Dotson v. Kizziah

• Decision Date: 15 November 2019
• Docket Number: Civil No. 6: 19-251-HRW
• Parties: ERIC WAYNE DOTSON, Petitioner, v. GREGORY KIZZIAH, Warden, Respondent.
• Court: U.S. District Court — Eastern District of Kentucky

ERIC WAYNE DOTSON, Petitioner, v. GREGORY KIZZIAH, Warden, Respondent.

Civil No. 6: 19-251-HRW

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY SOUTHERN DIVISION AT LONDON

November 15, 2019

OPINION & ORDER*** *** *** ***

Federal inmate Eric Dotson has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 to challenge the Bureau of Prisons' calculation of his sentence. [D. E. No. 1] The Court must conduct an initial review of the petition before proceeding further. 28 U.S.C. § 2243; Alexander v. Northern Bureau of Prisons, 419 F. App'x 544, 545 (6th Cir. 2011).¹

In response to Dotson's recent inmate grievances, the BOP set forth at length the pertinent historical facts as follows:

A review of your record revealed you were arrested on April 8, 1998, by state authorities in Warren County, Kentucky, for Robbery in the First Degree. You escaped from custody on July 6, 2008; however, you were later arrested by state authorities in Memphis, Tennessee, and returned to the custody of the State of Kentucky. On September 8, 1998, you were sentenced in Warren County Circuit Court, Case Number 98CR00562, to a 20-year term of confinement for Robbery in the First Degree, and in Case Number 98CR00329, to a life term of confinement for Persistent Felony Offender, Second Degree. You were subsequently sentenced on November 13, 1998, in Warren County Circuit, Case Number 98CR456, to a 10-year term of confinement for Escape, Second Degree.

On March 26, 1999, you were transferred to federal custody pursuant to a writ for prosecution. On November 19, 1999, you were sentenced in the Western District of Oklahoma, to a 262-month federal term of imprisonment. The respective federal judgment indicates the federal sentencing court ordered the term to operate consecutively to any other sentence you were serving at that time. You were returned to the custody of the State of Kentucky on January 12, 2000.

The Supreme Court of Kentucky issued an opinion on April 13, 2000, reversing the sentence and conviction in Warren County Circuit Court, case numbers 98CR00562 and 98CR00329. Each case was remanded to the Warren Circuit Court for a new trial. Although the sentence and conviction in case numbers 98CR00562 and 98CR00329 were reversed, you remained in the custody of the State of Kentucky, for the continued service of the 10-year state term in Case Number 98CR456.

On June 16, 2000, you were sentenced in Cobb County, Georgia, Case Number 560462, to a 20-year term of confinement for Armed Robbery - Felony. This sentence commenced on June 16, 2000, with jail credit applied from February 23, 1999 through June 15, 2000, thereby establishing a February 22, 2019, Mandatory Release Date (MRD).

You were later sentenced on August 31, 2000, in Jefferson County, Kentucky, Case Number 98CR1719, to a 10-year term of confinement for Robbery, Second Degree. This sentence operated concurrently with your previously imposed state terms of confinement. Following a retrial in Warren County Circuit Court, case numbers 98CR00562 and98CR00329, you were sentenced on April 27, 2001, to a 20-year state term of confinement. The new 20-year term was ordered to operate consecutively to any other previously imposed sentence. As a result, you were subject to a 30-year state term of confinement in Kentucky.

On September 2, 2004, you were released from the Kentucky Department of Corrections, via parole, to the custody of the State of Georgia. After completing the service of the 20-year term of confinement in the State of Georgia, you were released to the exclusive custody of federal authorities on February 22, 2019. In accordance with Program Statement 5880.28, Sentence Computation Manual (CCCA of 1984), and Title 18 U.S.C. § 3585(a), commencement of your federal sentence was effected when you came under the primary jurisdiction of federal authorities on February 22, 2019.

[D. E. No. 1-2 at 27-28].

As a supplement to the BOP's description, Dotson committed armed robberies in Kentucky on July 21, 1997 and January 28, 1998. He then traveled to Cobb County, Georgia and robbed a jewelry store on February 26, 1998 before proceeding to Oklahoma to commit another armed robbery on March 25, 1998. Dotson was arrested in Kentucky in April 1998, where he was convicted on several charges in fall 1998 as described above. Dotson was then indicted on the Georgia armed robbery charges on December 17, 1998, and that state lodged a detainer with Kentucky on February 10, 1999. See Dotson v. United States, No. 3: 12-CV-04-DHB-WLB, 2013 WL 1786568, at *1 (S.D. Ga. Mar. 7, 2013).

Dotson was then transferred into federal custody in Oklahoma pursuant to a writ of habeas corpus ad prosequendum. In 1999 a jury found Dotson guilty of Hobbs Act robbery in violation of 18 U.S.C. § 1951, use of a firearm during thecommission of a crime of violence in violation of 18 U.S.C. § 924(c), and transportation of stolen goods in violation of 18 U.S.C. § 2314. In November 1999 the trial court sentenced Dotson as a career offender to 322 months imprisonment "to be served after any other sentence that he is currently serving." The Tenth Circuit affirmed on direct appeal. United States v. Dotson, No. 98-CR-203-001-A (W.D. Okl. 1998), aff'd, 242 F. 3d 391 (10th Cir. 2000), cert. denied, 531 U.S. 1180 (2001). Dotson's motion for relief pursuant to 28 U.S.C. § 2255 was denied, a determination affirmed by the Tenth Circuit. United States v. Dotson, 28 F. App'x 801 (10th Cir. 2001). Meanwhile, in April 2000 after the federal prosecution had concluded Dotson was transferred to Georgia for prosecution on its charges. Following his conviction for armed robbery, the Georgia court imposed a 20-year sentence, which was silent with respect to whether it should run consecutively to or concurrently with any previously imposed sentence. Dotson v. State, 560 S. E. 2d 349 (Ga. App. 2002).

In the years after Kentucky paroled Dotson in 2004, he filed six habeas corpus petitions or civil actions seeking his transfer into federal custody to begin service of his federal sentence. See Dotson v. Donald, No. 1: 08-CV-1990-TCB (N.D. Ga. 2008); Dotson v. United States, No. 3: 12-CV-04-DHB-WLB (S.D. Ga. 2012) [D. E. No. 1 therein at 29-30]. Dotson argued that following his parole he belonged in federal, not Georgia, custody because (he claimed) federal authorities had filed their detainer with Kentucky before Georgia had done so. In response to a similar motionthat Dotson filed in the federal trial court, the government contended that Kentucky's transfer of Dotson to Georgia was entirely proper as it was purely a matter of comity. It further noted that the federal judgment expressly made his federal sentence consecutive to his pre-existing Kentucky sentence, and that his future Georgia sentence was consecutive to his federal sentence through operation of 18 U.S.C. § 3584(a). Brief for Plaintiff-Appellee, United States v. Dotson, 430 F. App'x 679, 681-82 (10th Cir. 2011), No. 11-6001, 2011 WL 2440768, at *15-20. The Tenth Circuit denied relief on procedural grounds, concluding that Dotson's motion failed to establish grounds for mandamus relief if construed as a motion under 28 U.S.C. § 1361 and that the trial court lacked jurisdiction to entertain the motion if construed as a habeas corpus petition under § 2241. United States v. Dotson, 430 F. App'x 679, 681-82 (10th Cir. 2011).

While still serving his Georgia sentence, in 2012 Dotson filed a § 2241 petition in that state repeating his arguments that Kentucky should have transferred him to federal custody in 2004 rather than to Georgia, and that his federal and Georgia sentences should run concurrently (or that he receive sentence credit for time spent in state custody). The federal court in Georgia denied the petition.

First, it noted that Kentucky obtained primary jurisdiction over Dotson because it arrested him first, and retained that priority until it released him on parole in 2004. After that, to which jurisdiction - Georgia or the United States - Kentuckychose to release him was solely a matter of comity between sovereigns, not a decision over which Dotson had any protectable interest or right. The Court also noted that there was no evidence to support Dotson's factual allegation that the United States had filed a detainer with Kentucky before Georgia did so in 1999 (U.S. Marshals later filed a federal detainer with Georgia in 2009),² and no legal basis to conclude that it would have made a difference if it had. Dotson, 2013 WL 1786568 at *2-3 (citing Moody v. Daggett, 429 U.S. 78, 80 n.2 (1976)).

Second, the habeas court held that the 1999 federal judgment's silence with respect to the then as-yet unimposed 2000 Georgia sentence implicated the statutory presumption that the federal sentence will run consecutively to the state sentence pursuant to 18 U.S.C. § 3584(a).³ The habeas court further concluded that the BOP's 2011 determination to deny Dotson's request for a nunc pro tunc designation wasnot an abuse of discretion in light of the applicable factors set forth in 18 U.S.C. § 3621(b) and the sentencing court's decision not to recommend such a designation. Dotson v. United States, No. 3: 12-CV-04-DHB-WLB, 2013 WL 1786568, at *3-5 (S.D. Ga. Mar. 7, 2013), report and recommendation adopted, 2013 WL 1786559 (S.D. Ga. Apr. 25, 2013). The habeas court therefore denied the petition, and Dotson took no appeal from that determination.

Shortly after Dotson completed his Georgia sentence, he was transferred into BOP custody in early 2019 to begin service of his federal sentence. Dotson promptly filed inmate grievances contending that his federal sentence should have commenced immediately in April 2000 when the Kentucky Supreme Court reversed two of his four state convictions, or alternatively that he was entitled to a nunc pro tunc designation beginning in 2004 when he was transferred to Georgia custody. The BOP denied those requests. It first noted that in April...