United States District Court, E.D. Kentucky, Central Division, Lexington
MEMORANDUM OPINION AND ORDER
C. Reeves, United States District Judge.
Kenneth Hayes is a federal prisoner who was recently confined
at the Federal Medical Center in Lexington, Kentucky.
Proceeding without a lawyer, Hayes filed a petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2241.
[Record Nos. 1, 4] However, for the reasons discussed below,
Hayes's petition will be denied.
states that, in February 2007, while he was in Florida state
custody, federal Drug Enforcement Administration agents
arrested him and prevented him from bonding out on a pending
state drug charge. [Record No. 1 at 3; Record No. 4 at 5]
Hayes remained in state custody. In November 2007, the
Florida state court found Hayes guilty of possessing
marijuana and sentenced him to the time he had served: 279
days. [Record No. 4-1 at 1] Around this same time, the United
States District Court for the Middle District of Florida
accepted Hayes's guilty plea to conspiring to possess
with the intent to distribute and to distributing five
kilograms or more of a mixture or substance containing
cocaine. See United States v. Kenneth Hayes, No.
8:06-cr-505 at Record No. 85 (M.D. Fla. November 21, 2007).
Shortly thereafter (on January 25, 2008), the federal
district court sentenced Hayes to 210 months of imprisonment.
See Id. at Record No. 90. The court later reduced
Hayes' prison term to 168 months. See Id. at
Record No. 139.
has now filed a § 2241 petition with this Court,
contending that he “was not given the appropriate
amount of good time credit while being held in a Florida
county jail.” [Record No. 4 at 5] Specifically, he
claims that he should receive a 279-day credit from his
federal sentence because of the time he served in Florida
state custody (i.e., from February 2007 through November
2007). [Record No. 5 at 3]
argument does not have merit. The calculation of a federal
prisoner's sentence is determined by 18 U.S.C. §
3585, which provides, in pertinent part, that:
(b) 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-
(1) as a result of the offense for which the sentence was
(2) as a result of any other charge for which the defendant
was arrested after the commission of the offense for which
the sentence was imposed; that has not been credited
against another sentence.
18 U.S.C. § 3585(b) (emphasis added).
statute only permits a federal sentence credit if the time
spent in custody on another charge “has not been
credited against another sentence.” Id. Here,
the 279 days at issue that Hayes spent in Florida state
custody was credited against another sentence- his
state sentence for possessing marijuana. Accordingly, there
is no merit to Hayes's claim that he is entitled to a
279-day credit off of his federal sentence.
nevertheless makes much of the fact that, while he was
serving the 279 days in state custody, he was subject to a
“federal hold that prevented a release on bond.”
[Record No. 5 at 3] He also repeatedly cites Willis v.
United States, 438 F.2d 923 (5th Cir. 1971), in support
of his claim. [Record No. 1 at 4; Record No. 5 at 2]. In
Willis, the Fifth Circuit indicated that if a state
prisoner could demonstrate that he was denied release on bail
due to a federal detainer, then that prisoner was entitled to
credit against his federal sentence because his time in
custody was spent “in connection with” a federal
offense. Willis, 438 F.2d at 925. This proposition
is no longer good law as it was based on an old statute (18
U.S.C. § 3568) which permitted double counting for
non-federal time spent in custody “in connection
with” a federal offense. See Id. Section 3568
was repealed on November 1, 1987, and replaced by §
3585(b) which specifically excludes such double counting. In
short, Willis has thus been superseded by statute
and Hayes's reliance on it is unavailing. See also
Elwell v. Fisher, 716 F.3d 477, 485 (8th Cir. 2013)
(explaining the difference between former § 3568 and
notwithstanding the plain language of § 3585(b), Hayes
suggests that the Bureau of Prisons (“BOP”)
crafted an exception to the prohibition on double counting in
Program Statement 5880.28. [Record No. 1 at 4; Record No. 5
at 2] Even if the Court assumes that Hayes's
characterization of Program Statement 5880.28 is accurate
(i.e., that the BOP has the authority to create such an
exception), and that Hayes can invoke that exception in his
§ 2241 petition, the Program Statement only applies when
federal and state sentences are concurrent. That clearly was
not the case here, as the Florida state court sentenced Hayes
in November 2007 to time served and the federal district
court did not impose its lengthy prison sentence until two
months later, in January 2008. Thus, there is no merit to
Hayes's claim based on BOP Program Statement 5880.28.
it is hereby