Weekes v. Fleming, No. 01-6054.
| Decision Date | 14 August 2002 |
| Docket Number | No. 01-6054. |
| Citation | 301 F.3d 1175 |
| Parties | Johnny Horton WEEKES, Petitioner-Appellant, v. L.E. FLEMING, Warden, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Johnny Horton Weekes, pro se.
Michael G. Katz, Federal Public Defender, and James P. Moran, Assistant Federal Public Defender, Denver, CO, on supplemental brief for Petitioner-Appellant.
Daniel G. Webber, Jr., United States Attorney, and K. Lynn Anderson, Assistant United States Attorney, Oklahoma City, OK, for Respondent-Appellee.
Before HENRY, McKAY, Circuit Judges, and BROWN,* Senior District Judge.
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
Johnny Horton Weekes, a federal inmate appearing pro se, appeals from an order dismissing his petition for habeas corpus relief brought pursuant to 28 U.S.C. § 2241. Mr. Weekes asserts that he is entitled to credit for pre-federal-sentence time served under 18 U.S.C. § 3585(b). He also asserts that he is entitled to credit for time served in post-federal-sentence state incarceration under 18 U.S.C. § 3585(a) and White v. Pearlman, 42 F.2d 788 (10th Cir.1930), because he has been forced to serve his federal sentence "on an installment basis" in violation of the statute and his constitutional rights. Appellant's Br. at 3, 5. Our jurisdiction arises under 28 U.S.C. § 1291. We reject the first argument but, because we find merit in the second argument, we reverse.1
The complex procedural history of this case is partially documented in the magistrate judge's November 6, 2000 report and recommendation and the district court's December 21, 2000 order denying the petition for writ of habeas corpus. Mr. Weekes does not claim that the procedural history is factually incorrect. Rather, he argues that the court misinterpreted the record and the applicable law. We thus review de novo the district court's dismissal of Mr. Weekes' petition. Patterson v. Knowles, 162 F.3d 574, 575 (10th Cir.1998).
Mr. Weekes was arrested on November 13, 1993, by Idaho state authorities and charged with possession of a controlled substance in Bannock County, Idaho. He pleaded guilty to the charge, and on April 18, 1994, was sentenced to the custody of the Idaho Department of Corrections (DOC) for a fixed term of two years and a subsequent indeterminate term of three years. This sentence was suspended and Mr. Weekes was placed on three years' probation. Just two days later, on April 20, 1994, Mr. Weekes was again arrested, taken into state custody in Bonneville County, Idaho, and charged with additional, unrelated state drug offenses. On May 2, 1994, he was transported from Bonneville County to Bannock County to attend a hearing on a probation violation complaint on the April 18, 1994 sentence. The judge set a May 27, 1994, hearing on the probation violation and remanded Mr. Weekes to state custody in the Bonneville County jail. Appellee's App. at 106-07.
A federal indictment issued on May 12, 1994, for federal drug offenses associated with Mr. Weekes' April 20 arrest. He was subsequently "arrested" on a warrant by the United States Marshals Service on May 16, while still in state custody, and taken into federal custody for prosecution on those charges. On May 24, 1994, the April 20 state charges were dismissed because of the pending federal charges. Mr. Weekes was transferred back into state custody on May 25 pursuant to a state writ of habeas corpus ad prosequendum so that he could appear for his May 27 state probation violation hearing. At that time, the state court resentenced him to a two-to-five year term of imprisonment on the probation violation and 1993 conviction. The order stated "this sentence shall run concurrent with any sentence imposed by the Federal Courts regarding the same charge." Id. at 19. A copy of the order was sent to the federal judge assigned to hear Mr. Weekes' federal criminal prosecution. See Supp.App. at 283, 221.
After the hearing Mr. Weekes was returned to federal custody, where, upon a plea of guilty, he was sentenced on February 7, 1995, to a 188-month term of federal imprisonment.2 On February 21, 1995, the United States designated Mr. Weekes to be transferred to the federal penitentiary in Lompoc, California, to begin serving his federal sentence. The United States Marshal issued an "Order to Deliver" to the Bannock County Jail on March 10, 1995, requiring the jail to deliver its prisoner, Mr. Weekes, to a United States Marshal. Id. at 249. Mr. Weekes arrived at Lompoc on March 16, 1995.
On March 24, 1995, Bureau of Prisons (BOP) staff at Lompoc discovered that Mr. Weekes had not yet served the state sentence imposed on May 27, 1994. A staff member notified the U.S. Marshals Service in the district of Idaho of this fact and stated that, since the 1995 federal judgment was silent on whether the federal sentence should be served consecutively or concurrently to the state sentence, it should be served consecutively. Id. at 258. On April 3, the U.S. Marshals Service in Idaho requested the prisoner transportation division to arrange for Mr. Weekes' transport back to the Idaho State Correctional Facility "to serve state sentence as he was given 2-5 yrs. for prob. violation ... before he was sentenced federally but while he was in fed. cust." Id. at 260.
On April 12, 1995, the Idaho DOC lodged a notice of detainer with the Lompoc penitentiary. The notice stated that Mr. Weekes "has a concurrent sentence running in Idaho" and requested sixty days notice prior to his release from federal custody. Id. at 262. On April 18, Lompoc acknowledged receipt and filing of the detainer and informed the Idaho DOC that Mr. Weekes' federal "[r]elease is tentatively scheduled for 10-23-2003." Id. at 256. A copy of this "detainer action letter" was apparently given to Mr. Weekes. See id.
On the same date, however, the U.S. Marshals Service prepared a transit document authorizing Mr. Weekes' transfer back to Idaho, and he was transferred and released to state custody in Idaho on April 20, 1995. Id. at 264, 280. Appellee states that the release to state custody was made on the basis of the Idaho detainer. See id. at 253.
It is uncontroverted that Mr. Weekes was given credit on his state sentence from April 20, 1994 to April 19, 1995, including the time he spent in federal custody. After serving in Idaho state prison for a full five-year state term, on April 18, 1999, Mr. Weekes was again transferred to the custody of the federal BOP. Citing White and § 3585, Mr. Weekes asserted that his federal sentence began on February 21, 1995, and that he should be released or at least be given credit on his federal sentence for the five years that he was incarcerated in state prison.
The BOP refused to grant such credit, basing its denial on Prisons Program Statement No. 5880.28 (July 29, 1994) of its Sentence Computation Manual (hereinafter P.P.S. 5880.28), and contending that Mr. Weekes was in federal custody on the basis of a federal writ of habeas corpus ad prosequendum. Appellee's App. at 120-21, 128. The BOP also based its denial of federal credit on its determination that primary jurisdiction remained in Idaho and that Mr. Weekes' transfer to Lompoc was an error because he should have been returned to Idaho after federal sentencing as a required condition of the writ. Id. at 121. The BOP thus contended that Mr. Weekes' federal sentence did not begin until April 18, 1999. Mr. Weekes filed this habeas petition.
A federal prisoner is statutorily entitled to credit for time spent in official detention prior to the date his federal sentence commences if the detention resulted from the same offense of conviction or from another charge for which the defendant was arrested after commission of the offense of conviction and if that time has not been credited against another sentence. 18 U.S.C. § 3585(b). Mr. Weekes received credit against his state sentence for all the time served prior to the date his federal sentence commenced, whether the commencement date of his federal sentence is considered to be in 1995 or 1999. The magistrate judge's report and recommendation and the district court order thoroughly and accurately analyzed Mr. Weekes' claim under § 3585(b), and for substantially the same reasons as stated in the report and order, we agree that Mr. Weekes is not entitled to pre-sentence credit under § 3585(b).
Neither the magistrate judge's report nor the district court order, however, addresses Mr. Weekes' additional claim that he is entitled to post-sentencing federal credit for time served in a state facility under the principle that a "sentence of five years means a continuous sentence, unless interrupted by ... some fault of the prisoner, and he cannot be required to serve it in installments." White, 42 F.2d at 789. At the heart of Mr. Weekes' argument is his claim that, pursuant to § 3585(a), his federal sentence actually commenced when he was designated to be transferred to serve his time at the federal penitentiary in Lompoc on February 21, 1995, and continued to run despite the fact that the United States sent him to Idaho to serve his state sentence. Mr. Weekes vigorously contended that no federal writ of habeas corpus ad prosequendum ever existed.
Appellee maintained that (1) Mr. Weekes' release to federal custody on May 16 was "erroneous[]," Appellee's Br. at 4, 13; (2) sending Mr. Weekes to begin serving his federal sentence was simply a further "mistake," id. at 5, with no legal significance; and (3) it was under a legal obligation to return Mr....
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