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Barnes v. Warden of Lee County

United States District Court, W.D. Virginia, Roanoke Division

January 10, 2019


          Marc Ashley Barnes, Pro Se Petitioner;

          Joseph W. H. Mott, Assistant United States Attorney, Roanoke, Virginia, for Respondent.



         Petitioner Marc Ashley Barnes, a federal inmate proceeding pro se, filed this Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2241.[1] 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 granted.


         The 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.

         Several 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.

         Barnes 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.

         The 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.

         In 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.[2] 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.

         The BOP 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.

         On 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.


         When an 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 ...

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