United States District Court, W.D. Virginia, Roanoke Division
Ashley Barnes, Pro Se Petitioner;
W. H. Mott, Assistant United States Attorney, Roanoke,
Virginia, for Respondent.
P. JONES UNITED STATES DISTRICT JUDGE
Marc Ashley Barnes, a federal inmate proceeding pro se, filed
this Petition for a Writ of Habeas Corpus under 28 U.S.C.
§ 2241. Barnes contends that he has not received
prior state custody credit against his federal criminal
sentence. Upon review of the petition and the record, I
conclude that the respondent's Motion to Dismiss must be
facts are undisputed. On July 26, 2009, Barnes was arrested
by local law enforcement officials in Iredell County, North
Carolina, and charged with breaking and entering, first
degree kidnapping, assault with a deadly weapon inflicting
serious injury, and possession of a firearm by a felon. He
was remanded to the Iredell County Jail.
months later, Barnes was indicted in the United States
District Court for the Western District of North Carolina for
possession of ammunition and a firearm by a convicted felon -
the firearm he had used during the state offences. On January
6, 2011, while Barnes was still awaiting trial on the state
charges, federal authorities obtained him on a writ of habeas
corpus ad prosequendum to face the federal charge. Barnes was
convicted, and on April 2, 2012, was sentenced to 120 months
in prison, the statutory maximum. The federal sentencing
judgment did not indicate that the federal sentence should
run concurrent with the sentence yet to be imposed by the
state authorities in Iredell County. Federal authorities
returned Barnes to state authorities on May 21, 2012.
thereafter pleaded guilty to one of the four state charges -
assault with a deadly weapon inflicting serious injury. The
state court sentenced Barnes on June 14, 2012, to a term of
37 to 54 months imprisonment. The state court provided that
its sentence would run concurrently to the already-imposed
federal sentence. State authorities granted him 1055 days of
credit against his state sentence for the time he had spent
in custody from July 26, 2009, the date of his arrest, to
June 14, 2012, the day that his state sentence was imposed.
On June 4, 2013, Barnes was release on parole from his state
sentence and began service of his 120-month federal sentence.
Bureau of Prisons (“BOP”) calculated Barnes'
federal sentence as having commenced on June 4, 2013, when he
was released from state imprisonment and taken into federal
custody. Barnes protested this calculation through the BOP
administrative process, seeking credit for the time served on
his state sentence.
August of 2016, the BOP notified Barnes that his request for
prior custody credit would be considered as a request for a
nunc pro tunc designation of the state prison for service of
his federal sentence. This letter advised Barnes that such
“a designation effecting concurrent service of state
and federal sentences is made only when it is consistent with
the intent of the sentencing federal court or the goals of
the criminal justice system.” Mot. Dismiss Ex. 1,
Attach. H, ECF No. 8-9.
sent a letter dated October 5, 2016, to the federal
sentencing court, requesting its position on a retroactive
designation in Barnes' case, to allow the sentences to
run concurrently as the state judge intended. The federal
court did not respond.
January 10, 2017, after a review of factors listed in §
3621(b), the BOP denied Barnes' request for a nunc pro
tunc designation. Id. at Attach. J, ECF No. 8-11. In
so doing, the BOP noted the lack of response from the federal
sentencing court, Barnes' prior state convictions,
including armed robbery, three counts of common law robbery,
and robbery with a dangerous weapon, and his prison
disciplinary record, which included assault, fighting,
multiple infractions for sexual acts, and possession of
drugs. The current projected date on which Barnes will
complete serving his federal sentence is June 10, 2022.
inmate is subject to sentences imposed by both federal and
state courts - different sovereigns - the sovereign that
arrested him first acquires and maintains primary
jurisdiction over him until the sentence imposed by that
sovereign have been satisfied. United States v.
Evans, 159 F.3d 908, 912 (4th Cir. 1998). In other
words, “the first sovereign to arrest an offender has
priority of jurisdiction over him for trial, sentencing, and
incarceration” and that “jurisdiction continues
until the first sovereign relinquishes its priority by, for
example, bail ...