IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

JEROME HOPES, #24591-179, )

Petitioner, )

)

v. ) 3:05-CV-2424-G

) ECF

WARDEN JOSLIN, )

Respondent. )

FINDINGS, CONCLUSIONS AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Pursuant to the provisions of 28 U.S.C. § 636(b), and an order of the District Court in

implementation thereof, this cause has been referred to the United States Magistrate Judge. The

findings, conclusions and recommendation of the Magistrate Judge are as follows:

FINDINGS AND CONCLUSIONS:

Type of Case: This is a pro se habeas corpus action brought by a federal inmate pursuant

to 28 U.S.C. § 2241, et seq.

Parties: Petitioner is presently confined at FCI Seagoville in Seagoville, Texas. 

Respondent is the Warden of FCI Seagoville. The Court issued process in this case.

Statement of Case: On September 27, 1993, Petitioner was convicted in a Texas state

court of delivery of a controlled substance, and was sentenced to twenty-one years

imprisonment. State v. Hopes, No. 11407 (329th District Court, Wharton County, Texas). On

July 21, 2003, while on parole in No. 11407, Petitioner was arrested by state authorities for

delivery of a controlled substance and violating the conditions of his parole. He was

subsequently transferred to the custody of the United States Marshal Service (USMS) on the

 

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1 Petitioner correctly filed this action in the district where he is presently

confined. To entertain a habeas corpus petition pursuant to § 2241, this Court must have

jurisdiction over the prisoner or his custodian upon filing of the petition. United States v. Gabor,

905 F.2d 76, 77 (5th Cir. 1990); Blau v. United States, 566 F.2d 526, 527-28 (5th Cir. 1978)

(citing Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 93 S.Ct. 1123 (1973)).

Petitioner also exhausted his administrative remedies prior to filing this action. (See

Attachments to Respondent’s Reply to Petitioner’s Response to Motion to Dismiss filed on

March 3, 2006). 

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basis of a writ of habeas corpus ad prosequendum (see Attachments to Respondent’s Reply to

Petitioner’s Response to Motion to Dismiss filed on March 3, 2006), for the federal offense of

knowingly and intentionally distributing cocaine base in violation of 21 U.S.C. § 841(a)(1) and

(b)(1)(C). United States v. Hopes, 6:03-CR-0057(01) (S.D. Tex., Victoria Div., filed on Aug.

21, 2003). On May 3, 2004, the federal court sentenced Petitioner to 57-month imprisonment

and a three-year term of supervised release. (Respondent’s Exh. B). The federal court’s

sentencing order did not specify whether the federal sentence would be served concurrently with

or consecutively to the remaining portion of the state sentence. (Id.). The USMS then returned

Petitioner to state custody, where, following the revocation of his parole on May 26, 2004, he

served the remainder of his 21 year state sentence. On March 7, 2005, state authorities released

Petitioner to the custody of the USMS to begin serving his federal sentence. (Respondent’s Exh.

C). 

In this action, Petitioner contends the Bureau of Prison (BOP) has improperly determined

that his federal sentence runs consecutively to his state sentence. He argues that the BOP “has

declined to grant the Petitioner jail time credit or Nunc Pro Tunc designation to allow his state

and federal sentence to run concurrent.” (Pet., typewritten attachment at 2).1

In response to the Court’s order to show cause, Respondent filed a motion to dismiss,

 

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alternatively, motion for summary judgment. Petitioner filed a reply. 

Findings and Conclusions: Petitioner’s contention that his federal sentence should run

concurrent to his state sentence is without merit. 18 U.S.C. § 3584(a) provides that “[m]ultiple

terms of imprisonment imposed at different times run consecutively unless the court orders that

the terms are to run concurrently.” In Free v. Miles, 333 F.3d 550, 553 (5th Cir. 2003), the Fifth

Circuit Court of Appeals interpreted § 3584(a) under a similar factual scenario. In November

1996, the State of Texas convicted Free of cocaine delivery and sentenced him to eight years

imprisonment. Id. at 551. He was thereafter transferred to federal court on a writ of habeas

corpus ad prosequendum. Id. In June 1997, he was sentenced following a guilty plea to 100

months imprisonment, followed by a five-year term of supervised release. Id. The district

court’s sentencing order did not specify whether Free’s federal sentence would be served

concurrently with or consecutively to his state sentence. Id. Relying on 18 U.S.C. § 3584(a), the

Fifth Circuit held inter alia 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.” Id. at 553. See also U.S. v. Hernandez, 234 F.3d 252, 256-57 (5th Cir. 2000)

(holding that trial court was not required to warn defendant prior to accepting his guilty plea that

his federal term of imprisonment would run consecutive to his anticipated state sentence, since

court had discretion under § 3584(a) to order federal term to run either concurrently or

consecutively to anticipated state sentence under statute permitting federal terms of

imprisonment to run concurrently or consecutively if multiple terms of imprisonment were

imposed or if term of imprisonment was imposed on defendant who was already subject to

undischarged term). 

 

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In this case, as in Free, the federal sentencing court did not specify whether the federal

sentence would run concurrently or consecutively to the remaining portion of Petitioner’s state

sentence. Accordingly, Petitioner’s federal sentence and the undischarged portion of his state

sentence ran consecutively. 

Petitioner argues that his parole had not been revoked as of the time he was sentenced in

federal court. He, thus, implies that his case is distinguishable from Free and that the

presumption under § 3584(a) is inapplicable. Petitioner’s argument is meritless. While his

parole had not been revoked, Petitioner’s parole officer had filed a parole violation report, and he

was waiting for disposition of the federal offense before proceeding with revocation. 

(Presentence Investigation Report (PSR) ¶ 27). Thus, there was no question that Petitioner had

an undischarged term of imprisonment on his previously imposed state sentence, and that he

would have to be returned to state custody to face a parole revocation hearing. Under Texas law,

if a prisoner’s parole is revoked, he may be returned to state custody to serve the remaining

portion of the sentence on which the person was released. See Tex. Gov’t Code § 508.283(b).

Petitioner relies on United States v. Fuentes, 107 F.3d 1515 (11th Cir. 1997) (a direct

criminal appeal), to argue “that if the government uses a state sentence to enhance or increase

punishment, the federal sentence must run concurrently to the state sentence.” (Pet., attachment

at 2). Fuentes applied United States Sentencing Guidelines (USSG) § 5G1.3, which provides

that if “the undischarged term of imprisonment resulted from offense(s) that have been fully

taken into account in the determination of the offense level for the instant offense, the sentence

for the instant offense shall be imposed to run concurrently to the undischarged term of

imprisonment.” The PSR reflects that Petitioner’s state conviction was used in calculating his

 

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criminal history score, but not in determining his base offense level. (PSR ¶ 29, Respondent’s

Exh. D, under seal). Accordingly, § 5G1.3(b) is inapplicable. See United States v. Hornsby 88

F.3d 336, 339-340 (5th Cir. 1996) (holding that defendant, who was on parole from state

conviction when he committed crime of interstate domestic violence, properly had his sentence

imposed consecutively to state sentence; U.S.S.G. § 5G1.3(b) was inapplicable, and commentary

to Guideline governing consecutive sentencing specifically stated that sentence should run

consecutively when defendant committed offense while on parole and had such parole revoked

as result of offense). 

In Hornsby, the Fifth Circuit also rejected the prisoner’s conclusory contention that “due

process forbids a consecutive sentence because his state parole had not been revoked at the time

of the commission of the . . . [federal] offense and entry of his plea.” Id. at 340. The Circuit

noted that the prisoner has neither explained how his due process rights had been violated, nor

supported his contention with legal citations or other authority. Id. Accordingly, insofar as

Petitioner seeks to raise a due process argument in this case, his claim should be rejected. 

Next Petitioner contends that the BOP erred in refusing to designate, nunc pro tunc, the

state prison as the first place of confinement for his federal sentence, based on 18 U.S.C. §

3584(a)-(b). He relies on Barden v. Keohane, 921 F.2d 476, 483 (3rd Cir. 1990), which held that

the BOP has the statutory authority to designate a state prison as the place of federal confinement

for purposes of determining whether a prisoner is entitled to credit against a federal sentence,

where the federal sentence is imposed before the state sentence and the state judge clearly

intends that the state and federal sentences be served concurrently.

Petitioner’s federal sentence provides no evidence that the sentencing district court

 

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intended that it be served concurrently with the remaining portion of his state sentence. The

presentence investigation report (PSR) identified state cause number 11407, and noted that at the

time of the federal offense, Petitioner was on parole in No. 11407. (PSR ¶ 27). The PSR further

noted that Petitioner’s parole officer had filed a violation report, but that he would wait to

proceed with a revocation until after disposition of the federal offense. (Id.). In light of the

above, the Court concludes that the sentencing court was aware of Petitioner’s pending state

parole revocation proceedings, and that its silence establishes that it did not intend for the federal

sentence to run concurrent with the remaining portion of his state sentence. Accordingly, the

BOP did not abuse its discretion in denying Petitioner’s request for a nunc pro tunc designation. 

See Rodriguez v. Pitzer, 76 Fed. App. 519, 520 (5th Cir. Aug. 7, 2003) (holding that BOP was

within its discretion in denying federal prisoner’s request for nunc pro tunc designation that state

prison was his place of confinement for first five years of his federal sentence while Petitioner

served remaining portion of state sentence on which parole was revoked after imposition of the

federal sentence; and noting that because the PSR identified the pending state charges, the

federal sentencing court was aware of the pending state proceedings, and that the BOP fulfilled

its obligation under Barden v. Keohane by submitting the prisoner’s request for nunc pro tunc

designation to the sentencing court which, in response submitted nothing to show an intent for

the sentences to run concurrently). 

 

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RECOMMENDATION:

For the foregoing reasons, it is recommended that the District Court deny the petition for

a writ of habeas corpus pursuant to 28 U.S.C. § 2241. 

A copy of this recommendation will be mailed to Petitioner and counsel for Respondent.

Signed this 24th day of May, 2006.

____________________________________

WM. F. SANDERSON, JR.

UNITED STATES MAGISTRATE JUDGE

NOTICE

In the event that you wish to object to this recommendation, you are hereby notified that

you must file your written objections within ten days after being served with a copy of this

recommendation. Pursuant to Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir.

1996) (en banc), a party's failure to file written objections to these proposed findings of fact and

conclusions of law within such ten-day period may bar a de novo determination by the district

judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds

of plain error, from attacking on appeal the unobjected to proposed findings of fact and

conclusions of law accepted by the district court.

 

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