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Dunn v. Hastings

United States District Court, S.D. Georgia, Brunswick Division

September 16, 2014

ROBERT ANTHONY DUNN, Petitioner,
v.
SUZANNE E. HASTINGS, Warden, Respondent.

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

JAMES E. GRAHAM, Magistrate Judge.

Petitioner Robert Dunn ("Dunn"), who is currently incarcerated at the Federal Correctional Institution in Jesup, Georgia ("FCI Jesup"), filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Respondent filed a Response. For the reasons which follow, Dunn's petition should be DENIED.

STATEMENT OF THE CASE

Dunn was convicted in the Middle District of Florida of conspiracy to possess with intent to distribute 50 grams or more of cocaine base, in violation of 21 U.S.C. § 846. Dunn was sentenced to 108 months' imprisonment, to be followed by 60 months' supervised release, on April 2, 2004. (Doc. No. 7-1, p. 16). Dunn's sentence was reduced to 70 months' imprisonment pursuant to 18 U.S.C. § 3582(c)(2) on July 3, 2008. (Id. at p. 23). Dunn completed his term of imprisonment on October 24, 2008, and he was released from federal custody to commence his term of supervised release. (Id. at p. 25).

Dunn was arrested in Pasco County, Florida, on June 13, 2012, in case number CRC1204336CFAWS for driving on a suspended or revoked license. Dunn was released the next day on bond. (Id. at p. 28). On October 5, 2012, Dunn was arrested in New Port Richey, Florida, for trafficking in a controlled substance in case number CRC1207035FAWS and for burglary with assault or battery in case number CTC1208468MMAWS. (Id. at p. 29). A federal warrant and detainer were issued by the Middle District of Florida on November 2, 2012, for Dunn's violation of the conditions of his supervised released, as Dunn was still subject to his supervised release term. (Id. at pp. 32, 34-35).

Dunn was sentenced in Pasco County, Florida, on November 20, 2012, in case number CRC1204336CFAWS, to a six-month sentence. Dunn was given 48 days' credit, which consisted of credit for June 13 and 14, 2012 (his first state arrest), and from October 5, 2012 (his second state arrest), through November 19, 2012. (Doc. No. 7, p. 4). On January 15, 2013, Dunn received a 30-day sentence in case number CTC1208468MMAWS, and prosecution was declined in case number CRC1207035CFAWS. (Id. at pp. 4-5). Dunn satisfied his state sentence on March 2, 2013, and he was released to federal authorities.

The Middle District of Florida sentenced Dunn to 27 months' imprisonment for the supervised release violation on April 10, 2013. (Doc. No. 7-1, p. 43). The Bureau of Prisons ("BOP") credited Dunn with time he spent in custody from March 3, 2013, through April 9, 2013, as this time was not credited against any other sentence. Dunn has a projected release date of February 16, 2015, via good conduct time release. (Id. at p. 11).

Dunn contends that the BOP has not awarded him with the appropriate amount of credit against his federal sentence. Dunn also contends that the BOP incorrectly denied his nunc pro tunc designation request, which would have allowed his federal and state sentences to run concurrently. Respondent asserts that Dunn has received all of the credit against his federal sentence to which he is entitled.

DISCUSSION AND CITATION TO AUTHORITY

I. Sentence credit computation

Dunn contends that his federal sentence should have commenced when he began his pre-trial detention. (Doc. No. 1, p. 7). Respondent asserts that Dunn already has received credit against his federal sentence for the time for which he seeks credit.

"Multiple terms of imprisonment imposed at different times run consecutively unless the court orders that the terms are to run concurrently." United States v. Ballard , 6 F.3d 1502, 1505 (11th Cir. 1993); see also 18 U.S.C. § 3584(a). It is for a federal court to decide if an offender's federal sentence will run concurrently or consecutively to any state sentence the offender may face. See United States v. Andrews , 330 F.3d 1305, 1307 n.1 (11th Cir. 2003). Additionally, "if a defendant is in state custody and he is turned over to federal officials for federal prosecution, the state government's loss of jurisdiction is only temporary. The prisoner will be returned to state custody at the completion of the federal proceedings or the federal sentence if the federal government wishes to execute it immediately.'" Powell v. Jordan, 159 F.App'x 97, 99-100 (11th Cir. 2005) (quoting Causey v. Civiletti , 621 F.2d 691, 693 (5th Cir.1980)). "A writ of habeas corpus ad prosequendum is only a loan of the prisoner to another jurisdiction for criminal proceedings in the receiving jurisdiction." Civiletti , 621 F.2d at 693.

It is the duty of the United States Attorney General, acting through the BOP, to determine the amount of credit due for the time served by the defendant prior to sentencing. United States v. Alexander , 609 F.3d 1250, 1259 (11th Cir. 2010). Section 3585 of Title 18 of the United States Code provides:

(a) Commencement of sentence. - 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 ...

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