United States District Court, E.D. Kentucky, Southern Division, Pikeville
MEMORANDUM OPINION AND ORDER
K. CALDWELL, CHIEF JUDGE.
Burson is an inmate formerly incarcerated at the federal
penitentiary in Inez, Kentucky. Burson has filed a petition
for a writ of habeas corpus claiming that the Bureau of
Prisons ("BOP") did not credit his federal sentence
with all of the time he spent in jail starting on the day he
was arrested by Tennessee police. [R. 1]
19, 2009, Burson had been pulled over in Chattanooga,
Tennessee for a minor traffic violation when the police
officer found a loaded gun wedged in between the console and
the driver's seat. Burson was arrested on state charges
for driving on a revoked license, possessing drug
paraphernalia and unlawful possession of a firearm. He was
released on bond the next day, but the day after that he was
arrested again, this time for aggravated assault and
attempted first degree murder. [R. 12 at 2-3] He was kept in
state custody for those charges.
had been convicted of misdemeanor domestic violence the year
before, so his possession of the gun also violated 18 U.S.C.
§ 922(g)(9). A federal grand jury indicted him for that
offense, Burson pled guilty, and in February 2010 he was
sentenced to a 36-month prison term. United States v.
Burson, No. L09-CR-145 (E.D. Tenn. 2009).
was still facing the state charges, so in March 2010 he was
returned to state custody. On March 7, 2011, Burson was
sentenced to six years in prison for his state crimes to run
consecutively to his federal sentence. He was also expressly
given credit against that state sentence for all of the time
he spent in jail, starting on July 22, 2009 and ending on
March 6, 2011. [R. 12-1 at 23-24, 30] Burson was transferred
to state prison to serve that sentence, and a federal
detainer was lodged with state officials. Burson completed
his state sentence on November 25, 2014, and he was then
transferred to BOP custody to serve his 36-month federal
sentence. [R. 12 at 3]
Burson learned that the BOP was not crediting his federal
sentence with the time he spent in pretrial custody from 2009
to 2011, he filed an inmate grievance claiming that he was
entitled to this credit pursuant to Willis v. United
States, 438 F.2d 923, 925 (5th Cir. 1971). The BOP's
the Mid-Atlantic Regional Office denied his appeal on July
16, 2015 as contrary to 18 U.S.C. § 3585(b), but
forwarded his grievance to its Designation and Sentence
Computation Center to see if there were other credits to
which he might be entitled. Three months later on October 20,
2015, Burson appealed to the BOP's Central Office,
asserting that he was unable to appeal earlier because the
prison had been on lockdown. The Central office denied his
appeal as untimely, but offered him the chance to provide
staff verification that the delay in filing his appeal was
not his fault. [R. 1-1 at 2-8] Burson did not attempt to
comply. [R. 12 at 6]
petition, Burson states without explanation that the BOP
should have given him credit against his federal sentence
from the date of his arrest on July 19, 2009 pursuant to
Willis v. United States, 438 F.2d 923, 925 (5th Cir.
1971) and United States v. Haney, 711 F.2d 113 (8th
Cir. 1983). He also cites Borden v. Keohane, 921
F.2d 476 (3d Cir. 1990), as possible grounds for relief. [R.
1 at 7] The BOP counters that Burson failed to properly
exhaust his administrative remedies and that the additional
credits he seeks are barred by 18 U.S.C. § 3585(b). [R.
12 at 6-14]
is right in both respects. Before an inmate can seek habeas
relief in federal court, he must invoke and exhaust
administrative remedies available within the prison.
Fazzini v. Northeast Ohio. Corr. Center, 473 F.3d
229, 232 (6th Cir. 2006). He must also do so
"properly" by fully complying with the agency's
deadlines and other critical procedural rules. Woodford
v. Ngo, 548 U.S. 81, 90 (2006); Scott v.
Ambani, 577 F.3d 642, 647 (6th Cir. 2009). If a
prisoner's grievance or appeal is rejected on procedural
grounds and he is afforded the opportunity to cure the defect
that led to the rejection, the prisoner must avail himself of
that opportunity: he may not abandon further efforts at
compliance. Hartsfieldv. Vidor, 199 F.3d 305, 309
(6th Cir. 1999) ("An inmate cannot simply fail to file a
grievance or abandon the process before completion and claim
that he has exhausted his remedies or that it is futile for
him to do so."). This is precisely what Burson did: his
Central Office appeal was filed two months too late, and he
declined the Central Office's invitation to substantiate
his claim that a prison lockdown caused the delay. [R. 12-1
at 4] Burson failed to exhaust his administrative remedies
when he abandoned the grievance process, and his petition
will therefore be denied. Jernigan v. Stuchell, 304
F.3d 1030, 1032-33 (10th Cir. 2002) (inmate failed to exhaust
administrative remedies when he failed to cure the deficiency
which led the prison to reject grievance appeal).
is also plainly not entitled to any additional prior custody
credits. 18 U.S.C. § 3585(b) directs the BOP to award an
inmate credit for time he spent in custody before his
sentence was imposed, but only if that time was not credited
against another sentence. The statute thus prohibits
"double counting" jail time against both a state
sentence and a federal sentence. United States v.
Wilson, 503 U.S. 329, 337 (1992); Broadwater v.
Sanders, 59 F.App'x 112, 113- 14 (6th Cir. 2003);
Nguyen v. Department of Justice, 173 F.3d 429 (6th
Cir. 1999). The time he spent in jail from July 22, 2009 to
March 6, 2011 was credited against his state sentence, and he
may not obtain credit for the same time against his federal
sentence as well.
attempt to invoke Willis and Honey for
relief is likewise misplaced. Both of these cases held that a
state prisoner who could demonstrate that he was denied
release on bail because of a federal detainer was entitled to
credit against his federal sentence for that time.
Willis, 438 F.2d at 925; Honey, 711 at
114-15. But both decisions were decided under 18 U.S.C.
§ 3568, the predecessor statute of Section 3585(b).
While the former statute by its terms permitted double
counting, Congress repealed that law and replaced it with
Section 3585(b), which expressly prohibits double counting.
See Elwell v. Fisher, 716 F.3d 477, 485 (8th Cir.
2013). Willis and Honey have therefore been
superseded by statute and cannot assist Burson.
although Burson did not seek this relief in his grievances,
the BOP considered whether he might be entitled to a
retroactive designation under Borden. However, the
remedy fashioned in Borden can only apply where a
state court orders that its sentence shall run concurrently
with a previously-imposed federal sentence on the mistaken
assumption that the federal sentence commenced upon
imposition, a result precluded by 18 U.S.C. § 3585(a).
Cf Dunlap v. Ives, No. 11-271-GFVT, 2012 WL 1711379,
at *2-3 (E.D. Ky. May 15, 2012). In this case, the state
court ordered Burson's sentence to run
consecutively to his federal sentence, not
concurrently with it, and therefore the BOP correctly
concluded that the harm Borden seeks to avert simply
does not apply. [R. 12-1 at 43]
IT IS ORDERED that:
Clerk of the Court shall update the docket to reflect