IN THE SUPREME COURT

OF THE UNITED STATES

PATRICK COLE,
Petitioner,
v.
MARION FEATHER, Warden,
Respondent.

MOTION FOR LEAVE

TO PROCEED IN FORMA PAUPERIS

The petitioner, Patrick Cole, requests leave to file the attached petition for writ of
certiorari to the United States Court of Appeals for the Ninth Circuit without prepayment of
costs and to proceed informa pauperis pursuant to Rule 39. l of this Court and 18 U.S.C.

3006A(d)(7). The petitioner was represented by counsel appointed under the Criminal
Justice Act in the District of Oregon and on appeal in the Ninth Circuit Court of Appeals, and
therefore no affidavit is required.

Respectfully submitted this ']!_ day of September, 2013.

Stephe R. Sady
Attorney for Petitioner

No.

- - - -- - - -

IN THE SUPREME COURT

OF THE UNITED STATES

PATRICK COLE,
Petitioner,
v.
MARION FEATHER, Warden,
Respondent.

On Petition For Writ Of Certiorari To

The United States Court Of Appeals
For The Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

Stephen R. Sady
Chief Deputy Federal Public Defender
101 SW Main Street, Suite 1700
Portland, Oregon 97204
(503) 326-2123
Attorney for Petitioner

QUESTION PRESENTED
Comity requires that state and federal jurisdictions respect each others' decisions
where dual prosecutions overlap. Ponzi v. Fessenden, 258 U.S. 254, 259 (1922). In Setser

v. United States, 132 S. Ct. 1463 (2012), this Court rejected the position of the government
and the defendant that, even though the federal judge spoke on the issue, the Bureau of
Prisons (BOP), through its designation power, was authorized to decide the question of
whether a federal sentence ran concurrently with or consecutively to a yet-to-be imposed
state sentence. Relying on Setser, Mr. Cole asserted that, because his federal judgment is
silent on concurrency, and the subsequently imposed state sentences were explicitly ordered
to run concurrently with the federal sentence, the BOP violated the sentencing statutes and
the Constitution by executing the federal sentence as de facto consecutive to the state
sentence. This Court previously considered that question in Reynolds v. Thomas, 603 F.3d
1144 (9th Cir. 2010), cert. dismissed, 132 S. Ct. 1854 (2012), for over 16 months but
dismissed the case when the petitioner died. The Ninth Circuit relied on Reynolds in denying
relief in the present case, which involves the same question of exceptional importance to the
administration of the federal criminal justice system as was raised in Reynolds:
Whether, under 18 U.S.C. 3584(a), 3585, and 362l(b), the Bureau of
Prisons must administer the sentence of a federal prisoner, in order to be in
compliance with federal sentencing statutes and the Constitution, in a manner
that effectuates the subsequent judgment of the state judiciary that the state
sentence run concurrently with the previously imposed federal term of
imprisonment where the federal judgment is silent on concurrency?

TABLE OF CONTENTS
. Page

Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
1.

Opinions Below ........................ . ........ .. . .......... ..... 2

2.

Jurisdictional Statement . ............ . .......... .. . . ........... . ..... 2

3.

Constitutional And Statutory Provisions ............. . .............. . . . . 3

4.

Statement Of The Case .... . .......................... .......... ... .. 5

5.

Reasons For Granting The Writ ...................................... 11

A.

The Supreme Court's Opinion In Setser Invalidated The Reasoning Underlying

The District Court Decisions, Reynolds, And Other Circuit Court Rulings . . . . . 15
1.

Under Setser's Reasoning and Mode of Analysis, Where The Federal

Judgment Is Silent, The BOP Cannot Use Its 18 U.S.C. 3621(b)
Designation Authority To Create A De Facto Consecutive Sentence
That Conflicts With A Subsequent State Sentence Ordered To Run
Concurrently With The Federal Sentence . . . . . . . . . . . . . . . . . . . . . . . . . 16

2.

The Reasoning Of Setser Regarding The Sequence Of Sentencing And

"Up Front" Decision-Making Is Firmly Based In Constitutional And
Statutorily-Required Respect For State Judgments .. . .. . ...... . ..... 18

3.

The BOP's Reliance On Its Ex Parte Contact With The Sentencing

Judge Eight Years After The Sentencing Hearing Violated The Full
Range Of Sentencing Due Process Protections . .... .. ........ ...... 22

4.

Reliance On The Third Sentence Of 18 U.S.C. 3584(a) To Authorize

The BOP To Make Concurrent-Consecutive Decisions Does Not
Survive Setser Because This Court Limited That Sentence To Not
Apply To Terms of Imprisonment Not Yet Imposed ............ . .. . . 26

5.

Because No Party In Setser Asserted The State Interest In The Integrity

Of The State Court Judgment, The Court Should Grant Certiorari To

Expressly Address The Federalism, Comity, And Full-Faith-And-Credit

Reasons For Deference To The State Judgment .................... 27
B.

6.

The Court Should Grant Certiorari Because Executive Branch Creation Of De

Facto Consecutive Sentences Raises Extraordinarily Important Issues That
Frequently Occur In The Federal Criminal Justice System ................. 29
1.

Confusion Regarding Federal And State Concurrent Sentencing

Frequently Gives Rise To Errors And Injustice .... .. ............... 29

2.

The Present Case Provides An Appropriate Vehicle For Re-Examining

Sentencing Statutes In Light Of Setser And Constitutional
Considerations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

3.

The Court Should Grant Certiorari to Address The Manifest Injustice

Of A Sentence Doubled By Federal Executive Action That Trumped A
Valid State Court Judgment ...................... . ............. 33

Conclusion ............................. .. ........... . ......... . . 34

Certificate of Service and Mailing

INDEX TO APPENDIX
Ninth Circuit memorandum opinion (April 24, 2013) ....... ... .... ..... . ... ... A-1
Denial of rehearing and rehearing en bane (June 7, 2013) .................. .. . . A-4
Oregon district court opinion (August 15, 2012) . .. .............. ...... ... . ... A-5
Oregon findings and recommendation (April 16, 2012) ....................... A-11
Texas district court opinion (March 31, 2003) .............................. A-22
BOP Program Statements (PS 5160.05 and excerpts from PS 5880.05) ........... A-41
Federal judgment in a criminal case (July 30, 1992) ...... . . . ................. A-58
State plea bargain, disposition, and orders (July 31, 1992) ............. ... ..... A-62

11

BOP letter to Mr. Cole (April 26, 1999) . . .. . . . . .. ............ .. ........... A-67
BOP letter to state prosecutor (November 24, 2000) .. . . ... .... .. . ... . . .. .. . . . .. . . . A-68
BOP letter to Mr. Cole (July 26, 2001) . .. . . .. . . . . . .. . . . . ... .... .. . .. . ... . . . .... A-69

BOP computation data .. .. . .. ... .. ... . ............ ... ........ . ........ . A-70
BOP Informal Resolution request and disposition (July 23, 2011) ... . . . . .. .... .. A-74
BOP Request for Administrative Remedy request and disposition (August 19, 2011) A-78
BOP Regional Administrative Remedy Appeal request and disposition
(November 2, 2011) . . ... ..... . ... . . . .. .. .... ... . . .. . .... . ..... . . A-80
BOP Central Office Administrative Remedy Appeal request and disposition
(January 31, 2012) . . ...... . . ..... ... .. ... .. . ...... . . ... .. . . . .. . . A-83

111

TABLE OF AUTHORITIES
Page
FEDERAL CASES

Abdul-Malik v. Hawk-Sawyer,
403 F .3d 72 (2d Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Clark v. Martinez,
543 U.S. 371 (2005) . .................... ... ....................... 31
County ofAllegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter,
492 U.S. 573 (1989) .................... ...... ..................... 15
Covell v. Heyman,
111 U.S. 176 (1884) .. . .......... . .. .. ........... ..... ..... .... .... 28
Davis v. Davis,
305 U.S. 32 (1938) ............ ....... ............................. 21
Del Guzzi v. United States,
980 F.2d 1269 (9th Cir. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 30
Dillon v. United States,
130 S. Ct. 2683 (2010) ..... . .. .. ..... ..... . . ................. 25, 26, 27
Elwell v. Fisher,
716 F.3d 477 (8th Cir. 2013) .... . .......... . ........................ 26
Fegans v. United States,
506 F.3d 1101 (8th Cir. 2007) ...... . ........................ . ....... 11
Green v. Christiansen,
732 F.2d 1397 (9th Cir. 1984) ..................................... . . . 6
Gregory v. Ashcroft,
501 U.S. 452 (1991) ...................................... . ........ 31
Kelly v. Robinson,
479 U.S. 36 (1986) ................................ .. .............. 21
IV

Kinder v. Purdy,
222 F.3d 209 (5th Cir. 2000) ....................... .. . .. . .. . ......... 9
Kremer v. Chemical Construction Corp.,
456 U.S. 461 (1982) ...................... . ........................ 21
Lankford v. Idaho,
500 U.S. 110 (1991) ............................................ 24, 25
Mempa v. Rhay,
389 U.S. 128 (1967) .... .. ... ..... ... ........................ 22, 23, 24
Oregon v. Ice,
555 U.S. 160 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Ponzi v. Fessenden,
258 U.S. 254 (1922) ........... .. ........ .. . ............ ... 3, 14, 19, 28
Reynolds v. Thomas,
603 F.3d 1144 (9th Cir. 2010), cert. dismissed,
132 S. Ct. 1854 (2012) ................... . ....... ........ .... . .. passim
Sanders v. United States,
373 U.S. 1 (1963) ..... .......... . .. . . .... . ........ ... . .. .... . . . 10, 13
Seminole Tribe ofFlorida v. Florida,
517 U.S. 44 (1996) ..... ... .. . ..... .. . ........ ........ . . ... .. .... .. 15
Setser v. United States,
132 S. Ct. 1463 (2012) . ... ... .. . .... . ..... .. .......... . . ........ passim
Strand v. Schmittroth,
251F.2d590 (9th Cir. 1957) ........ ....... ......... . . .. .... .... . ... 19
Taylor v. Sawyer,
284 F.3d 1143 (9th Cir. 2002) ....... . . . ....................... 15, 18, 20
United States v. Alverson,
666 F.2d 341 (9th Cir. 1982) . .... . ..... .. . ...... ... . ....... . . .. . . .. . 24

United States v. Bergmann,

836 F.2d 1220 (9th Cir. 1988) ......... ..... .... . ........... . ...... .. 27
United States v. Lopez,
514 U.S. 549 (1995) ........................................... 19, 31
Younger v. Harris,
401 U.S. 37 (1971) .................. . . ..... . ....... ....... ........ 21
DOCKETED CASES

Reynolds v. Thomas, Clerk's Docket Sheet,

Sup. Ct. No. 10-7502 ............ .. .. ............. ........ . ........ 29
STATE CASES

Ex Parte Applewhite,
729 S.W.2d 706 (Tex. Crim. App. 1987) ..... ......... ......... . ... ... .. 7
Ex parte Crossnoe,
232 S.W. 2d 855 (Tex. Crim. App. 1950) . . .................. ....... .. . . 7
FEDERAL STATUTES AND CONSTITUTION
U.S. Const. art IV, 1 .... . ..................... . ....... ......... 5, 20, 21, 22
U.S. Const. amend. V ........... .. ....... .. . . . .... .. ...... . .... . .......... 4
U.S. Const. amend. X ....... .. .................... . ...... .. ....... . . 5, 19, 30
18 U.S.C. 3553(a) ..................... . .. . ... . .......... .. ... ......... 17
18 U.S.C. 3582(c) . .. .. .. .. .. . ........... .. .................. ... .... 25, 32
18 U.S.C. 3584(a) ................ ...... .. . .. ......... . .. . .. .... ... passim
18 U.S.C. 3585(a) ... .. ................... . ........ . ..... .... 3, 6, 14, 27, 32
18 U.S.C. 3621(b) ... .. . . ....... . ..... ............. ........ ... . .... passim

VI

28

u.s.c. 1254(1) ... ..... ................. ...... ........ ...... .... ..... 3

28 U.S.C. 1738 ............................................ . ........ 5, 21

28 u.s.c. 2241 ..... ..... .. .... . .. ........................... ........ 2, 8
28 U.S.C. 2244(a) ..................................................... 10
MISCELLANEOUS

THE FEDERALIST,
No. 45 (James Madison) (J. & A. McLean ed., 1788) . . . . . . . . . . . . . . . . . . . . 20
GAO, Eligibility and Capacity Impact Use ofFlexibilities to Reduce Inmates' Time in
Prison (February 2012) ............................... . ............ 30
Henry J. Sadowski, BOP Regional Counsel, Interaction OfFederal And State Sentences
When The Federal Defendant Is Under State Primary Jurisdiction
(July 7, 2011) ...................... . ............... ... . . ...... . .. 30
Joseph Story, 3 COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES,
1304 (Boston, Hilliard, Gray & Co. 1833) ................. . .......... 21
St. George Tucker, 1 BLACKSTONE COMMENTARIES,
Appendix (Birch & Small 1803) ..................................... 20
WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY (1993) . . .................. 32

Vll

IN THE SUPREME COURT

OF THE UNITED STATES

PATRICK COLE,
Petitioner,
v.
MARION FEATHER, Warden,
Respondent.

On Petition For Writ Of Certiorari To

The United States Court Of Appeals
For The Ninth Circuit

The petitioner, Patrick Cole, respectfully requests that a writ of certiorari issue to
review the judgment of the United States Court of Appeals for the Ninth Circuit entered on
April 24, 2013, affirming the denial of habeas corpus relief for a federal prisoner who
challenged the Bureau of Prisons' denial of his administrative requests for concurrent service
of his state sentence. Appendix 1. By granting the writ, the Court would address whether
this Court's decision in Setserv. United States, 132 S. Ct. 1463 (2012), supersedes the Ninth
Circuit's majority and concurring opinions in Reynolds v. Thomas, 603 F.3d 1144 (9th Cir.

2010), cert. dismissed, 132 S. Ct. 1854 (2012), and would resolve the pervasive federal
sentencing problems regarding Executive Branch creation of de facto consecutive sentences
that neither the state nor the federal judge has ordered.
1.

Opinions Below
On March 31, 2003 , the petitioner's initial prose effort to obtain review oftheBOP's

refusal to implement the state concurrent sentences, which he filed while in state custody in
the Southern District of Texas under 28 U.S.C. 2241 , resulted in denial of his petition, with
the court finding that the petitioner had no administrative remedies to exhaust. Appendix 22.
After the petitioner was returned to federal custody many years later, Mr. Cole filed again
for habeas corpus relief under 2241 after exhausting administrative remedies, this time
while in federal custody in the District of Oregon, receiving an initial recommendation from
the magistrate judge for denial of relief. Appendix 11. On review, the Oregon district court
denied habeas corpus relief on August 15, 2012, finding the Texas court used the wrong
standard of review but deferring to the Texas court's supposed finding that the petitioner had
been denied relief for failure to exhaust available remedies. Appendix 5. On April 24, 2013,
the Ninth Circuit affirmed the denial of habeas corpus relief in an unpublished opinion based
on Reynolds and on its conclusion that Setser did not affect previous case law. Appendix 23. The Ninth Circuit denied panel and en bane rehearing on June 7, 2013. Appendix 4.

2.

Jurisdictional Statement
This Court's jurisdiction is invoked under 28 U.S.C. 1254(1) (2008).

3.

Constitutional And Statutory Provisions

The statute authorizing sentencing judges to impose consecutive and concurrent

sentences states in relevant part:

(a) Imposition of concurrent or consecutive terms. - If multiple

terms of imprisonment are imposed on a defendant at the same time, or if a
term of imprisonment is imposed on a defendant who is already subject to an
undischarged term of imprisonment, the terms may run concurrently or
consecutively, except that the terms may not run consecutively for an attempt
and for another offense that was the sole objective of the attempt. Multiple
terms of imprisonment imposed at the same time run concurrently unless the
court orders or the statute mandates that the terms are to run consecutively.
Multiple terms of imprisonment imposed at different times run consecutively
unless the court orders that the terms are to run concurrently.
18 U.S.C. 3584(a) (2006). The statute authorizing the Bureau of Prisons (BOP) to
calculate credit against the term of imprisonment provides:

(a) Commencement of sentence. - A sentence to a term of

imprisonment commences on the date the defendant is received in custody
awaiting transportation to, or arrives voluntarily to commence service of
sentence at, the official detention facility at which the sentence is to be served.
(b) 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 to the date the sentence commences (1) as a result of the offense for which the sentence was
imposed; or
(2) as a result of any other charge for which the defendant was
arrested after the commission of the offense for which the
sentence was imposed;
that has not been credited against another sentence.
18 U.S.C. 3585 (2006). The BOP has authority to designate the place of imprisonment
pursuant to the statute that states in part:

(b) Place of imprisonment. - The Bureau of Prisons shall designate

the place of the prisoner's imprisonment. The Bureau may designate any
available penal or correctional facility that meets minimum standards of health
and habitability established by the Bureau, whether maintained by the Federal
Government or otherwise and whether within or without the judicial district
in which the person was convicted, that the Bureau determines to be
appropriate and suitable, considering (1) the resources of the facility contemplated;
(2) the nature and circumstances of the offense;
(3) the history and characteristics of the prisoner;
(4) any statement by the court that imposed the sentence (A) concerning the purposes for which the sentence to
imprisonment was determined to be warranted; or
(B) recommending a type of penal or correctional facility as
appropriate; and
(5)
any pertinent policy statement issued by the Sentencing
Commission pursuant to section 994(a)(2) of title 28.
18 U .S.C. 362l(b) (2006). The BOP's rules pursuant to which the agency exercised power
to create a de facto consecutive federal sentence are set out in the Appendix at 41 and 54. 1
The interaction of these statutes and rules with subsequently imposed state sentences
implicate several constitutional provisions. The Due Process Clause states, "No person shall
be ... deprived of life, liberty, and property, without due process of law." U.S. CONST.
amend. V. The Full Faith and Credit Clause states, "Full Faith and Credit shall be given in
each State to the public Acts, Records, and judicial Proceedings of every other State." U.S.
CONST. art IV, 1. This provision of the Constitution applies to the federal government
through a statute passed by the First Congress, which states:

The BOP's Sentence Computation Manual, Program Statement 5880.28, can be found
in its entirety at http://www.bop.gov/policy/progstat/5880_028.pdf.
4

The records and judicial proceedings of any court of any such State, Territory
or Possession, or copies thereof, shall be proved or admitted in other courts
within the United States and its Territories and Possessions by the attestation
of the clerk and seal of the court annexed, if a seal exists, together with a
certificate of a judge of the court that the said attestation is in proper form.
Such Acts, records and judicial proceedings or copies thereof, so
authenticated, shall have the same full faith and credit in every court within the
United States and its Territories and Possessions as they have by law or usage
in the courts of such State, Territory or Possession from which they are taken.
28 U.S.C. 1738 (2006) (amended from the Act of May 26, 1790, 1 Stat. 122). The
Constitution reserves to the States authority over areas not delegated to or prohibited by the
federal government: "The powers not delegated to the United States by the Constitution, nor
prohibited by it to the States, are reserved to the States respectively, or to the people." U.S.
CONST. amend.
4.

x.

Statement Of The Case

Patrick Cole was the driver in a number of Texas armed robberies, some of which

were prosecuted in state court, others in federal court. State authorities arrested him first, so
he was initially in primary state custody. Represented by the same attorney in state and
federal court, Mr. Cole pleaded guilty in state court with a plea agreement that his state
sentences would run concurrently with his federal sentence. Appendix 62. Pursuant to a writ
of habeas corpus ad prosequendum, Mr. Cole appeared in federal court and pleaded guilty
to two federal robbery counts, with an agreed upward departure to 20 years. Prior to the
federal sentencing, Mr. Cole returned to state court and received sentences of 25 years in

prison. The state judgments explicitly stated that the state sentences were to run concurrently
with his federal sentence.
Realizing that the federal sentence was not yet in place, the parties agreed to vacate
the state sentences, after which Mr. Cole was returned to federal court with a second writ of
habeas corpus ad prosequendum and received a sentence of twenty years, with no mention
that the sentence should be consecutive. Appendix 58. The presentence report included the
fact of the first 25-year concurrent state sentences, but not that the first state sentences were
vacated. The federal writ having been satisfied, Mr. Cole returned to primary state custody
the following day and received his 25-year sentences to run concurrently with the previously
imposed federal sentence, along with orders unconditionally releasing him from state custody
to begin serving his federal sentence. Appendix 62-66.
Shortly thereafter, the United States Marshal, then the BOP, took custody ofMr. Cole
and he began serving his sentence in a federal correctional institution. Under 18 U.S.C.

3585(a), his federal sentence commenced at that time: "A sentence to a term of
imprisonment commences on the date the defendant is received in custody awaiting
transportation to ... the official detention facility at which the sentence is to be served."
Once the federal sentence commences, there is no statutory provision for interruption of the
sentence except escape or some other fault of the prisoner. Green v. Christiansen, 732 F .2d
1397, 1400 (9th Cir. 1984).

For over a year of federal custody, the sentences operated exactly as anticipated: the
state sentences ran concurrently with the federal sentence, including a pre-existing state
parole violation for car burglary sentence that, by operation of Texas state law, ran
concurrently with the state robbery sentences. 2 Then, due to an error by the BOP regarding
the sequence of sentences, the BOP claimed that he was still in federal custody on the writ
and had to be returned to state custody to complete his sentences there.
The chronology up to this point follows:
1.

January 25, 1992: Mr. Cole arrested and charged in state court with
robberies;

2.

May 21, 1992: Mr. Cole appears in federal court pursuant to a writ and
pleads guilty, agreeing to an upward departure;

3.

May 22, 1992: Mr. Cole appears in state court and receives 25-year
sentences concurrent with the federal sentence and an order for release
to federal custody;

4.

July 27, 1992: The state court vacates the state sentences and release
orders so the state concurrent sentences would be entered after the
federal sentence;

5.

July 30, 1992: Mr. Cole appears in federal court pursuant to a writ and
receives the agreed upward departure sentence to 20 years;

See Ex parte Applewhite, 729 S.W.2d 706, 708 (Tex. Crim. App. 1987) (en bane)
("unless the trial court, by order, expressly makes cumulative the several punishments, they
run concurrently") (quoting Ex parte Crossnoe, 232 S.W. 2d 855 (Tex. Crim. App. 1950)).
Mr. Cole received credit on all state sentences for the time in federal custody before he was
transferred back to the state's custody.
7

6.

July 31, 1992: The state court imposes sentences of 25 years to run
concurrently with the federal sentences and unconditionally orders
release to federal custody;

7.

August 10, 1992: The federal government accepts custody,

commencing the service of the federal sentence in federal correctional
institutions;

8.

August 31 , 1993: The BOP returns Mr. Cole to state custody.

The BOP returned Mr. Cole to state custody based on a simple error of fact: the presentence
report halted the chronology at May 22, 1992, creating the impression that the state sentence
preceded the federal sentence, when in fact the state sentence followed the federal sentence.
On April 26, 1999, the BOP responded to a letter from Mr. Cole, explaining that the transfer
occurred because he was "borrowed" from the state on the basis of a writ, even though the
state orders unconditionally released him to federal custody. Compare Appendix 67 with
Appendix 63-66. The BOP explicitly premised its denial of concurrency on 362l(b)
designation authority. Appendix 69. On November 24, 2000, the BOP refused the state
prosecutor's request for the federal sentence to run concurrently "with his state sentence
pursuant to a plea agreement regarding his state conviction." Appendix 68.
In seeking redress from the erroneous transfer, Mr. Cole filed a prose petition for
habeas corpus under 28 U.S.C. 2241 in Texas in 2002. After refusing to appoint counsel
or hold a hearing, the court denied relief. Appendix 22. As the Oregon district court later
found, the Texas court applied the wrong standard of review, using the extraordinarily
restrictive standard for successive challenges to convictions instead of the plenary review that

should apply to the BOP's administration of a sentence. Appendix 28 (citing Kinder v.

Purdy, 222 F.3d 209, 213 (5th Cir. 2000)). Then, the Texas court relied on the BOP's ex
parte contact with the sentencing judge, eight years after the sentencing, in seeking a
recommendation whether the BOP should run the sentence concurrently by means of nunc

pro tune designation under 362l(b). Appendix 36. In its ex parte letter, the BOP
perpetuated the error regarding the chronology. The judge stated he intended the sentences
to run consecutively, without input from Mr. Cole. In short, the Texas decision was premised
on the BOP's supposed authority under 362l(b) to decide concurrency, with no
consideration ofthe statutory and constitutional problems raised by the post-sentence ex parte
contact with the sentencing judge.
In state court, Mr. Cole eventually received a sentence reduction to nine years,
essentially time served, on the robberies but remained in state custody completing his parole
violation sentence for car burglary, which had previously run concurrently with the federal
sentence while Mr. Cole was in federal custody. When he was finally released to his federal
detainer on March 9, 2009, Mr. Cole was deemed to be just starting his federal sentence.
After his transfer to federal custody, Mr. Cole exhausted his BOP administrative remedies,
receiving different responses at each level of review; at the national level, he received
concurrent credit for the time between release from state custody on October 6, 1992, and his
return to state custody on April 27, 1993. Appendix 74, 76, 80, 83. Upon filing for habeas
corpus relief in Oregon, the federal court deferred to the Texas denial of relief in 2002,

distinguishing Setser as involving a federal sentencing order rather than silence. Appendix
7. While recognizing that the Texas court applied the wrong standard of review, the district
court relied on the Texas court's supposed finding that Mr. Cole had not exhausted
administrative remedies, Appendix 8, even though, in fact, the Texas court found, "Because
the administrative remedies required by the Bureau of Prisons appear unavailable to Cole,
the Court declines to dismiss for want of exhaustion." Appendix 29. The court found "no
authority" that prevents the BOP from basing the concurrency decision on ex parte contact
with the sentencingjudge. Appendix 9.
On appeal, Mr. Cole argued that this Court's decision in Setser foreclosed Executive
Branch creation of a de facto consecutive sentence and that Ninth Circuit precedent allowing
the BOP to thwart state sentences, in the absence of a contrary federal judgment, did not
survive Setser's reasoning. Under this Court's reasoning in Sanders v. United States, he
asserted that the earlier rulings should be re-examined in light of Setser because "the ends
of justice would be served by permitting the redetermination," especially given "an
intervening change in the law." 373 U.S. 1, 16-17 (1963). The Ninth Circuit affirmed the
district court's deference to the Texas decision under 28 U.S.C. 2244(a) based on its
conclusion that Setser did not "undermine" the ruling and that Reynolds approved of the
BOP's use of the post-sentencing contact with the sentencing judge to guide the agency's
exercise of discretion whether to run the sentences consecutively or concurrently. Appendix
2-3. The equitable grounds outlined in Sanders should have resulted in a grant of habeas

10

relief because the Texas decision was inconsistent with Setser, preceded the exhaustion of
administrative remedies, and failed to address the constitutional impediments to
post-conviction modification of the federal sentence.

5.

Reasons For Granting The Writ

The Court should grant certiorari to fix one of the most intractable and pernicious

problems of federal sentencing: a consecutive sentence where neither the federal nor the
state judgment ordered the sentence to be served consecutively and where the state judgment
ordered the state sentence to be served concurrently. In Reynolds, Judge Fletcher concurred,
joining two other Circuits in expressing concern regarding "serious separation of powers
questions" when the BOP creates a de facto consecutive sentence. 603 F.3d at 1160-61
(citingAbdul-Malikv. Hawk-Sawyer, 403 F.3d 72, 76 (2d Cir. 2005), andFegans v. United
States, 506 F.3d 1101, 1104 (8th Cir. 2007)).
The present case involves the same common scenario with due process, separation of
powers, and comity ramifications: the defendant is arrested by state authorities and is,
therefore, in primary state custody; through a writ of habeas corpus ad prosequendum, the
defendant is placed in temporary federal custody and receives a federal sentence with no
order regarding whether the sentence is to run concurrently with or consecutively to other
sentences; and the defendant is returned to state custody, receives a sentence that the state
judge orders to run concurrently with the federal sentence, then is released to federal custody.
But the BOP then administers the sentence to run the federal time consecutively to the state

11

sentence. Mr. Cole was arrested by state authorities for robbery, then was transferred to
federal custody where he pleaded guilty to robbery and received a 20-year sentence with no
mention that the sentence would run consecutively with the pending state case. The state
judge then imposed 25-year sentences, explicitly ordering them to run concurrently with the
extant federal sentence and ordering Mr. Cole's release to federal custody to commence the
sentence. After over a year in federal custody, the BOP returned him to state custody and,
since that time, has administered the federal sentence to run consecutively to the state
sentences, in effect doubling the time of actual custody.
The BOP's procedures for dealing with a silent federal judgment involve obtaining
a non-binding judicial recommendation regarding nunc pro tune designation to the state
facility under 18 U.S.C. 3621(b). Appendix 45-46. In other words, the federal Executive
Branch, after the federal judgment is final, can nullify the state judgment that the state
sentences would be satisfied by the previously imposed federal custody. The contact with
the federal judge - in this case eight years after the sentence was imposed - does not involve
defense counsel, does not involve the prisoner's participation, and does not include any
process for assuring no factual errors are included in the BOP's presentation.
In Reynolds, the Ninth Circuit construed the relevant sentencing statutes to permit the
BOP to make the decision to run the sentences consecutively under 362l(b)
notwithstanding the federal court's silence at the time of sentencing and the state court's
order that the state sentence run concurrently with the federal sentence. 603 F.3d at 1159.

12

In Setser, however, this Court rejected the underpinnings of the Reynolds decision. It should,
therefore, be considered "an intervening change in the law" under Sanders:

Setser rejected the BOP's reliance on the designation statute, 18 U.S.C.

362l(b), as authority for the BOP to exercise what this Court held
was the quintessentially judicial function of deciding whether a
sentence was to run consecutively to or concurrently with another
sentence;

Setser required that the federal sentencing decision regarding

concurrency be made "up front" at the time of imposition of sentence
because "it is always more respectful of the State's sovereignty for the
district court to make its decision up front rather than for the Bureau of
Prisons to make the decision after the state court has acted" (132 S. Ct.
at 1471) (emphasis in original);

Setser rejected the construction of the third sentence of the concurrency

statute (18 U.S.C. 3584(a)) as creating authority for BOP sentencing,
explicitly tying the last two sentences of 3584(a) to situations where
the sentence previously had been or was contemporaneously imposed.

This case involves the central purposes for certiorari. The Ninth Circuit decisions conflict
with intervening Supreme Court authority in Setser, so far departing from the rules of
precedent to require the exercise of this Court's supervisory power.
The issue is of exceptional importance because federal sentencing issues related to
concurrency are pervasive, frequently misunderstood, and result in unfairness and waste.
The solution is simple: based on mainstream principles of statutory construction, applied with
due respect for the federal constitutional principles of finality, comity, separation of powers,
and due process, the Court should foreclose post-sentence federal action that thwarts a later
state judgment that its sentence should run concurrently:

13

Under 18 U.S.C. 3584(a), after the date the federal judgment is

entered, a federal sentencing judge does not have authority to order a
sentence to run concurrently with or consecutively to a sentence notyet-imposed;

Federal action after imposition of the federal judgment - judicial or

executive - that thwarts a subsequent state concurrent sentence would
violate federal sentencing statutes and important federal constitutional
rights;

Therefore, the federal statutes must either be construed to bar the BOP
from designating the place of incarceration under 18 U.S.C. 362l(b)
in a manner inconsistent with the subsequent state judgment, or, to
achieve the same result, to recognize that a subsequent sentence ordered
to run concurrently with a federal sentence must be respected under 18
U.S.C. 3585(b), or the federal statutes violate the Constitution to the
extent they thwart the subsequent state concurrent sentence.

The statutes and constitutional provisions underlying this simple solution effectuate this
Court's recognition that proper respect for the dual sovereignties of States and the federal
government requires that subsequent judgments - whether state or federal - must be fully
honored:
We live in the jurisdiction of two sovereignties, each having its own system of
courts to declare and enforce its laws in common territory. It would be
impossible for such courts to fulfill their respective functions without
embarrassing conflict unless rules were adapted by them to avoid it . . . . The
situation requires, therefore, not only definite rules fixing the powers of the
courts in cases of jurisdiction over the same person and things in actual
litigation, but also a spirit of reciprocal comity and mutual assistance to
promote due and orderly procedure.

Ponzi v. Fessenden, 258 U.S. 254, 259 (1922). By allowing each sovereign to impose as
much, or as little, punishment as that sovereign sees fit, the Court also protects the separation
of powers by foreclosing an agency of the Executive Branch - the BOP - from adopting the
14

judicial function of determining the length of the sentence a defendant serves. The Court
should grant certiorari to establish that, based on this Court's opinion in Setser, the relevant
sentencing statutes must be construed to require the BOP to administer the sentence of a
federal prisoner to effectuate the subsequent judgment of a state court that the state sentence
run concurrently with a previously imposed federal judgment that did not order the sentence
to run consecutively.

A.

The Supreme Court's Opinion In Setser Invalidated The Reasoning Underlying

The District Court Decisions, Reynolds, And Other Circuit Court Rulings.
This Court requires that lower courts adhere to the rationale as well as the narrow

holding of its prior decisions. Seminole Tribe of Florida v. Florida, 517 U.S. 44, 66-67
( 1996) (noting the precedential effect of the rationale upon which prior decisions ofthe Court
are based); County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh

Chapter, 492 U.S. 573, 668 (1989) ("As a general rule, the principle of stare decisis directs
us to adhere not only to the holdings of our prior cases, but also to their explications of the
governing rules of law") (Kennedy, J., concurring and dissenting). Under stare decisis,

Setser's reasoning and mode of analysis control. This Court's intervening decision in Setser
invalidated the reasoning of Reynolds, as well as cases such as Del Guzzi v. United States,
980 F.2d 1269 (9th Cir. 1992), and Tay lor v. Sawyer, 284 F.3d 1143 (9th Cir. 2002), to the
extent the Ninth Circuit approved BOP action that thwarted a state sentence in the absence
of a contrary federal judgment. Although the Ninth Circuit found that Setser "did not
undermine" the Texas court's ruling (Appendix 2), the Texas court, as did Reynolds,
15

expressly relied on the BOP's designation authority under 3621(b) to make concurrency
decisions and approved of post-sentencing ex parte judicial action to trump the state
judgment that the sentences should run concurrently. Appendix 33-36. By inappropriately
limiting the scope of Setser, which expressly rejected 362l(b) as creating executive
authority to make the concurrent-consecutive decision and read 3584(a) as requiring the
concurrent-consecutive issue to be decided "up front," the Ninth Circuit has failed to comply
with this Court's prior rulings, both on the precedential effect of its rulings and on the
reasoning and rationale articulated in its governing decision.
1.

Under Setser's Reasoning and Mode of Analysis, Where The Federal

Judgment Is Silent, The BOP Cannot Use Its 18 U.S.C. 3621(b)
Designation Authority To Create A De Facto Consecutive Sentence That
Conflicts With A Subsequent State Sentence Ordered To Run
Concurrently With The Federal Sentence.

In its narrowest holding, Setser reversed a generation of Ninth Circuit authority that
assumed that district courts lack authority to declare that a federal sentence should run
consecutively to or concurrently with a yet-to-be-imposed sentence. 132 S. Ct. at 1468
(abrogating United States v. Eastman, 758F.2d1315, 1317 (9th Cir. 1985)). This Court in
Setser relied on the distinction between judicial authority to declare whether a sentence is

concurrent or consecutive and executive authority regarding the administration of the

sentence. The Court explicitly rejected the BOP's designation authority under 3621(b) as
a source of power to decide whether a criminal sentence should be run consecutively. Setser
should apply with special force where the BOP's consecutive sentence clashes with a

16

subsequent state judgment that its sentence runs concurrently with a federal sentence, thereby
undermining statutory and constitutional respect due to state courts. This Court recognized
that, by forbearing to order a sentence to be concurrent or consecutive, a federal court leaves
to the state court the decision whether its own state sentences should run concurrently with
an already-imposed federal sentence. Setser, 132 S. Ct. at 1471-72 & n.6.
Inrejectingthe government's claim that 362l(b) gave the BOP the power to resolve
the concurrent-consecutive question, this Court found in Setser that the plain language of
3584(a) meant the decision was judicial, not executive: "When 3584(a) specifically
addresses decisions about concurrent and consecutive sentences, and makes no mention of
the Bureau's role in the process, the implication is that no such role exists." 132 S. Ct. at
1470. Repeatedly, Setser made clear that sentencing courts, and not the BOP, are the arbiters
of the concurrent-consecutive sentencing decision:

"Judges have long been understood to have discretion to select whether

the sentences they impose will run concurrently or consecutively with
respect to other sentences that they impose, or that have been imposed
in other proceedings, including state proceedings." 132 S. Ct. at 1468.

"Congress contemplated that only district courts [as opposed to the

BOP] would have the authority to make the concurrent-vs.-consecutive
decision .... " Id. at 1469.

" 362l(b) ... is a conferral of authority on the Bureau of Prisons, but

does not confer authority to choose between concurrent and consecutive
sentences." Id. at 1470 (emphasis in original).

"[T]he Bureau is not charged with applying [the sentencing factors of]
3553(a). . . . It is much more natural for a judge to apply the
3553(a) factors in making all concurrent-vs.-consecutive decisions,
17

than it is for some such decisions to be made by a judge ... and others
by the Bureau of Prisons .... " Id. at 1470-71.

"[S]entencing [should] not be left to employees ofthe same Department

of Justice that conducts the prosecution." Id. at 1472.

"Yet-to-be-imposed sentences are not within the system .. . and we are

simply left with the question whether judges or the Bureau of Prisons
is responsible for them. For the reasons we have given, we think it is
judges." Id. at 1471 n.5.

The Ninth Circuit's conclusion that Setser did not undermine Reynolds fails to implement
this Court's ruling and rationale as required by stare decisis . The Reynolds majority
explicitly approved and relied on the BOP's authority to make the decision regarding
concurrent or consecutive service of a sentence using the 362l(b) nunc pro tune
designation authority, noting Taylor found no conflict with the full faith and credit doctrine.

Reynolds, 603 F.3d at 1150.

2.

The Reasoning Of Setser Regarding The Sequence Of Sentencing And

"Up Front" Decision-Making Is Firmly Based In Constitutional And
Statutorily-Required Respect For State Judgments.

The Ninth Circuit' s disregard for the full faith and credit statute in both Reynolds and

Taylor cannot survive Setser' s repeated rej ection of BOP sentencing authority under
3621 (b ). In Setser, the Court recognized the importance ofthe State's subsequent decision,
based on the federal court's previous action, to decide for itself the appropriate state
sentence: "In our American system of dual sovereignty, each sovereign -whether the Federal
Government or a State - is responsible for 'the administration of [its own] criminal justice
syste[m]."' 132 S. Ct. at 1471 (alterations in original) (quoting Oregon v. Ice, 555 U.S. 160,
18

170 (2009) ). Dual sovereignty is a long-established principle that protects each jurisdiction's
rightto exact as much, or as little, punishment as it deems proper. Ponzi, 258 U.S. at259-61;

see also Strand v. Schmittroth, 251 F .2d 590, 605 (9th Cir. 1957) (there is no federal
supremacy in criminal justice because the state and the central government are dual
sovereigns in the identical territory).
The interrelated doctrines of dual sovereignty, federalism, comity, and full faith and
credit establish that a federal agency cannot constitutionally supersede the subsequent state
sentencing decision of a state judge. Rather, the state and federal sovereigns must co-exist
and interact with complete mutual respect. Ponzi, 258 U.S. at 259-60. In effect, the system
of primary jurisdiction operates in criminal law analogously to commercial liens - once the
first jurisdiction acts, the second is free to act independently and fully based on the previous
final disposition. Ponzi, 258 U.S. at 260 ("The chief rule which preserves our two systems
of courts from actual conflict of jurisdiction is that the court which first takes the subjectmatter of the litigation into its control, whether this be person or property, must be permitted
to exhaust its remedy, to attain which it assumed control, before the other court shall attempt
to take it for its purpose.").
In the area of general law enforcement outside areas of exclusive federal jurisdiction,
this Court in United States v. Lopez noted that "under our federal system, the States possess
primary authority for defining and enforcing the criminal law." 514 U.S. 549, 561 n.3
(1995). This observation is consistent with the Tenth Amendment's reservation of powers

19

to the States. See St. George Tucker, 1 BLACKSTONE COMMENTARIES, Appendix, at 186-87
(Birch & Small 1803) (the punishment for State "[c]rimes and misdemeanors," in all cases
not exclusively within federal jurisdiction, "belongs to the state jurisprudence"); THE
FEDERALIST, No. 45 at 82 (James Madison) (J. & A. McLean ed., 1788) ("The powers
reserved to the several States will extend to all the objects, which, in the ordinary course of
affairs, concern the lives, liberties, and properties of the people; and the internal order ... of
the State."). Each sovereign has the power to impose as much or as little punishment for the
crime as the sovereign desires.
The federal government's ability to set punishment was not compromised or
constrained where, as in the present case, the federal sentencing judge determined that 240
months incarceration was appropriate. The Ninth Circuit's disregard for the state court is
based on the incorrect premise that respect for a state sentence is a "limit" on federal
authority. See Taylor, 284 F.3d at 1153 ("We hold that the [Full Faith and Credit] Act does
not apply to an attempt to enforce a state criminal sentence to limit a federal sentence for a
federal crime.") (cited in Reynolds, 603 F.3d at 1150-52). But respect forthe state court does
not "limit" the federal sentence. The state sentence subsequently ordered to run concurrently
does not impact the federal sentencing authority because the federal 240 months must be
served. The State interest is simply that its conviction and sentence do not require more than
the time previously imposed by the federal court. The federal government must give effect
to the State's concurrent sentence because the subsequent sentencing only asserted the State's

20

own power, with no concomitant diminution of federal authority. See Kelly v. Robinson, 479
U.S. 36, 4 7 (1986) ("The right to formulate and enforce penal sanctions is an important
aspect of the sovereignty retained by the States."); Youngerv. Harris, 401U.S.37, 44 (1971)
("[T]he National Government will fare best ifthe States and their institutions are left free to
perform their separate functions in their separate ways.").
Federal post-judgment action that trumps a subsequent state concurrent sentence
would violate the principle of full faith and credit for sovereign judgments. From the first
days of the Republic, Congress extended the Full Faith and Credit Clause to the federal
government by statute. See 28 U.S.C. 1738; Davis v. Davis, 305 U.S. 32, 39-40 (1938).
The full faith and credit obligation "requires federal courts to give the same preclusive effect
to state court judgments that those judgments would be given in the courts of the State from
which the judgments emerged." Kremer v. Chem. Constr. Corp. , 456 U.S. 461 , 466 (1982).
The evils of introducing a general system of re-examination of the judicial
proceedings of other states, whose connexions are so intimate, and whose
rights are so interwoven with our own, would far outweigh any supposable
benefits from an imagined superior justice in a few cases. Motives of this sort,
founded upon an enlarged confidence, and reciprocal duties, might well be
presumed to have entered into the minds of the framers of the confederation,
and the constitution. They intended to give, not only faith and credit to the
public acts, records, and judicial proceedings of each of the states, such as
belonged to those of all foreign nations and tribunals; but to give to them full
faith and credit; that is, to attribute to them positive and absolute verity, so that
they cannot be contradicted, or the truth of them be denied, any more than in
the state, where they originated.
Joseph Story, 3 COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES, 1304, at
187 (Boston, Hilliard, Gray & Co. 1833) (emphasis in original; footnotes omitted). By
21

disregarding the properly imposed state judgment that the state offense required no more
incarceration than had previously been imposed, the BOP violated the integrity of the state
proceedings and deprived the resulting judgment of the "positive and absolute verity"
required by the Full Faith and Credit Act.

3.

The BOP's Reliance On Its Ex Parte Contact With The Sentencing Judge
Eight Years After The Sentencing Hearing Violated The Full Range Of
Sentencing Due Process Protections.

Based on Reynolds, the Ninth Circuit found that the executive agency's ex parte
contact with the sentencing judge eight years after the sentencing hearing raised no problems
under Setser, even though the purpose was to provide non-binding guidance for executive
creation of a concurrent or consecutive sentence. Appendix at 2-3. In Setser, this Court held
that "[w]hen 3584(a) specifically addresses decisions about concurrent and consecutive
sentences, and makes no mention of the Bureau's role in the process, the implication is that
no such role exists." 132 S. Ct. at 1470. To the same extent, the designation statute is silent
on concurrent-consecutive questions, leaving the implication that no role exists for the BOP
making such decisions through designation authority. 18 U.S.C. 3621(b)(4)(A) & (B).
After Setser, Reynolds cannot authorize the BOP to increase the length ofthe period of actual
custody based on post-hearing ex parte contact with the sentencing judge.
Most basically, any post-sentencing proceeding that can result m additional
incarceration constitutes a critical stage requiring the participation of counsel. Mempa v.

Rhay, 389 U.S. 128, 133-34 (1967). In fact, Mempa involved a post-sentencing proceeding

22

where the need for counsel arose because the sentencing judge would make a
recommendation that would affect the period of confinement, id. at 135, just as the judge
made a recommendation in the present case that effectively doubled the period of
incarceration. In Mempa, this Court described the defense attorney's essential role in a
proceeding that involved a non-binding judicial recommendation to advocate for the
defendant:
[T]he sentencing judge is required by statute, together with the prosecutor, to
furnish the Board with a recommendation as to the length of time that the
person should serve, in addition to supplying it with various information about
the circumstances of the crime and the character of the individual. Wash. Rev.
Code 9.95.030. We were informed during oral argument that the Board
places considerable weight on these recommendations, although it is in no way
bound by them. Obviously to the extent such recommendations are influential
in determining the resulting sentence, the necessity for the aid of counsel in
marshaling the facts, introducing evidence of mitigating circumstances and in
general aiding and assisting the defendant to present his case as to sentence is
apparent.

Mempa, 389 U.S. at 135. In the present case, defense counsel's function would have
included presenting the correct sequence of sentencing, reminding the court of the
presentence report's notation of the state concurrent sentences, and advocating for the
coordinated resolution of both state and federal cases based on the stipulated upward
departure in the federal case to accommodate the state plea bargain.
Just as the Washington statute in Mempa provided for a judicial recommendation, the
BOP based its procedure on the federal sentencing statute's provision for judicial
recommendations on designation. 18 U.S.C. 362l(b)(4). As anticipated in Mempa, the

23

absence of counsel resulted in unfairness, especially given the Court's concern that rights
may be lost "if not exercised at this stage." 389 U.S. at 135. Once the BOP had the judicial
recommendation and acted on it, Mr. Cole lacked counsel, resulting in a lack of evidence and
advocacy in the Texas district court, which ultimately received deference from the Oregon
courts. The factual errors that the BOP incorporated into its contact with the sentencing
judge in the present case vividly illustrate the need for full due process at proceedings
affecting the length of time in custody.
The Ninth Circuit's approval of the ex parte contact regarding the length of sentence
runs counter to this Court's precedent regarding adversary sentencing proceedings. Lankford
v. Idaho , 500 U.S. 110, 127 (1991) (describing "the critical role that the adversary process
plays in our system of justice") (citing Gardner v. Florida, 430 U.S. 349, 360 (1977)).
Contacts by government agents with a sentencing judge regarding the time that should be
served violate a criminal defendant's fundamental due process rights. Lankford, 500 U.S.
at 126 ("Notice of issues to be resolved by the adversary process is a fundamental
characteristic of a fair procedure."); see United States v. Alverson, 666 F.2d 341, 348-50 (9th
Cir. 1982) (finding due process violation from ex parte contact by government agent with
sentencing judge) (citing United States v. Wolfson, 634 F.2d 1217, 122 1 (9th Cir. 1980)).
In this case, the agents of the same Department of Justice that prosecuted Mr. Cole contacted
the sentencing judge, with no notice to opposing counsel or to the defendant, and obtained
a statement that is now being used to nearly double Mr. Cole's time in custody.

24

Setser's reasoning rests on the assumption that, for consecutive and concurrency
questions, the federal judgment imposed based on the sentencing hearing is the final word.

See Dillon v. United States, 130 S. Ct. 2683, 2690 (2010) ("[A]judgment of conviction that
includes [a sentence of imprisonment] constitutes a final judgment and may not be modified
by a district court except in limited circumstances") (citing 18 U.S.C. 3582(c)). Otherwise,
this Court would not have pointed to the comity interest in deciding the concurrency
question, or forbearing to rule on the subject, "up front," before the state imposes sentence.

Setser, 132 S. Ct. at 1471. The requirement of an "up front" decision prevents the high risk
of error, which provides the strongest reason for the notice and adversary proceedings
required during sentencing. Laniford, 500 U.S. at 127. Here, the federal sentencingjudge
knew of the concurrent state sentences at the time of sentencing from the presentence report,
but may well have forgotten eight years later with no advocate for the defense to point out
the presentence report paragraph on the state concurrent sentences and that the agreed
upward departure was premised on the state plea bargain for concurrent sentences. The
Court should reverse the Ninth Circuit's approval ofpost-sentencing ex parte procedures that
increase the actual time of custody and thwart the State's decision that its sentencing interests
are fully served with a concurrent sentence.

25

4.

Reliance On The Third Sentence Of 18 U.S.C. 3584(a) To Authorize The

BOP To Make Concurrent-Consecutive Decisions Does Not Survive Setser
Because This Court Limited That Sentence To Not Apply To Terms of
Imprisonment Not Yet Imposed.

In Reynolds, both the majority and the concurrence assumed that the third sentence
in 3584(a) applied to yet-to-be-imposed sentences. 603 F.3d at 1148, 1154-55, 1158, 1161.

Setser rejected that assumption. In Setser, the Court held that 3584(a) did not encompass
all sentencing authority, but only addressed multiple terms of imprisonment imposed, as
stated in the subsection's first sentence, at the same time or "on a defendant who is already
subject to an undischarged term ofimprisonment." In explaining the scope of the subsection,
the Court stated in Setser, "And the last two sentences of 3584 (a) say what will be
assumed in those two common situations if the court does not specify that the sentence is
concurrent or consecutive." 132 S. Ct. at 1470. Thus, this Court has explicitly rejected the
reading, which the concurrence saw as "not an implausible construction" of the statute.

Reynolds, 603 F.3d at 1159 (Fletcher, J., concurring); see Elwell v. Fisher, 716 F.3d 477,
484-87 (8th Cir. 2013) (the BOP "correctly interpreted the district court's silence as requiring
consecutive sentences pursuant to 3584(a)," subject to 362l(b) discretion based on a
judicial recommendation). What was once not implausible in Reynolds - that the third
sentence applied to yet-to-be-imposed sentences - is now irreconcilable with language in

Setser that was not addressed in Elwell.

The application of 3584(a)'s third sentence to sentencing court silence conflicts with
the statutory finality of federal judgments. In Dillon, this Court held that a federal judgment
26

that is final cannot be modified unless limited statutory circumstances are established. 130
S. Ct. at 2690. The statutory limitations on reopening proceedings to make the sentence de
facto consecutive based on a recommendation implicate constitutional protections related to
the finality of judgment, especially where the federal sentence had commenced under
3585(a). See United States v. Bergmann, 836 F.2d 1220, 1221-22 (9th Cir. 1988) (oral

pronouncement of sentence governs because the "constitutional double jeopardy protections

and the defendant's right to be present at the time of sentencing . . . require strict
adherence.").
Because the Ninth Circuit's decision relies on Reynolds, and Reynolds depends on the
rejected reading of 3584(a)'s third sentence, the Court should grant certiorari to bring this
case into conformity with this Court's controlling precedent.

5.

Because No Party In Setser Asserted The State Interest In The Integrity

Of The State Court Judgment, The Court Should Grant Certiorari To
Expressly Address The Federalism, Comity, And Full-Faith-And-Credit
Reasons For Deference To The State Judgment.

In Setser, both parties agreed that the BOP, not the sentencingjudge, had the authority
to decide the issue of concurrency in the context of the federal and state sentences where the
federal judgment ordered a consecutive sentence. Setser, 133 S. Ct. at 1467. As a
consequence, the Court appointed an amicus curiae, who argued that the federal judge, not
the BOP, had the authority to decide the concurrency question regarding a yet-to-be-imposed
state sentence. The Court adopted the amicus curiae position, ruling that the federal judge,
by deciding concurrency "up front", provided the subsequent state sentencingjudge with the
27

baseline of the federal sentence upon which the following state sentence would be imposed.
Because the federal judgment spoke to the concurrency issue in Setser, and no party argued
for respect for the state court judgment, the Court did not fully address the constitutional and
statutory reasons that the BOP could not lawfully trump a state judgment of concurrency
where the federal judgment was silent on the concurrent-consecutive issue.
In its ruling, the Court implicitly recognized respect for the state sentence by finding
that the federal decision had to be made "up front." Setser, 132 S. Ct. at 1471. The federal
court could either make the concurrency decision or decide to "forbear" making such a
decision, using the same language as in Ponzi on "forbearance" in the context of state and
federal dual prosecutions. Compare Setser, 132 S. Ct. at 1472 n.6 (the district court may
"forbear" from exercising the power to make the concurrent-consecutive decision regarding
an anticipated sentence) with Ponzi, 258 U.S. at 260-61 (noting the "forbearance" of courts
with co-ordinate jurisdictions that avoids interference with the principle of comity) (quoting

Covell v. Heyman, 111U.S.176, 182 (1884)). The constitutional and statutory interests in
the integrity of the state judgment should govern where, as here, the federal judgement did
not declare on the concurrent-consecutive issue.
While Setser was pending, this Court considered a petition raising the same question
regarding Executive Branch creation of de facto consecutive sentences where, in the face of
federal silence in the federal judgment, post-sentence federal action thwarts the later state
judgment that the sentences should run concurrently. In Reynolds, upon which both the

28

district court and the Ninth Circuit relied in the present case, this Court held the petition for
certiorari filed on November 12, 2010, through nine relistings until Mr. Reynolds died,
resulting in an order dismissing the petition for certiorari on April 2, 2012. Reynolds v.
Thomas, Clerk's Docket Sheet, Sup. Ct. No. 10-7502. The present case should be reviewed
to fill the missing piece of concurrent-consecutive analysis based on the interests of
federalism, separation of powers, comity, and full faith and credit for the judgments of coequal state sovereigns.
B.

The Court Should Grant Certiorari Because Executive Branch Creation Of De

Facto Consecutive Sentences Raises Extraordinarily Important Issues That
Frequently Occur In The Federal Criminal Justice System.

The question presented involves issues of exceptional importance in the criminal

justice system. The federal statutes on concurrent and consecutive sentencing have been
recognized as an area of confusion, misunderstanding, and unfairness. This case provides
the Court with an excellent vehicle to bring rationality and justice to an exceptionally
important area of the law.
1.

Confusion Regarding Federal And State Concurrent Sentencing

Frequently Gives Rise To Errors And Injustice.

The reality of prisoners serving consecutive sentences that have not been ordered by
either the state or federal judge, but only resulted from the administrative decisions of the
same Department of Justice that prosecuted the case, cries out for this Court's response. In
Reynolds, Judge Fletcher concurring joined two other Circuits in calling for Congress to
address legislatively the troubling BOP practices that convert concurrent sentences into de

29

facto consecutive sentences. Reynolds, 603 F.3d at 1160-61. This concern is not new: over
twenty years ago, a judge concurred to decry the injustice of a BOP de facto consecutive
sentence that resulted in a defendant spending years in prison that "neither the federal nor the
state sentencing court anticipated." Del Guzzi, 980 F.2d at 1271 (Norris, J., concurring).
This Court should definitively construe the relevant sentencing statutes to remedy this
anomalous injustice without new legislation.
The need for clarity in this area has long been recognized by the players in the federal
criminal justice system. The BOP itself has described the current state of the concurrentconsecutive law as "probably the single most confusing and least understood federal
sentencing issue." Henry J. Sadowski, BOP Regional Counsel, Interaction OfFederal And
State Sentences When The Federal Defendant Is Under State Primary Jurisdiction, at 1 (July

7, 2011). The Government Accountability Office has identified the BOP's decisions to run
sentences concurrently or consecutively as creating potential over-incarceration given that,
during the 2011 fiscal year, 386 requests to serve sentences concurrently were denied. GAO,
Eligibility and Capacity Impact Use of Flexibilities to Reduce Inmates ' Time in Prison, at

29 (February 2012). Criminal defense attorneys frequently admit to confusion and mistakes
based on the lack of clarity in this area of the law. See Brief of the Ninth Circuit Federal
Public And Community Defenders And The Arizona Attorneys For Criminal Justice In
Support of Petition for a Writ of Certiorari, Reynolds v. Thomas, 132 S. Ct. 1854(2010) (No.
10-7502), 2010 WL 5178045, at *6-8.

30

2.

The Present Case Provides An Appropriate Vehicle For Re-Examining

Sentencing Statutes In Light Of Setser And Constitutional Considerations.

The present case starkly presents the relevant issues that should have resulted in a
fresh look at the Ninth Circuit's construction of the sentencing statutes in light of Setser.
Two of this Court's rules of statutory construction should have guided the Ninth Circuit to
a different result based on the facts of this case.
First, in the context of federalism, this Court has recognized a rule of statutory
construction requiring a clear statement from Congress where federal regulation impinges
on an area traditionally within the States ' police power. Gregory v. Ashcroft, 501 U.S. 452,
460-61 (1991). The federal statute on concurrent and consecutive sentences includes not a
whisper suggesting that post-sentencing federal action can trump a subsequent state
concurrent sentence where the federal judgment is silent on the subject. 18 U.S.C. 3584.
Since the States are at least co-equal in the area of criminal justice, Lopez, 514 U.S. at 561
n.3, the absence of any statutory authority for federal actors to trump a state court decision
regarding concurrency should foreclose the Ninth Circuit's interpretation.
Second, under the doctrine of constitutional avoidance, the Court should construe the
relevant sentencing statutes to avoid the serious constitutional problems raised by executive
sentencing that thwarts a subsequent state judgment. See Clark v. Martinez, 543 U.S. 371 ,
3 80-81 (2005). The post-sentencing administrative procedures that decide the actual period
of incarceration - not the place or conditions of incarceration - impinge upon basic statutory
as well as constitutional protections: the full faith and credit statute and comity requirements
31

of respect for state actions; the Tenth Amendment's reservation of State's rights; the
separation of powers violated by executive action that decides the length of incarceration;
the broad array of procedural due process protections missing from the post-sentencing
actions regarding quintessential sentencing issues.
Applying these rules of construction, in light ofSetser, the Court has alternative routes
to relief: 1) 18 U.S. C. 3 621 (b) should be construed to bar exercise of designation authority
that thwarts subsequently imposed state concurrent sentences; 2) 18 U.S.C. 3584(a),
3582(c), and 3585(a) should be construed to bar post-judgment federal action that extends
the period of actual incarceration by rendering a subsequent state concurrent sentence in fact
consecutive; or 3) 18 U.S.C. 3585(b) should be construed to permit sentence calculations
that respect subsequent concurrent state sentences by treating cross-referenced judgments as
not "another sentence." 3 Without such construction, the statutes are unconstitutional as
applied to Mr. Cole.

Where, as in the present, the state judgment expressly references the federal judgment,
the plain meaning of 3585(b) should allow credit because the sentence is not "another" in
the common meaning of "different or distinct from the one first named or considered."
WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY at 89 (1993). The term is at least
amenable to that construction in the context of the rules of construction on federalism and
constitutional avoidance.
32

3.

The Court Should Grant Certiorari to Address The Manifest Injustice Of

A Sentence Doubled By Federal Executive Action That Trumped A Valid
State Court Judgment.

Mr. Cole is living a nightmare. Over twenty years ago, his attorney negotiated a deal
to resolve both state and federal cases that imposed a stiff sentence for his crimes but
contemplated release, with good time credits, after serving about seventeen years in prison.
He is now working on twenty-two years of actual custody, with a projected release date in
2025. No judge ever ordered his sentences to be served consecutively; the only reason Mr.
Cole agreed to a substantial upward departure on his federal sentence was to provide the base
upon which the state concurrent sentences would be served.
Mr. Cole has calmly and consistently resorted to the BOP and to the courts for help.
The BOP changed its theory for denying concurrency with the state sentences at every level
of administrative review. The Texas district court used the wrong standard of review, then
the Oregon district court deferred to the Texas court on an exhaustion ground that the Texas
court explicitly did not rely upon. On appeal, the panel did not re-examine this Court's prior
cases that are inconsistent with the express language of Setser.
Mr. Cole should have been released to supervision four years ago. This Court should
grant certiorari not only to bring order to a chaotic area of law but to bring justice to an
individual who is suffering incarceration grossly disproportionate to his plea bargain and to
his crimes.

33

6.

Conclusion
For the foregoing reasons, the Court should issue a writ of certiorari for plenary

review of the Ninth Circuit's ruling or, in the alternative, grant certiorari, vacate the
judgment, and remand the case for consideration in light of the underlying reasoning of

Setser.
Dated this 3rd day of September, 2013.

Stephen . Sady
Attorney for Petitioner

34

No.

IN THE SUPREME COURT

OF THE UNITED STATES

PATRICK COLE,
Petitioner,
v.
MARION FEATHER, WARDEN,

Respondent.

On Petition For Writ Of Certiorari To

The United States Court Of Appeals
For The Ninth Circuit

CERTIFICATE OF SERVICE AND MAILING

I, Stephen R. Sady, counsel of record and a member of the Bar of this Court, certify
that pursuant to Rule 29.3 , service has been made of the within PETITION FOR WRIT OF
CERT! ORARI on the counsel for the respondent by hand-delivery on September 3, 2013, an
exact and full copy thereof addressed to:
Natalie K. Wight
Kelly A. Zusman
Assistant U.S. Attorneys
1000 SW Third, Suite 600
Portland, Oregon 97204
1

and by depositing in the United States Post Office, in Portland, Oregon on September 3,
2013, first class postage prepaid, an exact and full copy thereof addressed to:
Donald B. Verrilli, Jr.
Solicitor General of the United States
Room 5614
Department of Justice
950 Pennsylvania Avenue, N. W.
Washington, DC 20530-0001
Further, the original and ten copies were mailed to the Honorable William K. Suter,
Clerk of the United States Supreme Court, by depositing them in a United States Post Office
Box, addressed to 1 First Street, N.E., Washington, D.C., 20543, for filing on this 3rd day
of September, 2013, with first-class postage prepaid.
Dated this 3rd day of September, 20

Stephen . Sady
Attorney for Petitioner
Subscribed and sworn to before me this 3rd day of Septembe1

OFFICIAL SEAL

JILL C DOZARK
NOTARY PUBLIC-OREGON
COMMISSION NO. 442717
MY COMMISSION EXPIRES OCTOBER 28, 2013

Case: 12-35678

04/24/2013

ID: 8603337

DktEntry: 26-1

Page: 1 of 3

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FILED

FOR THE NINTH CIRCUIT

APR 24 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

No. 12-35678

PATRICK D. COLE,

D.C. No. 3:12-cv-00412-ST

Petitioner - Appellant,
v.

MEMORANDUM*
J.E. THOMAS, Warden,
Respondent - Appellee.

Appeal from the United States District Court

for the District of Oregon
Marco A. Hernandez, District Judge, Presiding
Argued and Submitted April 10, 2013
Pasadena, California
Before: TALLMAN and M. SMITH, Circuit Judges, and ROSENTHAL, District
Judge.**
Petitioner-Appellant Patrick D. Cole (Cole), a federal prisoner, appeals the
Oregon district courts dismissal of his petition for a writ of habeas corpus

This disposition is not appropriate for publication and is not precedent

except as provided by 9th Cir. R. 36-3.
**

The Honorable Lee H. Rosenthal, District Judge for the U.S. District
Court for the Southern District of Texas, sitting by designation.

A-1

Case: 12-35678

04/24/2013

ID: 8603337

DktEntry: 26-1

Page: 2 of 3

pursuant to 28 U.S.C. 2241. We have jurisdiction under 28 U.S.C. 2253, and

we affirm.
The District Court for the Southern District of Texas previously considered
the legality of the Bureau of Prisonss (BOP) administration of Coles sentence
when it reviewed and dismissed Coles habeas petition to that court in 2002. The
Oregon district court therefore properly dismissed Coles 2012 petition as
successive under 28 U.S.C. 2244(a). The recent case of Setser v. United States,
132 S. Ct. 1463 (2012), does not undermine this determination.
Additionally, the BOPs letter to the judge who imposed Coles federal
sentence did not violate Coles rights. The BOP ultimately has to determine how
long the District Courts sentence authorizes it to continue [a prisoners]
confinement. Setser, 132 S. Ct. at 1473. The BOP by statute considers any
statement by the court that imposed the sentence concerning the purposes for
which the sentence to imprisonment was determined to be warranted or
recommending a type of penal or correctional facility as appropriate. 18 U.S.C.
3621(b)(4). The BOP interprets 3621 to authorize recognition of state prison
time, inter alia, when it is consistent with the intent of the federal sentencing
court . . . . Reynolds v. Thomas, 603 F.3d 1144, 1150 (9th Cir. 2010) (citing BOP
Program Statement 5160.05 (January 16, 2003)). Because the letter to the district
judge attempted to determine the intent of the federal sentencing judge, it was not a

A-2

Case: 12-35678

04/24/2013

ID: 8603337

DktEntry: 26-1

Page: 3 of 3

due process violation. See, e.g., Reynolds, 603 F.3d at 1153 (W. Fletcher, J.,
concurring) (The federal Bureau of Prisons (BOP) acted properly in construing
the sentencing judges answer to the BOPs letter.).
AFFIRMED.

A-3

Case: 12-35678

06/07/2013

ID: 8659044

DktEntry: 28

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Page: 1 of 1

FILED
JUN 07 2013

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

No. 12-35678

PATRICK D. COLE,

D.C. No. 3:12-cv-00412-ST

District of Oregon,
Portland

Petitioner - Appellant,
v.
J.E. THOMAS, Warden,

ORDER
Respondent - Appellee.

Before: TALLMAN and M. SMITH, Circuit Judges, and ROSENTHAL, District

Judge.*
The panel has unanimously voted to deny the petition for panel rehearing.
Judges M. Smith and Tallman have voted to deny the petition for rehearing en
banc, and Judge Rosenthal so recommends. The full court has been advised of the
petition for rehearing en banc and no judge of the court has requested a vote on it.
Fed. R. App. P. 35(f).
The petition for panel rehearing and rehearing en banc (Docket No. 27) is
therefore DENIED. No further petitions for panel or en banc rehearing will be
entertained in this case.

The Honorable Lee H. Rosenthal, District Judge for the U.S. District
Court for the Southern District of Texas, sitting by designation.

A-4

Case 3:12-cv-00412-ST

Document 23

Filed 08/15/12

Page 1 of 6

Page ID#: 345

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON
PORTLAND DIVISION

PATRICK COLE,

No. 03:12-CV-412-ST
Petitioner,

ORDER

v.
J.E. THOMAS, Warden, FCI Sheridan,
Respondent.

Stephen R. Sady
Office of the Federal Public Defender
101 SW Main Street, Suite 1700
Portland, OR 97204
Attorney for Petitioner
Natalie K. Wight
United States Attorneys Office
1000 SW Third Avenue, Suite 600
Portland, OR 97204
Attorney for Respondent
1 - ORDER

A-5

Case 3:12-cv-00412-ST

Document 23

Filed 08/15/12

Page 2 of 6

Page ID#: 346

HERNANDEZ, District Judge:

Magistrate Judge Stewart issued a Findings and Recommendation (#16) on April 16,
2012, in which she recommends that the Court should dismiss the petition for writ of habeas
corpus (#1) and dismiss the case with prejudice. Petitioner timely filed objections to the
Findings and Recommendation. The matter is now before me pursuant to 28 U.S.C. 636(b)(1)
and Federal Rule of Civil Procedure 72(b).
When any party objects to any portion of the Magistrate Judges Findings and
Recommendation (F&R), the district court must make a de novo determination of that portion
of the Magistrate Judges report. 28 U.S.C. 636(b)(1); Dawson v. Marshall, 561 F.3d 930, 932
(9th Cir. 2009); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).
Petitioner objects to the Findings and Recommendation because the Magistrate Judge:
(1) incorrectly applied Setser v. United States, 132 S. Ct. 1463 (2012), (2) improperly relied on a
sentencing judges statement, (3) failed to give appropriate deference to the States sovereignty,
and (4) erroneously deferred to a prior district court decision denying a petition for writ of
habeas corpus. I have carefully considered Plaintiffs objections and conclude that the objections
do not provide a basis to modify the recommendation that the complaint be dismissed with
prejudice. I have also reviewed the pertinent portions of the record de novo and find no error in
the Magistrate Judges Findings and Recommendation.
First, I agree with Magistrate Judge Stewarts finding that the legality of Petitioners
detention has already been determined by the Southern District of Texas in his 2002 habeas
corpus petition. F&R, 7. I also do not wish to turn this court into a de facto appellate court to
challenge the 2002 decision, which dismissed the petition with prejudice. Id. at 8.

2 - ORDER

A-6

Case 3:12-cv-00412-ST

Document 23

Filed 08/15/12

Page 3 of 6

Page ID#: 347

I also agree with Magistrate Judge Stewarts interpretation of Setsers holding, that a
district court has discretion to run federal sentences consecutively to anticipated, but unimposed,
state sentences. Id. Setser involved interpreting a section of the Sentencing Reform Act of
1984, 18 U.S.C. 3584 1, as a limit on a district courts existing authority to make sentences
concurrent or consecutive. Setser, 132 S. Ct. at 1467 (Section 3584, however, is framed not as
a conferral of authority but as a limitation of authority that already exists[.]). Thus, while
certain situations require a sentence to be concurrent or consecutive, the district court retains
discretion in all other situations not covered[.] Id. at 1470. Setser also discusses 18 U.S.C.
3621, which gives the Bureau of Prisons authority to order that a prisoner serve his federal
sentence in any suitable prison facility whether maintained by the Federal Government or
otherwise. Id. at 1467. The implication is that the Bureau could designate a state prison as the
place of imprisonment, so that a person facing a federal sentence and is serving a state sentence,
would serve the two sentences concurrently. Id. at 1467-68.
Unlike Setser, the district court judge in Petitioners case was silent as to whether the
sentence would be consecutive or concurrent to the anticipated state sentence. As such, Setser
does not directly apply factually. However, the discussion of 3584 and 3621 are instructive
nevertheless. In several instances, the Court states that the Bureau does not have a role in
determining whether a sentence is concurrent or consecutive. Id. at1469 (Congress
contemplated that only district courts would have the authority to make the concurrent-vs.1

If multiple terms of imprisonment are imposed on a defendant at the same time, or if a term of
imprisonment is imposed on a defendant who is already subject to an undischarged term of
imprisonment, the terms may run concurrently or consecutively, except that the terms may not
run consecutively for an attempt and for another offense that was the sole objective of the
attempt. Multiple terms of imprisonment imposed at the same time run concurrently unless the
court orders or the statute mandates that the terms are to run consecutively. Multiple terms of
imprisonment imposed at different times run consecutively unless the court orders that the terms
are to run concurrently. 18 U.S.C. 3584(a).
3 - ORDER

A-7

Case 3:12-cv-00412-ST

Document 23

Filed 08/15/12

Page 4 of 6

Page ID#: 348

consecutive decision); id. at 1470 ( 3584 makes no mention of the Bureaus role in the
[concurrent-vs.-consecutive] process, the implication is that no such role exists); id. ( 3621 is
a conferral of authority on the Bureau of Prisons, but does not confer authority to choose
between concurrent and consecutive sentences.); id. (Court declines to read 3621 as giving
the Bureau of Prisons what amounts to sentencing authority). Yet, it is implied from Setser that
the Bureau, through its authority in 3621, can make decisions that would effectively result in a
concurrent or consecutive sentence, as long as the Bureaus decision comports with 3584.
Setser, 132 S. Ct. at 1469 (in situations expressly dictated by 3584, the Bureau is not free to
use its place of imprisonment authority to achieve a different result.). Setser does not change
the Bureaus ability to designate the place of imprisonment under 3621.
I agree with Judge Stewarts conclusion that justice would not be served in allowing
Petitioner to bring another 2241 action. Petitioner argues that in his prior habeas petition under
2241, he did not have the opportunity to develop the facts in support of his petition. As
explained by Judge Stewart, inadequate factual development was not an issue in the 2002
petition. F&R, 7. Petitioner also argues that the 2002 decision applies an incorrect standard for
2241 cases. Petitioner is correct that the court erroneously described relief under 2241 as
extraordinary and is reserved for transgressions of constitutional rights and for a narrow range
of injuries that could not have been raised on direct appeal and would, if condoned, result in a
complete miscarriage of justice. Mem. Supp. Pet. Writ Habeas Corpus (Habeas Memo), Ex.
Q at 7. Despite this incorrect characterization of 2241, the court correctly concluded that
Petitioner had not exhausted his administrative remedies through the Bureau, and thus relief
under 2241 was not available. Id. at 7-8.

4 - ORDER

A-8

Case 3:12-cv-00412-ST

Document 23

Filed 08/15/12

Page 5 of 6

Page ID#: 349

Petitioner also argues that the 2002 decision, and the Magistrate Judge, improperly relied
on the federal sentencing judges statement made years later. Because the federal sentence was
silent as to whether it was to be consecutive or concurrent to the state sentence, the Bureau
contacted the federal judge eight years after the original sentence to seek clarification. In
response, the federal judge stated that he intended the sentence to be consecutive to the state
sentence. Id. at 12. There is no authority that prevents the Bureau from contacting the
sentencing judge to request clarification. Even without this post-sentencing clarification, the
2002 decision includes other reasoning that supports the Bureaus refusal to designate the state
prison as the place of service for his federal sentence. Id. at 14 (under 3584, [m]ultiple terms
of imprisonment imposed at different times run consecutively unless the court orders that the
terms are to run concurrently.); see also Elwell v. Fisher, No. 11-2595, 2012 U.S. Dist. LEXIS
84823, at *13 (D. Minn. Apr. 25, 2012) (federal sentence correctly deemed as consecutive)
and Newman v. Cozza-Rhodes, No. 11-cv-3262, 2012 U.S. Dist. LEXIS 73684, at *11 (D. Colo.
May 29, 2012) (same).
Finally, state sovereignty and principles of comity does not require the Bureau to follow
the state courts order that the sentences run concurrently. Galarza-Villanueva v. Rios, No. 1:11cv-228, 2012 U.S. Dist. LEXIS 47950 (E.D. Cal. Apr. 3, 2012) (citing Del Guzzi v. United
States, 980 F.2d 1269, 1270 (9th Cir. 1992)). In Del Guzzi, the state judge stated that Del
Guzzis sentence may be served in the federal prison, and recommended that he be transported
on the first available transportation[.] Del Guzzi, 980 F.2d at 1270. The court held that the
state judges authority was limited to sending Del Guzzi to state prison to serve his state
sentence. Id. Here, although the state judge ordered the sentence to run concurrently with the
federal sentence, the order was beyond the judges authority. Habeas Memo, Ex. K at 1.

5 - ORDER

A-9

Case 3:12-cv-00412-ST

Document 23

Filed 08/15/12

Page 6 of 6

Page ID#: 350

CONCLUSION
The Court adopts Magistrate Judge Stewarts Findings and Recommendation (#16).
Therefore, the petition for writ of habeas corpus is dismissed and the case is dismissed with
prejudice.
IT IS SO ORDERED.

DATED this

day of August, 2012.

MARCO A. HERNANDEZ
United States District Judge

6 - ORDER

A-10

Case 3:12-cv-00412-ST

Document 16

Filed 04/16/12

Page 1 of 11

Page ID#: 296

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
PATRICK COLE,
Case No. 3:12-cv-412-ST
Petitioner,
v.
J.E. THOMAS, Warden,
FCI Sheridan,

FINDINGS AND RECOMMENDATION

Respondent.

Stephen R. Sady
Chief Deputy Federal Public Defender
101 S.W. Main Street, Suite 1700
Portland, Oregon 97204
Attorney for Petitioner
S. Amanda Marshall
United States Attorney
Natalie K. Wight, Assistant United States Attorney
1000 SW Third Avenue, Suite 600
Portland, OR 97204-2902
Attorneys for Respondent
1 - FINDINGS AND RECOMMENDATION

A-11

Case 3:12-cv-00412-ST

Document 16

Filed 04/16/12

Page 2 of 11

Page ID#: 297

STEWART, Magistrate Judge.

Petitioner brings this habeas corpus case pursuant to 28
U.S.C. 2241 challenging the computation of his sentence by the
Bureau of Prisons (BOP).

For the reasons that follow, the

Petition for Writ of Habeas Corpus (docket #1) should be dismissed.

FINDINGS
On July 20, 1988, petitioner received a 35-year state sentence
in Dallas County, Texas, for Burglary of a Vehicle.
Declaration, p. 3.

Melick

He was paroled on October 24, 1991, but was

arrested for new criminal conduct on January 25, 1992, resulting in

the revocation of his parole and his return to prison to continue
servibg his original 35-year sentence.

Id.

In addition to his parole revocation, petitioner was charged

with a total of two counts of aggravated robbery in two separate
state cases.

On May 14, 1992, he was also charged by information

in the United States District Court for the Northern District of

Texas with two counts of obstructing or affecting commerce through
robbery, use of a firearm during the commission of a crime of
violence, and felon in possession of a firearm.

Petitioners

Exhibit A.
On May 21, 1992, petitioner appeared in federal court pursuant
to a writ of habeas corpus ad prosequendum and entered guilty pleas
to

all

four

counts

against

him.

Petitioners

Exhibit

Thereafter, he was returned to the Dallas County Jail.

2 - FINDINGS AND RECOMMENDATION

A-12

B.

Case 3:12-cv-00412-ST

Document 16

Filed 04/16/12

Page 3 of 11

Page ID#: 298

On May 22, 1992, the state court sentenced petitioner to two

25-year sentences to run concurrently with one another, as well as
with the federal sentence which had not yet been imposed.

Melick

Declaration, p. 4; Petitioners Exhibit D, p. 2.

On July 13, 1992, petitioner filed an unopposed motion for a
new trial in the state cases which was granted on July 27, 1992,
vacating the state convictions.

Melick Declaration, p. 4.

While

on pretrial status, he was transferred to federal court on a writ

of habeas corpus ad prosequendum for sentencing on his federal
charges.

Id.

On July 30, 1992, the federal court sentenced

petitioner to a total aggregated federal sentence of 240 months.

Id at 2.

The federal judgment was silent as to whether the federal

sentence would run concurrently with, or consecutively to, any yet

to be imposed state sentence.
The following day, July 31, 1992, the state court accepted
petitioners guilty plea and entered a new judgment which again
imposed concurrent 25-year sentences to run concurrently with the
federal sentence.

Id at 4-5.

The state court then ordered the

Sheriff to deliver petitioner to the United States Marshal,1 noting

that petitioners state sentence was to run concurrently with his
federal sentence.

Petitioners Exhibit J.

Thus, it appears as

While petitioner stresses that the Notice of Disposition

says that he was to be released to the U.S. Marshal, the Order
signed by the judge states that petitioner was to be delivered
to the U.S. Marshal. Petitioners Exhibits J & K.
3 - FINDINGS AND RECOMMENDATION

A-13

Case 3:12-cv-00412-ST

Document 16

Filed 04/16/12

Page 4 of 11

Page ID#: 299

though the state court sent petitioner to federal prison to serve

his concurrent state sentence.

The Order makes no mention of

petitioners undischarged 35-year sentence for vehicular burglary

from 1988 which he was obligated to continue serving following the
revocation of his parole in 1992.
Following

the

imposition

of

the

1992

state

and

federal

sentences, petitioner was first incarcerated at FCI-Seagoville

until

his

transfer

to

FCI-Bastrom

Petitioners Exhibit L, p. 2.

on

October

16,

1992.

Respondent characterizes this

placement in federal custody as inadvertent and asserts that the

BOP became aware of this error one year later in August of 1993
when it made arrangements to return him to the State of Texas to
serve his state sentences.2

Melick Declaration, p. 10.

The BOP transferred petitioner back to state custody on

August 27, 1993, providing him with custody credit for the time he
spent in federal prison toward the service of his state sentence
only.

Id at 9-10.

It also placed a federal detainer upon him.

In

this way, the BOP effectively set up petitioners federal sentence

to run consecutively to his state incarceration.
In 1999, petitioner (who was still in state custody) applied
with the BOP for credit toward his federal sentence for the time he
was serving in state prison.

This prompted the BOP to contact the

Holding petitioner in federal custody was likely in error

because he had yet to serve the remainder of his 35-year state
sentence from 1988.
4 - FINDINGS AND RECOMMENDATION

A-14

Case 3:12-cv-00412-ST

Document 16

Filed 04/16/12

Page 5 of 11

Page ID#: 300

federal sentencing judge to determine if the court had intended

the federal sentence to run concurrently with the state sentence.
Id at 7-8.
sentences

[T]he sentencing court indicated it intended the

to

be

consecutive,

petitioners request.

prompting

the

BOP

to

deny

Id at 8; Respondents Exhibit 1, p. 12.

On April 10, 2001, the State of Texas reduced petitioners

1992 sentence to a 9-year term of imprisonment that expired in
2001(essentially time-served).

Id at 5.

However, he remained

imprisoned within the Texas Department of Corrections pursuant to

his

prior

35-year

sentence

stemming

from

the

1988

vehicular

burglary case where his parole had been revoked.

On August 12, 2002, petitioner (while still in state custody)
filed a petition for writ of habeas corpus pursuant to 28 U.S.C.
2241 in the District Court for the Southern District of Texas
challenging the execution of his federal sentence. His grounds for
relief questioned the BOPs calculation of his sentence, and he
argued

that

concurrently.

his

state

and

Respondents

federal

Exhibit

sentences

2.

That

should

district

run
court

exhaustively researched and considered the pertinent issues and

denied

relief upon the

Petition

prejudice on March 31, 2003.

and

dismissed

the

case

with

Respondents Exhibit 1, p. 18.

Petitioner remained in state custody until March 9, 2009, when

he was paroled from the 1988 vehicular burglary sentence and
transferred to federal custody to serve his federal sentence.

5 - FINDINGS AND RECOMMENDATION

A-15

Case 3:12-cv-00412-ST

Document 16

Filed 04/16/12

Page 6 of 11

Page ID#: 301

Melick Declaration, p. 5. Petitioners projected good conduct time

release date is September 26, 2025.

Id at Attachment 2, p. 1.

However, petitioner contends that he completed his concurrent state

and federal sentences over two years ago.
Petitioner filed this 28 U.S.C. 2241 habeas corpus action
with the assistance of counsel on March 8, 2012.

Petitioner

alleges that the BOP acted unlawfully by: (1) failing to effectuate
the State of Texas relinquishment of primary custody to federal
custody; (2) failing to effectuate the subsequent judgment of the
state court and its intent that the state sentence run concurrently
with the federal sentence; and (3) converting his concurrent state
sentences to consecutive sentences.
FINDINGS
Successive 2241 petitions by federal prisoners are subject
to threshold dismissal under the Finality of Determination doctrine
set forth in 28 U.S.C. 2244(a).

Antonelli v. Warden, U.S.P.

Atlanta, 542 F.3d 1348, 1352 (11th Cir. 2008).

That statute

provides as follows:
No circuit or district judge shall be required
to entertain an application for a writ of
habeas corpus to inquire into the detention of
a person pursuant to a judgment of a court of
the United States if it appears that the
legality of such detention has been determined
by a judge or court of the United States on a
prior application for a writ of habeas corpus,
except as provided in section 2255.

6 - FINDINGS AND RECOMMENDATION

A-16

Case 3:12-cv-00412-ST

Document 16

Filed 04/16/12

Page 7 of 11

Section 2244 does not enact a rigid rule.

permitted,

not

compelled,

to

decline

to

Page ID#: 302

The judge is

entertain

such

an

application, and then only if (s)he is satisfied that the ends of

justice will not be served by inquiring into the merits. Sanders
v. United States,

373

U.S.

1,

12

(1963)

(internal

citations

omitted).
This case involves the same claims that petitioner raised in
his 2002 habeas corpus Petition which the Southern District of
Texas rejected on their merits.

Realizing this, petitioner argues

that the interests of justice require this court to revisit the

execution of his sentence on the basis that he was incarcerated in
a state prison where he could not apply for federal administrative
review and, therefore, had no opportunity for factual development.
The Southern District of Texas was well aware of petitioners
inability to avail himself of the BOPs administrative review
procedure leading up to the filing of his 2002 habeas corpus
Petition.

Respondents Exhibit 1, p. 8.

That court did not,

however, consider inadequate factual development to be an issue

since it denied petitioners motion seeking an evidentiary hearing
on the basis that the court has been able to resolve all issues
raised in this case by referring to the pleadings and exhibits
filed by the parties and there is no issue remaining which
requires the presentation of additional evidence.

Id at 18.

Thus, factual development was not foreclosed simply by virtue of

7 - FINDINGS AND RECOMMENDATION

A-17

Case 3:12-cv-00412-ST

Document 16

Filed 04/16/12

Page 8 of 11

Page ID#: 303

the unavailability of the BOPs administrative review process, but

also by the District Judge who found the factual record to be
sufficient to resolve his claims. Consequently, the unavailability
of the BOP administrative review process does not justify allowing
petitioner to proceed on his duplicative Petition.
Petitioner also argues that the District Judge who denied
relief on his 2002 Petition did so using an incorrect standard of
review and without a proper appreciation for several essential
facts of his case.

It would be improper for petitioner to use the

District of Oregon as a de facto appellate court to belatedly

overturn a 10 year-old decision from the Southern District of Texas
which decided his claims on their merits.

A duplicative petition

is simply not a valid substitute for an appeal.

Petitioner also argues that recent legal developments have
rendered the 2002 decision obsolete.

Specifically, he argues that

the Supreme Courts recent decision in Setser v. United States,

U.S.
its

, 132 S. Ct. 1463 (2012), holds that the BOP exceeds

authority

when

it

makes

the

judicial

concurrent or consecutive sentences.

district

court

has

discretion

decision

regarding

Setser actually holds that a

to

run

federal

sentences

consecutively to anticipated, but unimposed, state sentences.

at

, 132 S. Ct. at 1468, 1473.

Id

While the majority opinion also

expresses its concern that sentencing not be left to employees of

the same Department of Justice that conducts the prosecution, the

8 - FINDINGS AND RECOMMENDATION

A-18

Case 3:12-cv-00412-ST

Document 16

Filed 04/16/12

Page 9 of 11

Page ID#: 304

majority also states that in the context of a prisoner who starts

in state custody, serves his state sentence, and then moves to
federal custody, it will always be the Federal Government whether
the district court or the Bureau of Prisons that decides whether
he will receive credit for the time served in state custody.
at

, 132 S. Ct. at 1471 (emphasis added).

Id

The opinion also

states that in the event of a judgment which is difficult to

interpret or implement, the BOP ultimately must determine how long
the district courts sentence authorizes it to incarcerate an
inmate.

Id at

, 132 S. Ct. at 1473.

Nothing in Setser prohibits the BOP from interpreting a

judgment which is silent as to whether a sentence is to operate
concurrently or consecutively as is the case here.

Furthermore,

the BOP did not simply act on its own and decide to impose a
consecutive sentence.

Instead, it contacted petitioners federal

sentencing judge to determine his intent.

The sentencing judge

specifically advised the BOP that he intended the federal sentence

to run consecutively to the later-imposed state sentence.
Declaration, pp. 7-8; Respondents Exhibit 1, p. 12.
clear

that,

contrary

to

petitioners

argument,

Melick

Thus, it is
the

federal

sentencing judge was not attempting to defer to the state court on

the issue of concurrent sentences by failing to address it in his
Judgment.

9 - FINDINGS AND RECOMMENDATION

A-19

Case 3:12-cv-00412-ST

Document 16

Filed 04/16/12

Page 10 of 11

Page ID#: 305

The BOP worked diligently to implement the District Judges

intended sentence.
inappropriate.

Nothing in Setser indicates that this is

As a result, no legal development has occurred

which, in the interests of justice, would require the court to

revisit the execution of petitioners sentence.
The Petition should be dismissed as improperly successive
pursuant to 28 U.S.C. 2244(a) because:

(1) petitioner attempts

to relitigate the validity of the BOPs calculation of his state

and federal sentences after such a challenge was previously denied
on its merits with prejudice; and (2) the interests of justice will
not be served by inquiring further into the merits of this case.
See Queen v. Miner, 530 F.3d 253, 255 (3rd Cir. 2008) (affirming
2241 dismissal pursuant to 2244(a) where the issues raised had
been, or could have been, decided in the petitioners previous
habeas action adjudicated in another district); Valona v. United
States,

138

F.3d

693,

695

(7th

Cir.

1998)

2244(a)

bars

successive petitions under 2241 directed to the same issue

concerning execution of a sentence); Chambers v. United States,
106 F.3d 472, 475 (2nd Cir. 1997) (dismissing 2241 jail-credit
habeas action pursuant to 2244(a) which had been brought in an
earlier 2241 petition and decided on its merits).
///
///
///

10 - FINDINGS AND RECOMMENDATION

A-20

Case 3:12-cv-00412-ST

Document 16

Filed 04/16/12

Page 11 of 11

Page ID#: 306

RECOMMENDATION
For the reasons identified above, the Petition for Writ of
Habeas Corpus (docket #1) should be dismissed and a judgment should
be entered dismissing this case with prejudice.
SCHEDULING ORDER
The Findings and Recommendation will be referred to a district
judge.

Objections, if any, are due May 3, 2012.

If no objections

are filed, then the Findings and Recommendation will go under

advisement on that date.
If objections are filed, then a response is due within 14 days
after being served with a copy of the objections. When the response
is due or filed, whichever date is earlier, the Findings and
Recommendation will go under advisement.
DATED this 16th day of April, 2012.
s/

Janice M. Stewart
Janice M. Stewart
United States Magistrate Judge

11 - FINDINGS AND RECOMMENDATION

A-21

Case 4:02-cv-03056 Document 11

memdismpr

Filed in TXSD on 03/31/03 Page 1 of 19

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

PATRICK GLENN COLE,

TDCJ-ID #493342,
Petitioner,

~ !- :~

Souti; .

f .

MAR ~1 1 ~C ~/i

v.

DIRECTOR, BUREAU OF PRISONS,

CIVIL ACTION NO. H-02-3056

Respondent.

MEMORANDUM AND ORDER

State inmate Patrick Glenn Cole seeks a writ of habeas corpus under 28 U.S.C. 2241
to challenge the administration of a sentence that he received for a federal conviction. As
respondent, the Director of the United States Bureau of Prisons has filed an answer to Cole's
petition, along with a motion to dismiss, arguing that Cole is not entitled to habeas corpus
relief. (Docket Entry No. 7). Cole has submitted a response, and he has also filed motions
requesting the appointment of counsel and an evidentiary hearing. (Docket Entry Nos. 8-10).
After considering all of the pleadings in this case, and the applicable law, the Court grants
the respondent's motion and dismisses this case. The petitioner's motions are denied for
reasons set forth below.

I.

BACKGROUND
Cole is currently in custody of the Texas Department of Criminal Justice- Institutional

Division ("TDCJ-ID"), at the Estelle Unit in Huntsville, Texas, where he is serving two
1

l (
A-22

Case 4:02-cv-03056 ( Document 11

Filed in TXSD on 03/31/03 Page 2 of 19

twenty-five year sentences for committing robbery in violation of state law. Cole also has
a federal conviction that is related to the robbery charges. Cole does not contest his state or
his federal conviction. Instead, he challenges the administration of his federal sentence by
the United States Bureau of Prisons. Cole's custodial history is summarized briefly below.

In January 1992, state law enforcement officers arrested Cole in Dallas County, Texas.
Cole was detained in state custody and charged with two counts of aggravated robbery in
state court cause numbers F92-33548 and F92-33571. Cole concedes that, at the time that
he committed these offenses, he was on parole from state prison for other, undisclosed
offenses. While Cole's state prosecution was underway, state officials transferred him to
federal court more than once, pursuant to a writ of habeas corpus ad prosequendum, where
he faced federal charges in connection with his crime spree.
On May 14, 1992, federal authorities filed a four-count superseding criminal
information against Cole in the United States District Court for the Northern District of
Texas, Dallas Division, charging him with two counts of obstructing or affecting commerce
by committing a robbery in violation of 18 U.S.C. 1915(a) (counts one and two); using a
firearm during the commission of a crime of violence in violation of 18 U.S.C. 924(c)(l)
(count three); and being a felon in possession of a firearm in violation of 18 U.S.C. 922(g)
and 924(a)(2) (count four). (Docket Entry No. 7, Exhibit 1, Indictment in United States v.

Cole, Criminal Action No. 92-226-T (N.D. Tex.)). On May 21, 1992, Cole entered a plea
of guilty in federal court to all four counts of the information, pursuant to a written plea

A-23

Case 4:02-cv-03056 Document 11

Filed in TXSD on 03/31/03 Page 3 of 19

agreement. (Docket Entry No. 7, Exhibit 2, Plea Agreement). Under the terms of that plea
agreement, the government, Cole, and his attorney agreed, pursuant to Rule 11 (e )( 1)(C) of
the Federal Rules of Criminal Procedure, to a sentence of twenty years in the custody of the
Bureau of Prisons. (See id.

at~

4).

The Probation Office prepared a Presentence Report ("PSR") in connection with the
federal charges filed against Cole, a summary of which reflects the following facts
underlying his offenses:
From December 21, 1991 through about January 24, 1992, Cole and
Scott Nathan Wehmhoefer were involved in armed robberies in Dallas and
Denton Counties. Cole was the trigger in several robberies and normally drove
the getaway car. The men used either Cole's white Mustang or W ehmhoefer' s
black Fiat. Typically, Wehmhoefer would enter the store, ask for change, and
then rob the clerk. Initially, the men stated that they used a toy gun. Later,
they obtained two guns from a pawn shop which were used in the later
robberies.
On December 29, 1991, Cole drove Wehmhoefer to the Eckerd' s Drug
Store located at 9735 North Central Expressway. Wehmhoefer entered the
store, approached the store employee and asked for change for a dollar. Cole
acted as lookout. When the cash register was opened, W ehmhoefer drew what
appeared to be a semi-automatic pistol, placed it against the employee's throat,
and demanded all the money in the register or he would shoot her.
Wehmhoefer was given about $50 from the register. Wehmhoefer fled from
the store and entered the getaway car driven by Cole.
On January 22, 1992, Cole purchased a .38 caliber semi-automatic
pistol and a Davis Industries P-380 semi-automatic pistol from the Forest
A venue Pawn Shop.
On January 24, 1992, Cole drove Wehmhoefer in Wehmhoefer's black
1982 Fiat to the Eckerd's Drug Store located at 2428 Gus Thomasson Road.
Wehmhoefer entered the store, approached the store employee and asked for
change for a dollar. Cole acted as lookout. When the cash register was
3

A-24

Case 4:02-cv-03056 Document 11

Filed in TXSD on 03/31/03 Page 4 of 19

opened, Wehmhoefer reached over and grabbed about $124 and then ran out
of the store. A witness saw Wehmhoefer getting into the front seat of the Fiat
driven by Cole. Wehmhoefer fired several shots from the passenger side of the
Fiat at the witness with a .38 caliber semi-automatic pistol which Cole had
handed to him. Although the witness was not struck, Wehmhoefer and Cole
were able to escape.
From December 21, 1991, through January 24, 1992, Cole and
Wehmhoefer committed about 12 robberies of primarily Kroger Food and
Eckerd Drug Stores. The total loss was about $7,694.
(Docket Entry No. 7, Appendix) (internal citations omitted). Cole does not dispute the
underlying facts set forth in the PSR.
On May 22, 1992, the day after he entered his guilty plea in federal court, Cole
pleaded guilty to both of the aggravated robbery charges lodged against him in the 292nd
District Court for Dallas County, Texas. Although the record does not disclose the sentences
that Cole received that day, if any, exhibits presented by the petitioner confirm that the State
later agreed to a motion for new trial filed by the defendant, which the trial court granted on
July 27, 1992, vacating those sentences. (See Docket Entry No. 10, Exhibits 1 & 2).
On July 30, 1992, the United States District Court for the Northern District of Texas
sentenced Cole to 240 months in the Bureau of Prisons ( 180 months on counts one and two;
60 months on count three to run consecutive to counts one and two; and 120 months on count
four to run concurrent with counts one and two), to be followed by a three-year term of
supervised release, no fine, and a $200 mandatory special assessment. (Docket Entry No. 7,
Exhibit 3, Judgment). Following Cole's sentencing in federal court, Cole pleaded guilty on
July 31, 1992, in both of his state court cases to the "reduced charge" of "robbery," and was
4

A-25

Case 4:02-cv-03056 Document 11

Filed in TXSD on 03/31/03 Page 5 of 19

sentenced to serve two, concurrent twenty-five year terms of imprisonment. (Docket Entry
No. 1, Exhibits). The state court ordered these state sentences to run concurrent with Cole's
federal sentence. (See id.). The state court further issued an order directing the Dallas
County Sheriff to deliver Cole to the United States Marshal to begin serving his time. (See

id.).
Cole reports that, initially, he was taken to a federal hold-over facility in Mansfield,
Texas. The Bureau of Prisons assigned him to the Federal Correctional Institution at Bastrop
and, later, to the Federal Correctional Institution at Three Rivers. Fourteen months into his
federal sentence, in or around October of 1993, Bureau of Prisons officials returned Cole to
state custody. He remains in TDCJ-ID.
Exhibits attached to the petition demonstrate that, in early 1999, Cole complained
about the transfer from federal custody to TDCJ-ID, asking for an explanation. In a letter
dated April 26, 1999, a Bureau of Prisons official explained that the transfer was made after
federal authorities realized that Cole had been "erroneously designated to a federal facility,"
and that he belonged to the State of Texas. (Docket Entry No. 1, Exhibit). The Bureau of
Prisons further informed Cole that, upon the completion ofhis state court sentence, he would
return to federal custody to complete his federal sentence. (See id.).
Concerned about whether he was continuing to receive "federal time credit" while in
state custody, Cole filed a request with the Bureau of Prisons, asking for a nunc pro tune
designation ofTDCJ-ID as the place of service for his federal sentence. (Docket Entry No.

A-26

Case 4:02-cv-03056 Document 11

Filed in TXSD on 03/31/03 Page 6 of 19

1, at 3 & Memorandum at 2). The Bureau of Prisons reportedly denied this request in July
of 2001. (Docket Enny No. I, at 3 & Exhibit).
On August 12, 2002, Cole filed the pending petition for a writ of habeas corpus under
28 U .S.C. 2241, challenging the administration of his federal sentence. Cole complains
that the Bureau of Prisons erred by unlawfully transferring him to TDCJ-ID after he had
already served fourteen months of his federal sentence. In particular, Cole argues that the
unauthorized transfer violates 18 U.S.C. 3231 & 3585(a). He adds that the transfer
violates due process by depriving him of the ability to serve his state and federal sentences
concurrently and by forcing him to serve his federal sentence in a "piecemeal fashion." The
respondent has filed an answer to the petition, arguing that Cole is not entitled to habeas
corpus relief. The parties' contentions are discussed below.

II.

HABEAS CORPUS PETITIONS UNDER 28 U.S.C. 2241

By Act of Congress, "[w]rits of habeas corpus may be granted by the Supreme Court,

any justice thereof, the district courts and any circuit judge within their respective
jurisdictions . .. ." 28 U.S.C. 224l(a). A petition for a writ of habeas corpus under 28
U.S.C. 2241 is the correct mechanism for challenging the manner in which a sentence is
executed. See Jeffers v. Chandler, 253 F.3d 827, 830 (5th Cir.) (comparing collateral attacks
upon a conviction or sentence based on errors at trial or sentencing, which are governed by
28 U.S.C. 2255, with habeas corpus petitions challenging the manner in which a sentence

is executed, which are governed by 28 U.S.C. 2241), cert. denied, 534 U.S. 1001 (2001).

A-27

Case 4:02-cv-03056 Document 11

Filed in TXSD on 03/31/03 Page 7 of 19

However, "[t]he writ of habeas corpus shall not extend to a prisoner unless - ... [h]e is in
custody in violation of the Constitution or laws or treaties of the United States ... ." 28
U.S.C. 2241(c)(3). Thus, the writ of habeas corpus envisioned by 28 U.S.C. 2241 is
considered "extraordinary and 'is reserved for transgressions of constitutional rights and for
a narrow range of injuries that could not have been raised on direct appeal and would, if
condoned, result in a complete miscarriage of justice. '" Kinder v. Purdy, 222 F.3d 209, 213
(5th Cir. 2000) (quoting United States v. Vaughn , 955 F.2d 367, 368 (5th Cir.1992)), cert.

denied, 531U.S.1132 (2001).

III.

DISCUSSION
A.

Exhaustion of Remedies

The Fifth Circuit has determined that a habeas corpus petitioner seeking relief under
28 U.S.C. 2241 "must first exhaust his administrative remedies through the Bureau of
Prisons." Rourke v. Thompson , 11F.3d47, 49 (5th Cir. 1993)(citing United States v. Gabor,
905 F.2d 76, 78 n.2 (5th Cir. 1990) (citations omitted)); see also Lundy v. Osborn, 555 F.2d
534, 534-35 (5th Cir. 1977) ("[G]rievances of prisoners concerning prison administration
should be presented to the Bureau [of Prisons] through the available administrative channels.
Only after such remedies are exhausted will the court entertain the application for relief in
an appropriate case.") (citations omitted). The Bureau of Prisons has established a threetiered administrative remedy procedure for federal prisoners. See 28 C.F.R. 542.10 -

A-28

Case 4:02-cv-03056 Document 11

Filed in TXSD on 03/31/03 Page 8 of 19

542.19. Administrative remedies have not been exhausted until the inmate's claim has been
filed and denied at all levels. See 28 C.F.R. 542.15; Rourke, 11 F.3d at 49.
The respondent notes that Cole has not exhausted his administrative remedies in this
case. Cole does not dispute that he has failed to exhaust his administrative remedies. Nor
does he attempt to establish that an exception to the exhaustion requirement applies.
"Exceptions to the exhaustion requirement are appropriate where the available administrative
remedies either are unavailable or wholly inappropriate to the relief sought, or where the
attempt to exhaust such remedies would itself be a patently futile course of action." Fuller

v. Rich, 11 F .3d 61, 62 (5th Cir. 1994). While the respondent stops short of waiving the
exhaustion requirement in this instance, the respondent appears to concede that the
administrative remedies established by the Bureau of Prisons are unavailable to Cole, who
remains incarcerated in TDCJ-ID, and not in federal custody. (Docket Entry No. 7, at 6).
Because the administrative remedies required by the Bureau of Prisons appear unavailable
to Cole, the Court declines to dismiss for want of exhaustion.

B.

Alleged Violations of 18 U.S.C. 3231 and 3585(a)

At the outset, Cole complains that the Bureau of Prisons' decision to return him to
state custody violates 18 U .S.C. 3231 and 3585(a). Because neither one of these statutes
provides a remedy for Cole, these claims are easily dispatched.
Section 3231 of United States Code Title 18 provides that "(t]he district courts of the

United States shall have original jurisdiction, exclusive of the courts of the States, of all

A-29

Case 4:02-cv-03056 Document 11

Filed in TXSD on 03/31/03 Page 9 of 19

offenses against the laws of the United States." Nothing in this provision governs the Bureau
of Prisons' authority to transfer a prisoner from federal to state custody or to determine that
a prisoner must serve his state sentence first before a federal sentence starts. The cases cited
by Cole do not demonstrate otherwise. (Docket Entry No. 10, at 4-5).
In support of his contention that he is entitled to habeas corpus relief for violations of
18 U.S.C. 3231, Cole cites to various cases for the proposition that, where a defendant has
been charged with violating the laws of dual sovereigns, the one assuming jurisdiction first
may, as a matter of comity, waive jurisdiction and defer to the second. See, e.g. , United
States v. Warren, 610 F.2d 680 (9th Cir. 1980); Hall v. Looney, 256 F.2d 59 (10th Cir. 1958);
United States v. Robinson, 74 F. Supp. 427 (W.D. Ark. 1947). None of these cases mention

18 U .S.C. 3231, and none establish that habeas corpus relief is available for an alleged
breach of that statute. Accordingly, Cole has not shown that he is entitled to federal habeas
corpus relief for an alleged violation of 18 U.S.C. 3231.
Section 3585(a) of United States Code Title 18 governs the calculation of a federal
term of imprisonment, providing that "[a] sentence to a term of imprisonment commences
on the date the defendant is received in custody awaiting transportation to, or arrives
voluntarily to commence service of sentence at, the official detention facility at which the
sentence is to be served." Cole appears to argue that, because he was "received in custody"
of the Bureau of Prisons following his state sentencing, his federal term of imprisonment

A-30

Case 4:02-cv-03056 Document 11

Filed in TXSD on 03/31/03 Page 10 of 19

commenced at that time, making his return to state custody illegal. Cole cites no valid
authority for this proposition.
Cole reasons that, by returning him to state custody, the Bureau of Prisons has
breached its "duty" under I 8 U.S.C. 3585(a) in some unspecified way. (Docket Entry No.
10, at 6). In support, he cites several cases which concern the calculation of a prisoner's
sentence once he is taken into federal custody. See e.g., Thomas v. Whalen, 962 F.2d 362 (4th
Cir. 1992); Pinaud v. James, 851 F.2d 27, 30 (2d Cir. 1988); Salley v. United States, 786
F.2d 546 (2d Cir. 1986). Cole also points to Pungitore v. United States, 910 F.2d 1084,
1118-19 (3d Cir. 1990), which comments briefly on a district court's authority to impose a
sentence that runs consecutive to an unexpired state sentence. None of these cases hold that
the Bureau of Prisons violates 18 U.S.C. 3585(a) when it transfers a prisoner to state
custody to begin serving a sentence there. Cole's reliance on these cases is therefore flawed.
Cole cites no authority, and the Court's research has not uncovered any, which holds
that the Bureau of Prisons has a duty under 3285(a) to retain custody of a prisoner once it
has determined that he belongs in state custody, and not in a federal facility. Accordingly,
Cole has not shown that he is entitled to federal habeas corpus relief for any alleged violation
of 18 U.S.C. 3285(a).

C.

Alleged Due Process Violations

Cole complains further that the Bureau ofPrisons has violated his right to due process.

To establish a violation of the Due Process Clause where a federal actor such as the

10

A-31

Case 4:02-cv-03056 Document 11

Filed in TXSD on 03/31/03 Page 11 of 19

respondent is involved, a petitioner must have been deprived of a liberty or property interest
protected under the Fifth Amendment. See American Mfrs. Ins. Co. v. Sullivan, 526 U.S. 40,
59, 119 S.Ct. 977, 989, 143 L.Ed.2d 130 (1999). In this case, Cole complains that the Bureau
of Prisons has violated his right to due process as follows: ( 1) by denying him the right to
serve his state and federal sentences concurrently or to otherwise designate TDCJ-ID as the
place of service for his federal sentence; and (2) by forcing him to serve his federal sentence
in a "piecemeal fashion." Assuming that a protected liberty interest is implicated by Cole's
allegations, his claims are examined separately below.
1.

Concurrent State and Federal Sentences

Cole notes that the state court ordered his state sentences to run concurrent with the
sentence imposed by the federal district court. Cole argues that, by transferring him from
federal to state custody and by refusing to designate TDCJ-ID as the place of service for his
federal sentence, the Bureau of Prisons is forcing him to serve the federal sentence
consecutive to the state sentence, denying him the right to serve his state and federal
sentences concurrently.
Although Cole's state court judgment expressly provides that his state sentences were
to be served concurrent with his federal sentence, both the written plea agreement and the
judgment entered in Cole's federal case are silent as to whether that sentence was intended
to be served concurrent with or consecutive to his state court punishment. (Docket Entry No.
7, Exhibits 2 & 3). After Cole registered a complaint about this issue with the Bureau of

11

A-32

Case 4:02-cv-03056 Document 11

Filed in TXSD on 03/31/03 Page 12 of 19

Prisons, requesting a nunc pro tune designation which would allow him to serve his federal
sentence concurrently while serving his state sentence in TDCJ-ID, officials conducted an
investigation to determine whether Cole's federal sentence was intended to run concurrent
with his state sentence. When asked by Bureau of Prisons officials whether Cole's federal
sentence was intended to run concurrent with his state court punishment, the district court
that presided over Cole's federal criminal proceeding emphasized that he intended the federal
sentence "to be served consecutive to any time spent in state custody, not concurrent."
(Docket Entry No. 7, Exhibit, Letter dated October 17, 2000).
As one circuit court has noted, "[t]he law governing prisoners subject to multiple
sentences, particularly prisoners subject to multiple state and federal sentences, is hardly a
model of clarity." McCarthy v. Doe, 146 F.3d 118, 120 (2d Cir. 1998). It is clear that, where
multiple sentences are imposed by dual sovereigns, the Due Process Clause does not entitle
a criminal defendant to concurrent state and federal sentences. See United States v. Mun, 41
F.3d 409, 413 (9th Cir. 1994), cert. denied, 514 U.S. 1077 (1995). Because a defendant has
no right to serve state and federal sentences concurrently, due process is not violated when
the government refuses him an opportunity to serve his state and federal sentences
simultaneously. See id. (citing United States v. Smith, 5 F.3d 259, 261 (7th Cir. 1993)).
Likewise, to the extent that Cole's state court judgment indicates that his state and federal
sentences are to run concurrently, it is well established that a state court judge does not have

the authority to force a state sentence to run concurrent with a federal sentence of

12

A-33

Case 4:02-cv-03056 Document 11

Filed in TXSD on 03/31/03 Page 13 of 19

imprisonment. See Taylor v. Sawyer, 284 F.3d 1143, 1151 , 1153 & n.11 (9th Cir.2002);Jake

v. Herschberger, 173 F.3d 1059, 1065 (7th Cir.1999); McCarthy, 146 F.3d at 120-21; United
Statesv. Yates,58F.3d542,550(10thCir.1995);DelGuzziv. UnitedStates,980F.2d 1269,
1270 (9th Cir. 1992); United States v. Sackinger, 704 F.2d 29, 32 (2d Cir. 1983).
In an effort to clarify the imposition of multiple sentences of imprisonment on a
criminal defendant, Congress enacted 18 U.S.C. 3584, which provides as follows:

If multiple terms of imprisonment are imposed on a defendant at the

same time, or if a term of imprisonment is imposed on a defendant who is
already subject to an undischarged term of imprisonment, the terms may run
concurrently or consecutively, except that the terms may not run consecutively
for an attempt or for another offense that was the sole objective of the attempt.
Multiple terms of imprisonment imposed at the same time run concurrently
unless the court orders or the statute mandates that the terms are to run
consecutively. Multiple terms of imprisonment imposed at different times run
consecutively unless the court orders that the terms are to run consecutively.
18 U.S.C. 3584(a). Cole notes that, in his case, the federal court imposed sentence before
the state court announced its punishment, meaning that he was not already subject to an
undischarged term of imprisonment when he was sentenced in federal court. Cole contends
therefore that the federal sentence cannot run consecutive to the later-imposed state court
sentence.
Contrary to Cole's contentions, federal courts in the Fifth Circuit have the power to
order a sentence to run consecutive to a state sentence that has yet to be imposed. See United

States v. Brown, 920 F.2d 1212, 1215-17 (5th Cir.), cert. denied, 500 U.S. 925 (1991); see

also United States v. Williams, 46 F.3d 57, 58-59 (10th Cir.), cert. denied, 516 U.S. 826

13

A-34

Case 4:02-cv-03056 Document 11

Filed in TXSD on 03/31/03 Page 14 of 19

(1995); United States v. Ballard, 6 F.3d 1502, 1506-10 (11th Cir. 1993). Other courts
disagree.' See United States v. Clayton, 927 F.2d 491 , 492 (9th Cir. 1991) (holding that
Congress did not vest federal courts with authority to impose federal sentence to run
consecutively to a state sentence that has not yet been imposed); Cozine v. Crabtree, 15 F.
Supp.2d 997, 1006 (D. Or. 1998) (fo11owing Clayton). Nevertheless, while there appears to
be a split of authority on this issue, any conflict is illusory where, as here, the federal
judgment makes no provision for the sentence is to run concurrently with or consecutive to
a state court term of imprisonment. See Romandine v. United States, 206 F.3d 731, 738 (7th
Cir. 2000). By statute, there is a presumption that "[m]ultiple terms of imprisonment
imposed at different times run consecutively unless the court orders that the terms are to run
concurrently." Id. (quoting 18 U.S.C. 3584(a)). ln other words, because Cole's federal
judgment is silent as to whether the sentence is intended to run concurrently with or
consecutive to any forthcoming state sentence, his federal sentence is presumed to run
consecutively under 18 U.S.C. 3584(a) to his state court sentence. Thus, under the facts
present in this case, Cole cannot show that the Bureau of Prisons violated due process by

In this case, Cole concedes that he relies primarily on United States v. Clayton, 927 F .2d 491
(9th Cir. 1991) and Cozine v. Crabtree, 15 F. Supp.2d 997 (D. Or. 1998). (Docket Entry No.
10, at 7). In deciding that district courts have the discretion to determine whether a federal
sentence should run concurrent with or consecutive to a forthcoming state sentence, the Fifth
Circuit has expressly declined to follow Clayton and other cases like it. See United States
v. Hernandez, 234 F.3d 252, 256 & n.5 (5th Cir. 2000); United States v. Brown, 920 F.2d
1212, 1217 (5th Cir.), cert. denied, 500 U.S. 925 (1991). Because this Court is bound by
Fifth Circuit precedent, Cole's reliance on Clayton is misplaced.

14

A-35

Case 4:02-cv-03056 Document 11

Filed in TXSD on 03/31/03 Page 15 of 19

failing to honor the state court's judgment that the state sentence run concurrent with his
federal sentence.
Likewise, Cole does not establish that the Bureau of Prisons violated his rights by
refusing to designate TDCJ-ID as the place for service of his federal sentence. The Bureau
of Prisons has broad discretion to designate the place of confinement for purposes of serving
a federal sentence of imprisonment. See Barden v. Keohane, 921 F.2d 476, 483 (3d Cir.
1990) (outlining procedures for obtaining a nunc pro tune designation from the sentencing
court to designate a state institution as the facility for service of a federal sentence). As noted
above, the Bureau of Prisons entertained Cole's request for a nunc pro tune designation of
TDCJ-ID as the facility for service of his federal sentence. The Bureau of Prisons rejected
Cole's request after the federal district court clarified that he intended Cole's federal sentence
to run consecutive to the time served on his state court convictions. (Docket Entry No. 7,
Exhibit 4). Such a decision by the Bureau of Prisons is "plainly and unmistakably" within
that agency's discretion and courts "cannot lightly second guess a deliberate and informed
determination by the agency charged with administering federal prison policy." Taylor v.
Sawyer, 284 F.3d 1143, 1149 (9th Cir. 2002), cert. denied,-U.S. - , 123 S.Ct. 889 (2003).

Because the Bureau of Prisons relied at least in part upon the intent of the federal
sentencing court in reaching its decision, this Court cannot say that it was an abuse of
discretion to refuse Cole's request for a nunc pro tune designation of TDCJ-ID as the place

for service of the federal sentence. Accordingly, Cole has failed to establish that the Bureau

15

A-36

Case 4:02-cv-03056 Document 11

Filed in TXSD on 03/31/03 Page 16 of 19

of Prisons violated the Due Process Clause in connection with its decision to return him to
TDCJ-ID or with regard to its refusal to designate that state facility as the place for service
of his federal sentence.

2.

"Piecemeal" Service of a Federal Sentence

Cole complains further that, by transferring him to state custody after his incarceration
in a federal facility for fourteen months, the Bureau of Prisons has violated his right to due
process by forcing him to serve his sentence in a "piecemeal fashion." This claim has no
merit.
There is some authority for the rule that a prisoner cannot be required to serve his
sentence in installments. See Dunne v. Keohane, 14 F.3d 335, 336 (7th Cir. 1994), cert.

denied, 511 U.S. 1149 (1994). Under this rule, the government is not permitted to delay the
expiration of a defendant's sentence either by postponing the commencement of the sentence
or by releasing the prisoner for a time and then reimprisoning him. See id. (citations omitted).
"Commonly traced in origin to the Fifth Circuit's decision in Shields v. Beto, 370 F.2d 1003
(5th Cir. 1967), this theory employs the fictive notion that by prolonged failure to incarcerate
a convict who 'owes it time' (either original or 'interrupted') a government may 'waive its
jurisdiction' to do so, thereby making any later incarceration one effected without jurisdiction
and so a violation of due process." Hawkins v. Freeman, 195 F.3d 732, 744-45 (4th Cir.
1999). There is, however, a significant culpability requirement imposed on this common law

16

A-37

Case 4:02-cv-03056 Document 11

Filed in TXSD on 03/31/03 Page 17 of 19

rule. To prevail on a claim that a sovereign has violated the rule prohibiting the incremental
service of a prison sentence,
it is not sufficient to prove official conduct that merely evidences a lack of
eager pursuit or even arguable lack of interest. Rather the waiving state's
action must be so affirmatively wrong or its inaction so grossly negligent that
it would be unequivocally inconsistent with "fundamental principles ofliberty
and justice" to require a legal sentence to be served in the aftermath of such
action or inaction.

Fabian v. Reed, 714 F.2d 39, 41 (5th Cir. 1983) (quoting Piper v. Estelle, 485 F.2d 245, 246
(5th Cir. 1973)). No such disinterest or inaction has been demonstrated here on the Bureau
of Prisons' part; nor does Cole identify any action by the Bureau of Prisons that is so
affirmatively wrong as to conflict with fundamental principles of liberty and justice. See

Fabian, 714 F .2d at 41 (explaining that, where a prisoner is merely transferred between two
sovereigns, "simple bifurcation" of sentences does not violate due process). Accordingly,
Cole has not shown that his transfer from federal to state custody violates the rule against
installment sentences. It follows that he is not entitled to federal habeas corpus relief on
these facts. Accordingly, the respondent's motion to dismiss is granted.

IV.

ADDITIONAL MOTIONS FILED BY PETITIONER

A.

Motion for Appointment of Counsel

The petitioner has filed a motion for appointment of counsel. (Docket Entry No. 8).
Habeas corpus proceedings in federal court are civil actions and, as such, there is no absolute
constitutional right to the assistance of counsel. See Pennsylvania v. Finley, 481 U.S. 551,
555, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987) ("Our cases establish that the right to appointed
17

A-38

Case 4:02-cv-03056 Document 11

Filed in TXSD on 03/31/03 Page 18 of 19

counsel extends to the first appeal ofright, and no further."); see also Browder v. Department
ofCorrections ofIllinois, 434 U.S. 257, 269, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978); Fairman
v. Anderson, 188 F.3d 635, 642 (5th Cir. 1999) (explaining that "there is no constitutional

right to counsel on habeas review"). Cole in his response to respondent's motion adequately
raised the pertinent issues, which the Court has exhaustively researched and considered.
Appointment of counsel would not further prosecution of Cole's claims. Accordingly, his

motion for appointment of counsel is denied.

B.

Motion for an Evidentiary Hearing

The petitioner has also filed a motion for an evidentiary hearing. (Docket Entry No.
9). "To receive a federal evidentiary hearing, the burden is on the habeas corpus petitioner
to allege facts which, if proved, would entitle him to relief." United States v. Tubwell, 37
F.3d 175, 179 (5th Cir. 1994) (citing Ellis v. Lynaugh, 873 F.2d 830, 840 (5th Cir.), cert.
denied, 493 U.S. 970 (1989)). An evidentiary hearing is not required if the record is

complete or the petitioner raises only legal claims that can be resolved without the
presentation of additional evidence. ld.
This Court has been able to resolve all issues raised in this case by referring to the
pleadings and exhibits filed by the parties. Because there is no issue remaining which
requires the presentation of additional evidence, Cole's request for an evidentiary hearing is
denied.
V.

CONCLUSION AND ORDER

Based on the foregoing, the Court ORDERS:

18

A-39

Case 4:02-cv-03056 Document 11

Filed in TXSD on 03/31/03 Page 19 of 19

1.

The respondent's motion to dismiss (Docket No. 7) is GRANTED.

2.

The petitioner's motion for appointment of counsel (Docket Entry No. 8) is

DENIED.
3.

The petitioner's motion for an evidentiary hearing (Docket Entry No. 9) is

DENIED.
4.

The petition for a writ of habeas corpus is DENIED, and this case is

DISMISSED with prejudice.

The Clerk will provide copies of th
SIGNED at Houston, Texas on _ _ _'-4-4---""""~::......L...=-----3

___,_, 2003.

UNITED STA

19

A-40

U.S. Department of Justice

Federal Bureau of Prisons

Program
Statement

OPI:
NUMBER:
DATE:
SUBJECT:

CPD
5160.05
1/16/2003
Designation of State
Institution for
Service of Federal
Sentence

1. PURPOSE AND SCOPE. To provide instructions for the

designation of a state institution for concurrent service of a
federal sentence.
2. SUMMARY OF CHANGES. This policy has been rewritten to comply
with the Plain Language initiative.
3. PROGRAM OBJECTIVES.
are:

The expected results of this program

a. State institutions will be designated for concurrent

service of a federal sentence when it is consistent with the
intent of the federal sentencing court or with the goals of the
criminal justice system.
b. Accurate records and accountability will be maintained by
the Regional Inmate Systems Administrator (RISA) for inmates
serving federal sentences in state institutions.
DIRECTIVES AFFECTED

4.

a.

Directive Rescinded
PS 5160.04

b.

Designation of State Institution for Service

of Federal Sentence (4/19/00)

Directives Referenced
PS 5100.07

Security Designation and Custody

Classification Manual (9/3/99)

A-41

PS 5160.05
1/16/2003
Page 2
PS 5800.07
PS 5880.28
PS 5880.30
PS 5880.32
PS 7300.09
5.

Inmate Systems Management Manual (12/24/91)

Sentence Computation Manual-CCCA (2/21/92)
Sentence Computation Manual ("Old Law" PreCCCA-1984) (7/16/93)
District of Columbia Sentence Computation
Manual (1/23/01)
Community Corrections Manual (7/22/98)

STANDARDS REFERENCED

a. American Correctional Association 3rd Edition Standards for

Adult Correctional Institutions: 3-4093 and 3-4094
b. American Correctional Association 3rd Edition Standards for
Adult Local Detention Facilities: 3-ALDF-1E-02 and 3-ALDF-1E-03
c. American Correctional Association 2nd Edition Standards for
Administration of Correctional Agencies: 2-CO-1E-04 and
2-CO-1E-05
6. MCC/MDC/FDC APPLICATION. This Program Statement applies to pretrial and holdover inmates as indicated in subsequent sections.
7. STATUTORY AUTHORITY. Authority for designating a state
institution as the place to serve a federal term of imprisonment is
found in 18 U.S.C. 3621(b), which states:
"The Bureau of Prisons shall designate the place of the
prisoner's imprisonment. The Bureau may designate any
available penal or correctional facility that meets minimum
standards of health and habitability established by the Bureau,
whether maintained by the Federal Government or otherwise and
whether within or without the judicial district in which the
person was convicted, that the Bureau determines to be
appropriate and suitable . . . ".
a. For inmates who committed the underlying offense before
November 1, 1987, a similar provision is found in
18 U.S.C. 4082(b) (repealed).
b. Federal judges have the authority to order a federal term of
imprisonment to run consecutively to or concurrently with any other
sentence. When there is a previously imposed sentence (federal or
non-federal) in existence at the time of federal sentencing, and the
federal judge does not state whether multiple

A-42

PS 5160.05
1/16/2003
Page 3
terms of imprisonment are to run consecutively to or concurrently
with one another, the sentences run consecutively
(see 18 U.S.C. 3584). (This applies only to federal offenses
committed on or after November 1, 1987.)
c. When a federal judge orders or recommends a federal sentence
run concurrently with a state sentence already imposed, the Bureau
implements such order or recommendation, ordinarily by
designating the state facility as the place to serve the federal
sentence. United States v. Hardesty, 958 F.2d 910 (9th Cir. 1992).
d. For federal offenses that occurred prior to
November 1, 1987, and there is a previously imposed sentence in
existence at the time of federal sentencing and the federal judge is
silent as to whether multiple terms run concurrently or
consecutively, the RISA will have to research the record and make a
determination regarding concurrency.
e. No concurrent designation will be considered when statutory
language mandates consecutive service or the U.S. Sentencing
Guidelines require consecutive service.
f. Authority for commencement of a sentence once a facility is
designated is found in 18 U.S.C. 3585(a) and 3568 (repealed).
18 U.S.C. 3585(a), states,
A sentence to a term of imprisonment commences on the date
the defendant is received in custody awaiting
transportation to, or arrives voluntarily to commence
service of sentence at, the official detention facility at
which the sentence is to be served.
18 U.S.C. 3568, states in part,
The sentence of imprisonment of any person convicted of an
offense shall commence to run from the date on which such
person is received at the penitentiary, reformatory, or
jail for service of such sentence.
g. Just as the federal government has no authority to prescribe
when a state sentence will commence, the state has no authority to
order commencement of a federal sentence
(see 18 U.S.C. 3585(a) & 3568 (repealed)).

A-43

PS 5160.05
1/16/2003
Page 4
8. AUTHORITY FOR DESIGNATIONS. The Bureaus authority to designate
a state institution for concurrent service of a federal sentence is
delegated to Regional Directors.
#

A designation for concurrent service of sentence will be made

only when it is consistent with the intent of the federal
sentencing court or the goals of the criminal justice system.

a. Exceptions to the general rules regarding concurrent

designation may be based on the merits of a particular case.
Information reviewed will include:
#
#
#
#
#
#

inmate discipline history,

institutional adjustment,
recommendations of the Wardens at the state and federal
institutions,
the recommendation of the prosecuting Assistant U.S.
Attorney,
intent of the federal sentencing court, if available, and
any other pertinent information regarding the inmate.

b. In the event of an exception, the above information will be

sent to the appropriate RISA who will coordinate a response.
The Regional Director is the final authority to determine
exceptions.
9.

CONCURRENT SERVICE OF FEDERAL AND STATE SENTENCES

a. Concurrent service of federal and non-federal sentences in a

non-federal institution occurs when the Bureau designates a
non-federal institution for service of the federal sentence.
Ordinarily, the reason for selecting the non-federal institution
is that primary custody resided with the non-federal jurisdiction
and the federal sentencing court intended its sentence be served
concurrently with the non-federal sentence.
b. When an inmate is sentenced in both federal and state
jurisdictions, care must be taken to ensure that he or she is
suitable for federal designation. Normally, designating a
non-federal institution for the inmate is done when it is consistent
with the federal sentencing courts intent. Ordinarily, this intent
is made known in one of the following ways:

A-44

PS 5160.05
1/16/2003
Page 5
(1) Court Order. The sentencing court orders, on the Judgment
& Commitment Order or the Judgment in a Criminal Case (J&C), that
the federal sentence be served concurrently with a state sentence.
The court may make clear its intent by using language similar to:
#

"Said sentence to run concurrently with the state sentence

the defendant is presently serving."

"Sentence to run concurrently with sentence imposed under

Docket 168-88, San Diego County Court, on
May 14,
1988."

"Sentence is hereby ordered to run concurrently with any

other sentence presently being served."

Sentence to begin immediately.

(2) Court Recommendation of Non-Federal Confinement. The

sentencing court recommends a non-federal institution as the place
of confinement on the J&C. Most J&Cs have a preprinted area for
recommendations with language similar to: "the court makes the
following recommendations to the Bureau of Prisons...
If the inmate was in primary non-federal custody, (i.e.,
produced on writ), and the court uses the preprinted phrase and adds
the name of a state institution, this will be accepted as a court
recommendation for concurrent service. This wording could also
appear in the body of the J&C.
(3) Concurrent Service of Sentence After Imposition.
The
court may, from time to time, order concurrent service of the
federal sentence at some time after its imposition. This may occur
when primary jurisdiction resided with the state and the court
believed mistakenly that the inmate was in federal custody for
service of the federal sentence on the date of imposition.
(4) Inmate Request. Occasionally, an inmate may request a
nunc pro tunc (i.e., occurring now as though it had occurred in the
past) designation. As a result of the decision in
Barden v.
Keohane, 921 F.2d 476 (3rd Cir. 1990), the Bureau considers an
inmate's request for pre-sentence credit toward a federal sentence
for time spent in service of a state sentence as a request for a
nunc pro tunc designation.

A-45

PS 5160.05
1/16/2003
Page 6
(a) In Barden, the court held that the Bureau must consider
an inmate's request for concurrent service of the state and federal
sentences.
#

However, there is no obligation under Barden for the

Bureau to grant the request by designating a state
institution retroactively as the place to serve the
federal sentence.

(b) This type of request will be considered regardless of

whether the inmate is physically located in either a federal or
state institution. Information will be gathered, if available, to
include:
#
#
#

a copy of the federal and state J&Cs,

the state sentence data record to include jail
credit, and
any other pertinent information relating to the
federal and state sentences.

(c) In making the determination, if a designation for

concurrent service may be appropriate (e.g., the federal sentence is
imposed first and there is no order or recommendation regarding the
service of the sentence in relationship to the yet to be imposed
state term), the RISA will send a letter to the sentencing court
(either the Chambers of the Judge, U.S. Attorneys Office, and/or
U.S. Probation Office, as appropriate) inquiring whether the court
has any objections. Regardless of where the original inquiry is
directed, the U.S. Attorneys Office and U.S. Probation Office will
receive a courtesy copy.
(d) If, after 60 days, a response is not received from the
sentencing court, the RISA will address the issue with the Regional
Counsel and a decision will be made regarding concurrency.
(e) No letter need be written if it is determined that a
concurrent designation is not appropriate. If the court has
indicated previously that its language on judgments is sufficient
for designation of a state institution for service of the federal
sentence, then no further letters need be written.
When the original sentencing judge is no longer available and
the assigned judge offers no opinion, the RISA will make a
determination based on the particular merits of the case. (Refer to
Section 8.a. for more information.) The RISA will notify the inmate
of the decision in writing and place a copy of this notification in
the J&C file.
(f) The Bureau will not allow a concurrent designation if
the sentencing court has already made a determination regarding the
order of service of sentence (e.g., the federal sentencing court
ordered the sentence to run consecutively to any other

A-46

PS 5160.05
1/16/2003
Page 7
sentence, or custody in operation, during any time in which the
inmate requests concurrent designation).
(5) State Request. Occasionally, a Regional Office receives a
request from a state jurisdiction indicating that the
state and federal sentences are to be served concurrently, whether
by state court order or department of corrections referral.
(a) The RISA will gather and review all information
pertaining to the federal and state sentences. After reviewing this
information carefully, if necessary, the RISA will correspond with
the federal sentencing court to ascertain whether it has any
objections to the federal and state sentences running concurrently.
A courtesy copy of this correspondence will be forwarded to the
appropriate U.S. Attorney. (The same procedures apply as outlined
in subsections 4.c. and d., Inmate Request.)
(b) If the court has no objections, the state institution
may be designated as the place to serve the federal sentence
concurrently with the state sentence, according to the procedures
detailed in this Program Statement.
Note:

The Bureau will not, under ordinary

circumstances, such as overcrowding in a state
institution, accept transfer of the inmate into
federal custody for concurrent service.

10. RESPONSIBILITIES. The following procedures are to be used when

a state institution is designated for the concurrent service of
federal and state sentences. (See the Security Designation and
Custody Classification Manual for procedures when a federal inmate
transfers from a federal to a non-federal institution for concurrent
service of a federal and state sentence.)
a. Notification to Regional Director. The Regional Director, of
the region where the state institution is located, will be
notified of the federal court's order that the federal sentence run
concurrently with the state sentence. This notification will
be received from the Community Corrections Manager (CCM). The CCM
forwards the Regional Office a copy of:

A-47

PS 5160.05
1/16/2003
Page 8
#
#
#
#
#

the
the
the
the
any

inmate's J&C Order,

federal register number,
U.S. Marshals Tracking Form (USM-129),
Pre-Sentence Investigation Report (PSI), and
other available pertinent information.

b. Designation. The RISA, through the Regional Director, may

make a nunc pro tunc designation to the non-federal institution
using a letter to the U.S. Marshals Service (USMS)(Attachment A).
(1) As part of the designation process, a date is specified
nunc pro tunc (i.e., occurring now as though it had occurred in the
past) as the effective date the sentence will begin.
(2) Specifying a nunc pro tunc designation ensures that time
lost in administrative processing is not passed on to the inmate.
It is this designation that allows the federal sentence to commence.
(3) As the recommendation for concurrent service, in most
cases, is received after the imposition of sentence, the nunc pro
tunc designation will normally be effective from the original date
of sentencing, unless otherwise indicated in the subsequent order.
(4) Since the inmate is primarily in state custody, all
decisions regarding confinement and classification are at the sole
discretion of the state authorities. A copy of the letter will be
forwarded to the USMS in the district where the state institution is
located as notification to lodge a detainer.
(5) The letter, along with sentence computation data sheet,
will be mailed to the appropriate state department of corrections;
an informational copy will be sent to the USMS in the sentencing
district; and a copy to the U.S. Parole Commission (USPC), if
appropriate. A copy of the letter will be placed in the J&C file,
maintained by the appropriate RISA. The sentence computation data
sheet will also be mailed to the inmate.
(6) Should the court order concurrent service of the federal
sentence after the inmate is received in federal custody, the RISA
will determine whether a nunc pro tunc order is appropriate.
(7) By action of a nunc pro tunc order, the Federal sentence
may commence on the date of its imposition or on a
subsequent date that will not cause the inmate to be a late release
by virtue of the nunc pro tunc order.
(8) Should a nunc pro tunc designation be granted, a thorough
review of jail credit (Willis/Kayfez) must be conducted as outlined
in the sentence computation manuals.
(9)

If the nunc pro tunc designation results in a date that

A-48

PS 5160.05
1/16/2003
Page 9
would make the inmate "past due" for release, such designation will
be retroactive to a point in time that the sentence, when calculated
in the same manner as any other sentence, results in a release date
that affords the institution time to conduct normal release
processing.
(10) If the D.C. Superior Court recommends designation of a
state institution for service of a D.C. sentence, the RISA in the
appropriate region will gather and review all information pertaining
to the D.C. sentence. If it is determined that a nunc pro tunc
designation is warranted, a copy of the designation letter along
with other relevant information will be forwarded to the D.C.
Records Center (DCRC) for computation of the D.C. sentence. The
DCRC will maintain an administrative file, compute the sentence, and
will be responsible for all computation updates.
Should an update be required to the D.C. state concurrency
sentence computation, the RISA will provide all appropriate
documentation to the DCRC. Once the DCRC updates the sentence
computation, they will notify the RISA via GroupWise.
c. Files. The RISA is to maintain a file on all state
concurrency cases. Each file will contain the following:
#
#
#
#
#

the J&C Order,

the USM-129,
a copy of the letter to the USMS (Attachment A),
the PSI, and
a signed/certified copy of the Sentence Data Computation
Sheet.

(1) When the inmate satisfies the federal sentence, copies of

release certificates, as well as the notifications to state
authorities, the USMS, U.S. Probation Office, and the USPC, will be
placed in the file. Concurrency files will be retained until the
sentence expires and then they will be sent to the appropriate
Federal Records Center in accordance with the Inmate Systems
Management Manual.
(2) If the inmate is eligible for parole, the RISA will send
the following to the USPC:

A-49

PS 5160.05
1/16/2003
Page 10
#
#
#
#
#
#

the letter to the USMS (Attachment A),

the J&C Order,
the USM-129,
the PSI,
a copy of the Sentence Data Computation Sheet, and
any other available pertinent information.

(3) If a copy of the inmate's PSI is not provided in the

designation packet, the RISA will request a copy from the U.S.
Probation Office.
d.

Sentence Computation.
#
#
#
#

The RISA is responsible for:

computing the inmate's sentence (with the exception of

D.C. Code sentences),
posting awards of Extra Good Time (EGT),
notifying the USMS and the state department of corrections
of the inmate's release date, and
completing all necessary SENTRY transactions.

(1) The RISA has the final approval for state recommendations
for EGT. EGT awards for inmates in state institutions must be
consistent with the requirements for those in federal institutions
(see the sentence computation manual).
(2) The maximum amount of Statutory Good Time (SGT) or Good
Conduct Time (GCT) an inmate is entitled to receive will be awarded
unless documentation provided by state authorities recommends a
forfeiture of SGT or disallowance of GCT based on the inmate's
behavior.
After reviewing the documentation provided by the state, the
RISA will determine, in consultation with the Regional Discipline
Hearing Administrator or Regional Counsel, whether some or all of
the SGT or GCT should be forfeited/disallowed.
e.

Release

(1) Should an inmate be released from the non-federal

jurisdiction before the statutory release or parole date of the
federal term of imprisonment, the USMS will assume custody. The
USMS may request designation from the respective CCM 30 days prior
to assuming custody of the inmate. The USMS must provide
documentation verifying the completion of the state sentence. The
RISA is then to forward all inmate files (Central, Medical, and J&C)
to the designated federal institution.

A-50

PS 5160.05
1/16/2003
Page 11
(2) If the federal term expires prior to the inmates release
from the non-federal jurisdiction, the RISA is to notify the state
department of corrections, the USMS, and the USPC (if necessary).
The RISA will complete the appropriate release paperwork as it
pertains to the confinement portion of the federal sentence. Upon
receiving the release notification, the USMS will withdraw the
detainer.
f. Monitoring. The RISA will establish a system to monitor
release dates of concurrent sentences so that timely notification
will be made to state authorities, the USMS, and the USPC (if
necessary). This may be accomplished by using:
#
#
#

a SENTRY release roster,

a log, or
any other method that enables the RISA to monitor release
dates.

(1) The USPC will prepare certificates for inmates scheduled

for release on parole. The RISA will ensure that any parole
certificates received on a state concurrency case are accurate and
any discrepancies are reported to the USPC. Normally, the RISA
prepares the mandatory release and special parole term certificates.
For the completion of any other release paperwork, refer to the
Inmate Systems Management Manual. For information on fines and
restitution, refer to the appropriate program statements.
(2) A term of supervised release that follows a federal
sentence will not commence until the inmate is released from all
periods of confinement. When an inmate has a term of supervised
release and the federal sentence expires prior to the state term,
the RISA will ask the state authorities to notify the U.S. Probation
Office 30 days prior to release from state custody. The RISA will
forward a courtesy copy of the request to the U.S. Probation Office.
g. Primary Jurisdiction. When it has been determined an inmate
was committed improperly to federal custody and primary jurisdiction
resides with a state sovereign (i.e., the inmate was under
jurisdiction of the federal sentencing court on the basis of a writ
of habeas corpus ad prosequendum), institution staff,
through the RISA, will make every effort to return the inmate to
state custody.

A-51

PS 5160.05
1/16/2003
Page 12
A return to the state means that the federal sentence should be
considered as not having commenced since transfer to the Bureau was
in error and the prisoner should have been returned to the state
after federal sentencing as a required condition of the federal writ
(see Crawford v. Jackson, 589 F.2d 693 (D.C. Cir. 1978)). The
federal J&C will be lodged as a detainer, through the USMS, with the
state authorities. If the federal court recommends concurrent
service of the federal and state sentences, the case should be
referred to the appropriate RISA.

/s/
Kathleen Hawk Sawyer
Director

A-52

PS 5160.05
1/16/2003
Attachment A, Page 1
Sample Letter to U.S. Marshal
Date
Inmates Name
Register Number
Docket Number
Offense
Sentence
Judicial District
Sentence Begins
Release Date
Designated Facility

:
:
:
:
:
:
:
:
:
:

U.S. Marshals Service

District of Maryland
605 U.S. Courthouse
101 West Lombard Street
Baltimore, MD 21201

Maryland Dept. of Corrections

6776 Reisterstown Road
Suite 310
Baltimore, MD 21215-2341

Attn: Criminal Desk

The United States District Court that sentenced the above individual
recommended that the federal sentence run concurrently with the
state sentence. To make this possible, I have designated the above
facility for service of the federal sentence.
Please lodge and maintain a detainer with the local authorities for
the duration of the federal sentence. The date indicated above is
the projected release date.
Please request that state authorities notify you 60 days in advance
of any release from state custody, or in the event the
inmate escapes, dies, or is transferred.
Upon notice of release from state custody, please request federal
designation through the Community Corrections Manager in your
district.
I understand that no charge will be made to the federal government
during the time the inmate is in service of the state sentence.
Sincerely,

Regional Director
STATE CORRECTIONAL AUTHORITY: This is for notification purposes
only and does not limit your discretion in any decision affecting
this offenders classification, work, and quarters assignments or
other treatment and programs.

A-53

PS 5880.28
(CN-03) February 14, 1997
Page 1 - 31
e. Multiple Sentences of Imprisonment. The statute that
governs the manner in which multiple sentences of imprisonment
may be imposed is 18 U.S.C. 3584.
*

(1)

Subsection (a) of Section 3584 states,

(a) Imposition of concurrent or

consecutive terms.--If multiple terms of
imprisonment are imposed on a defendant at
the same time, or if a term of imprisonment
is imposed on a defendant who is already
subject to an undischarged term of
imprisonment, the terms may run concurrently
or consecutively, except that the terms may
not run consecutively for an attempt and for
another offense that was the sole objective
of the attempt. Multiple terms of
imprisonment imposed at the same time run
concurrently unless the court orders or the
statute mandates that the terms are to run
consecutively. Multiple terms of
imprisonment imposed at different times run
consecutively unless the court orders that
the terms are to run concurrently.
The Bureau of Prisons interprets the phrase,
"an undischarged term of imprisonment," as applying to any
lawfully imposed federal or state, local or foreign (non-federal)
sentence or revocation of a conditional release term (probation,
supervised release, parole, etc.).
*
The legislative history for this subsection
states that,
. . . if the court is silent as to whether
terms of imprisonment imposed at the same
time (emphasis added) are concurrent or
consecutive, the terms run concurrently
unless a statute requires that they be
consecutive. If, on the other hand, multiple
terms of imprisonment are imposed at
different times (emphasis added) without the
judge specifying whether they are to run

A-54

PS 5880.28
(CN-03) February 14, 1997
Page 1 - 32
concurrently or consecutively, they will run
consecutively unless the statute specifies
otherwise.
This subsection allows the court flexibility
in sentencing when multiple terms of imprisonment are imposed and
codifies the rules to follow if the court remains silent.
*
Sentences that are imposed as the result of a
single trial on the counts within a single indictment are
considered to have been imposed at the same time, regardless of
whether they are imposed at different times on the same date or
on a later date.
Sentences that are imposed on the same date,
or on different dates, based on convictions arising out of
different trials, are considered to have been imposed at
different times even if the trials arose out of the same
indictment.
The court's sentencing flexibility, in
addition to applying to federal undischarged terms of
imprisonment, also extends to those prisoners who have nonfederal undischarged terms of imprisonment.
The court may, for a prisoner who is serving
a non-federal undischarged term of imprisonment while "on loan"
to the federal government under the jurisdiction of a federal
writ of habeas corpus ad prosequendum, impose the federal
sentence to run concurrently with, or consecutively to, the other
undischarged term of imprisonment. Upon receipt of the judgment

A-55

PS 5880.28
(CN-03) February 14, 1997
Page 1 - 32A
and commitment from the U. S. Marshals' Service that orders the
federal sentence to be served concurrently with the non-federal
sentence, the RISA shall, in accordance with 18 U.S.C. 3621(b),
designate the non-federal facility as the place to serve the
federal sentence and complete the other procedures required by
the Program Statement on Designation of State Institution for
Service of Federal Sentence, for executing this type of
concurrent sentence.
On occasion, a federal court will order the
federal sentence to run concurrently with or consecutively to a
not yet imposed term of imprisonment. Case law supports a
court's discretion to enter such an order and the federal
sentence shall be enforced in the manner prescribed by the court.
If the just imposed federal sentence is ordered to run
concurrently with a non-existent term of imprisonment, then the
RISA shall designate the non-federal place as the place to serve
the federal sentence as of the date that the federal sentence was
imposed. If the federal sentence is silent, or ordered to run
consecutively to the non-existent term of imprisonment, then the
federal sentence shall not be placed into operation until the
U.S. Marshals' Service or the Bureau of Prisons gains exclusive
custody of the prisoner.
Regardless of whether the court orders the
federal sentence to be served consecutively to, or concurrently
with, the non-federal non-existent or undischarged term of

A-56

PS 5880.28
(CN-03) February 14, 1997
Page 1 - 33
imprisonment, the prisoner shall be returned to the non-federal
jurisdiction until the prisoner is released (completes the
undischarged term of imprisonment) from the non-federal term.
Federal courts sometime order a portion of
the federal sentence to run concurrently with or consecutively to
another federal sentence or a non-federal sentence. The Bureau
of Prisons will attempt to accommodate a court's intent as fully
as possible. Since the possible number of ways of imposing a
portion of a sentence concurrently with or consecutively to
another sentence are numerous, staff should refer such sentences
to the RISA for assistance.
*
(2) Subsection (c) of Section 3584 provides the
rules for the treatment (calculation) of multiple sentences and
states,
Multiple terms of imprisonment ordered to run
consecutively or concurrently shall be
treated for administrative purposes as a
single, aggregate term of imprisonment.
*

This statement means that SRA sentences,

including a term of imprisonment that results from a revocation
of supervised release or probation, shall be aggregated to form a
single sentence for computation purposes. Those sentences that
were imposed, however, on or after November 1, 1987 (the
effective date of the SRA) but prior to the Supreme Court
decision in Mistretta January 18, 1989 (during which some courts
held that some or all of the SRA was unconstitutional, shall not
be aggregated with valid SRA sentences. A sentence that is, or
was, imposed for an offense that occurred prior to

A-57

(' ~O 245 S (Rev. 4J9O) Sheet 1 Judgment in I!I Crii.:

'--

o
'

Case

'.)1

J;

~ Itniteb ~tatt~ lli~trict ~ourt

_ _---=-N.:,: O:.;.,:RT..:. .:H. :;:E:. :. :R: .:. N_ _ _ District

of _--=..;TE=..:.X::..,:A=.S.....!a:....:t:........=..:Da::....:l~l.:::.:as:::.--_

JUDGMENT IN A CRIMINAL CASE

. UNITED STATES OF AMERICA

(For Offenses Committed On or After November 1, 1987)

V.
PATRICK GLENN COLE (0.1)

Case Number:

3:92-CR-226- T
Russ Henrichs

(Name of Defendant)

Defendants Attorney

THE DEFENDANT:
!I pleadedguiltytocount(s) One (1), Two (2), Three (3), and Four (4) _ _ _ _ _ _ _ _ _ .
wClsfoundgu!ltyoncoL!nt(s) _, ___. __.~_ .... ___ -..:_-.-.--------. - - - - . - - . - - . after~.
plea of not guilt~'.
.

. Accordingly, the defendant is adjudged guilty of such count(s), which involve the following offenses:
Date Offense
Concluded

Nature of Offense

Title & Section

18 USC Section 1951(a).

.~

. Robb~ry affecting commerce

Count
Number(s)

.,

One (1)
Two (2)
Three (3)

12/91

'.

18 USC Section 924(c)(1)

Possession of Firearm during

Crime of Violence
Possession of Firearm by

01/92

18 UsfrSe!4ion. 922(g)(l)
01/92
Four (4)
_ _ _.@.'d.i-Seaj.o~-92.4~-aJ-(-2-)--,Con.vj.c.ted-Ee-1on----~------------------

~;~~ ~ .)~
- - ; II

~.!.! j":':'

O~J

'.:.)><:;

.:.:: UJ

{Tij~ de+enda~O$ sentenced as provided in pages 2 through __4__ of this judgment. The sentence is

imJ:i6Se:C:I'p~uanfto the Sentencing Reform Act of 1984..

o
00

00

:.

.:..-;~

c:s

,)

Th~:ctefenda.n}

. .

has been found not guilty on count(s) _ _ _ _ _ _ _ ..:...._ _---:':~--__:__---_

an~ris drcharg~d.as to such COUl1t(s)..
~1ay 14, 1992
X)OOHt~
Or1 91 na 1 Informatl0n' f11ed
(is)(l8X) dismissed on the motion of the United States.
It is ordered that the defendant shall pay a special assessment of $200.00 .
' for count(s) ,
One, Two, Three, and Four
,which shall b~ due [] immediately 0 as follows:

f~! thisaRftrict within

IT IS FURTHER ORDERED that the defendant shall notify the United States att0"l~e
30 days of any change of name, residence, or mailing acitf&m.~~I-tines,<rellJitQffdrP,m~7~~pecial
assessments imposed by this judgment are fully paid.
on :file in my offi 08 ,:nTJ <:! ~.::
_ ..... : ...m r"'fl-'y'
," .1.' 0. r:r ~ -.J.~). 1. -).') t
, N Al""Y l)0.,~.L\
, v
~

ri:t

Defendant's Soc. Sec. No.:

567-08-8714

r ....'..;"

...

Defendant's Date of Birth:

October 13, 1967

A-58

C "

Cou.ct, UoXtt'l'lrn DJ,.Jq1..J.

.'a

t ... '~'

OJ

_.V.L.

':~.iCas

i):puty

AO 245 S (Rev. 4/90) Sheet 2 Imprisonment

Judgment-Page _=2_ of _-,,-4_

Defendant:
PATRICK GLENN COLE (01)
Case Number: 3:92-CR-226- T

IMPRISONMENT
- --

-.~

The defendant is hereby committed to the custody of th,e Untted States Bureau of Prisons to be imprisoned for
a term of .
Two hundr(~d forty \ 240) months'
,

Count 1 and 2
Count 3
Count 4

180 months to run concurrent with each other.

60 months to run consecutive with counts 1 and 2

120 months to run concurrent with counts 1 and 2

Defendant to receive credit for time in custody.tnthis case.

o The court makes the following recommendations to.the Bureau of Prisons:

- - - - - - - ._.---_. - - - - - - - - - - - - - - - - - - - - - - - - - =
II

The defendant is remanded to the custody of the United States marshal.

r:::::: The defendant shall surrender to the United States marshal for this district.

=
=
= =
=
=

a.m.
at
p.m. on ,_._ _ _ _ _"--______
as notified by the United States marshal.
The defendant shall surrender for service of sentence at the institution designated by the Bureau of Prisons.
before 2 p.m. on _ _ _ _ _ _ _ _ __
as notified by the United States marshal.
as notified by the probation office.

I have executed this judgment as follows:

Defendant delivered on ________

to

_____________________

_________ at

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ with a certified copy ~f this judgment.

United States Marshal

By~_--__~-~-----------Deputy Marshal

A-59

Cerendant: PATRICK GLENN' LE (01)

Case Number: 3:92-CR-226-"
SUPERVISEO RELEASE

. ddgment-Page __3__ of __4

__

upon release from imprisonment, the. defendant shall be on supervised release for a term of'- -'- -_ _
.. Ibree ( 3L y;ea t'-s

While on supervised release, the defendant shall not commit another federal, state, or local crime and shall not
illegally possess a controlled substance. The defendant shall comply with the standard conditions that have been
adopted by this court (set forth below). If this judgment imposes a restitution obligation, it shall be a condition of
supervised release that the defendant pay any such restitution that remains unpaid at the commencement of the
term of supervised release. The defendant shall comply with the following additional conditions:

X The defendant shall report in person to the probation office in the district to which the defendant is released
within 72 hours of release from the custody of the Bureau of Prisons.

::::J Th.a defendai It shaii pay any fines that remain unpaid at the commencement of the term of supervised release.
~ The defendant shall not possess a firearm or destructive device.

The defendant shall participate in a program approved by the U.S, Probation Office
for treatment of narcotic or drug or alcohol dependency which will include testing
for the detection of substance .use or abuse', Based on the defendant I s present and
projected ability to pay, he is not ordered to reimburse the government for expenses,
The defendant shall participate jn ~ mental health treatment program as approved
and directed by the probation offjca~.
STANDARD CONDITIONS OF SUPERVISION
While me defendant is on supervised release pursuant to this judgment. the defendant Shall nol commit another federal. state or local crime. In additIOn:
1) the defendant shall not leave the judicial district without the permission of the court or probation officer:
2) tile defendant shall report to the probation officer as directed by the court or probation offqr and shall submit a truthful and complete written report W11T1,n
the first five days of each month:
31 tile defendant shall answer truthfully all inquiries by the prObation officer and follow the instructions of the probation officer:

41 the defenaant shall support his or tier dependents and meet

o~her

famil'! reSlYlnsibilities;

5; :1',,, a,.~;,=r~;;.m ",....1I ..-on, r69uia.ty at a lawful oc:cupatt:JH unle;s :~xcUsed by ttre prooation officer for sd'looIing. training. or other acceptable rea,sons
6) the defenda.nt shall notify the probation officeI' within 72 hours ot any change in residence or ef'l'1P/oyment:

71 tl1e detendam shall refrain from excessive use ot alcohol and shaH not purchase. possess. use. distribute. or administer any narcolre or other controllec
substance. or any paraphemalia related to such substances. except as prescribed by a phySician;
8) the defendant shall not IreQuent places where controlled subslanees are illegally sold. used. distributed. or administered:
9) 1I1e defendant shall not aSSOCiate with anypersons engaged in criminal activity. and shall not associate with any person convicted of a felony unless
granted permiSSIOn to do so tly the probation officer;
'.10) the defendant shall permjJ a probation officer to visit him or her at any time at home Of elsewhere and shall permit confrscatlQll of any co'ltraband observ~:::
In pIa," view by tne prObatIOn offlGo!r;
1I I the defendant shall notify the probation officer within seventY-two hours of being arrested or nl . .ctin .....-!:'y ~~ -.;;t.o' ....!'lenl dTfrcer;
12) thed.l!~otI"nt ~-an:er i,"utlny agntement to act as an informer or a s,?eCial agent of slaw enforcement agency withOut ttIe permls~ of the cou~.
13) as directed by the probation officer. 1M defendant snail notiiy third parties of ri$ks that may be occasioned by the detendant's criminal r8COfCl or per$Ol'lll
hiStory or charactenstics. and shall penniI the probation offictlr to meke such notifications and to contirm the ~'S complratq WIth SUCtI nOtlhcaloOD
requirement.

.I.IC;~,W"'"""",

A-60

....;. .. .'

--

..
Dt:.lendant:

PATRICK GLENN COi.. ,01)

3 :92-CV-226-T

JC... ",.nent-Page

::..!::,!.:...;..:..~-==--":.

4 . of

Case Number:

-::

4
---

STATEMENT OF REASONS

0Xt The court adopts the f2c!ual

fj~dings

and guidetine appTication in the presentence report.

OR

: . The court adopts the factual findings and guideline application in.the presentence report e~ept
(see attachment, if necessary):

Guideline Range Determined by the Court:

Total Offense Level: _ _ _--..;;;2;;..;:.5_ _ __
Criminal History Category: _ _V_I_ _ _ __
Imprisonment Range: 110

to 137

months

pl us mandatory 60 months

Supervised Release Range: _2_ to _3_ years

Fine Range: S 25,000

a;

to $ 250,000

Fine is waived or is below t.he guideline range, because. of the defendant's inability to pay.

Restitution: S

o Full restitution is not ordered for the following reason(s):

o The sentence is within the guideline range, that range does riot exceed 24 months, and the court finds no
reason to depart from the sentence called for by application of the guidelines,
OR

o The sentence is within the guideline fc.ngn th?~~':?r\g~ exc~ec!s 2~rno!l!hs, and
for the j~Jiiowing re~lson(s): . .
..

t:19 se!1t(!l1C'2

is imposed

OR

The sentence departs from th,e guideline range

uupon motion 01 -me government, as a resolt 01 aelendanfs substantial assistance.

IKJ for the following reason(s):
The Court grants upward departure based on:
(1) The witness was shot at several times and the weapon used was provided by the
defendant.
(2) the criminal history does not adequately represent the probability that the
defendant will commit another offense.

A-61

Case 4:02-cv-03056 Document 1

Filed in TXSD on 08/12/02 Page 9 of 17

Drawer !17

Cause No. ~q~ - "i ~>'ff

IN THE
_<h.NOf (/ .,...( 1' l. 1::a;;g:
DISTRICT COURT
DALLAS COUNTY, TEXAS

THE STATE OF TEXAS

vi?EJrrz.,'t.J!,,

Gllf'NN

PLEA B
TO THE DONORABLE JUDGE OF

GAIN AGREEMENT

\s~~~. G!JU~~.:

~-

Comes now Defendant, Counsel for Defendant, and Counsel for State
herein and would show that a plea bargain agreement has been entered
into between the undersigned, and that under the terms of said agreement the defendant agrees and requests that a presentence investigation report not be made, and both sides agree they will waive their
right to a jury trial and agree to and recommend the following:
Defendant will plead

guilty

contendere

will not testify

Defendant will testify

/

- - - - - - nolo
years

confinement in Penitentiary for

confinement in a communiLy correctional facility for

days
confinement in Dallas County Jail Eor ----days
fine of $ _ _ _ _ _ _ __

i../

-~;;,,,._

NO PROBATION
PROBATION TO BE GRANTED FOR
years subject to all
the terms and conditions imposed by the trial court.
Further, the judge, as~provided by Article 42.12, Sec. li
V.A.C.C.P., may at anytime during the period of probation
alter or modify the conditions.
supervised work or community service for
hours as
provided by Article 42.12, Sec. 16 and 17 V.A.C.C.P.
SHOCK PROBATION TO BE GRANTED
days after sentence,
subject to good behavior of defendant while incarcerated.
participation in SPECIAL

v'

ATIVE INCARCERATION PROGRAM;

:::::::::::~::~ ;_g_~_~_n. !~" :" ~

~" 'Pl~~'':~'~ 1'rence::~; c

...e_n_d""'a"""""".

~J1\.

Conviction to be as follows:

V Felony
- - - - Non-conviction Deferred
Probation

'!!r

"'

Misde

nor

f.-

12..e-rv

Defendant's back time date is:

Additional provisions of the agreement are:

~,4y..G<.

~c~k, vvifr. 1!-fb~tf ~ U,vicf-.'o,.,

cc~A

"'Lwni.d.

)=4i..-"P.::ii;..

The undersigned certify they have read the terms of the above agree-

~ii&~;~:~~=~ly contaio.
By

ll

~;Lement

1'-<bf:Y
1( ._J~l;?
Assistant District Attorney

Counsel for Defendant

Defendant's agreement and request that a presentence investigation

report not be made is hereby approved by the Court.
If a victim
impact statement has been returned to the State, a copy of said
statement shall be turned over to the Court by the State's attorney
prior to the Court's acceptance of this pl~~
Rev.

a;91

A-62

JuDG~......,../

.n
. I
Case 4:02-cv-03056 r-Document
1
I

Filed in TXSD on 08/12/02 Page 10 of 17

r.:):;r,

~'

, 1'\'T;:;w:1:
'

, ..

,, s .,. -----

--

M --- - - D.
M -- D

y ------ M ---

------- ', -

!1 ---

!"!: 1.'.

Ji Tf('
~l~D--i..,-l'R>Bl\TED
. H .Jl\JI,

"f~Cn/ITI:n

D ,T]\f"
---:
f)

'

. --:-~: ;,;''.;' -,,., '

MNT
.

------- ----- ----

f',E; [ffT'~'"'!'
I' ' m~
1'1;'r.1 :J
'PR!M, " ' " "":' - .
" ' - ,. ,,. '!'\Ml. LI
__ ------ E'DR NRW
"" wfeEDeRO.- - ,.
'Al rn:DJ'
-'MD'l'JON
TD C>JN ''
--0
J___ T'iil'Yi\Ji;,Ji'S'OI :',';' Mh'5HOLT,' ORliT
RF.11111<
"S Q'/"F"'
----QI,""
qo O!WP.Rfo.n
08P , ReLR"RD TO
"
- - - ------------

--~""
~~===---==~~=~---------- --

"'';~~~ _;-,,, ;
~fU\NT(m'
m , ,

------~---

- - - - - - - -----_-:::_ ______ ..

-- ------------- ------

A-63

Case 4:02-cv-03056 Document 1

Filed in TXSD on 08/12/02 Page 11 of 17

N
.
c:p:"J~TnCN
Ol
,neorc~ C:tHJ~.... ;;o;;;>,Nfl
:1'J'T:':E:

'II\01..>f)J ""
IN JlllHt. ' .,.Y. :1:XJ1;
l)J\L l./~
... ro.m.

01)0~

II !"H)fJ

r: 1'DI'
----:-PR:)\Jl\Tgo
-- -. D
,. "" .
.
q T/\ I J.
M -fl - F11:;UJ\'l':.::l

.
M - --- - - D ~JAlL
I. --1l-.-;1 n 11 ! NF.

=-~~

MtJT

Nn~ ".'>'%F.~
" .,.. ,.,, ''

- ' . " ('!.::

"'''J'.\/r.',(
-,
....
..
. "' -- o . ......
_.. _f'f'IR
""E['
T )'Ol'' :'PIE;,
'
"CT'
ON
'
"
. "" "lNIU. 'f3J""
..., '
,,,-;;,,.
l\Li[J_,.
----- .i'[ -A11'
.<
'J'/\l f \ ,F_.,.
f "N
"
'"'""'"
<> I,.,.,,_,
"' o
;. . ".
lN
CCA
A"r
':o
"
'
.,
"
"
O!A'.
,
"
.
'
C
'""
'-r
,
.
,,
.
.
"''''"
.
Ar..\
'>I:;;
1--:1\
L.
')
l.
.
,

'oRrEl om ;:--' .,,,... ,,,.,,., "' " .

.. -.
.''\...
~:I '!'' J' '''In
1 I'X, ' i.1

~l~l\r-.r11-:n

'i"

"~

-;;~

m '" .' "

r '" , ''"'' .

.D!.:.T~r ~~IN'!'\'. '!'l:X.~:;

\

n_,1.

,-;~ ~
1

NDT.E M

uny
D}.. [;! i;,.

.-,

f!LJ~li I\

~----

---

,,.
'J

A-64

LI'

N'l'

. ,, "'
MO _ _
' !::Et -----

": ,, __
'If.-,.,._

--- --

-___ ---------

~l!i_.,__

-J - -~.--:-.-.-_-.--:-.
:I

fl

11 "IT

,.,,. ., '

.1
.. ;~,:e;~:, : fl;N -== 1

"~

ilNC

W''IC'l' CLERK
[/\LL,.. .. ..
' '
I

)((!

JI T(IC

~:

~I ___ ..

'I.
---- y

L0 I

-- .

- .- - ..-

- . -

..

---- l

~- ~
-- . --- .. _:_ __

f::"" V L Document
: L
Case 4:02-cv-03056
1
'

Filed in TXSD on 08/12/02 Page 12 of 17

...,_

NO.

F92-33548-V
292ndJudicial

THE STATE OF TEXAS

--------DISTRICT

VS.

COURT

DALLAS COUNTY,TEXAS

Patrick Glenn Cole

_ _ _J_u'"'ly.___ _ _

TERM ,A. D,

19_92_

ORDER DIRECTING SHERIFF TO DELIVER PRISONER TO UNITED STATES MARSHAL

On _ _ _J_u_..l._y.....3'--1_ _ _ _ , 19

92

, the Defendant in the above styled

and numbered cause was convicted andsentenced to

25

years confinement in the Texas Department of Corrections, and our commitment

to you shows that his sentence imposed in this case was ordered to run
concurrently with a sentence and commitment issued in cause No.
styled United States of America vs.
United States District Court for

-------- Division,

3-92-CR-226-T

Patrick Glenn Cole

District of Texas,
---------=-----entered
Northen

---~Ju~l...._~3~0.___ _ _ _ _ _ _ _~19_9_2_,

said sentence and commitment to begin

custody
of the said.Defendant
~o

deliver this

prison~r

Patrick Glenn Cole

their

to the United States

sentence and commitment.

SO ORDERED on this the

31st

day of

July

--~~-'------

SENTENCE TO BEGIN IN THE ABOVE STATE CAUSE:

DALLAS

A.D., 19 92,.
-----r

July 31, 1992

COURT
UNT

\
DIRECTING SHERIFF TO DELIVER PRISONER TO UNITED STATES MARSHAL

A-65

r. I4:02-cv-03056
. I
Case
Document 1
-

- ./:!.

Filed in TXSD on 08/12/02 Page 13 of 17

""'

NO. F92-33571-V
292nd Judicial

THE STATE OF TEXAS

--------DISTRICT COURT

vs.

DALLAS COUNTY,TEXAS

_ _ _J_u_l~y____ TERM,A.D.,

Patrick Glenn Cole

19 92

---

ORDER DIRECTING SHERIFF TO DELIVER PRISONER TO UNITED STATES MARSHAL

On _ _J:..;u;;.;;l"'"y-'3'"'1;....__ _ _ _ , 19

92

, the Defendant in the above styled

and numbered cause was convicted andsentenced to

25

~---'=-----------~

years confinement in the Texas Department of Corrections, and our commitment

to you shows that his sentence imposed in this case was ordered to run
concurrently with a sentence and commitment issued in cause No.
styled United States of America vs.
United States District Court for

3-92-CR-226-T

Patrick Glenn Cole

~-~N-o~r-th~e-n,______~

District of Texas,

Division, entered
Deft to be Sentenced 07 /30
19 __9_2_,
for the offense of ~~R~ob~b~e~r.._________________________________

------------------------------

~---------

said sentence and cormnitment to begin

NOW THEREFORE, the Sheriff

07/30/92
Texas, who now has custody

of 'the said. Defendant _____!!~~~lf.4~~~~~~~-- is hereby ordered

to deliver this prisoner
sentence and cormnitment.
SO ORDERED on this the

---31st

SENTENCE TO BEGIN IN THE ABOVE STATE CAUSE:

July 31, 1992

COURT

.. -.., lJ!RECTING SHERIFF TO DELiy-ER PRISONER TO UNITED STATES MARSHAL

A-66

Case 4:02-cv-03056 Document 1

Filed in TXSD on 08/12/02 Page 14 of 17

U.S. Oeparlmt. .. of Justice

Federal Bureau of Prisons

South Central Regional Office

4211 Cedar Swings /load, S111te JOO

/Ja//u.r, rx. 7j2 /9

April 26, 1999

Patrick Cole
State Number 493342
3060 FM 3514
Beaumont, Texas 77705
Dear

lir.

Cole:

Your letter concerning the transfer of custody from FCI Three

Rivers, Texas, to the State of Texas, has been forwarded to me
for response. More specifically, you request to know why you
were removed from the federal facility and placed with the Texas
Department of Criminal Justice.
Upon arrival at FCI Three Rivers, staff discovered that you had
originally been arrested by state law enforcement officials.
During your detention with the state, the U.S. Marshals Service
borrowed you from the state on the basis of a writ. You were
erroneously designated to a federal facility rather than
returning you to the state after sentencing. Once the staff at
FCI Three Rivers became aware, they contacted the state and
returned you to their custody. Once you are released from your
state sentence, the U.S. Marshals Service will assume custody of
you and request designation to a federal facility to begin your
federal sentence.
Sincerely,

~c--,~

Karen Weathers
Inmate Systems Specialist

A-67

Case 3:12-cv-00412-ST

Document 19-1

Filed 05/08/12

A-68

Page 2 of 2

Page ID#: 332

Case 4:02-cv-03056 Document 1

Filed in TXSD on 08/12/02 Page 17 of 17

l"''

'

~J

~1~.

,,

':
! ~

.:~~~

U.S. Department of Justice

Federal Bureau of Prisons

South Central Regional Office

421/ Cedar Springs Road, Sulle 300

Dallas, TX 75219

July 26, 2001

Patrick Cole
TDCJ NO. 493342
Estelle High Security Unit
264 FM 3478
Huntsville, Texas
77320-3322
Dear Mr. Cole:
We have received your request for concurrent (nunc pro tune)
designation of your federal sentence.
When reviewing cases for possible concurrent designation to a
state facility, we consider the available information, consistent
with Title 18, U.S.C. 3621, Imprisorunent of a convicted person.
We are also provided guidance in Program Statement 5160.04,
Designation of State Institution for Service of Federal Sentence.
In your specific case, we find commencement of your federal
sentence by way of concurrent designation not consistent with the
goals of the criminal justice system.
Concurrent designation of your federal term is denied.

z;~

Gail Haynes
Inmate Systems Administrator

A-69

SHEW3 540*23 *
PAGE 001
*

SENTENCE MONITORING
COMPUTATION DATA
AS OF 06-21-2011

REGNO .. : 23028-077 NAME: COLE,

FBI NO . . . . . . . . . . .
ARSl . . . . . . . . . . . . .
UNIT . . . . . . . . . . . . .
DETAINERS . . . . . . . .

06-21-2011
11:14:15

PATRICK GLENN

: 697641DA2
: SHE/A-DES
: UNIT. 4
: NO

DATE OF BIRTH: 10-13-1967

QUARTERS . . . . . : D05-129L
NOTIFICATIONS: YES

HOME DETENTION ELIGIBILITY DATE: 02-10-2026

THE FOLLOWING SENTENCE DATA IS FOR THE INMATK'S CURRENT COMMITMENT.
08-10-2026 VIA GCT REL
THE INMATE IS PROJECTED FOR RELEASE:
----------------------CURRENT JUDGMENT/WARRANT NO:
COURT OF JURISDICTION . . . . . . . . . . . :
DOCKET NUMBER . . . . . . . . . . . . ~ .. :
JUDGE . . . . . . . . . . . . . . . . . . . . . . . . . . . :
DATE SENTENCED/PROBATION IMPOSED:
DATE COMMITTED . . . . . . . . . . . . . . . . . . :
HOW COMMITTED . . . . . . . . . . . . . . . . . . . :
PROBATION IMPOSED . . . . . . . . . . . . . . . :

010 ------------------------

TEXAS, NORTHERN DISTRICT

3:92-CR-226-T
MALONEY
07-30-1992
10-16-1992
US DISTRICT COURT COMMITMENT
NO

NON-COMMITTED.:

FELONY ASSESS
$200.00

MISDMNR ASSESS FINES

$00.00
$00.00

RESTITUTION .. :

PROPERTY:

SERVICES:

NO

NO

COSTS
$00.00
AMOUNT:

$00.00

-------------------------CURRENT OBLIGATION NO: 010 --------------------------OFFENSE CODE .... :

540
OFF/CHG: 18:1951(A) ROBBERY AFFECTING COMMERCE (COUNT ONE & TWO)
18:922(G) (1) AND 924(A) (2) POSSESSION OF A FIREARM BY
CONVICTED FELON (COUNT FOUR)
SENTENCE pROCEDURE . . . . . . . . . . . . . : 3559 :SRA SENTENCE
180 MONTHS
SENTENCE IMPOSED/TIME TO SERVE.:
3 YEARS
TERM OF SUPERVISION . . . . . . . . . . . . :
DATE OF OFFENSE . . . . . . . . . . . . . . . . : 12-29-1991

G0002

MORE PAGES TO FOLLOW .

A-70

SHEV"73 540*23 *
PAGE 002
*

SENTENCE MONITORING
COMPUTATION DATA
AS OF 06-21-2011

REGNO .. : 23028~077 NAME: COLE,

*
*

06-21-2011
11:14:15

PATRICK GLENN

-------------------~-----CURRENT OBLIGATION NO:

020 --------~---------~-------OFFENSE CODE .... :
130
OFF/CHG: 18: 924 (C) (1) POSSESSION OF FIREARM DURING CRIME OF VIOLENCE
(COUNT 3)

SENTENCE PROCEDURE . . . . . . . . . . . . : 3559 SRA SENTENCE

SENTENCE IMPOSED/TIME TO SERVE.:
60 MONTHS
TERM OF SUPERVISION . . . . . . . . . . . . :
3 YEARS
RELATIONSHIP OF THIS OBLIGATION
TO OTHERS FOR THE OFFENDER . . . . : C/S 010 010 010
DATE OF OFFENSE . . . . . . . . . . . . . . . . : 01-24-1992
-------------------------CURRENT COMPUTATION NO:

010 --------------------------

COMPUTATION 010 WAS LAST UPDATED ON 05-07-2009 AT DSC AUTOMATICALLY

COMPUTATION CERTIFIED ON 05-14-2009 BY DESIG/SENTENCE COMPUTATION CTR
THE FOLLOWING JUDGMENTS, WARRANTS AND OBLIGATIONS ARE INCLUDED IN
CURRENT COMPUTATION 010: 010 010, 010 0.20
DATE COMPUTATION BEGAN . . . . . . . . . .
AGGREGATED SENTENCE PROCEDURE ...
TOTAL TERM IN EFFECT . . . . . . . . . . . .
TOTAL TERM IN EFFECT CONVERTED .
AGGREGATED TERl"l OF SUPERVISION ..
EARLIEST DATE OF OFFENSE . . . . . . . .

: 03-09-2009
: AGGREGATE GROUP 800
240 MONTHS
:
20 YEARS
:
:
3 YEARS
"'
: 12-29-1991

TOTAL PRIOR CREDIT TIME . . . . . . . . . :

TOTAL INOPERATIVE TIME . . . . . . . . . . :
TOTAL GCT EARNED AND PROJECTED .. :
TOTAL GCT EARNED . . . . . . . . . . . . . . . . :
STATUTORY RELEASE DATE PROJECTED:
EXPIRATION FULL TERM DATE . . . . . . . :

G0002

MORE PAGES TO FOLLOW .

0
0
941
108
08-10-2026
03~08-2029

A-71

, SHEl1!3 540*23 *
*
PAGE 003
REGNO .. :

23028~077

SENTENCE MONITORING
COMPUTATION DATA
AS OF 06-21-2011
NAME: COLE,

*
*

06-21-2011
11': 14: 15

PATRICK GLENN

PROJECTED SATISFACTION DATE ... :.: 08-10-2026

PROJECTED SATISFACTION METHOD ... : GCT REL
REMARKS . . . . . . . : ON 3-9-09 RELEASED FROM STATE CUSTODY TO FEDERAL CUSTODY.J/BAC

G0002

MORE PAGES TO FOLLOW

A-72

SHEW3 540*23 *
PAGE 004 OF 004 *

SENTENCE MONITORING
COMPUTATION DATA
AS OF 06-21-2011

REGNO .. : 23028-077 NAME: COLE,

*
*

06-21-2011
11:14:15

PATRICK GLENN

------------------------------ CURRENT NOTIFIES: -----------------------------NOTIFY NO .... :

DATE RECEIVED:
NAME OR TITLE:
AUTHORITY .... :
ADDRESS . . . . . . :

001
09-20-2010
TEXAS DEPT OF CORR
CENTRAL COORDINATION UNIT
8610 SHOAL CREEK BLVD
AUSTIN, TX 78711
PHONE NUMBER.: (512) 406-5356

GOOOO

TRANSACTION SUCCESSFULLY COMPLETED

A-73

ATTACHMENT 1
SHE 1330.13
May 15, 2002
INFORMAL RESOLUTION
NOTICE TO INMATE:
You are advised that prior to filing a Request
for Administrative Remedy Form (BP-9), you MUST attempt to
informally resolve your complaint through your Correctional
Counselor.
1..

STATE .BELOW . YOUR S~ECIFICC9MPLAINT0

r6.9

:::C . A.a,IJL. ~e&O !cei~ 6l( -t:_ffie -Boe

o 1(-0:'crS .;/?CZ6~ ~
ff f\A,e -ser-ve}__ Jcife_ 4-u ., aooc/ ., j~qs q,ofi~Ni&S ~
.,

'

2.
STATE WHAT ACTION YOU WANT STAFF TO TAKE TO CORRECT THE
SITUAr_ION.
~ "-./

[ ( l/Vt;e.-

(0Cf ().) -~-

*****************************************************************
4.
CORRECTIONAL COUNSELOR'S COMMENTS.
INDICATE BELOW WHAT STEPS WERE TAKEN TO INFORMALLY RESOLVE THE
ISSUE.
INCLUDE PROGRAM STATEMENTS REFERENCED OR OTHERWISE
UTILIZED IN THE ATTEMPT TO INFORMALLY RESOLVE THE ISSUE.

INFORMAL RESOLUTION
FOLLOWING REASON;

:2rt +l

W~IRCLE

dultJ rf5f!J11~

CORRECT-I-ON-<--A-L_C_O_U_,_N-1-S-E_L_O_R_:
DATE: 25 ,

<

ONE) ACCOMPLISHED FOR THE

II

~R~,~~~_____,,~-/

A-74

UNIT MA!

fc-or\\

When the USM took you fol'f'lt the state on Fed Writ you were a primary state inmate. When the state
sentenced you to 25 years concurrent with the Federal sentence you did not have a Federal sentence to
run concurrent with and you were still a primary state inmate. Your federal judgment is silent and is
consecutive to your state sentence.

Per 18 USC 3585 Bl and B2 time credited to another sentence

cannot be credited toward your federal sentence. Your federal sentence could not start before you
completed your state sentence.

A-75

UNICOR FEDERAL PRJSON INDUSTRIES INC.

LEA YENWORTH KANSAS

REQUEST FOR ADMINISTRATIVE REMEDY

U.S. DEPARTMENT OF JUSTICE

Federal Bureau of Prisons

Type or use ball-point pen.

If attachments are needed, submit four copies. Additional instructions on reverse.

Patrick
Cole
From: _ _
_____
__________

LAST NAME, FIRST, MIDDLE INITIAL

.Part A- INMATE REO.UEST

23028-077
REG. NO.

FCI Sheridan

4B
UNIT

INSTITUTION

Intormal resoiut~on was attempted and denied on 7-23-11 (see attached BP8).
I am filing this BP9 because my federal sentence has expired and I should be
immediately released. I REQUEST EXPEDITED PROCESSING OF THIS BP9 DUE TO THE
FACT THAT I SHOULD BE IMMEDIATELY RELEASED.
The following is a summary of factual history of events that clearly shows that
my federal sentence has expired. I was arrested by Texas state authorities in
January 1992. I was sentenced to two 25-year state sentences on May 22, 1992
to be ran concurrent with the federal sentence I had plea bargained to receive
on July 30, 1992.
THIS STATE SENTENCE GIVEN ON MAY,22,1992 WAS DISMISSED ON
JULY 27, 1992. SEE ATTACHMENTS 2a & 2b.
So, on the date of FEDERAL SENTENCING (July 30,1992) I had not been sentenced
on the State charges because the prior sentencing had been dismissed on
July 27, 1992 as attachments 2a & 2b clearly show. So on the morning of
July 30, 1992 I was in State custody housed at the Dallas County Jail.
The US Marshals picked me up from the Dallas Co. Jail persuant to a writ of
ad prosequendum, took me to federal court where I received a 240 month sentence
(said sentence was silent regarding any other charges pending), and then after
sentencing that same afternoon in federal court, I was return d to,t
7- :Z i - j I
( BP9 continued--"'o~n'--"'a..__,t,,_,t""'a,._,c"'"'h""m'""e""-"-"n_,,,t'------="lJ--f-\..._.....,,,.,,,~,,,__-b-~~=-oATE

Part B- RESPONSE

DATE

WARDEN OR REGIONAL DIRECTOR

If dissatisfied with this response, you may appeal to the Regional Director. Your appeal must be received in the Regional Office within 20 calendar days of the date of this response.

CASE NUMBER: _ _ _ _ _ _ _ _ __

ORIGINAL: RETURN TO INMATE

CASE NUMBER: _ _ _ _ _ _ _ _ __

Part C- RECEIPT
Return to:
LAST NAME, FIRST, MIDDLE INITIAL

REG. NO.

A-76

UNIT

INSTITUTION

ATTACHMENT 1 - BP9- CONTINUATION

County Jail on the afternoon of July 30,1992. Said Writ of ad prosequendum
for the purpose of federal sentencing on July 30,1992 had ran its course
when the US Marshals returned me to State custody after federal sentencing
on the afternoon of July 30,1992.
The next day, July 31, 1992, I was taken from the Dallas County Jail by the
Dallas Sheriff to State Court (292nd Judicial Dist. Court) for re-sentencing
of the State sentences that had been dismissed on July 27, 1992. In State Court
on July 31, \ 1992,':-~ recehred two 25-year sentences ran concurrent with
the 240 month federal sentence that I received the day before on July 30,1992.
At this State sentencing on July 31, 1992, the State Judge, Honorable Judge
Khoury, signed an ORDER directing the Dallas County Sheriff to deliver
me to the US Marshals for SERVICE AND COMMITMENT of my federal sentence
that I had received the day before, on July 30,1992.
(See attachments 3a,3b,3c & 4a,4b,4c that show State re-sentencing on
July 31, 1992 as well as the Order directing me to be_ released to the
US Marshals for service and commitment of federal sentence).
After State sentencing on July 31, 1992, I was taken by the Dallas
Sheriff back to the Dallas County Jail where I remained for approxiamtely
ten days.
On or about August 10, 1992, the Dallas County Sheriff
delivered me to the US Marshals, custody at a federal holdover facility
in Mansfield, Tx pursuant to the State sentencing Court's Order directing
the Sheriff to deliver me to the US Marshals for service and commitment
of my federal sentence received on July 30, 1992., thee -da;yvBEFO\RE:1 :state{ serntr.en:ad.n<
It was on or about August 10, 1992 when the State released custody of
me and I entered BOP.
On Oct. 16, 1992 I arrived at my designated facility FCI Bastrop.
I remain in the BOP until approximately Nov. 1993 when the BOP illegally
removed me from federal custody by its own choice and decision, as
1~
tlie St~te of Texas had already released me to federal custody when the
Dallas Sheriff ~eleased me to US Marshal's custody at the federal holdover
in Mansfield, Tx on or about August 10, 1992, and Texas was not requesting
my return to State custody.
I was in federal custody because Texas authorities (Dallas County Sheriff)
released custody of me pursuant to the State sentencing Court's Order
directing Sheriff to deliver me to US Marshals for Service and Commitment
of my federal sentence (see attachment 3c &4c) and then in Nov. 1993,
the BOP illegally removed me from the BOP thus discharging my federal
sentence.
While I was at FCI Bastrop, I was quoted Aug. 2009 as my BOP release date.
My federal sentence began when I was designated to FCI Bastrop and has
not stopped running as custody was released from State authorities to
the BOP in Aug. 1992 when the Dallas Sheriff delivered me to US Marshals
at .Mansfield, Tx holdover facility where I then entered the BOP and was
designated to FCI Bastrop on Oct. 16, 1992.
My federal sentence has expired and I am being illegally held now.
I should be immediately released.
In the BP8's reply, i t is claimed that there was no federal sentence in place
for the State sentence to be ran concurrent with. That is true of the State
sentences given on May 22, 1992, BUT THOSE SENTENCES WERE DISMISSED ON
JULY 27, 1992 (see attachments 2a & 2b). So the reply in the BP8 is
inaccurate. My State sentences were re-sentenced on July 31, 1992.
That is the day AFTER federal sentencing which occurred on July 30,1992.
(See attachments 3a,3b,3c & 4a,4b,4c showing State sentencing on July 31,1992).
I was sentenced in federal court on July 30, 1992 and then re-sentenced in
State Court on July 31, 1992 to be ran concurrent with the federal sentence
received 511e J;_~Y bef
July~0,1992. Reco~ds clearly illustrate this.
Signed

tK:J/t

[<___ ~50'

7
A-77

. --0 ? {
~;}.__7~//

eole;, PatrickGlennReg. No. 23028-077

~~~~~~~~~~-~~~~~~~REQBE-S'l'-FQR-ADMINIS+RA4~E--REMEDY~~~

SHE-650502-Fl
This is in response to your Request for Administrative Remedy dated July 27, 2011, wherein you allege
your federal sentence has expired. As relief, you request to be immediately released from federal
custody.
A review of your file shows the United States Marshals Service (USMS) borrowed you via Writ of
Habeas Corpus Ad Prosequendum from the Texas Department of Corrections, where you were serving a
state sentence.
A federal sentence does not begin to run when a federal defendant is produced for prosecution by a
Federal Writ of Habeas Corpus Ad Prosequendum from state custody. Thomas v. Whalen, 926 F.2d 358
(4th Cir. 1992); Thomas v. Brewer, 923 F2d 1361 (9th Cir. 1991); Barden v. Keohane, 921 F .. 2d (3d Cir.
1990; Salley v. United States; Hernandez v. United States Attorney General, 689 F.2d 915 (10 Cir.
1982); Roche v. Sizer, 675 F.2d 507 (2d Cir. 1982); Chambers v. Holland, 920 F.Supp. At 622. The
state authorities retain primary jurisdiction over the prisoner; federal custody does not commence until
the state authorities relinquish the prisoner on satisfaction of the state obligation. See Del Guzzi v.
United States, 980 F.2d 1269 (9th Cir. 1992); Thomas v. Whalen, 926 F.2d 358 (4th Cir. 1992);
Hernandez v. United States Attorney General, supra; Roche v. Sizer, supra; Craford v. Jackson, 589 F2d
583 (D.C. Cir 1978), cert denied, 441 U.S. 934 (1979); Cobb v. United States, 583 F.2d 695 (4th Cir.
1978); Chambers v. Holland, supra; Shumate v. United States, 893 F.Supp. 137 (N.D.N.Y. 1995); Miller
v. United States, 826 F.Supp. 636 (N.D.N.Y. 1993). See also Bowman v. United States, 672 F.2d
1145, 1153-154 (3d Cir. 1982). The sovereign which first arrested the offender has primary jurisdiction
over the offender, unless that sovereign relinquishes it to another sovereign by, for example, ba~ release,
dismissal of the state charges, parole release, or expiration of state sentence. United States v. Warren,
610 F.2d 680 (9th Cir. 1980); Chambers v. Holland, 920 F.Supp. at 622; United States v. Smith, 812
F.Supp. 368 (E.D.N.Y. 1993). When a prisoner is borrowed from the primary custodian via a Writ of
Habeas Corpus Ad Prosequendum, principles of comity require the return of the prisoner to the primary
custodian when the prosecution has been completed.
On July 27, 1992, the state court agreed with your motion concerning your state sentence and granted
you a new trial, they did not dismiss your state case. You remained in primary custody of the State of
Texas.
On July 30, 1992, the United States District Court, Northern District of Texas, sentenced you to a term
of 240 months and you were returned to the primary custody of state authorities.
On July 31, 1992, the State of Texas, Dallas County, sentenced you to a term of 25 years concurrent to
1

A-78

the 240-monthtermimposed in-thefederal case.---- ---------- __

On August 10, 1992, you were mistakenly turned over to the USMS for service of your federal sentence.
On August 31, 1993, while serving time at the Federal Correctional Institution located in Three Rivers,
Texas, the custody mistake was noted and you were returned to the primary custody of the Texas
Department of Corrections. You finished your state time on March 9, 2009, and were turned over to the
USMS to start your consecutive federal sentence.
Title 18 U.S.C. 3585(b), states, "a defendant shall be given credit toward the service of a term of
imprisonment for any time he has spent in official detention prior to the date the sentence commences ...
that has not been credited against another sentence." All time spent in custody prior to commencement
of your federal term, was credited toward the State of Texas sentence that you completed on March 9,
2009, therefore, the credit won't apply toward your federal sentence.
Your federal sentence was accurately computed and audited by the Designation and Sentence
Computation Center. Your current projected release date is, August 10, 2026.
Therefore, your Request for Administrative Remedy is denied. If dissatisfied with this response, you
may appeal to the Western Regional Director, 7338 Shoreline Drive, Stockton, CA 95219. Your appeal
must be received in the Western Regional Director's office within 20 calendar days of the date of this
response.

A-79

U.S. Department of Just_ice

Regional Administrative Remedy Appeal

Federal Bureau of Prisons

Type or use ball-point pen. If attachments arc needed, submit four copies. One copy of the completed BP-DJR-9 including any attachments must be submitted
with this appeal.

From: _P_a_t_r~i"'.""c:-::k__C_o_l_e__________

23028-077

LAST NAME, FIRST, MIDDLE INITIAL

REG. NO.

FCI Sheridan

4B

INSTITUTION

UNIT

Part A-REASON FOR APPEAL

I am appealing because the fact that the Texas state authorities released
me to the US Marshals on or about August 10, 1992 for service of my
federal sentence is being totally disregarded. On the morning of
August 10, 1992, the State of Texas had sole custody of me. However,
Texas released all custody of me to the USMS when the Dallas County Sheriff
delivered me to federal 'custody at.the federal holdover facility in
Mansfield, Tx on the afternoon of August 10, 1992 pursuant to the.ORDER
given/made by the Texas sentencing Court on July 31,1992 (see attachments
to the BP9 cited as Attachment 3c & 4c) ordering the Dallas Sheriff to deliver
me to the USMS FOR SERVICE AND COMMITMENT OF THE .FEDERAL SENTENCE IN
FEDERAL CAUSE II 3-92-CR-226-T.
It is clear that the State of Texas intended to,.
and did, in fact., release me to federal custody .on or about. August 10, 1992
when I was delivered to the USMS for service and Commitmentof my
federal sentence by the Dallas County .Sheriff pursuant.to the Texas state
sentencing Court's Order directing me to be. released to the USMS .for serv~ce
of my federal sentence. The record shows that, thereafter, on 10-16-92 I was
designated and imprisoned at FCI Bastrop, Tx. My il-rfl~fi~e began,I was in BOP cuS:o<
8-29-2011
p~
Q ....

Cd

DATE

SIGNATURE OF REQUESTER

Part B-RESPONSE

REGIONAL DIRECTOR

DATE

If dissatisfied with this response, you may appeal to the General Counsel. Your appeal must be received in the General Counsel's Office within 30 calendar
days of the date of this response.

ORIGINAL: RETURN TO INMATE

CASE NUMBER:---------

---------------------~------------------------------------~----

Part C-RECEIPT

CASE NUMBER:--------Return t o : - " - - - - - - - - - - - - - - - - LAST NAME. FIRST, MIDDLE INITIAL

REG. NO.

UNIT

INSTITUTION

SUBJECT:----------------------------------------~

A-80

650502-Rl
FCI Sheridan
This is in response to your Regional Administrative Remedy
Appeal of the Warden's response dated August 19, 2011.
You are
requesting prior custody credit from the date of your erroneous
commitment to the Bureau of Prisons (BOP). You request to be
immediately released from custody.
We have thoroughly investigated your appeal. In the course of
our investigation we learned that you previously litigated the
issue of the execution of your federal sentence in Federal
District Court for the Southern District of Texas, CV H-0203056, Patrick Glenn Cole v. Director, Bureau of Prisons. As
here, your claim was that your designation to the Bureau of
Prison, was done in error and your return to state custody
violated your due process rights by denying you the ability to
serve your federal and state sentence concurrently. Prior to
your filing the litigation, you had written to the Bureau of
Prisons seeking a concurrent designation of your sentence.
In
September 2000, the Bureau contacted Judge Robert B. Maloney,
the sentencing judge to determine the court's intent. Judge
Maloney informed the Bureau it was his intent that your federal
sentence was to be served consecutively to your state sentence.
The decision to make a federal sentence concurrent is solely
within authority of the federal sentencing court. Although, the
Texas state court ordered your state term to be served
concurrently to your federal sentence, the state court has no
authority to force a federal sentence to be served ih any manner
not intended by the federal court. On March 31, 2003, the Judge
in CV H-02-03056, dismissed your case finding the Bureau's
action to return you to ~he State of Texas did not violate the
law or your due process rights.
The following facts apply to your case. On January 2~, 1992, you
were arrested by State of Texas law enforcement officials. On
May 21, 1992, you were released to the United Sta~es Marshals
via writ of habeas corpus ad prosequendum.
While on federal
writ, you remained in the primary or exclusive custody of Texas
state officials. You were sentenced in federal court on July 30,
1992, to a term of 240 months. This order was left silent, which
the Bureau of Prisons interprets as consecutive. During the
period of time you were on writ to federal court, your attorney
filed a Motion for New Trial and entered into a Plea Agreement
regarding your state sentences, which had originally been
imposed on May 22, 1992.
You were re-sentenced on the Texas
cases on July 31, 1992, to a term of 25 years, in Case F9233571, and Case F-92333548 to run concurrently with each other
and with the federal sentence imposed on May 21, 1992.

A-81

- t

The state judge ordered you into the custody of the U.S.
Marshals and you were erroneously committed to the BOP for
service of your federal sentence on August 10, 1992. However,
while in federal custody your state sentence continued to run
without interruption. This commitment mistake was discovered and
in 1993 you were returned to exclusive primary custody of the
Texas Department of Corrections (TXDOC) for completion of your
state term. All the time spent in federal custody was credited
to your state sentence. You completed your state sentence and
were released on March 9, 2009, to exclusive federal custody at
which time your federal sentence began to run.
According to law, the Bureau of Prisons cannot credit your
federal sentence with time in custody that was credited to
another sentence. Title 18 U.S.C. 3585(b), Credit for Prior
Custody, states, "Defendant shall be given credit toward the
service of a term of imprisonment for any time he has spent in
official detention prior to the date the sentence commences .
. that has not been credited against another sentence." Program
Statement 5880.28, Sentence Computation Manual-CCCA, states,
"Time spent in custody under a writ of habeas corpus from nonfederal custody will not in and of itself be considered ~or the
purpose of crediting presentence time. The primary reason for
writ custody is not the federal charge.
The federal court
merely borrows the prisoner under the provisions of the writ for
secondary custody." Because the sent~ncing judge did not intend
the federal sentence to be concurrent with the state sentence,
your computation is correct as it is computed and your release
date is correct.
Based on the above information, your request for admini9trative
remedy is denied.
If dissatisfied with this response, you may
appeal to the Office of the General Counsel, Bureau of Prisons,
320 First Street, NW, Washington, D.C., 20534. Your appeal must
be received in the General Counsel's Office within 30 days of
the date of this response.

DATE

~ Robe~~J'M~

A-82

Regional Director

U.S. iJepartment

Central Office Administrative Remedy Appeal

Federal Bureau of Prisons

Type or use ball-point pen. If attachments are needed, submit four copies. One copy each of the completed BP-DIR-9 and BP-DIR-IO. including any attachments musr be submitted with this appeal.

Cole, Patrick G.

From:-----------------

23028-077

LAST NAME, FIRST. MIDDLE INITIAL

REG. NO.

4B

FCI Sheridan

UNIT

INSTITUTION

Part A-REASON FOR APPEAL I am requesting expidited reply to this BP 11.

I am appealing the response to my BP 10 (#650502-Rl) due to the fact that the core issue I have
raised has not been addressed nor remedied. The issue at hand is the fact that AFTER I was
sentenced in federal court on July 30, 1992 I was returned to State custody which I had remained
in expect for the 4 hours that I was in federal court for sentencing. So after federal
sentencing on July 30, 1992 I returned to the sole custody/jurisdiction of Texas. Then on
the following day, July 31,1992, the Texas State Court sentencecftto two 25yr sentences to
run concurrent 'vith the federal sentence I had received the day before. Also, at this State
sentencing, the State Court Ordered the Dallas Sheriff to deliver me to federal custody for
SERVICE and COMMITMNET of my federal sentence which I had received the day before, July 30,1992.
On Aug. 10,1992 the Dallas Sheriff delivered me to a federal holdover facility in Mansfield, Tx
pursuant to the State Court's order directing that I be released/tendered to federal custody
to serve out my federal sentence. Thus, on Aug. 10,1992 Texas relinquished jurisdiction and
custody of me and I began serving my federal sentence and have been serving it since.
I should have been released in Aug 2009 and am now being held past my release date.
The issue at hand is that Texas relinquished custody on Aug. 10,1992 when I was allowed to
enter the federal holdover and thereafter designated to FCI Bastro~. (Con,t~nyp~ w/ atta~r:ent A)

b'

Pa1vvL~ C@,{}___ J.3oJ.o -o 17

IJ. - 1 J- - It
DATE

SIGNATURE OF REQUESTER

Part B-RESPONSE

NOV 2 2 2on

DATE

GENERAL COUNSEL

ORIGINAL: RETURN TO INMATE

CASE NUMBER: - - - - - - - - -

Part C-RECEIPT
CASE NUMBER: - - - - - - - - Return t o : - - - - - - - - - - - - - - - - - LAST NA!v!E, FIRST, MIDDLE INITIAL

REG. NO.

SUBJECT:------- - - - - - - - -

UNIT

INSTITUTION

------------------------------~-----~-----------~----~--------

SIGNATURE OF RECIPIENT OF CENTRAL OFFICE APPEAL

A-83

RP-?'.<111'.i\

. Amiumation - Attachnent A
In the response to my BP 10 (650502-Rl) there are three reasons given as to why
my time has not been running since Aug. 10, 1992 when I entered and was designated
to FCI Bas tr op:

(1) That the BOP can't be forced to honor a State concurrency;

(2) that some 8 years after sentencing me, the Federal Court stated in a Motion
for Concurrency filed by the State of Texas (not by me) that he (federal Court)
had intended his sentence to run concurrent with the State sentence (though mind
you that on July 30,1992 I had no State sentence for the federal sentence to
be consecutive as I was not sentenced in State court until the day after federal
sentencing .... of course the federal sentencing court obviously did not know that
the earlier State sentence from May 22,1992 had been dismissed on July 27,1992 and
then re-sentenced on July 31, 1992 a day AFTER federal sentencing);
(3) that I was received at the federal holdover on Aug. 10,1992 and designated thereafter
to FCI Bastrop by "mistake".
The above reasons cited in response to my BP 10 do NOT address the fact that Texas
released jurisdiction and all custody of me to federal custody/jurisdiction on
Auig. 10, 1992 when the Dallas Sheriff delivered me to the holdover pursuant to
the State Court's Order directing me releasedto federal custody for Service and
Commitment of my federal sentence. From Aug. 10, 1992 until now I have been serving
my sentence and should have been released in 2009.
Whether or not I should or should not have been entered/designated/received into
federal custody on Aug 10, 1992 is not the issue. The issue is that I WAS received
into sole federal custody when .the Dallas Sheriff RELEASED me to federal custody
on that date for Service and Commitment of my sentence.
If the federal authorities/BOP felt I should not have entered their custody; they
should not have received custody and jurisdiction of me when the Dallas Sheriff
released me to federal custody on Aug. 10, 1992. But the fact remains that
I was received into federalcustody-:s~lely when the State of Texas released custody and
jurisdiction of ine when the Dallas Sheriff delivered me to federal custody on Aug. 10, 1992
for Service and Commitment of my federal sentence. There.were no outstanding charge.s
or detainers from Texas pending against me.whilst I was in the BOP serving my
federal sentence in 1992/1993. That is because Texas had released custody and jurisdiction
of me to the BOP.

My federal sentence began running in Aug. 1992 and has ran since due to the fact
that the federal government had sole custody and jurisdiction of me when the State
released all claim to me on Aug. 10, 1992.
That is the issue at hand.
I request immediate release from federal prison by being given time credit
to my federal sentence from Aug. 1992 to now.
Attachment A to BP 11
Patrick Cole 23028-077

A-84

Administrative Remedy No. 650502-A2

Part B - Response

This is in response to your Central Office Administrative Remedy

Appeal in which you contend your federal sentence began on
August 10, 1992, and has been running ever since and you should
have been released in 2009. You request immediate release from
federal prison by being given credit toward your federal
sentence from August 1992 to now.
A review of your record indicates you were sentenced on July 20,
1988, to a 35-year term of imprisonment in Dallas County, Texas,
case number F88-69775-RL, for Burglary of a Vehicle. You were
paroled from this sentence on October 24, 1991. You were rearrested in Texas on January 25, 1992, by local law enforcement
authorities for Robbery.
This arrest placed you in the primary
custody of the State of Texas.
On February 27, 1992, your
parole from case number F88-69775-RL, was revoked and your
previous term of 35 years resumed running.
You were borrowed from state custody on May 21, 1992, by the
U.S. Marshals Service pursuant to a writ of habeas corpus ad
prosequndum for your initial appearance in federal court.
On
July 30, 1992, you were sentenced in the U.S. District Court,
Northern District of Texas, to a total term of 240 months for
Robbery Affecting Commerce, Possession of a Firearm During a
Crime of Violence, and Possession of a Firearm by a Convicted
Felon. After sentencing, you were appropriately returned to the
custody of state authorities in Texas.
On July 31, 1992, you
were sentenced in Dallas County Court, case numbers F-9233548
and F92-33571, to 25 years for Aggravated Robbery.
On April 10,
2001, you were re-sentenced in Dallas County Court, case numbers
F92-33548 and F92-33571, to a nine year term of imprisonment.
You were released to your federal detainer on March 9, 2009, for
service of your federal sentence.
Since your federal sentence was silent regarding its
relationship to your state parole violation and the forthcoming
state sentences, it was calculated as consecutive. The statute
that governs the manner in which multiple sentences of
imprisonment may be imposed is 18 U.S.C. 3584(a). Title 18
U.S.C. 3585(b) precludes the application of credit for time
that has been credited against another sentence.
Texas Law
Enforcement officials have confirmed that your state sentence
was credited for time spent in custody from January 26, 1992
through March 9, 2009.
Your sentence has been awarded prior

A-85

Administrative Remedy No. 650502-A2

Page 2

custody credits from January 25, 1992 to January 26, 1992, since
it was not awarded to any other sentence and from October 16,
~992 through August 27, 1993, for time spent erroneously
designated at a BOP facility.
Your sentence has been computed
as directed by federal statute and Program Statement 5880.28,
Sentence Computation Manual (CCCA of 1984).
Accordingly, your appeal is denied.

20l2'
atts, Administrator
Inmate Appealsc~)Y

A-86