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Funzie v. Warden

United States District Court, W.D. Louisiana, Alexandria Division

September 24, 2018

CLIFTON FUNZIE, Petitioner
v.
WARDEN, Respondent

          DEE D. DRELL, JUDGE

          REPORT AND RECOMMENDATION

          Joseph H.L. Perez-Montes, United States Magistrate Judge

         Before the Court is a petition for writ of habeas corpus (28 U.S.C. § 2241) filed by pro se Petitioner Clifton Funzie (#21854-076) (“Funzie”). Funzie is an inmate in the custody of the United States Bureau of Prisons (“BOP”), incarcerated at the Federal Correctional Institution in Pollock, Louisiana. Funzie challenges the computation of his sentence by the BOP, the validity of the sentence imposed by the district court, and the performance of his attorney at sentencing.

         Because Funzi has received all the credit due on his federal sentence, his claim for additional credit for time served should be denied and dismissed. Funzi's challenge to his attorney's performance and the legality of the sentence imposed by the district court should be dismissed for lack of jurisdiction.

         I. Background

         Funzie was arrested by Tennessee authorities for aggravated robbery while on parole in several state criminal cases. (Doc. 1-2, p. 11). Shortly thereafter, the Tennessee Department of Corrections revoked Funzie's parole, and Funzie was placed in the custody of the Tennessee Department of Corrections to serve the remainder of his 20-year sentence.

         Funzie was thereafter convicted in the United States District Court for the Western District of Tennessee of two counts of possession of a firearm by a convicted felon. (Docket No. 2:07-CR-20192, W.D. Tenn., Doc. 73). Funzie was sentenced to 188 months of imprisonment, to be served “consecutive to the Parole Violations out of Shelby County Criminal Court, Memphis, TN in cases 99-05116, 99-05117, 99-05118, 99-05119, 99-05120, 99-05121, 99-05122 and 99-05127.” (Docket No. 2:07-CR-20192, W.D. Tenn., Doc. 73).

         Funzie did not appeal, but filed a motion to vacate under 28 U.S.C. § 2255 raising three claims: (1) whether his sentence was illegal; (2) whether his attorney rendered ineffective assistance in connection with the sentencing; and (3) whether his guilty plea was intelligent and voluntary. (Docket No. 2:09-CV-02644, W.D. Tenn.). The court denied Funzie's motion in a 21-page ruling. (Docket No. 2:09-CV-02644, W.D. Tenn., Doc. 13). Funzie did not appeal.

         In his § 2241 petition, Funzie claims the BOP failed to grant a nunc pro tunc designation. Funzie also complains that his sentence was miscalculated by the trial court, and that his attorney provided ineffective assistance at sentencing.

         II. Law and Analysis

         A. Funzie's § 2241 claim for additional credit is meritless.

         The authority to grant or deny credit for time served, or a nunc pro tunc designation, is specifically reserved to the United States Attorney General, who has delegated that responsibility to the BOP. See U.S. v. Wilson, 503 U.S. 329 (1992). The district court may review a challenge to the BOP's refusal to grant credit or make such a designation in a § 2241 petition. See Pierce v. Holder, 614 F.3d 158, 160 (5th Cir. 2010).

         When a federal judgment is silent with respect to whether sentences are to run concurrently or consecutively, the presumption is that they will run consecutively unless the court specifically orders that they run concurrently. See 18 U.S.C. § 3584(a); U.S. v. Jack, 566 Fed.Appx. 331, 332 (5th Cir. 2014); Free v. Miles, 333 F.3d 550, 553 (5th Cir. 2003). In Funzie's case, the federal court specifically and clearly ordered that the federal sentence run consecutive to the state sentence in the enumerated cases. (Docket No. 2:07-CR-20192, W.D. Tenn., Doc. 73).

         Furthermore, 18 U.S.C. § 3585(b) prohibits the application of any time toward a federal sentence that has been credited against another sentence. The time during which Funzie was “loaned” to the federal court pursuant to a writ of habeas corpus ad prosequendum was credited toward Funzie's state sentence. (Doc. 1, p. 23). Therefore, Funzie is only entitled to ...


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