IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 95-30072
(Summary Calendar)
WARDELL HUNTER,
Petitioner-Appellant,
versus
KEITH HALL,
Respondent-Appellee.
Appeal from the United States District Court
for the Western District of Louisiana
(94-CV-360)
August 9, 1995
Before WIENER, EMILIO M. GARZA, and PARKER, Circuit Judges.
PER CURIAM:*
In this appeal from the dismissal of his petition for habeas
corpus filed under 42 U.S.C. § 2241, Petitioner-Appellant Wardell
Hunter, a federal prisoner, collaterally attacks the calculation of
*
Local Rule 47.5 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the Court has determined that this opinion
should not be published.
the time he must serve in federal prison, claiming entitlement to
credit for time served prior to sentencing. Wardell has now filed
a motion with this court to hold the instant appeal in abeyance so
that he might deal with purported newly discovered evidence. For
the reasons set forth below, we deny that motion and we affirm the
district court's dismissal of Hunter's habeas petition.
I
FACTS AND PROCEEDINGS
Hunter was arrested by state authorities on January 22, 1991,
on two counts of probation violation. Two days later a federal
detainer was lodged against Hunter in connection with several drug
counts. He alleges that, even though he posted bond in connection
with the state probation violation, he was not released from
custody due to this federal detainer.
Almost four months later, on May 13, 1991, Hunter was
sentenced in state court to serve two concurrent prison terms, one
of five years and the other of six months, on the above-said state
probation violation counts. On August 21, 1991, however, this
sentence was set-aside by a state court so that Hunter's state
sentence could be coterminous with the federal sentence.
On January 8, 1992, the federal district court sentenced
Hunter to serve 115 months imprisonment on his federal drug
conviction, specifying that this sentence was to run consecutively
to his state sentence for drug possession and distribution. In
sentencing Hunter, the district court stated that Hunter would be
entitled to a credit for time served since the federal detainer was
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lodged on January 24, 1991.
On November 6, 1992, Hunter was re-sentenced in state court to
a term of 20 months on the probation violation for which he had
been arrested on January 23, 1991, with credit for time served.
Only a week later, on November 13, 1992, Hunter was paroled by
state authorities, and he began to serve his federal sentence on
the same date. As Hunter was not received into exclusive federal
custody until that daySQNovember 13, 1992SQthe Bureau of Prisons
(BOP) determined that Hunter did not commence serving his federal
sentence prior to that date.
The government attached to its answer the declaration of the
Inmate Systems Manager for FCI-Oakdale, where Hunter is
incarcerated. According to that declaration:
Mr. Hunter was originally arrested on January 23,
1991 by the State of Louisiana on the basis of a
previously filed capias for a Rule to Revoke Probation,
Docket No. 312-383, and a warrant for Docket No. 325-876.
the U.S. Marshals Service lodged a detainer with the
State of Louisiana on January 24, 1991, for conspiracy to
possess with intent to distribute cocaine.
The Records Clerk for Orleans Parish indicates that
no bond was set for the probation violation as statute
precludes bond. A bond of $100,000 was set for Docket
No. 325-876; however, no attempts were made to post bond.
The detainer filed by the U.S. Marshals Service did not
affect the bond status of either state case.
According to a Time Computation and Jail Credits furnished by the
State of Louisiana, the time Hunter spent in custody after January
23, 1991, was credited against his state sentence. Consequently,
he was not entitled to credit for that time against his federal
sentence.
The magistrate judge found that Hunter's custody status
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resulted from his state offenses, not from the federal detainer
that was lodged against him while he was in state custody.
Moreover, Hunter was not entitled to have the time spent in state
custody credited against his federal sentence because he had
already received credit for this time against his state sentence.
The magistrate judge also found that it was not improper for the
district court to have imposed a sentence that would run
consecutively with a yet-to-be imposed state sentence, even though
the state court might have intended for the state and federal
sentences to terminate simultaneously.
The magistrate judge recommended that the petition for a writ
of habeas corpus be denied. Adopting the report and recommendation
of the magistrate judge, the district court denied the habeas
petition, and Hunter timely appealed.
II
ANALYSIS
A. Motion to Hold Appeal in Abeyance
Hunter claims to have discovered new information that had not
been available to him at the time he filed his § 2241 petition, and
has moved the court to hold his appeal in abeyance. He has not
identified the new information, however; neither has he moved to
supplement the record on appeal. His vague and conclusionary
motion is insufficient and is therefore denied.
B. Substance of Appeal
Hunter contends that the district court should have given
effect to the intention of the state court for the state and
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federal sentences to expire simultaneously. Hunter urges that the
district court should have done so by designating the state
facility as a place of confinement for purposes of his federal
sentence.1 In determining whether to impose concurrent or
consecutive sentences, the district court, in the exercise of its
discretion, "may consider subsequent sentences anticipated, but not
yet imposed, in separate state court proceedings." United States
v. Brown, 920 F.2d 1212, 1217 (5th Cir.), cert. denied, 500 U.S.
925 (1991); see United States v. Ballard, 6 F.3d 1502, 1510 (11th
Cir. 1993).
Barden v. Keohane, 921 F.2d 476 (3d Cir. 1990), relied on by
Hunter, does not conflict with the rule in Brown and Ballard. In
Barden, the Third Circuit ordered the BOP to exercise its
discretion to determine whether a state prison in which Barden was
incarcerated on state charges prior to being transferred to a
federal facility should be designated a place of federal
confinement for purposes of Barden's federal sentence. Barden, 921
F.2d at 478. The state court had ordered that the state sentence
be served concurrently with the federal sentence. Id. Unlike the
instant case, however, the federal court in Barden had not
indicated whether the sentence should be served concurrently with
1
The government argues that this issue is being raised for
the first time on appeal. We disagree. Hunter did argue in the
district court that the state court vacated its original sentence
so that its sentence would be coterminous with the federal
sentence. In the district court Hunter did not cite Barden v.
Keohane, 921 F.2d 476 (3d Cir. 1990), which he now relies on, but
the issue was nonetheless raised; in fact it was discussed by the
magistrate judge in his report and recommendation.
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any subsequently imposed state sentence. Id. at 483. In reaching
its decision, the Third Circuit stated, "[w]e recognize that
neither the federal courts nor the Bureau [of Prisons] are bound in
any way by the state court's direction that the state and federal
sentences run concurrently." 921 F.2d at 478 n.4. The Barden
court thus recognized that the district court was not bound by the
state court's decision to have the state and federal sentences run
concurrently; the district court in its discretion could order that
its sentence run consecutively with the subsequently-imposed state
sentence.
Hunter argues that here the district court intended that he
receive credit for the time he served in state custody prior to
sentencing. But Hunter overlooks the fact that, under 18 U.S.C.
§ 3585(b), the Attorney General, through the BOPSQnot the district
courtSQcomputes the credit for prior custody . United States v.
Wilson, 503 U.S. 329, ___, 112 S. Ct. 1351, 1354-55 (1992). A
defendant is given credit toward his term of imprisonment for any
time spent in official detention prior to the commencement of his
sentence "that has not been credited against another sentence." 18
U.S.C. § 3585(b). The BOP determined that Hunter was not entitled
to a credit for time served in state custody because that time had
been credited against his state sentence. Even if, as Hunter
suggested in the district court, his release on bail had been
prevented by the federal detainer, he still would not have been
entitled to a credit for the time served in state custody because
that time was credited against his state sentence. See United
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States v. Dovalina, 711 F.2d 737, 740 (5th Cir. 1983). The
district court's judgment is
AFFIRMED; Motion DENIED.
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