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Johnson v. Myers

United States District Court, W.D. Louisiana, Lake Charles Division

March 13, 2019

CLAUDE CHRISTOPHER JOHNSON REG. # 05056-043
v.
WARDEN MYERS

         SECTION P

          REPORT AND RECOMMENDATION

          KATHLEEN KAY, UNITED STATES MAGISTRATE JUDGE

         Before the court is a pro se petition for writ of habeas corpus filed under 28 U.S.C. § 2241, by Claude Christopher Johnson. Doc. 1. Johnson is an inmate in the custody of the Bureau of Prisons (“BOP”) and is currently incarcerated at the Federal Correctional Institution at Oakdale, Louisiana. This matter has been referred to the undersigned for review, report, and recommendation in accordance with 28 U.S.C. § 636 and the standing orders of this court.

         I.

         Background

          Johnson brings this petition to challenge the BOP's refusal to afford him credit for time spent in state custody on a ten-year federal sentence imposed by the United States District Court for the Southern District of Mississippi, on July 15, 2010. Doc. 1; see United States v. Johnson, No. 2:10-cv-0006, doc. 20 (S.D.Miss. Jul. 21, 2010). Specifically, he complains that the BOP calculates his sentence as only beginning upon his release from state custody on October 17, 2014, rather than on the date it was imposed. Doc. 1, p. 1.

         In support of his claim, Johnson attaches a portion of the transcript from his sentencing. There the court stated:

Having considered the presentence report and 3553(a) factors, it's the judgment of the court that Claude Christopher Johnson is hereby committed to the custody of the Bureau of Prisons for a term of 120 months as to Count 2 to be served concurrently the with supervised release revocation, concurrently with the balance. That means you'll serve whatever the balance of that revocation is, you'll serve 10 days - 10 years - I'm sorry, 120 months from today. It's not running consecutively, but you're not getting credit for the time that you have served previous to today toward the 120-month sentence.
This is . . . consecutive with the balance of the revocation in [Southern District of Mississippi criminal cases 2:98-cr-18 and 2:03-cr-29].

Doc. 1, att. 2, p. 2. A short time later, Johnson's counsel stated that he did not believe Johnson had served “any of his revocation time” and that he was “currently in state custody in Jones County.” Id. at 3. The court responded: “Well, then he won't get any credit for anything. I mean he'll serve 10 years, or 120 months from today.” Id. (emphasis added). Accordingly, Johnson argues that the state and federal sentences were meant to run concurrently. Doc. 1, p. 1.

         Johnson exhausted this claim through the BOP, and the BOP Regional Office responded by noting that he had been placed in state custody in 2009 for burglarizing two businesses. Doc. 1, att. 2, p. 4. As a result of this new criminal conduct, his federal terms of supervised release on two prior convictions were revoked and he was sentenced to 24 months on one of the revocations and 20 months on the other, with these terms ordered to run concurrent to each other but consecutive to his anticipated state sentence. Id. Based on the burglaries he was also charged with theft of firearms in federal court, receiving the above-described 120 month sentence on July 15, 2010. The Regional Office went on to note:

The court ordered this term to run concurrently with your supervised release revocation terms. However, the Judgment in a Criminal Case did not specify whether this term was to run concurrently with or consecutively to your state sentence. Therefore, pursuant to 18 U.S.C. § 3584(a), this term is statutorily presumed to be consecutive to your state sentence.
Consistent with Barden v. Keohane, 921 F.2d 476 (3rd Cir. 1990), the Bureau of Prisons may consider an inmate's request for presentence credit toward a federal sentencing for time spent serving a state sentence as a request for concurrent service of the federal sentence via nunc pro tunc designation. The Bureau must consider an inmate's request for concurrent service of the state and federal sentences. However, in accordance with our policy, a designation for concurrent service of sentence is made only when it is consistent with the intent of the sentencing federal court, or with the goals of the criminal justice system.
The judge who revoked your supervised release terms expressly ordered your supervised release revocation terms to run consecutively to your state sentence. Additionally, in a recently issued order, the judge who imposed your firearms theft sentence stated, “the Federal time does not begin until he has completed the State sentence. The sentence from ...

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