United States District Court, M.D. Florida, Jacksonville Division
TIMOTHY J. CORRIGAN, UNITED STATES DISTRICT JUDGE
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). 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.
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.
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).
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.
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.”).
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. 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). 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.
Petitioner satisfies the “in custody”
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).
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 ...