NOT RECOMMENDED FOR PUBLICATION
File Name: 17a0320n.06
No. 15-6318
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT FILED
Jun 08, 2017
DEBORAH S. HUNT, Clerk
RONNIE BOWLING, )
)
Petitioner-Appellant, )
)
ON APPEAL FROM THE
v. )
UNITED STATES DISTRICT
)
COURT FOR THE EASTERN
RANDY WHITE, WARDEN, )
DISTRICT OF KENTUCKY
)
Respondent-Appellee. )
)
)
)
BEFORE: CLAY, GIBBONS, and STRANCH, Circuit Judges.
JULIA SMITH GIBBONS, Circuit Judge. In 1989, Ronnie Lee Bowling was taken
into custody on charges of murder, attempted murder, burglary, and robbery. In 1992, he was
convicted of the murder, burglary, and robbery charges in Laurel County, Kentucky, and was
sentenced to death plus eighty years’ imprisonment. Four years later, he was convicted of the
attempted murder charge in Rockcastle County, Kentucky, and was sentenced to twenty years’
imprisonment, to run concurrently with his Laurel County sentences. In September 2012, after
exhausting available state-court relief, Bowling filed a petition for a writ of habeas corpus in
federal court under 28 U.S.C. § 2254(a), alleging numerous constitutional violations in the
Rockcastle County proceedings. Finding that Bowling’s twenty-year Rockcastle County
sentence began in 1989, the district court held that it lacked jurisdiction to consider Bowling’s
petition because he was no longer “in custody” on this sentence when he filed his petition in
No. 15-6318, Bowling v. White
September 2012. We issued a certificate of appealability on the following question: whether
Bowling was “in custody” under § 2254(a) at the time he filed his habeas petition in 2012,
including whether the second exception under Lackawanna County District Attorney v. Coss,
532 U.S. 394, 405–06 (2001), applies to this case. For the reasons stated here, we affirm.
I.
On January 20, 1989, Ronald Smith was shot and killed while working alone at a gas
station in Laurel County, Kentucky. Approximately one month later, on February 22, Marvin
Hensley was shot and killed while working alone at a different Laurel County gas station. No
suspects emerged until a similar crime occurred three days later at a gas station in nearby
Rockcastle County, Kentucky. On February 25, 1989, Ronnie Lee Bowling entered a Rockcastle
County gas station owned by Ricky Smith and began asking Smith about possible employment.
After a short conversation, Bowling opened fire on Smith, who returned fire in self-defense,
striking Bowling twice. After Bowling fled the gas station in his vehicle, Smith notified the
police. Following a short pursuit, Bowling was arrested and taken into custody. Bowling was
indicted for the Laurel County murders on March 17, 1989, and was indicted for the attempted
murder of Smith in Rockcastle County on April 28, 1989. Bowling did not post bond in either
case.
In late 1992, Bowling was tried and convicted on the Laurel County indictment for two
counts of capital murder, two counts of first-degree burglary, and two counts of first-degree
robbery. He was sentenced to death plus four consecutive twenty-year sentences (the “Laurel
County sentences”). He was awarded 1,378 days of pre-trial custody credit, relating back to his
February 25, 1989 arrest. Bowling’s Laurel County conviction and sentences were upheld on
direct appeal, and his attempts at state post-conviction relief were unsuccessful. He filed a
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petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the Eastern District of
Kentucky on January 15, 2003, which was denied. His appeal of that decision is currently
pending before a separate panel of this court.
Bowling was tried on the Rockcastle County indictment on February 27–28, 1996. He
was convicted of attempted murder and sentenced to twenty years’ imprisonment (the
“Rockcastle sentence” or the “Rockcastle conviction”). Although Bowling alleges that the
sentencing judge orally ordered the sentence to run consecutive to the earlier Laurel County
sentences, the written sentencing order did not specify whether the sentence was to run
concurrently or consecutively. Pursuant to Kentucky law, the Rockcastle sentence was therefore
required to run concurrently with the Laurel County sentences. See Ky. Rev. Stat. (KRS)
§ 532.110(2). The sentencing judge did indicate in his written order, however, that Bowling was
not entitled to any pre-trial custody credit towards his Rockcastle sentence.
Bowling unsuccessfully pursued relief on his Rockcastle conviction and sentence in state
court. On September 6, 2012, Bowling filed a § 2254 habeas petition in the Eastern District of
Kentucky, asserting numerous claims for relief. The matter was referred to a magistrate judge,
who concluded that the sentencing judge had erred in denying Bowling pre-trial custody credit
under Kentucky law. The magistrate found that Bowling was “entitled to credit dating back to
February 25, 1989,” on his Rockcastle sentence and had, in fact, been awarded such credit by the
Kentucky Department of Corrections (KDOC). DE 67, Page ID 1318–29. The magistrate thus
recommended that the petition be dismissed on jurisdictional grounds—namely, that Bowling
was not “in custody” under § 2254 because his twenty-year Rockcastle sentence had fully
expired by the time he filed his petition in 2012.
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In assessing the magistrate’s report and recommendation, the district court agreed that the
sentencing court had erred in denying Bowling pre-trial custody credit on his Rockcastle
sentence, but questioned whether KDOC had the legal authority to correct such errors by
awarding Bowling the missing credit. Accordingly, the district court certified two questions to
the Kentucky Supreme Court: (1) whether, legally, KDOC had authority to correct the
sentencing court’s failure to award jail-time credit; and (2) whether, factually, Bowling’s
Rockcastle sentence had expired by the time he filed his habeas petition in 2012.
The Kentucky Supreme Court accepted certification of the first question but expressly
declined to consider the second question. Agreeing in dicta that Bowling was entitled, “as a
matter of law,” to 1,378 days of pre-trial custody credit on his Rockcastle sentence, the Kentucky
Supreme Court held that KDOC not only had the authority to award an inmate pre-trial custody
credit to which he was entitled, but was statutorily required to do so under KRS § 532.120(3)
regardless of whether the sentencing court declined to award such credit. Bowling v. White, 480
S.W.3d 911, 917–18 (Ky. 2015).
With that answer in hand, the district court dismissed Bowling’s habeas petition for lack
of jurisdiction. Finding that KDOC had awarded Bowling the pre-trial custody credit to which
he was entitled, the district court concluded that Bowling’s Rockcastle sentence began in 1989
and expired in 2009. Accordingly, the district court held that Bowling was no longer “in
custody” on the Rockcastle conviction when his petition was filed in September 2012. This
appeal followed.
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II.
Whether Bowling was “in custody” at the time he filed his § 2254 habeas petition is a
jurisdictional question we review de novo. See Steverson v. Summers, 258 F.3d 520, 522 (6th
Cir. 2001).
III.
The district court had jurisdiction to entertain Bowling’s § 2254 habeas petition only if
he was “in custody” on his Rockcastle conviction at the time he filed his petition in September
2012. See 28 U.S.C. § 2254(a); Maleng v. Cook, 490 U.S. 488, 490–91 (1989). Whether
Bowling was “in custody” on his Rockcastle conviction requires us to answer two questions.
First, when did Bowling’s Rockcastle sentence begin? Second, if Bowling’s Rockcastle sentence
began in 1989, what is the effect, for habeas purposes, of KRS § 532.120(1), which provides that
the maximum terms of concurrent sentences in Kentucky “merge in” and are satisfied only by
discharge of the longest term? For the reasons articulated here, we find that Bowling’s
Rockcastle sentence began in 1989 and that § 532.120(1) has no effect on whether Bowling was
“in custody” within the meaning of § 2254. Accordingly, because Bowling was no longer “in
custody” on his Rockcastle conviction when he filed his petition in September 2012, we affirm
the district court’s dismissal for lack of jurisdiction.
A.
Under Kentucky law, Bowling was entitled to pre-trial custody credit on his Rockcastle
sentence dating back to February 25, 1989, and was, in fact, awarded such credit by KDOC. At
the time Bowling was sentenced on his Rockcastle conviction, KRS § 532.120(3) provided:
Time spent in custody prior to the commencement of a sentence as a result of the
charge that culminated in the sentence shall be credited by the court imposing
sentence toward service of the maximum term of imprisonment. If the sentence is
to an indeterminate term of imprisonment, the time spent in custody prior to the
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commencement of the sentence shall be considered for all purposes as time served
in prison.
(West 1997).1 Despite this seemingly clear mandate, the sentencing court awarded Bowling “0
days” of pre-trial custody credit on his Rockcastle sentence. DE 13-8, Page ID 198. The district
court, finding that the sentencing court had erred, nonetheless concluded that KDOC had
corrected the sentencing court’s mistake and had awarded Bowling 1,378 days of pre-trial
custody credit dating back to 1989. Bowling disagrees with both findings, arguing that the
sentencing court properly denied him any pre-trial custody credit on his Rockcastle sentence and
further that KDOC did not “fix” any supposed error by the sentencing court. To support his first
point, Bowling cites various KDOC policies concerning the calculation of custody time credit.
On his second point, Bowling relies on documentary evidence, which allegedly demonstrates that
KDOC did not award him any pre-trial custody credit on his Rockcastle sentence. Each
argument falls short.
Bowling’s reliance on KDOC policies to support his argument that he was entitled to pre-
trial custody credit on only his Laurel County sentences ignores the contrary, and controlling,
requirements imposed by Kentucky statute. True, KDOC Policy 28-01-08(II)(A)(2) provides:
“Where multiple felony indictments are involved, any applicable credit shall be applied to the
indictment which is sentenced first.” And § 28-01-08(II)(A)(6) further states: “If an offender is
being sentenced on more than one felony indictment at the same time, custody time credit shall
be calculated separately for each indictment . . . . If those felony detainments overlap, one
indictment shall receive credit while the other indictment shall have fewer or zero (0) days
credit.” But these policies directly conflict with § 532.120(3), which, at the time Bowling was
convicted, explicitly required that “[t]ime spent in custody prior to the commencement of a
1
KRS § 532.120(3) was amended in 2011, replacing “by the court imposing the sentence” with “by the
Department of Corrections.”
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sentence as a result of the charge that culminated in the sentence shall be credited by the court
imposing sentence.” KRS § 532.120(3) (West 1997) (emphasis added). Thus, the Rockcastle
sentencing court (and later KDOC under the amended statute) had no discretion to deny Bowling
pre-trial custody credit for the time he spent in custody as a result of the Rockcastle attempted-
murder charge. See Bartrug v. Commonwealth, 582 S.W.2d 61, 63 (Ky. Ct. App. 1979) (“Based
upon the mandatory language of [§ 532.120(3)], the word ‘shall’ precludes any discretion on the
part of the trial court in crediting time for preconviction custody.”).
This interpretation of § 532.120(3) is consistent with the Kentucky Supreme Court’s
understanding of the statute. In answering the district court’s certified question, the Kentucky
Supreme Court noted, albeit in dicta, that “Bowling was entitled, as a matter of law, to the
custody credit that he now wishes to decline.” Bowling, 480 S.W.3d at 917. Although we are
not bound by this statement, it is certainly persuasive. Moreover, even KDOC’s policies
contemplate this result under § 532.120(3) as it relates to concurrent sentences. See CPP 28-01-
08(II)(A)(8) (“Since a misdemeanor and felony sentence run concurrently by statute, overlapping
credit may be calculated.” (emphasis added)). Accordingly, because Bowling was first taken
into custody pursuant to the Rockcastle charge on February 25, 1989, he was entitled to
1,378 days of pre-trial custody credit on his Rockcastle sentence under § 532.120(3). To the
extent KDOC’s policies deny Bowling such credit, they are inconsistent with Kentucky statutory
law and are thus void. See KRS § 13A.120(2)(i); Franklin v. Nat. Res. & Envtl. Prot. Cabinet,
799 S.W.2d 1, 3 (Ky. 1990).
That does not necessarily end the inquiry, however. Unlike the district court, we do not
believe it is clear, at least from the record, that KDOC corrected the sentencing court’s mistake.
Some evidence suggests KDOC awarded Bowling pre-trial custody credit on his Rockcastle
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sentence. In a March 2012 letter, for example, a KDOC official informed Bowling that his
Rockcastle sentence had been “served out” as of that date, which predated his September 2012
filing. DE 1-1, Page ID 99. But other evidence is less clear. Bowling’s Resident Record Card,
for instance, attributes 1,378 days of jail credit to only his Laurel County burglary conviction and
not explicitly to his Rockcastle conviction. Yet, it also lists his total time served as “22y 3m
13d” without differentiating between his Laurel County and Rockcastle sentences, suggesting
that Bowling began serving both in 1989.2 DE 13-10, Page ID 205.
On balance, however, we conclude that KDOC awarded Bowling pre-trial custody credit
on his Rockcastle sentence. Although the record evidence is ambiguous as to this fact, the
Warden’s repeated concession, throughout this litigation, that Bowling was no longer “in
custody” on his Rockcastle sentence at the time he filed his § 2254 petition is enough to satisfy
us that such credit was awarded. This court, of course, must independently determine its own
jurisdiction. See Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006). But the Warden is the
Kentucky state officer that would have custody of Bowling if he was still serving his Rockcastle
sentence, and the Warden’s assertion that he did not have such custody in September 2012
carries great weight. This is especially true where his assertion is consistent with what
§ 532.120(3) requires: an award of pre-trial custody credit for time spent in custody on a charge
that culminates in a sentence. Accordingly, we find that Bowling was credited with 1,378 days
2
Bowling’s strongest piece of evidence is an April 19, 2016 letter from a KDOC official indicating that,
pursuant to KDOC policies, Bowling was awarded pre-trial custody credit on only his Laurel County sentences
because it was the indictment sentenced first. But this letter was not in the record before the district court, and we
decline to supplement the record to include it. In any event, this letter, at best, furthers the ambiguity in the record
and is not dispositive of the outcome here.
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of pre-trial custody credit on his Rockcastle sentence, resulting in that sentence having expired in
2009 and rendering him no longer “in custody” at the time he filed his September 2012 petition.3
B.
We also find that KRS § 532.120(1) has no effect on the § 2254 “in custody”
determination. This provision provides that, “[w]hen a person is under more than one
(1) indeterminate sentence, the sentences shall be calculated as follows: If the sentences run
concurrently, the maximum terms merge in and are satisfied by discharge of the term which has
the longest unexpired time to run.”4 KRS § 532.120(1)(a). Bowling argues that regardless of
when his Rockcastle sentence began, his Rockcastle and Laurel County sentences have “merged”
under KRS § 532.120(1), such that he is “in custody” on his Rockcastle sentence so long as he is
serving his Laurel County death sentence. The Commonwealth disagrees, contending that
§ 532.120(1) has no bearing on whether Bowling is “in custody” under § 2254.
To support his interpretation of § 532.120(1), Bowling cites to Commonwealth v. Propes,
No. 2010-CA-002315-MR, 2011 WL 5600619 (Ky. Ct. App. Nov. 18, 2011). In Propes, the
defendant was convicted of murder and sentenced to life imprisonment in 1974, but was paroled
after eight years. Id. at *1. A year after being released on parole, the defendant was convicted of
a separate rape and was sentenced to two concurrent ten-year terms, both of which were to be
served concurrent with his life sentence. Id. After being paroled again in 1994, the defendant
3
It is important that we note the strange posture of this case. Bowling asks us not to free him from
allegedly unlawful custody, but rather to extend such custody so that he may pursue further relief. In the usual case,
Bowling has already won—the Commonwealth concedes that Bowling is not in custody under his Rockcastle
sentence and has not been since 2009. Thus, should he succeed in having his Laurel County convictions overturned,
Bowling would be a free man. Despite this, he seeks to reach a counterintuitive result that would require that we
ignore not only the Commonwealth’s own concessions, but also what Kentucky law requires. And Bowling asks us
to contort our habeas jurisprudence in a case where even the equities are not in his favor. There is no evidence that
the Warden misinformed Bowling to his detriment or otherwise acted to prejudice Bowling’s ability to seek federal
review of his state court proceedings.
4
In Kentucky, all felony sentences are deemed “indeterminate,” KRS § 532.060(1), while misdemeanor
convictions result in a “definite term” of imprisonment, id. § 532.090.
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violated his parole and returned to prison in 2004. Id. As a result, the Commonwealth required
him to register as a sex offender under new registry requirements promulgated in 1998, which
applied to individuals “incarcerated” on sex crimes as of that date. Id. The defendant objected,
claiming that he had fully served his rape sentence prior to 1998 and was therefore incarcerated
on only the murder charge. Id. Applying § 532.120(1), the Kentucky Court of Appeals found
that the defendant’s ten-year rape sentence had “merged” into his life sentence, rendering him
incarcerated on the rape charge when he violated his parole in 2004, despite the ten-year
sentence having run well before that date. Id. at *2; see also Stewart v. Ky. Parole Bd, No. 2001-
CA-002264-MR, 2003 WL 1860278, at *3 (Ky. Ct. App. April 11, 2003). But Propes was not
issued by the Kentucky Supreme Court, nor was it a published decision. And, importantly, it did
not involve a § 2254 “in custody” determination. Thus, it is neither controlling nor persuasive
here.
The case on which the Commonwealth primarily relies, Mays v. Dinwiddie, 580 F.3d
1136 (10th Cir. 2009), also fails to resolve the issue. In Mays, an Oklahoma prisoner filed a
§ 2254 petition challenging a fully discharged burglary sentence, reasoning that he was still in
custody for a separate crime whose sentence ran concurrent to the burglary sentence. Id. at
1138–40. The Tenth Circuit dismissed the petition, holding that a prisoner who was still serving
the longer of two concurrent sentences, but that had completed the term of the shorter sentence,
was no longer “in custody” under § 2254 for purposes of challenging the conviction underlying
the shorter sentence. Id. at 1140–41. Although the facts of Mays are closely analogous to those
here, it is distinguishable because Oklahoma lacked a merger statute similar to that of
§ 532.120(1).
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The record evidence is similarly unhelpful. To be sure, some of the documentary
evidence indicates that Bowling’s Laurel County and Rockcastle sentences have merged, such
that he is serving an “aggregate sentence of death.” DE 114-1, Page ID 1688; DE 1-1, Page ID
97; DE 13-10, Page ID 205. But KDOC’s calculation of Bowling’s total term of imprisonment
under § 532.120(1) is distinct from a determination of whether Bowling was still “in custody” on
the Rockcastle conviction in 2012 for purposes of collaterally attacking it under § 2254.
We hold that § 532.120(1) does not alter the fact that Bowling’s twenty-year Rockcastle
sentence expired in 2009. First, the primary focus in a § 2254 “in custody” determination is
whether the prisoner is suffering “present restraint” from the challenged conviction. Maleng,
490 U.S. at 492. Because Bowling’s twenty-year Rockcastle sentence began in 1989, he was
suffering no restraint from this conviction when he filed his petition in September 2012. In fact,
KDOC informed Bowling in March 2012 that if his “death sentence [was] vacated,” his
Rockcastle sentence “would be recalculated” and “[u]pon recalculating [his] time, [he] would
have a total sentence length of 20 years which would be served out and [he] would be released
from DOC custody.” DE 1-1, Page ID 99. The Kentucky Court of Appeals agreed. See Bowling
v. Commonwealth, No. 2010-CA-000490-MR, 2012 WL 95425, at *5 (Ky. Ct. App. Jan. 13,
2012) (noting in dicta that, at the time the decision was rendered in January 2012, “Bowling
ha[d] served the twenty years’ imprisonment to which he was sentenced” on the Rockcastle
conviction). Construing § 532.120(1) to extend federal habeas jurisdiction to situations where
the prisoner no longer suffers restraint from the challenged conviction, as Bowling’s
interpretation does, “would read the ‘in custody’ requirement out of the statute.” Maleng,
490 U.S. at 492.
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Second, we have previously recognized that the merger language contained in
§ 532.120(1) does not create custody for habeas purposes where it would not otherwise exist. In
Johnson v. O’Dea, 19 F.3d 19, 1994 WL 51581 (6th Cir. Feb. 18, 1994) (table decision), we
noted that § 532.120(1) was “enacted to provide statutory guidance for the administrative task of
calculating the maximum total time for which individuals may be incarcerated when serving
multiple sentences,” and “not to merge consecutive sentences for purposes of collaterally
attacking them.” Id. at *4 (citing 1974 Commentary, Kentucky Revised Statutes). Although it is
true that Johnson dealt with consecutive sentences and not concurrent ones, the reasoning applies
with equal force here.5 Moreover, other courts interpreting similar merger statutes in the habeas
context have reached the same conclusion. See, e.g., Hurdle v. Sheehan, No. 13-cv-6837, 2016
WL 4773130, at *3–4 (S.D.N.Y. Sept. 12, 2016).
Third, Bowling’s interpretation of § 532.120(1) contravenes the policy underlying the
federal habeas statute. As the Supreme Court has noted, the “core purpose” of federal habeas
review is to “shorten [a] term of incarceration” in the event a petitioner “proves
unconstitutionality.” Garlotte v. Fordice, 515 U.S. 39, 47 (1995). Bowling’s interpretation
would have the opposite result; it would lengthen potentially unconstitutional confinement. And
this court “has clearly indicated an intention not to ‘open the door’ to the creation of jurisdiction
for sentences which have been fully served.” Johnson, 1994 WL 51581, at *3. Bowling’s
interpretation of § 532.120(1) does just that. Accordingly, we find that § 532.120(1) does not
5
It is true that the Supreme Court has allowed habeas challenges to consecutive sentences that were either
already served, see Garlotte, 515 U.S. at 45–46, or had yet to be served, Peyton v. Rowe, 391 U.S. 54, 67 (1968).
This makes sense because a successful challenge to a consecutive sentence (whether expired or impending) will
necessarily shorten the prisoner’s term of incarceration. See Garlotte, 515 U.S. at 47. The same is not true of
challenging an expired concurrent sentence. Even if successful, invalidation of an expired concurrent sentence will
have no effect on the ultimate length of incarceration. See Mays, 580 F.3d at 1140–41.
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perpetuate Bowling’s twenty-year Rockcastle sentence until the expiration of his death sentence
for purposes of challenging it under § 2254.
IV.
Finally, Bowling argues that, even if his Rockcastle sentence had expired by the time he
filed his September 2012 petition, we should nonetheless entertain his habeas petition under
Lackawanna County District Attorney v. Coss, 532 U.S. 394 (2001). In Lackawanna County, the
Supreme Court reaffirmed its prior holding from Daniels v. United States, 532 U.S. 374 (2001),
that “once a state conviction is no longer open to direct or collateral attack in its own right . . . ,
the conviction may be regarded as conclusively valid.” Lackawanna Cty., 532 U.S. at 403.
It further held that even “[i]f [the] conviction is later used to enhance a criminal sentence, the
defendant generally may not challenge the enhanced sentence through a petition under § 2254 on
the ground that the prior conviction was unconstitutionally obtained.” Id. at 403–04. A plurality
of the Court fashioned an exception to this latter holding, however, which Bowling argues is
applicable here. This exception applies where the “defendant can[not] be faulted for failing to
obtain timely review of [the] constitutional claim” because the state court, “without justification,
refuse[d] to rule on [the] constitutional claim that [was] properly presented to it.” Id. at 405.
The plurality reasoned that, “[i]n such situations, a habeas petition directed at the enhanced
sentence may effectively be the first and only forum available for review of the prior
conviction.” Id. at 406. This exception is not broad enough to encompass Bowling’s claim.
As an initial matter, because Bowling’s Rockcastle sentence has fully expired, he may
invoke this exception only if his § 2254 petition can be construed as challenging his 1992 Laurel
County sentences, as enhanced by the allegedly invalid Rockcastle conviction. See id. at 401,
403. This construction of Bowling’s petition is tenuous given his § 2254 petition only nominally
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references his Laurel County conviction and sentences. Moreover, because Bowling currently
has a separate § 2254 petition pending before this court in which he explicitly challenges the
constitutional defects in his Laurel County conviction, interpreting his petition in this manner is
duplicative and would require dismissal under 28 U.S.C. § 2244.
More importantly, Bowling’s Rockcastle conviction could not have been used to enhance
his Laurel County sentences because it occurred four years after those sentences were imposed.
Recognizing this defect, Bowling argues that Lackawanna County nevertheless applies because
evidence of the Rockcastle crime led to his Laurel County convictions. But as the
Commonwealth notes, this evidence was admissible under Kentucky Rule of Evidence 404(b)
regardless of whether Bowling was ever tried and convicted on the Rockcastle crime. See
Bowling, 942 S.W.2d at 301. Thus, even if Bowling’s Rockcastle conviction was permeated
with unconstitutional defects, invalidation of that conviction would have no effect on his Laurel
County sentences.
The cases on which Bowling relies to support an extension of Lackawanna County to this
case are inapposite. In those cases, it is true, the petitioner was permitted to invoke Lackawanna
County to challenge a later expired conviction that adversely affected an earlier conviction
under which the petitioner was still confined. See Brattain v. Cockrell, 281 F.3d 1279, 2001 WL
1692470, at *2 (5th Cir. Nov. 27, 2001); Ward v. Wolfenbarger, 323 F. Supp. 2d 818, 827–28
(E.D. Mich. 2004). But in both of those cases, Lackawanna County applied only because the
later conviction was adversely affecting the petitioner’s parole eligibility on the earlier sentence.
See Brattain, 2001 WL 1692470, at *2; Ward, 323 F. Supp. 2d at 827–28. The same cannot be
said of Bowling’s Rockcastle conviction. Because Bowling was sentenced to death for his
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Laurel County crimes and is thus not eligible for parole, his Rockcastle conviction will have no
effect on future parole eligibility or the length of his Laurel County sentences.
Lastly, there is no evidence that the state court, “without justification, refuse[d] to rule on
[Bowling’s] constitutional claim that [was] properly presented to it.” Lackawanna Cty., 532 U.S.
at 405. Instead, it appears that the state court diligently considered and ruled on Bowling’s
various motions throughout the state-court proceedings. Bowling simply chose a circuitous route
through the state courts that rendered him no longer “in custody” on his Rockcastle sentence
when his § 2254 petition was filed in September 2012. Lackawanna County cannot save him.
V.
For the foregoing reasons, we affirm.
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STRANCH, Circuit Judge, dissenting. I write separately to address the factual issue
that underlies our legal ruling—whether Ronnie Bowling was still “in custody” on his
Rockcastle County conviction at the time he filed his habeas petition, as required for federal
jurisdiction. Because Bowling was not owed pre-trial custody credit toward his Rockcastle
County sentence, nor did he receive it, I believe he was “in custody” and, therefore, respectfully
dissent.
As the majority notes, to determine whether Bowling was in custody on his Rockcastle
County sentence, we must first determine to which sentence his pre-trial custody credit applies.
Kentucky law and Kentucky Department of Corrections (KDOC) policies guide the inquiry
regarding his pre-trial custody credit, and clarify how that credit is calculated in a factual
scenario involving multiple indictments and sentences. KDOC Policy 28-01-08(II)(A)(2) states:
“Where multiple felony indictments are involved, any applicable credit shall be applied to the
indictment which is sentenced first.” KDOC Policy 28-01-08(II)(A)(6) states: “If an offender is
being sentenced on more than one felony indictment at the same time, custody time credit shall
be calculated separately for each indictment . . . . If those felony detainments overlap, one
indictment shall receive credit while the other indictment shall have fewer or zero (0) days
credit.” And that is what happened here: Bowling’s credit was applied to his first Laurel County
sentence. The KDOC Resident Record Card confirms this, noting that Bowling was given 1,378
days of jail credit on his Laurel County burglary sentence, and no days of credit for his five other
Laurel County sentences or his Rockcastle County sentence.
KRS § 532.120(3) does not conflict with the KDOC policies cited above—the policies
and the statutory language are easily read together, and appear to have been created to do so.
The statute uses mandatory language (“shall”) to prevent defendants from being completely
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denied their custody credit. It does not mandate or explain how credit should be applied. KDOC
policies specify exactly how the credit is awarded in different situations. This makes practical
sense. The Department of Corrections regularly deals with issues of custody credit in multiple
convictions, including situations in which a defendant was convicted and sentenced in different
counties on different dates, as here. In light of this expertise, it is not surprising that nothing in
the statute attempts to reach the level of granularity that would specify to which sentence a credit
should apply and that such decision is instead entrusted to the KDOC.
This reading is consistent with the Kentucky Supreme Court’s decision in Bowling v.
White, 480 S.W.3d 911, 913 (Ky. 2015). In certifying questions to the Kentucky Supreme Court,
the district court assumed that Bowling was due credit for his pre-trial custody time, that the
sentencing court did not give him that credit, and that the KDOC did credit Bowling with that
time. (R. 88, PageID# 1487-91) (“Seven years elapsed between Ronnie Lee Bowling’s arrest
and his conviction for attempted murder. Bowling spent those seven years in jail. Kentucky law
requires what common sense suggests: That those seven years should be credited towards his
resulting 20-year sentence. But the sentencing court did not credit Bowling with those years, and
Bowling never appealed. Kentucky’s Department of Corrections, however, did credit Bowling
with that time. The question presented by this case is whether the Department of Corrections can
remedy the sentencing court’s error.”).
Bowling, proceeding pro se at the time, did not challenge these erroneous factual
assumptions. The Kentucky Supreme Court expressly assumed the facts as presented by the
district court, and left any fact finding about Bowling’s situation up to the district court.
Bowling, 480 S.W.3d at 913 (“The record in this case is sparse because it concerns the
certification of a question of law, and we are thus dependent on the facts as articulated by the
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No. 15-6318, Bowling v. White
district court at its request.”). The state Supreme Court went on to hold that the KDOC did have
the power to alter a mistake, a holding Bowling does not contest. See id. In a situation where an
individual was mistakenly denied credit by a trial court, the KDOC is authorized to correct the
error. See id. However, this holding is not relevant to the determination facing this panel: if
Bowling was actually owed credit on his Rockcastle County sentence, and if he received it.
Justice Seay’s dissent highlighted this problem.
The Rockcastle trial court correctly awarded Bowling zero days custody time
credit . . . . This court does not have Bowling's Rockcastle [Presentence
Investigation Report], but if Probation and Parole calculated his custody time
credit according to applicable statutes and policy, the PSI should have shown
Bowling was entitled to zero days custody time credit. This is because
Corrections would have already applied the entire custody time credit to the
Laurel conviction, which was the “indictment which is sentenced first.”
...
While the U.S. District Court found the Rockcastle court mistakenly awarded
Bowling zero days custody time credit, there appears to be no basis in the record
upon which the court could base that finding. It appears more likely the
Rockcastle trial court's award of zero days was correct, based upon Corrections'
likely initial calculation and applicable statutes and policies. The U.S. District
Court also found Corrections “recalculated” Bowling's custody time credit. There
also appears to be no basis in the record upon which the court could base that
finding.
Id. at 918-20 (Seay, J., dissenting).
The Bowling decision does not address the issue at hand. Under Kentucky law and
KDOC policies, Bowling’s credit was properly applied to his first Laurel County sentence, as
reflected in the record. He was not entitled to have pre-trial jail custody credit on his Rockcastle
County sentence, and neither KRS § 532.120(3) nor the Kentucky Supreme Court say otherwise.
Further, the evidence does not show that Bowling was awarded credit on his Rockcastle
sentence, rather just the opposite. The majority points to a March 20, 2012 letter from a KDOC
official to support the contention that the KDOC awarded Bowling pre-trial custody credit on his
Rockcastle County sentence. But that letter is not a “concession” that the KDOC did not have
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No. 15-6318, Bowling v. White
custody over Bowling. Rather, it is premised on a hypothetical—if Bowling were “granted a
new trial and [his] death sentence [was] vacated,” his sentence would be recalculated. (R 1-1,
PageID# 99). Upon recalculation, the letter states, his sentence would have been considered
served out and he would be released from custody. It makes sense that if Bowling’s Laurel
County sentence were vacated, his pre-trial custody credit would transfer to his Rockcastle
County conviction pursuant to KRS § 532.120(3). Thus, if his Laurel County sentences were
vacated, the KDOC would no longer have custody of Bowling. See KRS § 532.120(4). This
letter explains what would happen in a hypothetical situation that has not occurred, but it does
not demonstrate that Bowling received credit on his Rockcastle County sentence.
The evidence showing that Bowling did not actually receive credit on his Rockcastle
sentence is strong. His Resident Record Card indicates that his entire credit was applied to just
one of his Laurel County convictions. Bowling also asks the panel to take judicial notice of two
letters, both from the Assistant District Supervisor of the KDOC. The first states that Bowling
was given zero days of credit for his Rockcastle sentence, and the second clarifies that because
he was sentenced first in Laurel County, his full credit was applied solely to that case. In sum,
the record does not support the conclusion that custody credit was ever applied to Bowling’s
Rockcastle County sentence.
Because Kentucky law and KDOC policies do not mandate that Bowling receive pre-trial
custody credit on his Rockcastle County sentence, and because the evidence does not show that
he was ever awarded such credit, he was still “in custody” for federal habeas purposes at the time
he filed his petition. Therefore, I respectfully dissent.
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