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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION

UNITED STATES OF AMERICA,

v. CASE NO. 1:96-cr-5-MP-GRJ

CLARENCE JOHNSON, JR.,

_____________________________/

REPORT AND RECOMMENDATION

This case is before the Court on Doc. 58, Defendant’s “Petition for Time Served

in State Custody Pursuant to Audita Querela or [28 U.S.C §] 2255(f)(3),” which has

been referred to the undersigned for a report and recommendation. Based upon a

review of the petition and the record of the prior proceedings, it plainly appears that

Defendant is not entitled to relief. Accordingly, the undersigned concludes that the

Government should not be required to file a response and recommends that the petition

be dismissed. See Rule 4, Rules Governing Section 2255 Proceedings. 

On July 18, 1996, Defendant was sentenced to a term of 262 months for

possession of firearms and ammunition by a convicted felon. He was subsequently

sentenced by the State of Florida in August 1996 to a term of 4 years, 8 months, and

24 days for a conviction of burglary of a dwelling. Defendant was released from state

custody on May 8, 2000, and his federal sentence commenced on that date.

In 2004, Defendant requested that the Bureau of Prisons give him credit on his

federal sentence for time served in state custody by way of a nunc pro tunc

designation. In accordance with policy, the BOP contacted the Court to determine

whether the Court had any objection to such nunc pro tunc designation. Doc. 50. On

January 6, 2005, the Hon. Maurice M. Paul responded by letter to the BOP stating that
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“I am adamantly opposed to granting the defendant nunc pro tunc designation so that

his federally imposed sentence can be made to run concurrent with his state sentence.” 

Doc. 51.

In September 2006, Defendant filed a petition for a writ of habeas corpus

pursuant to 28 U.S.C § 2241 in the Middle District of Florida, where Defendant is

confined, seeking credit on his federal sentence for time spent in state custody. The

petition was denied. Johnson v. Warden, Case No. 5:06-cv-354-WTH-GRJ, Doc. 10

(M.D. Fla. 7/31/09). 

On April 25, 2011, Defendant filed a “motion to obtain credit for time served.” 

Doc. 52. The Court directed the Government to respond to the motion. Docs. 53, 55. 

On May 31, 2011, the Court entered an order denying the motion. Doc. 57. The Court

noted that it had previously expressed its clear intent that Defendant’s federal sentence

not run concurrent to his state sentence. The Court also noted that because

Defendant’s request pertained to the BOP’s execution of his sentence it should have

been raised by way of a petition for a writ of habeas corpus under 28 U.S.C § 2241,

filed in the district of confinement. Id.

The instant petition seeks the same relief that the Court has previously denied: 

credit toward Defendant’s federal sentence for the time spent in state custody prior to

May 8, 2000. Doc. 58. Defendant asserts that he is entitled to such relief pursuant to

Setser v. United States, ___ U.S. ___, 132 S.Ct. 1463 (2012). Defendant argues that

Setser stands for the proposition that the Court can order his federal and state

sentences to run concurrently, and that the Court “simply failed to consider if his federal

sentence should run concurrently or consecutively with the State sentence.” Id.
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In Setser, the Supreme Court considered whether a district court, in sentencing a

defendant for a federal offense, has authority to order that the federal sentence be

consecutive to an anticipated state sentence that has not yet been imposed. The

district court in Setser had ordered a federal sentence for a drug offense to run

consecutive to an anticipated state sentence for a probation violation, but concurrently

with an anticipated state sentence for the new drug charge. Setser appealed on the

ground that the district court had no authority to order a consecutive sentence. While

his federal appeal was pending, the state court sentenced him to concurrent five and

ten-year terms for the probation violation and new drug offense, respectively. Setser

then asserted the argument in his federal appeal that his federal sentence was

unreasonable because it was impossible to implement in light of the concurrent state

sentences.

The Supreme Court concluded that a district court has the discretion under 18

U.S.C § 3584(a) to order a federal sentence to run consecutively to an anticipated state

sentence, and that subsequent actions by the state court that thwart the federal

sentence do not render the sentence unreasonable. The Court explained that the

defendant was free to seek administrative relief from the BOP by asking for credit for

time served in state custody based on the district court’s judgment that the federal

sentence be concurrent with the sentence for the new drug charges, and if such efforts

were unsuccessful, to then seek a writ of habeas corpus under 28 U.S.C § 2241.

Setser, 132 S.Ct. at 1469-73. 

In this case, although the original sentence did not specify whether it was to run

concurrent or consecutive to Defendant’s subsequent state sentence, the Court has
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unequivocally stated its opposition to concurrent sentences. Setser simply confirms

that the Court had the discretion to order consecutive sentences had it found it

appropriate to do so. It does not stand for the proposition that the Court must

reconsider its sentence. Rather, as the Court has previously explained, and as the

Supreme Court reiterated in Setser, Defendant’s remedy was to seek administrative

relief in the BOP and then, if dissatisfied, file a habeas petition. Defendant has availed

himself of such remedies. There is no basis under Setser, 28 U.S.C § 2255, or any

other procedural mechanism for the Court to entertain another request for the same

relief in Defendant’s underlying criminal proceedings. 

In light of the foregoing, it is respectfully RECOMMENDED that the petition, Doc.

58, be DENIED.

IN CHAMBERS this 13 day of February 2013. 

th

s/Gary R. Jones 

GARY R. JONES

United States Magistrate Judge

NOTICE TO THE PARTIES

Pursuant to Fed. R. Civ. P. 72(b)(2), a party may file specific, written

objections to the proposed findings and recommendations within 14 days after

being served with a copy of this report and recommendation. A party may

respond to another party’s objections within 14 days after being served with

a copy thereof. Failure to file specific objections limits the scope of review of

proposed factual findings and recommendations.