United States District Court, W.D. Texas, Austin Division
HONORABLE SAM SPARKS UNITED STATES DISTRICT JUDGE.
REPORT AND RECOMMENDATION OF THE UNITED STATES
W. AUSTIN UNITED STATES MAGISTRATE JUDGE.
the Court are Petitioner Michael Fillenworth's Petition
for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241
(Dkt. No. 1) and Memorandum of Law (Dkt. No. 4);
Respondent's Response to the Petition for Writ of Habeas
Corpus (Dkt. No. 8); and Petitioner's Reply (Dkt. No.
undersigned Magistrate Judge submits this Report and
Recommendation to the United States District Court pursuant
to 28 U.S.C. §636(b) and Rule 1 of Appendix C of the
Local Court Rules of the United States District Court for the
Western District of Texas, Local Rules for the Assignment of
Duties to United States Magistrate Judges.
September 15, 2005, pursuant to a plea agreement, Michael
Fillenworth pled guilty to possession with intent to
distribute methamphetamine in violation of 21 U.S.C. §
841, felon in possession of a firearm in violation of 18
U.S.C. § 922(g)(1), and carrying a firearm during a drug
trafficking crime in violation of 18 U.S.C. §
924(c)(1)(A)(i). Dkt. No. 20 in A-05-CR-137 SS. On November
28, 2005, the District Court sentenced Fillenworth to 84
months imprisonment, a five- year term of supervised release
and a $300 special assessment fee. See Dkt. No. 25
in A-05-CR-137 SS. Fillenworth was released from federal
custody and began his term of supervised release on July 28,
October 1, 2013, the Austin Police Department arrested
Fillenworth on an outstanding warrant for Theft of Services
and he was released from custody that same day. On October
24, 2013, the Round Rock Police Department arrested
Fillenworth for Forgery and Fraudulent Use or Possession of
Identifying Information and placed him in state custody. On
March 12, 2015, Fillenworth was released from state custody.
The next day, the United States Marshal arrested Fillenworth
for violating his terms of supervised release (for committing
another crime and for failing to notify his probation
officer) and he was placed back in federal custody. On April
24, 2015, the District Court revoked Fillenworth's term
of supervised release and re-sentenced him to a total of 48
months imprisonment and a three-year term of supervised
release. Dkt. No. 44 in A-05-CR-137 SS. The Judgment was
silent as to how the sentence would run against any state
sentence. Fillenworth did not file a direct appeal of his
federal sentence. On September 22, 2015, Fillenworth was
sentenced in the state court case to five years of
imprisonment for Forgery and Fraudulent Use or Possession of
Identifying Information, to be run concurrently. Exh. B to
Dkt. No. 8 at ¶ 8. The Bureau of Prisons has calculated
his projected release date to be September 4, 2018.
has filed this Petition for Writ of Habeas Corpus under 28
U.S.C. § 2241 arguing that the Bureau of Prisons
(“BOP”) has incorrectly calculated his sentence
by failing to give him credit against his federal sentence
for the time he spend in state custody from October 25, 2013
to March 12, 2015.
noted, Fillenworth argues that the BOP has incorrectly
calculated his sentence by failing to give him credit against
his federal sentence for the time he spend in state custody
from October 25, 2013 to March 12, 2015. Fillenworth argues
that he is entitled to nun pro tunc time for the time he
served in state custody and relies upon the state sentencing
judge's recommendation that the sentences should run
concurrently. Fillenworth is mistaken.
second federal sentence commenced on the day he was
sentenced, April 24, 2015. See 18 U.S.C. §
3585(b) (“A sentence to a term of imprisonment
commences on the date the defendant is received in custody .
. .”); Exh. B to Dkt. No. 8 at 4. When a federal
district court does not specify that sentences will run
concurrently, they run consecutively. 18 U.S.C. §
3584(a); Jones v. Joslin, 635 F.3d 673, 674 (5th
Cir. 2011) (“We hold that when the sentencing court
makes no mention of a prior state sentence, the federal
sentence shall run consecutive to the state
sentence.”). A district court must “specifically
order when it wishes to depart from this default rule.”
Id. at 675. See also, Free v.
Miles, 333 F.3d 550, 553 (5th Cir. 2003)
(“Well-settled federal law presumes 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.”). Here, the
District Court did not specifically order that
Fillenworth's federal sentence be served concurrently
with any state sentence and, therefore, his sentences are to
run consecutively. Dkt. No. 44. The fact that the state
sentence had yet to be imposed makes no difference. See
Hunter v. Tamez, 622 F.3d 427, 431 (5th Cir. 2010)
(“[U]nder this circuit's precedent, the district
court is permitted to order a federal sentence to run
consecutively or concurrently to an anticipated subsequent
state sentence at the time of the federal
sentencing.”). Therefore, the BOP did not err in
determining that Fillensorth's state and federal
sentences run consecutively.
Fillenworth is not entitled to any credit toward his federal
sentence for time spent in state custody. Title 18 U.S.C.
§ 3585(b) provides:
Credit for prior custody.-A defendant shall be given credit
toward the service of a term of imprisonment for any time he
has spent in official detention prior ...