United States District Court, E.D. Kentucky, Southern Division, Pikeville
DANIEL J. KEY, II, Petitioner,
GREGORY KIZZIAH, Warden, Respondent.
MEMORANDUM OPINION AND ORDER
K. CALDWELL, CHIEF JUDGE UNITED STATES DISTRICT COURT
Daniel Key has filed a pro se petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2241 seeking
credit against his federal sentence for time he spent in
state custody. [R. 1] This matter is before the Court to
conduct an initial screening of Key's petition. 28 U.S.C.
§ 2243; Alexander v. Northern Bureau of
Prisons, 419 F. App'x 544, 545 (6th Cir. 2011).
Because the credit Key seeks is precluded by federal law, his
petition must be denied.
2006, Key pled guilty in this Court to possession and
trafficking in crack cocaine as well as possession of a
firearm in furtherance of that enterprise. He was sentenced
to 91 months imprisonment to be followed by five years of
supervised release. Key served his federal prison term and
was released from BOP custody in January 2012. United
States v. Key, No. 2: 05-CR-37-DLB-1 (E.D. Ky. 2005).
months later, while he was on supervised release Key was
arrested on May 28, 2012 by local police in Kenton County,
Kentucky. He was charged with trafficking in cocaine,
tampering with evidence, fleeing police, resisting arrest,
and disorderly conduct. Key pled guilty to those charges, and
was sentenced to a 7½-year state sentence. On January
8, 2015, Kentucky authorities released Key from their custody
after he had served 31 months of that sentence. On the same
day, Key was transferred into federal custody for violating
the terms of his supervised release. Following Key's
admission that he had committed the state offenses, on
February 12, 2015, this Court revoked Key's supervised
release and ordered him to serve 60 months imprisonment, with
no term of supervised release to follow. Id.
months after his sentence was imposed, Key wrote a letter to
the Court requesting that it grant him 31 months of
“credit” against his federal sentence pursuant to
18 U.S.C. § 3584(a) and application note (2)(c) of
U.S.S.G. § 5G1.3. In its response, the government noted
that both provisions must be considered and applied, if at
all, when the original sentence was imposed, and that neither
relates to credit for jail time, a matter whose application
is vested solely with the Bureau of Prisons under 18 U.S.C.
Memorandum Order entered on August 5, 2015, the Court
liberally construed Key's request as seeking relief under
§ 3585(b). The Court concluded that Key must first seek
prior custody credits by utilizing the BOP's inmate
grievance program, and if unsatisfied, by filing a habeas
corpus petition pursuant to 28 U.S.C. § 2241. The
Memorandum further noted that, on the merits, Key could not
obtain credit for this time under § 3585(b) because it
had already been credited against his state sentence. Key
appealed, but the Sixth Circuit affirmed in May 2016,
agreeing with this Court's determination that Key's
motion was both procedurally improper and substantively
without merit. United States v. Key, No. 15-5920
(6th Cir. May 6, 2016).
present petition, Key offers a slight variation on his
earlier efforts to obtain prior custody credits under §
3585(b). Key argues that the federal detainer lodged with
state officials following his arrest by local police
prevented him from posting bail and obtaining his release.
Therefore, he argues, he is entitled to 31 months of credit
beginning on the date the detainer was lodged. [R. 1 at 2-3]
present argument fares no better than its predecessors.
Pursuant to 18 U.S.C. § 3585(a), Key's sentence
commenced when he was received into federal custody to begin
service of it on February 12, 2015. Because he seeks credit
for time he spent in custody before that date, its
availability is governed by Section 3585(b). Key has already
been granted prior custody credit starting on January 8,
2015, but now seeks credit beginning on May 28, 2012 when he
was taken into state custody, or at least beginning on some
unspecified date when he was allegedly denied release on
Court notes parenthetically that the premise for Key's
argument - that he was denied bail in his state prosecution
because of the federal detainer - appears to be contradicted
by records from his state criminal proceedings. Following his
arrest, on May 29, 2012 the Kenton District Court set a $10,
000.00 cash bond in Case No. 12-F-00719. The case was bound
over to the Kenton Circuit Court for arraignment and trial;
Key pled guilty and was sentenced on January 11, 2013 in Case
No. 12-CR-543. A second set of charges related solely to the
drug trafficking counts was issued, and on June 29, 2012, the
Kenton District set a $10, 000.00 cash bond in Case No.
12-F-00914. The case was bound over to the Kenton Circuit
Court for arraignment and trial; after bond was reset to $20,
000.00 cash on August 29, 2012, Key pled guilty and was
sentenced on January 14, 2013 in Case No.
12-CR-612. In short, in both cases Key was given the
opportunity to post bond to obtain his liberty, contrary to
his assertion here.
that were not so, Key would not be entitled to the credit he
seeks. Key was given credit for the time period he spent in
jail for his state crimes against his state sentences, and
that time may not be “double counted” against his
federal sentence. United States v. Wilson, 503 U.S.
329, 337 (1992) (“... Congress made clear that a
defendant could not receive a double credit for his detention
time.”); Broadwater v. Sanders, 59 F.
App'x 112, 113-14 (6th Cir. 2003). The fact that a
pending federal detainer or warrant prevents a defendant in
state custody from being released does not entitle him or her
to federal sentencing credit. Elwell v. Fisher, 716
F.3d 477, 485-86 (8th Cir. 2013); Shahid v. Schultz,
272 F. App'x 150, 153 (3d Cir. 2008); Miller v.
Whitehead, No. DKC-09-1941, 2010 WL 2640155, at *3 (D.
Md. June 25, 2010).
it is ORDERED as follows:
1. Key's motion to expedite consideration of his petition
[R. 8] is GRANTED.
2. Key's petition for a writ of habeas corpus [R. 1] is
3. The Court will enter a judgment contemporaneously with