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Millaway v. Underwood

United States District Court, N.D. Texas, Dallas Division

April 10, 2019

RAY MILLAWAY BOP Register No. 19885-078, Petitioner,
v.
M. UNDERWOOD, Warden, Respondent.

          FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

          DAVID L. HORAN UNITED STATES MAGISTRATE JUDGE.

         Petitioner Ray Millaway, a federal prisoner incarcerated in this district, filed a pro se application for a writ of habeas corpus under 28 U.S.C. § 2241, alleging that, by not crediting him the time he spent in state custody prior to commencement of his federal sentence, the Bureau of Prisons (“BOP”) “is improperly calculating and executing [his] sentence, resulting in the illegal extension of [his] term of imprisonment.” Dkt. No. 3.

         His action has been referred to the undersigned United States magistrate for pretrial management under 28 U.S.C. § 636(b) and a standing order of reference from Senior United States District Judge A. Joe Fish.

         The government filed a response opposing relief. See Dkt. Nos. 7 & 8. And Millaway filed a reply brief, see Dkt. No. 15, and motion to expedite, see Dkt. No. 17.

         The undersigned enters these findings of fact, conclusions of law, and recommendation that, to the extent that these findings and conclusions are now being entered, the Court should grant Millaway's motion to expedite and then dismiss his petition, as he has received all the credits to which he is entitled.

         Applicable Background

         Millaway was arrested by state authorities in Denton County, Texas on February 23, 2012 and was charged with manufacturing/delivery of a controlled substance, deadly conduct discharge of a weapon, and possession of marijuana. See Dkt. No. 8-1 at 5 (¶ 6) & 21; State v. Millaway, Nos. F-2012-1053-A, -1054-A, -1055-A, -1056-A (16th Jud. Dist. Ct., Denton Cnty., Tex.).

         He was delivered to federal custody pursuant to a writ of habeas corpus ad prosquedeum on May 15, 2012. See Dkt. No. 8-1 at 6 (¶ 7) & 23-24.

         After pleading guilty, he was adjudged guilty of possession of a firearm while an unlawful user of a controlled substance, in violation of 18 U.S.C. §§ 922(g)(3) and 924(a)(2), and he was sentenced to 102 months of imprisonment. See United States v. Millaway, No. 4:12CR00101-001 (E.D. Tex. Feb. 5, 2014) [Dkt. No. 8-1 at 27-32]. The federal judgment provided that his federal “term of imprisonment shall run concurrently with any term that may be imposed [in the four state criminal actions then-]pending ... for charges related to this instant offense conduct.” Dkt. No. 8-1 at 28.

         Millaway was returned to state custody on February 13, 2014 subject to a federal detainer. See Id. at 6 (¶ 9) & 23-24.

         On June 4, 2014, he received a 12-year total sentence as to his four state criminal cases and was awarded 836 days of jail credit. See Id. at 6 (¶ 10) & 34-41.

         Millaway paroled from his state sentences on July 22, 2015 and was released to his federal detainer. See Id. at 6 (¶ 11) & 43-46.

         Legal Standards and Analysis

         “Section 2241 is the proper procedural vehicle if a prisoner ‘challenges the execution of his sentence rather than the validity of his conviction and sentence.'” Gallegos-Hernandez v. United States, 688 F.3d 190, 194 (5th ...


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