IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION 

JERRY LISBY, §

 Petitioner, §

§

v. § Civil Action No. 4:05-CV-0534-Y

§

DAN JOSLIN, Warden, §

Federal Correctional Institute- §

Seagoville, §

Respondent. §

FINDINGS, CONCLUSIONS AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

AND NOTICE AND ORDER

This cause of action was referred to the United States Magistrate Judge pursuant to the

provisions of 28 U.S.C. § 636(b), as implemented by an order of the United States District Court for

the Northern District of Texas. The findings, conclusions and recommendation of the United States

Magistrate Judge are as follows:

I. FINDINGS AND CONCLUSIONS

A. NATURE OF THE CASE

This is a petition for writ of habeas corpus by a federal prisoner pursuant to 28 U.S.C. §

2241. 

B. PARTIES

Petitioner Jerry Lisby, Reg. No. 27410-077, is a federal prisoner who is currently

incarcerated in the Federal Correctional Institute in Seagoville, Texas.

The Respondent is Dan Joslin, Warden of the Federal Correctional Institute in Seagoville,

Texas.

 

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C. PROCEDURAL HISTORY

On April 5, 1995, Lisby was arrested in Tarrant County, Texas, on drug-related charges.

(Resp’t Appendix, Exhibit B at 5.) He was released to federal custody pursuant to a writ of habeas

corpus ad prosequendum on September 13, 1995. (Id.) On May 28, 1996, Lisby was sentenced in

this court to 188 months’ imprisonment on one count of conspiracy to possess with intent to

distribute and to distribute amphetamine and aiding and abetting. (Id. Exhibit A at 1-2.) He was

then returned to state custody to answer the pending state criminal charges in the 372th District

Court of Tarrant County, Texas. (Id. Exhibit K at 35.) On October 21, 1996, he was sentenced by

the state court to fourteen years’ confinement in the Texas Department of Criminal Justice (TDCJ).

The federal criminal judgment was silent as to whether Lisby’s 188-month federal sentence

was to run concurrently with or consecutively to any state sentence to which he might be subject.

The Bureau of Prisons (BOP) has calculated Lisby’s federal sentence as commencing on March 9,

2001, the date Lisby was released by TDCJ on mandatory supervision into federal custody. (Id.

Exhibit E at 11.) Lisby seeks clarification that his federal sentence was to run concurrently, and not

consecutively, with his state sentence, or, in the alternative, that an amended criminal judgment issue

to reflect such designation of his federal sentence to any state sentence. (Petition at 2.) Lisby sought

administrative resolution of his claim, to no avail. (Resp’t Appendix, Exhibits B at 5, C at 7 & D

at 10.)

D. DISCUSSION

Lisby’s claim implicates 18 U.S.C. § 3584(a), which provides: 

(a) Imposition of concurrent or consecutive terms.–If multiple terms of

imprisonment are imposed on a defendant at the same time, or if a term of

imprisonment is imposed on a defendant who is already subject to an undischarged

 

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term of imprisonment, the terms may run concurrently or consecutively, except that

the terms may not run consecutively for an attempt and for another offense that was

the sole objective of the attempt. Multiple terms of imprisonment imposed at the

same time run concurrently unless the court orders or the statute mandates that the

terms are to run consecutively. Multiple terms of imprisonment imposed at different

times run consecutively unless the court orders that the terms are to run concurrently.

The statute has two discrete functions. See Aldridge v. Wendt, No. 3:03-CV-1052-R, 2004

WL 1217934, at *3 (N.D. Tex. June 3, 2004), adopted by 2004 WL 1368275 (N.D. Tex. June 16,

2004), aff’d, 2005 WL 2055929 (5th Cir. Aug. 26, 2005) (not designated for publication in the

Federal Reporter). First, it grants federal sentencing courts the discretion to impose concurrent or

consecutive sentences except in specified circumstances. Second, it creates a presumption regarding

whether multiple terms of imprisonment run concurrently or consecutively when the sentencing

court is silent on the matter. Id. The Fifth Circuit Court of Appeals has interpreted § 3584(a) as

granting the district courts the discretion to order a federal term of imprisonment to run concurrently

with an anticipated but yet-to-be-imposed state sentence. See United States v. Hernandez, 234 F.3d

252, 256 (5th Cir. 2000). Without such interpretation, an earlier federal sentence would necessarily

run consecutive to a later-imposed state sentence. Id. at 256-57.

In this case, the district court expressed no position on whether Lisby’s 188-month federal

sentence would run concurrently with or consecutively to any anticipated state sentence. Such

silence invokes the presumption that the federal sentence would be consecutive to any term of

imprisonment imposed at a different time. See 18 U.S.C. § 3584(a); Hernandez, 234 F.3d at 256-57.

When a federal judgment is silent with respect to whether sentences are to run concurrently or

consecutively, the presumption is that they will run consecutively, unless the district court

specifically orders that they run concurrently. See Free v. Miles, 333 F.3d 550, 553 (5th Cir. 2003).

 

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Although the federal courts may consider subsequent sentences anticipated, but not yet imposed, in

separate state court proceedings when determining whether to impose concurrent or consecutive

sentences, the failure to provide for concurrent sentences for multiple terms of imprisonment

imposed at different times necessarily results in the imposition of consecutive sentences. See

Hernandez, 234 F.3d at 256-57; United States v. Brown, 920 F.2d 1212, 1217 (5th Cir. 1991). A

district court must specify in its sentencing order that sentences run concurrently; otherwise, they

run consecutively. See Free, 333 F.3d at 553.

Because the district court did not specify that Lisby’s federal sentence would run

concurrently with any later-imposed state sentence, the federal sentence runs consecutively to his

later-imposed state sentence. Lisby has not shown that such consecutive sentences violate the

United States Constitution or federal law. The constitution affords no right to have state and federal

sentences run concurrently. See United States v. Dovalina, 711 F.2d 737, 739 (5th Cir. 1983).

Similarly, there is no federal statute that provides a prisoner a right to concurrent sentences. In the

absence of a violation of the United States Constitution or federal law, the fact that the BOP

considers Lisby’s federal sentence to run consecutive to the later-imposed state sentence entitles

petitioner to no habeas relief under § 2241. The BOP’s decision is consistent with well-settled

federal law regarding consecutive sentences when the federal judgment is silent on the matter. Thus,

Lisby’s attack on the manner in which his federal sentence is being executed fails. To the extent that

petitioner seeks to amend or modify the federal criminal judgment to reflect otherwise, he must

pursue such relief in a second or successive § 2255 motion in this court.

 

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II. RECOMMENDATION

Based on the foregoing discussion, it is recommended that Lisby’s petition for writ of habeas

corpus be denied.

III. NOTICE OF RIGHT TO OBJECT TO PROPOSED

FINDINGS, CONCLUSIONS AND RECOMMENDATION 

AND CONSEQUENCES OF FAILURE TO OBJECT

Under 28 U.S.C. § 636(b)(1), each party to this action has the right to serve and file specific

written objections in the United States District Court to the United States Magistrate Judge’s

proposed findings, conclusions, and recommendation within ten (10) days after the party has been

served with a copy of this document. The court is extending the deadline within which to file

specific written objections to the United States Magistrate Judge’s proposed findings, conclusions,

and recommendation until December 13, 2005. The United States District Judge need only make

a de novo determination of those portions of the United States Magistrate Judge’s proposed findings,

conclusions, and recommendation to which specific objection is timely made. See 28 U.S.C. §

636(B)(1). Failure to file by the date stated above a specific written objection to a proposed factual

finding or legal conclusion will bar a party, except upon grounds of plain error or manifest injustice,

from attacking on appeal any such proposed factual finding or legal conclusion accepted by the

United States District Judge. See Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th

Cir. 1996) (en banc op. on reh’g); Carter v. Collins, 918 F.2d 1198, 1203 (5th Cir. 1990).

IV. ORDER

Under 28 U.S.C. § 636, it is ORDERED that each party is granted until December 13, 2005,

to serve and file written objections to the United States Magistrate Judge’s proposed findings,

 

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conclusions, and recommendation. It is further ORDERED that if objections are filed and the

opposing party chooses to file a response, a response shall be filed within seven (7) days of the filing

date of the objections. 

It is further ORDERED that the above-styled and numbered action, previously referred to

the United States Magistrate Judge for findings, conclusions, and recommendation, be and hereby

is returned to the docket of the United States District Judge. 

SIGNED November 22 , 2005.

 /s/ Charles Bleil 

CHARLES BLEIL

UNITED STATES MAGISTRATE JUDGE

 

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