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Johnson v. Director of Bop

United States District Court, N.D. Florida, Panama City Division

November 18, 2019

PAUL R. JOHNSON, Petitioner,
v.
DIRECTOR OF THE BOP, et al., Respondents.

          REPORT AND RECOMMENDATION

          ELIZABETH M. TIMOTHY CHIEF UNITED STATES MAGISTRATE JUDGE.

         Petitioner Paul R. Johnson (“Johnson”), an inmate in the custody of the Florida Department of Corrections (“FDOC”), filed this habeas action seeking transfer to the custody of the federal Bureau of Prisons (“BOP”) to commence service of his federal sentence (see ECF No. 1). This court construed the habeas petition as brought under 28 U.S.C. § 2241, and directed the BOP to respond (see ECF No. 18). The BOP filed a response, with evidentiary support, contending Johnson is not entitled to the relief he seeks (ECF No. 20). Johnson filed a reply (ECF No. 22).

         The case was referred to the undersigned for the issuance of all preliminary orders and any recommendations to the district court regarding dispositive matters. See N.D. Fla. Loc. R. 72.2(B); see also 28 U.S.C. § 636(b)(1)(B), (C) and Fed.R.Civ.P. 72(b). After careful consideration of the issues presented by the parties, it is the opinion of the undersigned that no evidentiary hearing is required for the disposition of this matter. It is further the opinion of the undersigned that Johnson's habeas petition should be denied.

         I. BACKGROUND[1]

         On July 22, 2016, Johnson was arrested in Brevard County, Florida, for Possession of a Firearm by Convicted Felon, Use of Weapon in Commission of Felony, Sale or Delivery of Cocaine, and Possession of Cocaine, for which he was charged in the Circuit Court in and for Brevard County, Florida, Case No. 16-CF-34415 (Hodge Decl. ¶ 3). On that date, Johnson was also arrested for Sale or Delivery of Heroin, Possession of Heroin with Intent to Sell, and Possession of Controlled Substance, for which he was charged in Brevard County Circuit Court Case No. 16-CF-34421(Hodge Decl. ¶ 3).

         On August 18, 2016, while in custody at the Brevard County Jail, Johnson was arrested on additional state charges of Sale of Cocaine, Possession of Cocaine with Intent to Sell, and Possession of Cocaine, for which he was charged in Brevard County Circuit Court Case No. 16-CF-37955 (Hodge Decl. ¶ 4). On that date, Johnson was also arrested for Sale of Cocaine, Possession of Cocaine, and Possession of Cocaine with Intent to Sell or Deliver, for which he was charged in Brevard County Circuit Court Case No. 16-CF-37960 (Hodge Decl. ¶ 4).

         On August 24, 2016, and November 17, 2016, the state prosecutor dismissed the charges in Case No. 16-CF-34415 (Hodge Decl. ¶ 5).

         On November 16, 2016, Johnson was charged in the United States District Court for the Middle District of Florida, Case No. 6:16-CR-221-GKS-DCI, with three counts of possession of a firearm by a convicted felon, and three counts of possession with intent to distribute cocaine. See United States v. Johnson, Case No. 6:16-CR-221-GKS-DCI, Indictment, ECF No. 1 (M.D. Fla. Nov. 16, 2016). On November 23, 2016, the district court in the federal criminal case issued a writ of habeas corpus ad prosequendum (Hodge Decl. ¶ 6). See Johnson, Case No. 6:16-CR-221-GKS-DCI, Writ of Habeas Corpus ad prosequendum, ECF No. 10 (M.D. Fla. Nov. 23, 2016). On December 8, 2016, the United States Marshals Service (“USMS”) “borrowed” Johnson from state officials by temporarily taking him into federal custody pursuant to the writ of habeas corpus ad prosequendum (Hodge Decl. ¶ 7). On May 17, 2017, the federal district court sentenced Johnson to a total term of 180 months in prison (Hodge Decl. ¶ 8). See Johnson, Case No. 6:16-CR-221- GKS-DCI, Judgment, ECF No. 40 (M.D. Fla. May 18, 2017). The judgment was silent regarding the relationship of the federal sentence to any future state sentence (Hodge Decl. ¶ 8). See Johnson, Case No. 6:16-CR-221-GKS-DCI, Judgment, ECF No. 40 (M.D. Fla. May 18, 2017). On May 24, 2017, Johnson was returned to exclusive state custody (Hodge Decl. ¶ 8).

         On July 9, 2017, the Brevard County Circuit Court sentenced Johnson in Case Nos. 15-CF-30492, 16-CF-34421, 16-CF-37955, and 16-CF-37960, to a total term of 7 years (84 months) in the FDOC, with credit for 363 days (Hodge Decl. ¶ 9). Johnson is currently serving this sentence in the FDOC. On July 27, 2017, the USMS lodged a federal detainer with the FDOC (see ECF No. 20-1).

         On October 24, 2017, Johnson filed a “Motion for a Nunc Pro Tunc Designation” in his federal criminal case (Hodge Decl. ¶ 10). See Johnson, Case No. 6:16-CR-221-GKS-DCI, Motion, ECF No. 47 (M.D. Fla. Oct. 27, 2017). The federal court summarily denied the motion on November 27, 2017 (Hodge Decl. ¶ 10). See Johnson, Case No. 6:16-CR-221-GKS-DCI, Endorsed Order, ECF No. 48 (M.D. Fla. Nov. 27, 2017).

         Johnson commenced this federal habeas action on February 23, 2018, by filing a habeas petition under 28 U.S.C. § 2254 in the Middle District of Florida (see ECF No. 1). The Middle District served the petition upon the Secretary of the FDOC and the Florida Attorney General (see ECF No. 8). On September 11, 2018, the Secretary and the state Attorney General filed responses (ECF Nos. 11, 12). Johnson filed a reply on October 19, 2018 (ECF No. 14). In February of 2019, the Middle District transferred the case to this District (ECF No. 15).[2] The undersigned recharacterized this case as brought under 28 U.S.C. § 2241 and added the BOP as a Respondent (see ECF No. 18).

         II. DISCUSSION

         Johnson alleges that because his federal sentence was imposed prior to his state sentence, and the state court ordered his state sentence to run concurrently with his federal sentence, he should be transported to a BOP facility for concurrent service of his federal and state sentences (ECF No. 1). Johnson contends the BOP and USMS's refusal to transfer him to a federal facility essentially lengthens his federal sentence by 7 years (the length of his state sentence) (ECF No. 22).

         The BOP contends Johnson was not in exclusive federal custody when he was sentenced in federal court; rather, the USMS assumed only temporary jurisdiction of Johnson when they “borrowed” him from state officials to appear in court for the federal criminal proceedings. The BOP contends Johnson does not meet the statutory requirement for commencement of his federal sentence until he completes his state sentence and is turned over to the exclusive custody of federal officials (see ECF No. 20 at 8; Hodge Decl. ΒΆΒΆ 11-13). The BOP further contends that although it has the authority to designate a state facility ...


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