Smith v. United States

Opinion

a : . Southern District of Texas . ENTERED January 30, 2024 Nathan Ochsner, Clerk IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION THOMAS EARL SMITH, § TDCI #02433337, . § . : § Petitioner, § . . § vs. _,.§ . CIVIL ACTION NO. H-23-3024 § UNITED STATES OF AMERICA, § □ § Respondent. § §

AMENDED MEMORANDUM OPINION AND ORDER Petitioner Thomas Earl Smith, (TDCJ #02433337), filed a document entitled □

“Writ of Mandamus” in the United States District Court for the Eastern District of

- Texas. (Dkt. 1). In this “writ,” Smith asked the Court to order that he be transferred to the custody of the Bureau of Prisons to serve his federal sentence in federal prison rather than first serving his sentences for two state-court convictions in state prison. (Id. at 1-2). The Eastern District construed Smith’s “writ” as a petition for writ of habeas corpus under 28 U.S.C. § 2241 and transferred it to the Southern District of . Texas, where Smith is currently incarcerated. (Dkts. 3, 4). At the Court’s request, Smith filed an amended petition that clarified his claims. (Dkt. 9). The Court □ ordered the Government to answer the amended petition, (Dkt. 10), and the

Government responded with a motion for summary judgment. (Dkt. 14). Smith recently filed an out-of-time response to the Government’s motion. (Dkt. 17). Having reviewed the “writ” and amended petition, the motion and response, all matters of record, and the law, the Court grants summary judgment in favor of the Government and dismisses Smith’s petition for the reasons explained below. I. BACKGROUND Smith was arrested on a federal warrant during a May 1, 2022, traffic stop in Polk County, Texas. (Dkt. 1, pp. 1-2). At the time, Smith was also the subject of a

State warrant out of San Augustine County, but the County declined to execute on the warrant at that time. (/d. at 2). Smith was transported to the Liberty County jail, where he was held solely on the federal warrant. (/d.). On July 14, 2022, Smith pleaded guilty to federal charges of possession of a firearm by a prohibited person and possession with intent to distribute a controlled substance, which offenses occurred in March 2019 and December 2019. See United States v. Smith, No. 9:22- cr-00018 (E.D. Tex. Nov. 22, 2022), at Dkt. 18. When Smith reviewed his presentence investigation report in anticipation of his federal sentencing, he discovered that it showed that he was subject to two state- law detainers—one for a 2021 charge of possession of controlled substances with intent to deliver in San Augustine County, and one for a 2020 burglary charge in Angelina County. (Dkt. 1, p. 3). See also Inmate Search,

www.inmate.tdcj.texas.gov/InmateSearch (last visited Jan. 17, 2024). When Smith ‘asked his attorney about the pending detainers, his attorney told him that they were “babysitting warrants” that would likely be dismissed once Smith was sentenced on |

the federal charges. (Dkt. 1, p. 3). □□ On November 21, 2022, the federal court sentenced Smith to a total of 84 months ‘in prison on his federal charges. (Id.). Smith’s plea agreement makes no reference to the pending state charges. See Smith, No. 9:22-cr-00018, at Dkt. 19.

_ His federal judgment states that it “shall run concurrently to the defendant’s imprisonment under any future state or federal sentence related to the instant offense; and consecutively to the defendant’s imprisonment under any future = or federal sentence not related to the instant offense.” Id. at Dkt. 33. Despite the absence of any language regarding his pending state charges in the judgment, Smith alleges that was “under the understanding from counsel” that he would serve his federal

sentence first, before serving any state sentences. (Dkt. 1, p. 3). Smith alleges that on December 1, 2022, he was transported to San Augustine County for proceedings on his pending state charges in that county. (/d.). □□ January □□ 2023, Smith was transferred to Angelina County to address the state charges pending □ there. (Id. at 4). Smith ultimately pleaded guilty to both state charges, and he a sentenced in late J anuary 2023 to five years in prison on ach conviction, with the sentences to run concurrently with each other. (/d.). Smith alleges that his state plea

agreement included a provision that his state sentences would run concurrently with

his federal sentence, but no copy of that plea agreement is in the record. (/d.).

Smith alleges that after he resolved his state charges, he asked the Angelina County transportation supervisor to arrange for his transport back to federal custody so that he could begin serving his federal sentence in a federal prison. (/d.). Smith □ alleges that the transportation ‘Supervisor told fn that the U.S. Marshals had instructed her to transfer Smith to TDCJ custody to serve his state sentences first. (Id.). Smith alleges that this instruction was incorrect because he resolved his federal charges first and so should be required to serve his federal sentence in federal prison first. (/d.). When Smith was unable to resolve the issue with TDCJ, he filed this

- petition. As relief, Smith asks the Court-to order the Bureau of Prisons to take custody —

Of him and transfer him to a federal prison so that he can serve his federal sentence first. (Id.). He also requests that the Court order his state and federal sentences to concurrently and order that he be given credit against his federal sentence forall of his time spent in TDCJ custody. (d.). . oo □ The Government responded to Smith’s petition with a motion for summary judgment. (Dkt. 14). In that motion, the Government asserts that Smith’s petition - should be denied because he has no standing to challenge the order in which his state. ~~

and federal sentences are being served. (Id. at 2).

4 □

In his response, Smith reargues the points he made in his original petition. (Dkt. 17). He also contends that the case law cited by the Government is factually . ‘distinguishable. (/d. at 3). He alleges that the Gorenmmenss cases refer to situations in which a state “loans” a defendant to the federal a for prosecution, while in his case he was in federal custody and was “loaned” to the state. (/d.). He also asserts, without citation to authority, that he does have standing to raise the issue and that there is no agreement between the Government and the state concerning how he will serve his sentences. (/d.). . □ IL. DISCUSSION Smith raises three separate but related claims: first, because he was sentenced in federal court before he was sentenced in state court, he should serve his federal —

sentence in federal prison before serving his state sentences; second, his state and federal sentences should be served concurrently; and third, he should be awarded □ credit against his federal sentence for the time served on his state sentences. The law does not support any of these arguments. A. Order of Sentences Smith’s primary contention is that he should serve his federal sentence first because he was convicted and sentenced. in federal court before he was convicted and sentenced in state court. But the order in which federal and state sentences are imposed is not dispositive of how they will be served. Instead, “the federal

government and a state are perfectly free to make any.agreement between memeelves

concerning which of their sentences will be served first, as long as the prisoner is not compelled unnecessarily to serve his sentences in a piecemeal fashion.” Yusufu. v. U.S. Bureau of Prisons, 129 F.3d 608, 1997 WL 681027, at *1 (5th Cir. 1997) (per curiam) (quoting Causey v. Civiletti, 621 F.2d 691, 694 (5th Cir. 1980)). □□□ ‘Accordingly, “[a] person who has violated the criminal statutes of both the Federal and State Governments may not complain of the order in which he is tried or punished for such offenses.” Disiere v. Dretke, No. Civ. A. 504CV086-C, 2004 WL 96283 1, at *2 (N.D. Tex. Apr. 27, 2004) (quoting Causey, 621 F.2d at 694), aff'd, 115 F. App’x 210 (5th Cir. 2004); see also United States v. Basaldua, No. 07-60037, 2015 WL 13723776, at *6-7 (W.D. La. Feb. 17, 2015) (specifically rejecting a prisoner’s argument that he should be permitted to serve his federal sentence before state etree because he was sentenced first in federal court). In this case, while the federal government may have had the power torequire Smith serve his federal sentence first, it was not required to exercise that power :

_ in that manner, and it elected fe to do so. See □□□ 621 F.2d at 693. Smith

- cannot challenge the federal governnient’s decision on how to exercise its authority,

his bare assertion that this controlling Fifth Circuit precedent does not apply to

his case is unpersuasive. He is not entitled to an order requiring his transfer to the Bureau of Prisons, and his claim for this rélief is denied.

B. Concurrent Sentences Smith also contends that he entitled to credit against his federal sentence for

_ the time he is serving in state prison because his state and federal sentences were ordered to run concurrently. The record does not support this argument. “{Flederal 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.” Free v. Miles, 333 F.3d 550, 553 (Sth Cir. 2003) (per curiam) (citing 18 U.S.C. § 3584(a)). The district court in

_ Smith’s case ordered that any state sentences “relating to” his federal sentences _ would run concurrently with his federal senterice but that unrelated state sentences would run consecutively. Smith’s federal offenses occurred in March 2019 and December 2019, see Smith, No. 9:22-cr-00018, at Dkt. 1, while his state offenses occurred in July 2020 and October 2021. See Inmate Search, www.inmate.tdcj.texas.gov/InmateSearch (last visited Jan. 17, 2024). Nothing in □ the record: shows that Smith’s state convictions are “related to” his federal convictions. Therefore, in the absence of evidence to the contrary, Smith’s state and

federal sentences are presumed to ‘run consecutively to each other—not concurrently. .

In support of his argument, Smith asserts that his state plea agreement □

_ provides that his state sentences will run concurrently with his: federal sentence. . □

Even if this is true, it does not entitle Smith to relief because a state sentencing judge has no authority dictate how a federal sentence will be structured. See Leal v. ombone, 341 F.3d 427, 428-29 (5th Cir. 2003) (per curiam) (citing Del Guzzi v. United States, 980 F.2d 1269, 1270 (9th Cir. 1992) (per curiam)); Basaldua, 2015 13723 776, at *7 (“The state judge’s subsequent order that the state sentence run concurrently is not binding on the Federal Bureau of Prisons.”). Smith has not shown that his state and federal convictions are related soasto bring them within the provision of his federal. fader regarding concurrent time. □ He is therefore not entitled to an order requiring his state and federal sentences to be served concurrently. . □

C. Credit Against Federal Sentence Finally, Smith contends that because his sentences were ordered to run □ concurrently, he should be entitled to credit against his federal sentence for histime □□ served in state prison. Even if Smith could show he was entitled to concurrent □

sentences, he would not be entitled to such an order from this Court. Federal law permits a prisoner to be “given credit toward his term of federal . imprisonment for any time he spent in official detention prior to the commencement

of his sentence ‘that has not been credited against another sentence.’” Leal, 341 F.3d at 428 (quoting 18 USC. § 3585(b)). Generally, this means that “a prisoner cannot teceive credit for time that was already credited toward a state sentence.” Smith v. □□

McConnell, 950 F.3d 285, 288 (Sth Cir. 2020) (per curiam) (citing United States v. Wilson, 503 U.S. 329, 333-37 (1992)). However, it is not up to this Court to determine whether Smith is entitled to such credit. Instead, “the Attorney General through the Bureau of Prisons, □

determines what credit, if on will be awarded to prisoners for time spent in custody prior to the commencement of their federal sentences.” Leal, 341 F.3d at 428. Therefore, when Smith’s state sentences are completed, he will be taken into federal custody, at which time the Bureau of Prisons will determine what credit (if any) he □ is entitled to for his time spent in state custody. See Wilson, 503 US. at 331-35. This Court has no authority to order the Bureau of Prisons to credit Smith with the time spent serving his state sentences against his federal sentence, and his petition seeking this relief is denied. □ Ill. CONCLUSION Based on the foregoing, the Court ORDERS as follows: 1. The Government’s motion for summary judgment, (Dkt. 14), is GRANTED. 2. Smith’s petition for writ of habeas corpus under 28 U.S.C. § 2241 is

DISMISSED with prejudice. □ 3. Any pending motions are denied as moot. □□

4. Final judgment will be separately entered. 5. No Certificate of Appealability will be issued. See Pack v. Yusuff, 218 F.3d □

. 9

448, 451 n.3 (Sth Cir. 2000) (“A COA is not required to appeal the denial of

a § 2241 petition.”). The Clerk shall provide a copy of this Order to the parties. SIGNED at Houston, Texas, on Sf pun, 3O , 2024.

DAVID HITTNER UNITED STATES DISTRICT JUDGE