* District Judge for the Western District of Louisiana,

sitting by designation. United States Court of Appeals

Fifth Circuit



## FILED

June 5, 2003

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________________

No. 02-50936

__________________________

HAROLD EUGENE FREE,

Petitioner-Appellant,

v.

R. D. MILES, Warden, FCI Bastrop,

Respondent-Appellee.

___________________________________________________

Appeal from the United States District Court for the

Western District of Texas, Austin Division

___________________________________________________

Bef ore WIENER and CLEMENT, Circuit Judges, and LITTLE *

, District

Judge.

PER CURIAM :

Petitioner-Appellant Harold Eugene Free appeals the district

court’s decision granting in part and denying in part his pro se

habeas corpus petition under 28 U.S.C. § 2241. As the district

court granted the relief sought by Free regarding the effective

starting date of his federal incarceration, Free has appealed only

that court’s denial of relief regarding his entitlement to a timeserved credit. We affirm.2 I. FACTS AND PROCEEDINGS

Free began a back-and-forth odyssey between state and federal

prisons in November 1996, when the State of Texas convicted him for

cocaine delivery, sentenced him to eight years’ imprisonment, and

incarcera ted him in a state prison. The next month, a federal

grand jury indicted him on two counts of distribution of cocaine

based on facts unrelated to those underlying his state conviction;

a nd Free was transferred to federal custody on a writ of h abeas

corpus ad prosequendum.

In federal court, Free pleaded guilty to a single count of

cocaine base distribution, and, in June 1997, the district court

sentenced him to 100 months’ imprisonment in federal prison, to be

followed by five years’ supervised release. The district court’s

sentencing order did not specify whether Free’s federal sentence

would be served concurrently with or consecu tively to his state

sentence, and Free did not file a direct appeal.

Following his f ederal sentencing, Free was transferred, on

J une 27, 1997, to a Federal Correctional Institute (“FCI”) in

Colorado. In December of that year, Bureau of Prison (“BOP”)

officials realized their mistake: Free should have been returned to

the Texas Department of Corrections (“TDC”) to complete his state

sentence before starting to serve his federal sentence. The BOP

returned Free to state custody on December 29, 1997.

In April 2000, Free was paroled by Texas, and he was returned

to federal custody to serve his federal sentence. Free is now1 14 F. Supp. 2d 773 (E.D.N.C. 1997).

3 incarcerated at the FCI in Bastrop, Texas, as federal prisoner no.

78186-080. He is currently scheduled to be released on July 18,

2007.

In May 2001, Free filed a pro se habeas corpus petition under

28 U.S.C. § 2241, claiming that the BOP had (1) erroneously

calculated the starting date for his federal sentence, and (2)

failed to give him credit for the time he served while in state

custody. His case was assigned to a magistrate judge, who

determined that (1) the BOP had erroneously calculated the starting

date of Free’s federal sentence, but (2) Free is not entitled to

credit against his federal sentence for the time he served on his

state sentence in state prison. Neither Free nor the government

filed timely objections , and the district court adopted the

magistrate judge’s findings and recommendations.

Free then filed a motion for a new trial or amendment of

judgment. Free maintained in his motion that his case is similar

to Luther v. Vanyar

, 1 in which a prison er was mistakenly

transferr ed from federal to state custody, and was given federal

credit for the time he served in state custody. Apparently

treatin g Free’s motion as one for rehearing, the district court

granted Free’s motion and vacated its previous ruling. Following

its consideration of Luther and the relevant statutes, however, the

district court again adopted th e magistrate judge’s original2 Ojo v. INS , 106 F.3d 680, 681-82 (5th Cir. 1997). See

also 28 U.S.C. § 2253(c).

3 Moody v. Johnson , 139 F.3d 477, 480 (5th Cir. 1998).

4 recommendation that Free not receive a time-served credit on his

federal sentence for the period of approximately two years that he

had spent in state custody after his init ial six-month

incarceration in the Colorado FCI. Free timely filed a notice of

appeal.

II. ANALYSIS

A. Standard of Review.

As Free filed a motion under § 2241, he need not obtain a

certificate of appealability to proceed on appeal. 2 In an appeal

from a district court’s denial of habeas relief, we review the

findings of fact for clear error and rulings of law de novo

. 3

B. Free’s claim for credit against his federal sentence for time

served in state custody on his state sentence.

Interestingly, Free’s claim for time-served credit only makes

sense in light of his successful petition on the issue of the

proper starting date of his federal sentence. In considering his

§ 2241 petition, the magistrate judge determined that Free’s

federal sentence began on June 27, 1997, because 18 U.S.C. §

3585(a) states that “a term of imprisonment commences on the date

the defendant is received in custody

. . . .” Although Free was

returned to the TDC on December 29, 1997, to complete his state

sentence, he had by then served approximately six months in federal4 Free offers two additional arguments in his appellate

briefs: The district court failed to (1) comply with 18 U.S.C. §

3584(b), which requires the court to apply 18 U.S.C. § 3553(a)

and United States Sentencing Guidelines § 5G1.3, and (2) award

him credit against his federal sentence for his pre-sentence

custody. As Free failed to raise either of these contentions

before the magistrate judge or district court, we will not

consider them on appeal. See Yohey v. Collins , 985 F.2d 222, 225

(5th Cir. 1993).

5 custody, between June 27 and December 29, 1997. Thus, the

magistrate judge concluded, Free’s federal sentence “commenced” on

June 27, 1997, and his period of approx imately six months’

incarceratio n at the Colorado FCI must be counted by the BOP as

time served on his federal sentence.

On appeal, Free insists that the magistrate judge’s rejection

of his second habeas claim —— credit towards his federal sentence

for time served in state confinement

—— was improper given the

recognition that he had begun to serve his federal sentence on June

27, 1997. 4 He contends that logic mandates that acknowledgment of

his federal sentence’s commencing on June 27, 1997 requires that he

receive time-served credit for the approximately two-year

“interruption”

—— between December 1997 and April 2000

—— of his

serving the federal sentence after the BOP returned him to the TDC

to finish serving the state sentence. Free bases this conclusion

on two propositions: (1) As the district court’s sentencing order

did not indicate that his feder al and state sentences were to be

served co nsecutively, those sentences must run concurrently, and

(2) a common law rule requi res that a prisoner be credited with5 18 U.S.C. § 3584(a).

6 Causey v. Civiletti , 621 F.2d 691, 693 (5th Cir. 1980).

6 time served when an interruption in a prison sentence is not caused

by, or is not the fault of, the prisoner himself.

Free’s first contention is without merit. Well-settled

federal law presumes that when multiple terms of imprisonment are

imposed at different times, they will run consecutively unless the

district court specifically orders that they run concurrently. 5

Thus, Free’s contention has the sentencing presumption reversed: A

district court must specify in its sentencing order that sentences

run concurrently; otherwise, they run consecutively. Accordingly,

Free’s state and federal sentences ran consecutively, because the

district court did not specify otherwise.

The proper resolution of Free’s second contention is less

obvious. We have not found a federal statute or a prior case in

this circuit that specifically addresses the instant circumstances:

(1) A state prisoner on “loan” 6 to federal authorities is convicted

and sentenced for a federal crime; (2) the prisoner begins to serve

his federal sentence through a mistake of the federal authorities

and no fault of his own; (3) after serving less than his full

federal sentence in federal custody, the prisoner i s returned to

state custody to complete his state sentence; and (4) after

completion of his state sentence, the prisoner is returned to

federal custody to complete his federal sentence. There is some7 See Zerbst v. Kidwell , 304 U.S. 359 (1938) (holding that

paroled prisoners’ commissions of other crimes interrupted

original sentences); Dunne v. Keohane , 14 F.3d 335, 336 (7th Cir.

1994) (noting common law rule “that unless interrupted by fault

of the prisoner . . . a prison sentence runs continuously from

the date on which the defendant surrenders to begin serving it”);

In re Grand Jury Proceedings , 541 F.2d 464 (5th Cir. 1976)

(explaining that civil contempt confinement interrupts existing

sentence for the term of the grand jury proceeding); Lipscomb v.

Clark , 468 F.2d 1321 (5th Cir. 1972) (holding that issuance of

“violator’s warrant” interrupted another non-concurrent

sentence); Moultrie v. Georgia , 464 F.2d 551 (5th Cir. 1972

(holding that violation of parole interrupts sentence).

8 See Dunne , 14 F.3d at 337 (noting that back-and-forth

returns of prisoner to and from state and federal custody “with

no release into the free community” did not violate rule that

government may not delay expiration of sentence through piecemeal

incarceration); Cox v. Federal Bureau of Prisons , 643 F.2d 534

(8th Cir. 1981) (holding that prisoner not entitled to timeserved credit against federal sentence for interruption of this

sentence to complete state sentence); Comulada v. Willingham , 351

F.2d 936 (10th Cir. 1965) (holding that prisoner would not

receive time-served credit against his federal sentence for the

time he spent completing his state sentence after he was returned

to local authorities, although his erroneous transfer to federal

custody commenced his sentence).

7 precedent that supports the rule that a sentence may be interrupted

and re-started only if the interruption is the fault of the

prisoner. In such cases, the period of interruption is not

credited against the sentence as time serv ed. 7 There is also

precedent in other circuits suggesting that a federal sentence may

be interrupted and re-started without time-served credit,

regardless of whether the prisone r is at fault for the

interruption. 8

In urging that he should be granted time-served credit, Free9 Luther v. Vanyur , 14 F. Supp. 2d 773 (E.D.N.C. 1997).

10 Id. at 774.

11 Green v. Christiansen , 732 F.2d 1397, 1400 (9th Cir.

1984); White v. Pearlman , 42 F.2d 788, 789 (10th Cir. 1930);

United States v. Mazzoni , 677 F. Supp. 339, 341-42 (E.D. Pa.

1987).

12 Luther , 14 F. Supp. 2d at 779 (emphasis added).

8 relies heavily on t he aforementioned L uther case. 9 There, the

defendant was convicted and sentenced on federal charges, but he

absconded before his federal sentence commenced. While on the lam,

he was arrested and convicted on unrelated state charges. 10 He was

then erroneously transferred to federal custody, and served more

than three years of his federal sentence before being returned to

state custody. On completion of his state sentence, that defendant

was paroled and taken back into federal custody to complete his

f ederal sentence. The BOP did not give him credit against his

federal sentence f or the time he served in state custody, so he

filed a § 2241 petition, challenging the BOP’s decision. The

Luther court analogized the transfer s to inadvertent prisoner

releases , which present circumstances that courts have repeatedly

held to be deserving of credit for time served. 11 That c ourt

concluded: “Surely if a prisoner can be credited with time spent at

liberty due to custodial mistake, a prisoner can be credited for

time spent in custody due to custodial mistake.” 12

We conclude that the district court in Luther o verbroadly

applied the common law rule that a prisoner is entitled to credit13 Pearlman , 42 F.2d at 789 (“A sentence . . . means a

continuous sentence, unless interrupted by escape, violation of

parole, or some fault of the prisoner, and he cannot be required

to serve it in installments.”).

14 Dunne , 14 F.3d at 336-37.

15 Id. at 335-36.

16 Id. at 337.

9 for time served when he is incarcerated discontinuously through no

fault of his own. 13 The limited function of this rule is clear: Its

sole purpose is to prevent the government from abusing its coercive

power to imprison a person by artificially extending the duration

of his sentence through releases and re-incarcerations. As the

Seventh Circuit recently explained:

[This] common law rule has not been successfully invoked for

many years, but we are not disposed to question its continued

vitality in the core area of its application, when the

gov ernment is trying to delay the expiration of the

defendant’s sentence. 14

The Seventh Circuit refused to apply this common law rule in

circumstances similar to Free’s: An inmate was “reclassified” from

being a federal prisoner to being a state prisoner for the purpose

of having him finish serving his state sentence before serving his

consecutive federal sentence. 15 The Seventh Circuit recognized

that, as there was “no release into the free community,

. . . there

was no postponement” of the federal sentence. 16 Ergo, reasoned that

court, there was no violation of the rule against piecemeal

incarceration that results in the elongation of a prison sentence.

On similar reasoning, the E ighth Circuit refused to grant time-17 Cox , 643 F.2d at 537.

10

served credit to a prisoner who was returned to state custody to

complete a state sentence, and, on parole from state prison, was

returned to federal custody to complete a consecutive federal

sentence. 17

It is apparent from the record that Free’s total time of

incarceration in both federal and state prisons has not been

—— and

will not be

—— increased by even a single day as a result o f his

mistakenly serving the first six months of his federal sentence

prior to completing the service of his state sentence. Although

the BOP originally did not give Free credit for these six months,

he rightly and successfully challenged that decision in the instant

habeas petition; a result that the govern ment has not appealed.

Thus, Free is serving the correct total time of his consecutive

state and federal sentences. That he will have done so in two

shifts between sovereigns rather than one is of no moment.

III. CONCLUSION

The rule against piecemeal incarceration precludes the

government from artificially extending the expi ration date of a

prison sentence; the rule d oes not, however, justify or mandate

that a prisoner receive a “get out of jail early” card any time

that such a minuet occurs, even when the prisoner is not at fault.

As we conclude that Free is not entitled to credit on his federal

sentence for time served in state custody, we affirm the district11

court.

AFFIRMED