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Heard v. Quintana

United States District Court, E.D. Kentucky, Central Division, Lexington

March 7, 2019

ELIAS HEARD, Petitioner,
FRANCISCO QUINTANA, Warden, Respondent.



         Federal inmate Elias Heard has invoked the habeas corpus statute, 28 U.S.C. § 2241, to challenge the Bureau of Prisons (“BOP”) calculation of his prior custody credits. [R. 6] The government has filed its response [R. 15], and Heard has filed two replies [R. 16, 17]. Having thoroughly reviewed the record, it is evident that the BOP has properly calculated Heard's sentence credits, and the petition will be denied.


         In October 2011, Heard was arrested by police in Newport, Kentucky for several state felony offenses, charges later dismissed in deference to a subsequent federal prosecution. In April 2012, a federal grand jury in Covington, Kentucky issued an indictment charging Heard with drug trafficking and firearms offenses. One month later, while in the custody of Ohio officials, Heard was sentenced to a 15-month term of imprisonment by the Municipal Court of Hamilton County, Ohio for fleeing and eluding police in No. B1200560, and began serving his state sentence at that time. In August 2012 Heard was transferred to federal custody pursuant to a writ of habeas corpus ad prosequendum.

         In October 2012, Heard reached an agreement with the government to plead guilty to possession with intent to distribute cocaine base in violation of 21 U.S.C. § 841(b)(1)(A) and possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c) in exchange for the dismissal of a felon-in-possession count. The plea agreement contained no provision for a recommended sentencing range, nor did it indicate whether the federal sentence should be served consecutively to or concurrently with Heard's state prison term. In January 2013, the trial court imposed a cumulative 123-month term of imprisonment for the federal offenses, that sentence to be served concurrently with the 15-month Ohio sentence Heard was already serving. Heard was then returned to Ohio custody to serve the remainder of his state sentence. United States v. Heard, No. 2: 12-CR-19-DLB-CJS-1 (E.D. Ky. 2012).

         Heard completed service of his state sentence three months later and was transferred into federal custody to continue service of his federal sentence. Shortly thereafter he requested that the BOP review its calculation of his prior custody credits. The BOP awarded 112 days of credits pursuant to Willis v. United States, 449 F.2d 923 (5th Cir. 1971) for time that Heard had spent in state pretrial custody in early 2011 that would not otherwise be effectively credited towards his federal sentence. [R. 6-2 at Page ID #38]

         Unsatisfied, Heard filed a grievance with the warden seeking credit from August 16, 2012 (the date he was arraigned after being taken into federal custody pursuant to the writ) to January 4, 2013 (the date his federal sentence was imposed), contending without explanation that “the U.S. District Court's order of concurrency was what is referred to as ‘full concurrency.'” [R. 6-2 at Page ID #34] The warden responded that Heard's sentence commenced on January 4, 2013 pursuant to 18 U.S.C. § 3585(a), and credit for pretrial custody before that date was precluded by 18 U.S.C. § 3585(b). [R. 6-2 at Page ID #32-33] On appeal Heard asserted that the warden's denial was non- responsive because his claim was based upon 18 U.S.C. § 3584(a), not § 3585(b). The regional office noted that Heard's August 2012 transfer into federal custody pursuant to a writ of habeas corpus ad prosequendum did not effect a legal transfer of custody for purposes of calculating jail time credits, and reiterated its position that § 3585(b) precluded the additional credits sought. [R. 6-2 at Page ID #38-40] In his appeal to the Central Office, Heard again stated that his claim to relief was based upon the “District Court's decision to impose my federal term of imprisonment concurrently with a state term of imprisonment, ” and alleged that his plea agreement “consisted of my being credited with [all jail time] I had served on the state term of imprisonment toward service of my federal term of imprisonment.” The Central Office denied relief, noting that the time period for which Heard sought credit had already been credited against his Ohio sentence and hence § 3585(b) would not permit it to be counted a second time against his federal sentence. [R. 6-2 at Page ID #48-50]


         In his § 2241 petition, Heard repeats his contention that the BOP has not given him all the pretrial custody credit he is due, asserting that the BOP has not “applied” the federal court's order of concurrent sentencing. [R. 6 at Page ID #21] He also states that the BOP improperly treated some or all of the time after his arrest by local police as “inoperative time” under BOP Program Statement 5880.28. [R. 6 at Page ID #22; R. 6-1 at Page ID #29-30] Finally, Heard complains that the BOP did not “interview” either the federal judge or the Ohio judge “for their commentary and clarification of their rulings and judicial intent.” [R. 6 at Page ID #22]

         In its response to the petition, the government explains at length that Heard did not come into the federal government's legal custody in August 2012 merely because he was borrowed pursuant to a writ, and thus the credit he seeks is barred by § 3585(b) because it has already been applied to his Ohio sentence. [R. 15 at Page ID #187-193] However, these arguments are more in the nature of a general defense of the BOP's custody calculations than responsive to the claims Heard actually makes in his petition. The government does not respond to Heard's claims regarding “inoperative time” and its asserted obligation to interview judges regarding the intent of their rulings.

         In his first reply Heard offers no argument in support of his original claims, but responds to the government's arguments by asserting for the first time that the writ of habeas corpus ad prosequendum formally and legally transferred him into federal custody. He also states (incorrectly) that his plea agreement contemplated a concurrent sentence for a specified period of time, and that the federal prosecutor acted in bad faith knowing that the BOP would not honor it. [R. 16] In his second reply, Heard asserts (again incorrectly) that it is the federal trial court, not the BOP, who determines prior custody credits by setting them forth in its judgment, and the BOP's refusal to follow the trial court's directions would violate the separation of powers doctrine. [R. 17]

         Given Heard's vague and terse expression of his claims in his petition, the government has understandably struggled to grasp upon what legal grounds, precisely, Heard claims entitlement to relief. Of course, Heard exhausted only that small subset of grounds for relief that he fully and fairly presented through the BOP's Inmate Grievance Program. Fazzini v. Northeast Ohio. Corr. Center, 473 F.3d 229, 232 (6th Cir. 2006). The government having apparently chosen to overlook Heard's failure to exhaust the bulk of the grounds for relief he now asserts, the Court will address all of the Heard's arguments, including those unaddressed by the government.

         Calculation of a federal prisoner's sentence, including both its commencement date and any credits for custody before the sentence is imposed, is determined by federal statute:

(a) A sentence to a term of imprisonment commences on the date the defendant is received in custody awaiting transportation to, or arrives voluntarily to commence service of sentence at, the official detention ...

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