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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA 

PANAMA CITY DIVISION

LEWIS CARL BARNETT,

 Petitioner, 

vs. Case No. 5:10cv219/RS/CJK 

PAIGE AUGUSTINE,

 Respondent.

REPORT AND RECOMMENDATION

This cause is before the court upon petitioner’s petition for writ of habeas

corpus (doc. 9), filed pursuant to 28 U.S.C. § 2241, and the government’s motion to

dismiss the petition (doc. 18). Petitioner did not respond in opposition to the motion

to dismiss. The matter is referred to the undersigned magistrate judge for report and

recommendation pursuant to 28 U.S.C. § 636, and NORTHERN DISTRICT OF FLORIDA

LOCAL RULE72.2(B). After careful consideration, the undersigned concludes that the

motion to dismiss should be granted. 

BACKGROUND AND PROCEDURAL HISTORY

Petitioner, Lewis Carl Barnett (“Barnett”), a detainee confined at the Federal

Correctional Institution in Marianna, Florida, has filed a pro se petition for writ of

habeas corpus under 28 U.S.C. § 2241, seeking review of his sentence computation

and asserting that he is entitled to additional credit for time served at State

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correctional facilities in Alabama. (Doc. 9, p. 3). As relief, petitioner requests that

a writ of habeas corpus be issued directing “[r]eview of the Federal Bureau of

Prisons’ calculation of his sentence . . . .” (Doc. 9, p. 4).

The pertinent procedural history of this case, which is gleaned from the

petition, the motion to dismiss, and the docket in Middle District of Alabama case

number 2:08cr144/MHT/WC, begins on September 6, 2005, when petitioner was

released on parole from the Alabama Department of Corrections, where he was

serving a twenty-year termof incarceration for first-degree robbery. (Doc. 18-2, ¶ 5). 

On January 18, 2006, while still on parole, petitioner was arrested by the Fort Deposit

Police Department and charged with receiving stolen property in the first degree.

(Doc. 18-2, ¶ 6). As a result of this new charge, petitioner’s Alabama state parole

was revoked on March 20, 2006, and petitioner was committed to incarceration in a

state penal institution. (Doc. 18-2, ¶ 7). 

On June 25, 2008, a grand jury sitting in the U.S. District Court for the Middle

District of Alabama returned a one-countindictment chargingBarnett with possession

of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). (Doc. 18-3). 

On December 23, 2008, petitioner appeared before a magistrate judge and entered a

guilty plea to that offense. On May 13, 2009, the district court sentenced petitioner

to fifty-seven months’ incarceration in a federal institution, to be followed by three

years of supervised release. (Doc. 18-1, pp. 3-4). More specifically, the court

directed that twenty-four months “shall run consecutive to the defendant’s state case

number CC-93-410 in Montgomery County,” and that the remaining thirty-three

months “shall run concurrently.” (Doc. 18-1, p. 3). The sentence commenced on

May 13, 2009, the same day it was imposed. (Doc. 18-2, ¶ 9).

At the time of his federal sentencing, petitioner was still in the custody of

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Alabama state authorities. (Doc. 18-2, ¶ 10). On August 3, 2009, Barnett was

released from the Alabama Department of Corrections on parole, and turned over to

federal authorities to complete his federal sentence. (Doc. 18-2, ¶ 10). Upon

receiving custody of petitioner, the federal Bureau of Prisons (“BOP”) prepared a

sentence computation based on the fifty-seven month term of incarceration,

commencing May 13, 2009. (Doc. 18-2, ¶ 10). Upon learning of BOP’s sentence

computation, Barnett sought clarification of the judgment and commitment order,

requesting the court to clarify that he was to serve only twenty-four months. The

district court denied this request by order dated October 20, 2009. (Docs. 65 & 71,

Case No. 2:08cr144/MHT/WC, Middle District of Alabama). 

On October 19, 2010, Barnett filed the instant pro se petition for writ of habeas

corpus pursuant to 28 U.S.C. § 2241. (Doc. 9). After service of the petition, the

government filed the motion to dismiss on March 11, 2011. (Doc. 18). By order

dated March 14, 2011 (doc. 19), this court afforded petitioner thirty days to respond

to the motion to dismiss; petitioner did not do so. The government now stipulates

that petitioner has exhausted his administrative remedies and that the court has both

subject-matter and personal jurisdiction. (Doc. 18, p. 2). 

 DISCUSSION

Through the Bureau of Prisons, the Attorney General is charged with

administering the sentences of federal inmates. See 18 U.S.C. § 3621(a); United

States v. Wilson, 503 U.S. 329, 331 (1992) (“The Attorney General, through the

Bureau of Prisons (BOP), has responsibility for imprisoning federal offenders.”

(citing 18 U.S.C. § 3621(a))). Here, petitioner asserts that BOP calculated his

sentence improperly, reasoning that it did not award him credit for thirty-three

months’ incarceration served in Alabama state custody prior to May 13, 2009, the day

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the federal sentence commenced. (Doc. 9, p. 3).

A defendant is not entitled to credit against a federal sentence for time already

credited against another sentence:

(b) Credit for prior custody.--A defendantshall be given credit toward

the service of a term of imprisonment for any time he has spent in

official detention prior to the date the sentence commences--

(1) as a result of the offense for which the sentence was imposed; or

(2) as a result of any other charge for which the defendant was arrested

after the commission ofthe offense for which the sentence wasimposed;

that has not been credited against another sentence.

18 U.S.C. § 3585(b) (italics supplied). According to twenty-two year BOP employee

Alan Ray (“Ray”), who has served as a Management Analyst at BOP’s Designation

and Sentence Computation Center since July 2006 and submitted a sworn declaration

in connection with the government’s motion to dismiss, the thirty-three months

petitioner served in state custody prior to commencement of the federal sentence had

already been credited against his state sentence, which commenced on March 20,

2006, after Barnett’s Alabama state parole was revoked on account of the charge for

receiving stolen property in the first degree. (Doc. 18-2, ¶¶ 6-7, 11). Petitioner,

having failed to respond to the motion to dismiss, does not dispute Ray’s assessment. 

Because the term of imprisonment in state custody was credited against his state

sentence, petitioner is not entitled to credit against his federal sentence for the same

thirty-three months of incarceration. See 18 U.S.C. § 3585(b) (providing for

application of credit toward defendant’s service of a federal termof imprisonment for

time spent in official detention prior to the date the federal sentence commences,

provided, inter alia, the time “has not been credited against another sentence”).

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Additionally, a federal sentence cannot begin before it is imposed. BOP

ProgramStatement 5880.28, attached to the motion to dismiss as Exhibit 4, addresses

the case of a prisoner in non-federal custody at the time his sentence is imposed:

A prisoner who isin non-federal custody at the time ofsentencing

may begin service of the federal sentence prior to arriving at the

designated federal facility if the non-federal facility is designated in

accordance with the Program Statement on Designation of State

Institution for Service of Federal Sentence and 18 U.S.C. § 3621

(Imprisonment of a convicted person). This type of designation is

ordinarily made only upon the recommendation of the sentencing court.

In no case can a federal sentence of imprisonment commence

earlier than the date on which it is imposed.

 (Doc. 18-4, p. 4) (emphasis in original). Petitioner makes no claim that the state

facility in which he was imprisoned at the time of sentencing for the federal offense

had been certified by the sentencing court or otherwise as a state institution for

service of a federal sentence. In other words, petitioner’s federal sentence ran

concurrently from May 13, 2009, the date it was imposed, through August 3, 2009,

when he was released on parole from an Alabama state facility to the custody of

federal authorities. (Doc. 18-2, ¶ 10). In sum, petitioner has failed to demonstrate

that BOP erred in determining or administering his federal sentence. 

Accordingly, it is respectfully RECOMMENDED:

1. That the motion to dismiss (doc. 18) be GRANTED.

2. That the petition for writ of habeas corpus filed under 28 U.S.C. § 2241

(doc. 9) be DISMISSED for failure to state a cause of action upon which relief may

be granted.

3. That the Clerk be directed to close the file. 

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At Pensacola, Florida, this day of August, 2012.

/s/Charles J. Kahn, Jr.

CHARLES J. KAHN, JR.

UNITEDSTATESMAGISTRATEJUDGE

NOTICE TO THE PARTIES

Any objections to these proposed findings and recommendations must be filed

within fourteen days after being served a copy thereof. Any different deadline that

may appear on the electronic docket is for the court’s internal use only, and does not

control. A copy of objections shall be served upon all other parties. Failure to object

may limit the scope of appellate review of factual findings. See 28 U.S.C. § 636;

United States v. Roberts, 858 F.2d 698, 701 (11th Cir. 1988).

Case No: 5:10cv219/RS/CJK

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