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Byrd v. United States

United States District Court, M.D. Florida, Jacksonville Division

October 16, 2019




         This case is before the Court on Petitioner Charles Earnest Byrd's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (Civ. Doc. 1, § 2255 Motion).[1] Petitioner is currently in the custody of the Florida Department of Corrections (FDOC), serving a sentence of life in prison for second-degree murder. Petitioner raises only a single claim in the § 2255 Motion: he asks that the Court run his federal sentence (for obstruction of correspondence under 18 U.S.C. § 1702) concurrently with his state-court life sentence. The United States has responded, arguing that the Court lacks jurisdiction because Petitioner was not in custody pursuant to this Court's judgment when he filed the § 2255 Motion, and alternatively, that the § 2255 Motion is untimely and his claim is procedurally defaulted. (Civ. Doc. 4, Response). Petitioner did not file a reply. Accordingly, the case is ripe for a decision.

         Under Rule 8(a) of the Rules Governing Section 2255 Proceedings, the Court has determined that an evidentiary hearing is not necessary to decide the motion. See Rosin v. United States, 786 F.3d 873, 877 (11th Cir. 2015) (an evidentiary hearing on a § 2255 motion is not required when the petitioner asserts allegations that are affirmatively contradicted by the record or patently frivolous, or if in assuming that the facts he alleges are true, he still would not be entitled to any relief). For the reasons below, Petitioner's § 2255 Motion is due to be dismissed as untimely.

         I. Background

         Only limited records are available due to the age of this case, but the Court has attempted to reconstruct the background based on the following documents: the indictment (Crim. Doc. 1), the judgment (Crim. Doc. 2), and the Presentence Investigation Report (PSR).

         On September 13, 1989, a grand jury charged Petitioner with (1) obstructing correspondence, in violation of 18 U.S.C. § 1702, (2) forgery of a treasury check, in violation of 18 U.S.C. §§ 510(a)(1) and 2, and (3) passing a forged instrument, in violation of §§ 510(a)(1) and 2. (Crim. Doc. 1). Petitioner pled guilty to Count One - obstruction of correspondence - and in exchange the United States moved to dismiss Counts Two and Three. (See Crim. Doc. 2). On June 29, 1990, the Court entered judgment against Petitioner, adjudicating him guilty of Count One and sentencing him to 12 months in prison followed by a three-year term of supervised release. (Crim. Doc. 2 at 2, 4). Petitioner did not appeal the sentence.

         When the Court entered judgment, Petitioner was already subject to a sentence of life in prison in the State of Florida for second-degree murder. (PSR at ¶ 37). The federal judgment was silent about whether Petitioner's federal sentence was to run concurrently or consecutively with the state-court sentence. But because the federal judgment was silent, the federal sentence is presumed to run consecutively with the state sentence. 18 U.S.C. § 3584(a) (“….Multiple terms of imprisonment imposed at different times run consecutively unless the court orders that the terms are to run concurrently.”).

         Prison records suggest that Petitioner served only part of his federal term of imprisonment before entering FDOC's custody to serve his state sentence. According to the PSR, Petitioner had been “[i]n federal custody since January 22, 1990, ” and was not subject to any detainers at the time the PSR was written. (See PSR cover page). Accordingly, the federal judgment remanded Petitioner into the custody of the United States Marshal. (Crim. Doc. 2 at 3). However, the FDOC's records show that FDOC received Petitioner into custody on July 26, 1990, one month after entry of the federal judgment and only six months after Petitioner entered federal custody.[2] Additionally, FDOC's records show that Petitioner has been subject to a United States Marshal's detainer ever since April 10, 1992, which has not been canceled. A records search of the Federal Bureau of Prisons (BOP) also turned up a result that appears to match Petitioner's identity (Byrd, Charles, Age 70, Register No. 11272-018).[3] The BOP record reflects that he is not in federal custody and his release date is “unknown.” Moreover, the available records do not indicate that Petitioner ever served time on his three-year term of federal supervised release.

         II. Discussion

         A. Petitioner satisfies the “in custody” requirement.

         Title 28 of the United States Code, Section 2255 provides that

[a] prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States …, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

28 U.S.C. § 2255(a) (emphasis added). The Supreme Court has interpreted similar language in § 2241(c)(3) “as requiring that the habeas petitioner be ‘in custody' under the conviction or sentence under attack at the time his petition is filed.” Maleng v. Cook, 490 U.S. 488, 490-91 (1989). The “in custody” requirement is jurisdictional, so the Court must be satisfied that Petitioner is “in custody” under a sentence of this Court before proceeding further. Id. at 490; see also Bailey v. Hill, 599 F.3d 976, 978 (9th Cir. 2010) (“Section 2254(a)'s ‘in custody' requirement is jurisdictional and therefore ‘it is the first question we must consider[.]'”) (citation omitted).

         When a prisoner is subject to consecutive sentences, as Petitioner is, the sentences “should be treated as a continuous series; a prisoner is ‘in custody' ... ‘if any consecutive sentence [the prisoner is] scheduled to serve was imposed as the result of a deprivation of constitutional rights.'” Garlotte v. Fordice, 515 U.S. 39, 40-41 (1995) (citing Peyton v. Rowe, 391 U.S. 54 (1968)). The same is true even if different sovereigns imposed the consecutive sentences. See Braden v. 30th Judicial Cir. Ct. of Ky., 410 U.S. 484, 499-50 (1973) (Alabama prisoner subject to a detainer by Kentucky could file a habeas petition challenging Kentucky's alleged denial of the right to a speedy trial). Thus, the former Fifth Circuit held that “§ 2255 is ...

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