United States District Court, N.D. Florida, Panama City Division
PAUL R. JOHNSON, Petitioner,
DIRECTOR OF THE BOP, et al., Respondents.
REPORT AND RECOMMENDATION
ELIZABETH M. TIMOTHY CHIEF UNITED STATES MAGISTRATE JUDGE.
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).
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.
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).
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).
August 24, 2016, and November 17, 2016, the state prosecutor
dismissed the charges in Case No. 16-CF-34415 (Hodge Decl.
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).
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).
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).
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). The undersigned recharacterized this case
as brought under 28 U.S.C. § 2241 and added the BOP as a
Respondent (see ECF No. 18).
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
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.
¶¶ 11-13). The BOP further contends that although
it has the authority to designate a state facility ...