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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

AMARILLO DIVISION

CECIL RAY PATTERSON, §

§

Petitioner, §

§

v. § 2:03-CV-0264

§

DOUGLAS DRETKE, Director, §

Texas Department of Criminal Justice, §

Correctional Institutions Division, §

§

Respondent. §

REPORT AND RECOMMENDATION

TO DISMISS PETITION FOR A WRIT OF HABEAS CORPUS

Citing 28 U.S.C. § 1361, petitioner CECIL RAY PATTERSON has filed with this Court a

“Petition for a Writ of Mandamus” seeking an Order directing the United States Bureau of Prisons

and its director to credit his future federal sentence for “all time served in BOP custody” and “for all

time served after commencement of service on the federal sentence.” This pleading has been

construed by this Court as a petition for a writ of habeas corpus under 28 U.S.C. § 2241 and

docketed as such.

The following facts, set forth in a Report and Recommendation entered by the undersigned

on August 26, 2003 in Cause No. 2:01-CV-0135, provide some background information which is

relevant to this proceeding:

On December 2, 1991, while on parole for two prior state offenses, petitioner

was arrested by the Denton Police Department in Denton, Texas for committing the

state offenses of Attempted Capital Murder and Burglary of a Building. Petitioner

was held by state authorities as a pretrial detainee as well as a parole violator. On

 

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1

On April 29, 1992, the government gave notice that it would seek a sentence enhancement on the grounds that

petitioner had at least three (3) previous convictions for violent felonies.

2

A writ used in criminal cases to bring before a court a prisoner to be tried on charges other than those for which the

prisoner is currently being confined. Black’s Law Dictionary 715 (7th ed. 1999). 

3

See Free v. Miles, 2003 WL 21290878 (5th Cir. June 5, 2003) (citing Causey v. Civiletti, 621F.2d 691, 693 (5th Cir.

1980).

4

Upon receiving petitioner, the United States Marshals Service (USMS) boarded petitioner at the Grayson County Jail

through September 25, 1992, until transferring petitioner to the Carter County Jail for boarding. On November 12, 1992,

petitioner was returned to Grayson County Jail for boarding where he remained until being returned to the custody of Denton

County on November 25, 1992.

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December 19, 1991, petitioner was indicted by the state for such offenses. On

January 8, 1992, petitioner’s state parole was revoked as a result of his December 2,

1991 criminal activity.

On April 9, 1992, petitioner was charged in a 2-count indictment in the

United States District Court for the Eastern District of Texas, Sherman Division, with

the offenses of Felon in Possession of a Firearm, and Carrying a Firearm in Relation

to a Crime of Violence. United States v. Patterson, No. 4:92-CR-13.1

 Such charges

arose out of petitioner’s criminal activity on December 2, 1991. On April 13, 1992,

the Sherman Court scheduled petitioner’s arraignment on the federal charges for

April 29, 1992. As petitioner was in state custody, the government moved for a

petition for a writ of habeas corpus ad prosequendum2

 to secure petitioner’s presence

at his federal arraignment. The Sherman Court granted such petition and the writ was

issued by the clerk of the federal court. 

On April 21, 1992, in response to the federal writ, the State “loaned”3

petitioner, who was in state custody awaiting disposition of the new state charges, to

federal authorities.4

 The new state criminal charges remained pending in the state

court. On August 25, 1992, petitioner was convicted in federal court by a jury of the

federal offenses as charged and, on November 25, 1992, petitioner was sentenced to a

426-month federal term of imprisonment. On that same date, federal authorities

returned petitioner to the Denton County Sheriff’s Office as the purpose of the

federal writ of habeas corpus ad prosequendum had been satisfied. Petitioner timely

appealed his federal conviction and sentence.

On March 4, 1993, petitioner was convicted in state court, by a jury, of the

state criminal offense of attempted capital murder, and was sentenced to life

imprisonment for the offense. In its form judgment, in the section entitled “Date to

Commence,” the state trial judge indicated petitioner’s state life sentence was to

commence “[u]pon completion of sentence assessed November 25, 1992 in Cause

No. 4:92cr13-1 in the United States District Court Eastern District of Texas.” On the

form, the state trial court judge did not indicate petitioner’s sentence was to be

credited with any time served. In the body of the judgment, the state trial judge

 

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 ordered petitioner’s life sentence:

to run from and after the defendant completes his sentence, and be

consecutive to the sentence assessed on November 25, 1992, in cause

no. 4:92CR13-1 in the United States District Court, Eastern District of

Texas, which sentence was assessed by the United States District

Court at imprisonment in the United States Bureau of Prisons for 426

months for the offense of felon in possession of a firearm and the

offense of Carrying a Firearm in Relation to a Crime of Violence,

respectively.

The state trial judge further ordered that petitioner “be delivered by the Sheriff of

Denton County, Texas, immediately, to the U.S. Marshals for commitment to the

United States Bureau of Prisons pursuant to the Judgment entered on November 25,

1992 in Cause No. 4:92cr13-1 in the United States District Court, Eastern District of

Texas.” The state trial judge also included the following in the body of his

Judgment:

It is Further Adjudged and Decreed by this Court that following the

completion of the sentence assessed in Cause No. 4:92cr13-1, the U.S.

Marshall deliver said defendant to the Director of the Institutional

Division of the Texas Department of Criminal Justice or other persons

legally authorized to receive such convicts, and said defendant shall

be confined in said Institutional Division of the Texas Department of

Criminal Justice for LIFE in accordance with the provisions of the law

governing the Institutional Division of the Texas Department of

Criminal Justice of said State and the said defendant is remanded to

jail until said Sheriff can obey the direction of this sentence.

IT IS FURTHER ADJUDGED AND DECREED by this Court that

the sentence pronounced herein shall begin after the defendant

completes his sentence, and be consecutive to the sentence assessed on

November 25, 1992 in Cause No. 4:92cr13-1 in the United States

District Court, Eastern District of Texas, which sentence was assessed

by the United States District Court at imprisonment in the United

States Bureau of Prisons for 426 months for the offense of felony in

possession of a firearm and the offense of Carrying a Firearm in

Relation to a Crime of Violence, respectively.

The state trial judge then . . . granted petitioner 459 days credit for time served.

On May 10, 1993, it appears Denton County authorities delivered petitioner

to the USMS who requested the BOP designate an institution for petitioner. On May

19, 1993, petitioner was placed in the FCI, El Reno, Oklahoma, for temporary

housing pending designation of a federal institution. On May 20, 1993, petitioner’s 

 

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5

Petitioner was admitted to an in-transit facility on September 10, 1993.

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place of confinement was designated, and petitioner was delivered to, the USP,

Leavenworth, Kansas. On September 1, 1993, petitioner was released from the BOP

on federal writ to attend a new sentencing hearing in his federal criminal case. A

resentencing hearing was held in the Sherman Federal Court on September 17, 1993. 

Petitioner was returned to the BOP on September 23, 1993.5

 The BOP calculated

petitioner’s service of his federal sentence, utilizing a computation begin date of

September 17, 1993, but allowing jail credit from December 2, 1991 through

September 16, 1993. 

On February 15, 1994, the federal district judge signed the new judgment

resentencing petitioner to a 387-month term of federal imprisonment. On February

23, 1994, the federal district judge entered a Corrected Judgment in petitioner’s

federal criminal case, finding petitioner guilty of only the first count and resentencing

petitioner to a 327-month term of federal imprisonment. On March 15, 1994,

petitioner was returned to USP Leavenworth. On April 4, 1994, petitioner was

transferred to USP Florence, Colorado. 

On November 26, 1996, petitioner was transferred to USP Atlanta, Georgia. 

On January 6, 1997 or some earlier date, the BOP staff at Atlanta discovered the

State of Texas had primary jurisdiction over petitioner at the time he was convicted

and sentenced in federal court, having never relinquished said jurisdiction by way of

bail, dismissal of state charges, parole, expiration of sentence, or other similar

fashion. After reviewing petitioner’s documentation, the Bureau of Prisons Regional

Inmate Systems Administrators concluded that primary jurisdiction over petitioner

rested with the State of Texas, and that he had been erroneously transferred to federal

custody for service of his federal sentence through administrative error. 

Consequently, on January 6, 1997, BOP officials arranged for petitioner to be

returned to the custody of the State of Texas. 

On January 9, 1997, after serving less than his full federal sentence in federal

custody, the BOP initiated petitioner’s transfer back to the custody of the State of

Texas. Petitioner was in transit from January 9, 1997 until March 20, 1997. On

March 20, 1997, the Marshals Service in Sherman, Texas took custody of petitioner

from FCI Seagoville, Texas. On March 21, 1997, Marshals returned petitioner to

state custody by delivering petitioner to state authorities at the Denton County Jail in

Denton, Texas. 

On April 18, 1997, the Marshals Service lodged a federal detainer with

TDCJ-ID requesting that the Marshals Service by notified by state prison authorities

of petitioner’s release from state custody. Said detainer was necessary to ensure that

upon completion of his state sentence, petitioner will be returned to federal custody

for service of his 327-month federal sentence.

 

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Petitioner is currently serving his Texas life sentence and has received

continuous credit toward his state sentence beginning December 2, 1991, the date he

was arrested by state authorities, which includes the time period he was in state

custody pending disposition of the state charges for which he was ultimately

sentenced, as well as the period of time he was in federal custody. Service of

petitioner’s federal sentence will begin when petitioner is released from his state

sentence through parole, discharge, commutation, or other similar fashion, and is

returned to federal custody. 

By his instant pleading, petitioner argues he is entitled to receive credit toward his 327-

month federal sentence for (1) “all time served in [Federal Bureau of Prisons] custody,” and (2) “all

time served after commencement of service on the federal sentence.” Petitioner contends he is

entitled to receive approximately four (4) years credit toward his 327-month federal sentence for the

time he was in the BOP’s custody (May 10, 1993 - March 21, 1997), as well as a little over nine (9)

years for the time after he was released from federal custody to Texas authorities to date, because

service of his federal sentence could “not be stopped once commenced.” Petitioner argues that

failure to award him continuous time toward his federal sentence from the date of its commencement

would result in his sentence being served in installments. Petitioner maintains that after service on

his federal sentence was halted when he was released from BOP custody, all of the time he had

served on his federal sentence was deleted. Petitioner thus requests not only that the approximately

four years he served in federal custody be credited against his federal sentence, but that all the time

he has been in state custody be credited against his federal sentence.

Petitioner further alleges, among other things, that any mistake or administrative error by the

Bureau of Prisons in taking petitioner into custody should not be attributed to him but, instead,

should be attributed to the Bureau of Prisons. Petitioner requests the Court order the Federal Bureau

of Prisons to credit him with all time served on his federal sentence, both in the Federal Bureau of

Prisons custody and in Texas custody since his transfer to the Texas Department of Criminal Justice, 

 

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and return him to BOP custody or, alternatively, that the Court order the Texas Department of

Criminal Justice be designated as the place of service for the remainder of his federal sentence and

to credit his federal sentence with all time spent in custody since his federal conviction. 

In addition to the petition for writ of mandamus filed in Cause No. 2:03-CV-0264, petitioner

has also filed what he identifies as a “Suit Under Privacy Act 5U.S.C. § 552” in Cause No. 2:03-

CV-0282. That lawsuit was originally filed in the Dallas Division under Cause No. 3:03-CV-1869

and was treated by the Dallas court as a petition for writ of habeas corpus pursuant to section 2241

as petitioner seeks time credits against his federal sentence. The relief petitioner seeks in Cause No.

2:03-CV-0282 is basically the same relief he seeks in Cause No. 2:03-CV-0264, i.e., credit against

his federal sentence for the four years spent in federal custody following his federal conviction, as

well as credit against his federal sentence for all time spent in the Texas Department of Criminal

Justice since he was transferred out of the Federal Bureau of Prisons and into the Texas Department

of Criminal Justice. Petitioner’s pleading has been construed by this Court as a petition for a writ of

habeas corpus under 28 U.S.C. § 2241 and docketed as such. The merits of Cause No. 2:03-CV0282 will be addressed in a separate Report and Recommendation.

Petitioner is no stranger to the federal courts. He has filed a number of civil rights lawsuits

as well as a number of habeas corpus petitions. He is no longer entitled to proceed in forma

pauperis in any suit pursuant to 42 U.S.C. § 1983 because he has accumulated three (3) strikes for

filing frivolous civil rights lawsuits. In addition, petitioner has filed habeas corpus actions

challenging the calculation of his sentences in at least five (5) other habeas petitions not counting the

two actions presently pending in this Court. Petitioner’s habeas action in Cause No. 2:01-CV-0135

directly attacked the calculation of time credits with respect to his federal sentence, and argued that

the rule against piecemeal incarceration prevented his transfer from federal to state custody. This

 

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Court addressed the merits of petitioner’s claims and denied relief. The Fifth Circuit Court of

Appeals upheld the denial of habeas relief on direct appeal noting petitioner had filed four previous

federal habeas petitions challenging his transfer from federal to state custody and that the instant

appeal was petitioner’s fifth attempt to challenge his transfer. Patterson v. Dretke, Cause No. 03-

10996 (5th Cir. April 23, 2004). The Fifth Circuit dismissed petitioner’s appeal as frivolous and

issued a sanctions warning “that any future filings” to the Fifth Circuit or any court subject to the

jurisdiction of the Fifth Circuit, that challenge his transfer from federal to state custody would invite

sanctions, which could include monetary fines and/or restrictions on his ability to file pleadings in

federal court.

Dismissal is Appropriate

As mentioned above, petitioner has accumulated at least three strikes for filing frivolous

lawsuits. Because petitioner has three strikes under 28 U.S.C. § 1915(g), he may not proceed in

forma pauperis in any civil action or appeal while he is incarcerated or detained in any facility

unless he is under imminent danger or serious physical injury. This is the express finding made by

the Fifth Circuit Court of Appeals in affirming this Court’s dismissal of petitioner’s 42 U.S.C. §

1983 complaint with prejudice and as frivolous in Cause No. 2:99-CV-125. Patterson v. Johnson et

al., Cause No. 99-10615 (5th Cir. December 16, 1999) (per curiam). Consequently, if the

proceedings presently pending in Cause Nos. 2:03-CV-0264 and 2:03-CV-0282 are not habeas

corpus actions pursuant to 28 U.S.C. § 2241, then petitioner is ineligible to proceed in forma

pauperis in either of these proceedings. This assumes that a habeas corpus civil action, pursuant to

28 U.S.C. § 2241, would not be barred as to a plaintiff or petitioner who had accumulated three

strikes. This Court is not making a finding that such a habeas action is exempt from the three strikes 

 

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6

In general, “a later petition is successive when it: 1) raises a claim challenging the petitioner's conviction or sentence

that was or could have been raised in an earlier petition; or 2) otherwise constitutes an abuse of the writ.” Crone v. Cockrell, 324

F.3d 833, 836-37 (5th Cir.), cert. denied, 540 U.S. 910, 124 S.Ct. 287, 157 L.Ed.2d 200 (2003); accord United States v.

Orozco-Ramirez, 211 F.3d 862, 867 (5th Cir. 2000).

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prohibition. Assuming, however, for purposes of argument, that a petition for a writ of habeas

corpus would not be barred, then the question is whether petitioner may proceed with the two (2)

current 2241 actions, Cause Nos. 2:03-CV-0264 and 2:03-CV-0282, now pending in this Court. 

The undersigned finds he may not.

It is clear that both of these proceedings seek to have time credited against petitioner’s

federal sentence and, therefore, appear to be, and in the opinion of the undersigned Magistrate Judge

are, habeas corpus actions pursuant to section 2241. As these habeas corpus actions are proceeding

pursuant to section 2241 and not section 2255, this Court has jurisdiction to entertain such actions

because petitioner was incarcerated in state prison in the Amarillo Division of the Northern District

of Texas at the time he filed both of these actions.

As set forth above, however, petitioner has filed at least five (5) prior habeas corpus actions

challenging the manner in which his federal sentence is being calculated or the manner in which

credits are not being applied against his federal sentence. Thus, these two actions constitute

successive petitions.6

 This Court lacks jurisdiction to consider a successive application or petition,

unless the Fifth Circuit Court of Appeals grants petitioner authorization to file such petition. See 28

U.S.C. § 2244(3)(A); accord Hooker v. Sivley, 187 F.3d 680, 682 (5th Cir. 1999); United States v.

Key, 205 F.3d 773, 774 (5th Cir. 2000). Petitioner has not received permission from the Fifth Circuit

Court of Appeals to file a successive petition. 

Even if the present two pending cases are not successive under the AEDPA, petitioner’s

claims violate the pre-AEDPA abuse of the writ principle or are barred by the doctrine of collateral 

 

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estoppel. Moreover, even if the present two pending cases are not successive petitions and

permission of the Fifth Circuit is not required, or if the cases are not barred by abuse of the writ or

issue preclusion, petitioner has failed to show why these two cases are not duplicative of the earlier

habeas corpus petition filed in Cause No. 2:01-CV-0135. Again, in that case, this Court addressed

the merits of petitioner’s claims of error in the calculation of time credits with respect to his federal

sentence and his argument that the rule against piecemeal incarceration prevented his transfer from

federal to state custody. If the instant cases are duplicative, they are frivolous and petitioner is

estopped from re-litigation under the doctrine of res judicata. 

Further, the one-year statute of limitations for filing a habeas corpus action began to run on

the date on which the factual predicate of petitioner’s claim could have been discovered through the

exercise of due diligence. Petitioner discovered and/or became aware that his federal sentence was

not being credited with the time when he was improperly committed to federal custody at some

point prior to the filing of his habeas petition in Cause No. 2:01-CV-0135. The instant habeas

application was clearly filed more than one year after petitioner’s discovery of the factual predicate

of his claim. Consequently, petitioner’s claim is time barred.

Lastly, petitioner has received continuous time credits toward his state sentence beginning

December 2, 1991, the date he was arrested by state authorities. Petitioner is not entitled to double

time credits. Cf. Carr v. United States Bureau of Prisons, 2004 WL 1114416 (5th Cir. May 11,

2004).

RECOMMENDATION

It is the RECOMMENDATION of the United States Magistrate Judge to the United States

District Judge that the action filed under Cause No. 2:03-CV-0264 by petitioner CECIL RAY

PATTERSON be DISMISSED.

 

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INSTRUCTIONS FOR SERVICE

The United States District Clerk is directed to send a file-marked copy of this Report and

Recommendation to petitioner and to counsel of record for respondent by the most efficient means

available.

IT IS SO RECOMMENDED. 

ENTERED this 18th day of August 2006.

 _______________________________

 CLINTON E. AVERITTE

 UNITED STATES MAGISTRATE JUDGE

* NOTICE OF RIGHT TO OBJECT *

Any party may object to these proposed findings, conclusions and recommendation. In the

event a party wishes to object, they are hereby NOTIFIED that the deadline for filing objections is

eleven (11) days from the date of filing as indicated by the file mark on the first page of this

recommendation. Service is complete upon mailing, Fed. R. Civ. P. 5(b), and the parties are

allowed a 3-day service by mail extension, Fed. R. Civ. P. 6(e). Therefore, any objections must be

filed on or before the fourteenth (14th) day after this recommendation is filed. See 28 U.S.C. §

636(b); Fed. R. Civ. P. 72(b); R. 4(a)(1) of Miscellaneous Order No. 6, as authorized by Local Rule

3.1, Local Rules of the United States District Courts for the Northern District of Texas. 

Any such objections shall be made in a written pleading entitled “Objections to the Report

and Recommendation.” Objecting parties shall file the written objections with the United States

District Clerk and serve a copy of such objections on all other parties. A party’s failure to timely

file written objections to the proposed findings, conclusions, and recommendation contained in this

report shall bar an aggrieved party, except upon grounds of plain error, from attacking on appeal the

unobjected-to proposed factual findings, legal conclusions, and recommendation set forth by the

Magistrate Judge in this report and accepted by the district court. See Douglass v. United Services

Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996); Rodriguez v. Bowen, 857 F.2d 275, 276-77 (5th

Cir. 1988).

 

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