Case: 6:12-cv-00232-KKC Doc #: 6 Filed: 06/04/13 Page: 1 of 5 - Page ID#: 106
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION AT LONDON
J. C. HOLLAND, Warden,
Civil No. 6: 12-232-KKC
**** **** **** ****
Lonnie Freeman is an inmate confined at the United States Penitentiary - McCreary in Pine
Knot, Kentucky. Proceeding without an attorney, Freeman has filed a petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2241 challenging the Bureau of Prisons’ (“BOP”) computation of his
sentence. [R. 1]
The Court conducts an initial review of habeas corpus petitions. 28 U.S.C. § 2243;
Alexander v. Northern Bureau of Prisons, 419 F. App’x 544, 545 (6th Cir. 2011). The Court must
deny the petition “if it plainly appears from the petition and any attached exhibits that the petitioner
is not entitled to relief.” Rule 4 of the Rules Governing § 2254 Cases in the United States District
Courts (applicable to § 2241 petitions pursuant to Rule 1(b)). The Court evaluates Freeman’s
petition under a more lenient standard because he is not represented by an attorney. Erickson v.
Pardus, 551 U.S. 89, 94 (2007); Burton v. Jones, 321 F.3d 569, 573 (6th Cir. 2003). At this stage,
the Court accepts the petitioner’s factual allegations as true, and his legal claims are liberally
construed in his favor. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007).
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On March 28, 2006, Freeman was arrested in Barren County, Kentucky, by state police for
possession of anhydrous ammonia with intent to manufacture methamphetamine, manufacturing
methamphetamine, and possession of a firearm by a convicted felon. At some point after his arrest,
state authorities also charged Freeman with two counts of facilitation to murder, tampering with
physical evidence, and of being a persistent felony offender. [R. 1-1, pp. 8, 13-15]
On December 6, 2006, Freeman was indicted by a federal grand jury in the United States
District Court for the Western District of Kentucky of being a felon in possession of a firearm (a
short barrel shotgun) in violation of 18 U.S.C. § 922(g)(1), and of being in possession of an
unregistered firearm in violation of 26 U.S.C. § 5845. Freeman was temporarily borrowed from state
custody pursuant to a writ of habeas corpus ad prosequendum on August 22, 2007. Shortly before
trial, on September 26, 2008, Freeman signed a written agreement to plead guilty to both charges.
The trial court accepted Freeman’s plea, and following a sentencing hearing on January 23, 2009,
entered its judgment and commitment order on February 2, 2009. The federal court sentenced
Freeman to serve an 84-month term of incarceration on each count, the terms to be served
concurrently with one another. Freeman did not appeal from this judgment and has not filed a
motion for collateral relief pursuant to 28 U.S.C. § 2255. United States v. Freeman, No. 1:06-CR-
60-001-JHM (W.D. Ky. 2006).
Following his federal sentencing, Freeman was returned to state custody on February 11,
2009. [R. 1-1, p. 8] On March 4, 2009, the Circuit Court of Warren County, Kentucky, sentenced
Freeman to a 12-year term of incarceration on two counts of facilitation to murder, which that court
ordered to be served concurrently with Freeman’s previously-imposed federal sentence.
Commonwealth v. Freeman, No. 07-CR-549-001 (Warren Cir. Ct. 2007). [R. 1, p. 6; R. 1-1, pp. 8,
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13-15] While serving this sentence, on August 17, 2009, the Circuit Court of Barren County,
Kentucky, sentenced Freeman to a 10-year term of incarceration for attempt to manufacture
methamphetamine, and a concurrent 5-year term for being a persistent felony offender, which that
court ordered to be served concurrently with Freeman’s previously-imposed federal sentence.
Commonwealth v. Freeman, No. 09-CR-007 (Barren Cir. Ct. 2009) [R. 1-1, pp. 8, 16-18] Freeman
completed service of his state sentences on January 3, 2012, at which time he was surrendered to
federal custody pursuant to a federal detainer. [R. 1-1, p. 9]
In denying his administrative grievances, the Bureau of Prisons concluded that the time
period for which Freeman sought credit against his federal sentence, from the date his federal
sentence was imposed on February 2, 2009, until he was released by state authorities to federal
custody on January 3, 2012, had already been credited against his state sentence, and therefore could
not also be counted against his state sentence pursuant to 18 U.S.C. § 3585(b). [R. 1-1, p. 9] The
BOP also rejected Freeman’s implicit contention - that the state court’s order that his state sentence
should run concurrently with his federal sentence caused his federal sentence to begin running when
his state sentence commenced - as contrary to 18 U.S.C. § 3585(a). [R. 1-1, p. 8] Finally, construing
Freeman’s grievance as a request for nunc pro tunc designation under Barden v. Keohane, 921 F.2d
476 (3d Cir. 1990), the BOP considered the relevant factors under 18 U.S.C. § 3621(b), and found
such retroactive designation inappropriate. [R. 1-1, p.9]
In his petition, Freeman contends that the BOP failed to honor the state court’s order that its
sentence run concurrently with his federal sentence by commencing his federal sentence on March
4, 2009, the date his first state sentence was imposed. [R. 1, pp. 6-8]
Calculation of a federal prisoner’s sentence, including both its commencement date and any
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credits for custody before the sentence is imposed, is determined by federal statute:
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 detention facility at which the sentence is to be served.
A defendant shall be given credit toward the service of a term of
imprisonment for any time he has spent in official detention prior to the date the
sentence commences –
as a result of the offense for which the sentence was imposed; or
as a result of any other charge for which the defendant was arrested
after the commission of the offense for which the sentence was imposed;
that has not been credited against another sentence.
18 U.S.C. § 3585. The BOP implements § 3585 through Program Statement 5880.28.
Under Section 3585(a), Freeman’s sentence commenced when he was received into federal
custody to begin service of it on January 3, 2012. Jones v. Eichenlaub, No. 08-CV-13624, 2010 WL
2670920, at *2 (E.D. Mich. 2010) (“A consecutive [federal] sentence imposed on a defendant
already in state custody, however, cannot commence until the state authorities relinquish the prisoner
on satisfaction of the state obligation.”) (citing Thomas v. Whalen, 962 F.2d 358, 361 n.3 (4th
Cir.1992). Because Freeman seeks credit for the time he spent in custody preceding this date, its
availability is governed by Section 3585(b). However, because the time period Freeman spent in
state prison was credited against his state sentences, it may not be “double counted” against his
federal sentence. Huffman v. Perez, No. 99-6700, 2000 WL 1478368 (6th Cir. Sept. 27, 2000);
Broadwater v. Sanders, 59 F. App’x 112, 113-14 (6th Cir. 2003).
The fact that the state court ordered its sentence to run concurrently with his pre-existing
federal sentence does not change this result. While “a state court may express its intent that a
defendant’s state sentence run concurrently with a previously imposed federal sentence, this intent
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is not binding on federal courts or the BOP.” United States v. Allen, 2005 WL 332413, at **2 (3d
Cir. 2005) (citing Barden v. Keohane, 921 F.2d 476 (3d Cir. 1990)). Further, while the state court
could ordered its sentence to run alongside Freeman’s federal sentence which had already
commenced, a state court’s order directing concurrent sentencing does not and cannot thereby cause
a previously imposed federal sentence to commence until the state sentence has expired. 18 U.S.C.
§ 3585(a); Simms v. United States, No. 08-cv-43-HRW (E.D. Ky. 2008) (slip op. of Sept. 21, 2009)
(citing Allen). Because the BOP properly determined that Section 3585(b) precludes the credit
Freeman seeks, the Court must deny his petition.
Accordingly, IT IS ORDERED that:
Freeman’s petition for a writ of habeas corpus [R. 1] is DENIED.
Freeman’s “Motion for a Temporary Restraining Order and Preliminary Injunction”
[R. 3] is DENIED.
The Court will enter an appropriate judgment.
This matter is STRICKEN from the docket.
This the 4 day of June, 2013.