-383-GFVT, 2011 WL 1226869, at *5 (E.D. Ky. Mar. 30, 2011).
Whatever the wisdom of this rule, Russell's state
sentence was imposed first, not second, and the
subsequently-imposed federal sentence was expressly ordered
to run consecutively to, not concurrently with, the state
sentence. The concerns which gave rise to the remedy created
in Barden do not exist under such circumstances, see
Dunlap v. Ives, No. 11-271-GFVT, 2012 WL 1711379, at
*3 (E.D. Ky. May 15, 2012), and the BOP correctly decided
that no such retroactive designation was appropriate.
it is hereby ORDERED as follows:
Petitioner Corey Fernando Russell's original and
supplemental petition for a writ of habeas corpus [Record No.
1, 5] is DENIED.
action is DISMISSED and
STRICKEN from the Court's docket.
Judgment shall be entered contemporaneously with this