December 11, 2003
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b), and an order of the District Court in implementation thereof, this cause has been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS: Type of Case: This is a pro se habeas corpus action brought by a federal inmate pursuant to 28U.S.C. § 2241, et seq. Parties: Petitioner is presently confined at FCI Seagoville in Seagoville, Texas. Respondent is Warden K. J. Wendt. The court has not issued process in this case.
Statement of Case: On October 24, 1983, Petitioner was sentenced in Louisiana State Court to thirty years imprisonment. He was then transferred to federal custody on a writ of habeas corpus ad prosequendum. On October 28, 1983, a federal district court in the Eastern District of Louisiana sentenced Petitioner to twenty years imprisonment for violation of the Federal Gun Control Act. United States v. Fournier, No. 83-289. The federal court's sentencing order did not specify whether the federal sentence would be served concurrently with or consecutively to the state sentence. Petitioner was then returned to state custody to serve his state sentence. On July 10, 1998, the Louisiana State Prison paroled him and turned him over to federal authorities. He alleges that on September 16, 1998, "he was committed to federal prison," where he subsequently exhausted his administrative remedies. (Petition at 2).
The § 2241 habeas petition contends that Petitioner's federal sentence should run concurrently to his previously served state sentence. Findings and Conclusions: Petitioner bases his assertion onSchultz v. United States, 384 F.2d 374, 375 (5th Cir. 1967), which "recognized that, `absent clear language to the contrary, it is presumed that sentences imposed on more than one offense at the same time, or at different times, will run concurrently.'" (Petition at 1). This rule, however, only applied to situations where there were multiple federal sentences. See Causey v. Civiletti, 621 F.2d 691, 693 n. 2 (5th Cir. 1980); See also United States v. Lee. No. 00-6302, 2001 WL 127766, at *2 (10th Cir. Feb. 15, 2001) (unpublished). Here the issue is whether a federal sentence, imposed before November 1, 1987, should run concurrently with a state sentence assessed only a few days earlier.
Petitioner correctly filed this action in the state where he is presently confined.
To entertain a habeas corpus petition pursuant to § 2241, this court must have jurisdiction over the prisoner or his custodian upon filing of the petition. United States v. Gabor. 905 F.2d 76, 77 (5th Cir. 1990); Blau v. United States. 566 F.2d 526, 527-28 (5th Cir. 1978) (citing Braden v. 30th Judicial Circuit Court. 410 U.S. 484, 93 S.Ct. 1123 (1973)).
18 U.S.C. § 3568 governed federal sentences imposed, as in this case, before November 1, 1987. Section 3568 provided in part that a federal sentence "shall commence to run from the date on which such person [was] received at the penitentiary, reformatory, or jail for service of such sentence." 18 U.S.C. § 3568; see also United States v. Dovalina, 711 F.2d 737 (5th Cir. 1983) (relying on § 3568 to hold that federal sentence did not begin to run as of time petitioner's conviction became final or his appeal bond was revoked); Taylor v. Baker, 284 F.2d 43, 44 (10th Cir. 1960) (federal sentences began to run at time petitioner was actually delivered into federal custody for service of such sentences and not at completion of service of Arkansas sentence).
18 U.S.C. § 3568 read as follows:
The sentence of imprisonment of any person convicted of an offense shall commence to run from the date on which such person is received at the penitentiary, reformatory, or jail for service of such sentence. The Attorney General shall give any such person credit toward service of his sentence of any days spent in custody in connection with the offense or acts for which sentence was imposed. As used in this section, the term `offense' means any criminal offense, other than an offense triable by court-martial, military commission, provost court, or other military tribunal, which is in violation of an Act of Congress and is triable in any court established by Act of Congress.
In any such person shall be committed to a jail or other place of detention to await transportation to the place at which his sentence is to be served, his sentence shall commence to run from the date on which he is received at such jail or other place of detention.
No sentence shall prescribe any other method of computing the term.
Since a federal sentence imposed before November 1, 1987, began when an inmate arrived at a federal institution, the Fifth Circuit has long recognized that the presumption that sentences are to run concurrently "does not operate . . . if one sentence is from federal court and the other from a state court." Causey, 621 F.2d at 693 n. 2.See also Burwell v. United States, 353 F.2d 88, 88-89 (5th Cir. 1965) (holding that where district judge did not specify whether federal sentences were to run consecutively to or concurrently with state sentence which defendant was serving at the time of sentencing in federal court, such sentences would run only from date upon which defendant was received in federal correctional institution).
In the instant case, Petitioner was "on loan" from state authorities at the time of sentencing in his federal criminal case, by virtue of a writ of habeas corpus ad prosequendum. At sentencing, the trial court was silent as to whether the federal sentence should run concurrent with or consecutive to the state sentence. Following sentencing, Petitioner was returned to state custody to serve his state sentence, not to begin his federal sentence. Accord Causey, 621 F.2d at 693. In accordance with 18 U.S.C. § 3568, his federal sentence did not begin to run until he was paroled on the Louisiana state conviction on July 10, 1998. Id. Therefore, Petitioner's assertion that his federal sentence should run concurrent to his previously served state sentence is meritless.
The court would reach the same conclusion under 18 U.S.C. § 3584(a), the statute which has been in effect since November 1, 1987. See U.S. v. Earley, 816 F.2d 1428, 1431 (10th Cir. 1987) (noting that 18 U.S.C. § 3584(a) changed the rule to make federal sentences run consecutively if they are imposed at different times, but kept the concurrency rule for multiple sentences imposed at the same time).
In Free v. Miles. 333 F.3d 550 (5th Cir. 2003), the Fifth Circuit interpreted § 3584(a) under a similar factual scenario. In November 1996, the State of Texas convicted Free of cocaine delivery and sentenced him to eight years imprisonment. Id at 551. He was thereafter transferred to federal court on a writ of habeas corpus ad prosequendum. Id. In June 1997, he was sentenced following a guilty plea to 100 months imprisonment, followed by a five-year term of supervised release. Id. The district court's sentencing order did not specify whether Free's federal sentence would be served concurrently with or consecutively to his state sentence. Id. Relying on 18 U.S.C. § 3584(a), the Fifth Circuit held inter alia that "when multiple terms of imprisonment are imposed at different times, they will run consecutively unless the district court specifically orders that they run concurrently." Id. at 553. See also U.S. v. Hernandez. 234 F.3d 252, 256-57 (5th Cir. 2000) (holding that trial court was not required to warn defendant prior to accepting his guilty plea that his federal term of imprisonment would ran consecutive to his anticipated state sentence, since court had discretion under § 3584(a) to order federal term to run either concurrently or consecutively to anticipated state sentence under statute permitting federal terms of imprisonment to run concurrently or consecutively if multiple terms of imprisonment were imposed or if term of imprisonment was imposed on defendant who was already subject to undischarged term).
Insofar Petitioner seeks to assert a constitutional right to have his state and federal sentences run concurrently, his claim is equally unavailing. The constitution affords no right to have state and federal sentences run concurrently. Dovalina. 711 F.2d at 738. "Sentences for different offenses can be ordered to run consecutively, even if they are imposed upon a single trial."Id. (collecting cases).
[T]he federal government and a state are perfectly free to make any agreement between themselves concerning which of their sentences will be served first, as long as the prisoner is not compelled unnecessarily to serve his sentences in a piecemeal fashion. "A person who has violated the criminal statutes of both the Federal and State Governments may not complaint of the order in which he is tried or punished for such offenses." Gunton v. Squier, 185 F.2d 470, 471 (9th Cir. 1950). See Ponzi v. Fessendenmm. 258 U.S. 254, 42 S.Ct. 309, 66 L.Ed. 607 (1922).Id. (quoting Causey v. Civiletti. 621 F.2d at 694). RECOMMENDATION:
Petitioner's reliance on Ruggiano v. Reish, 307 F.3d 121 (3rd Cir. 2002) and United States v. Smith. 282 F.3d 1045 (8th Cir. 2002), is inapposite. Ruggiano andSmith addressed a district court's authority under the Sentencing Guidelines with respect to an undischarged term of imprisonment. Petitioner was sentenced several years before the effective date of the Sentencing Guidelines.
For the foregoing reasons, it is recommended that the District Court deny and dismiss the petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. A copy of this recommendation will be mailed to Petitioner.
In the event that you wish to object to this recommendation, you are hereby notified that you must file your written objections within ten days after being served with a copy of this recommendation. Pursuant toDouglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc) a party's failure to file written objections to these proposed findings of fact and conclusions of law within such ten-day period may bar a de novo determination by the district judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and conclusions of law accepted by the district court.