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Brown v. Cozza-Rhodes

United States District Court, District of Colorado

December 15, 2014

DEXTER LEE BROWN, Applicant,
v.
T.K. COZZA-RHODES, WARDEN, Respondent.

ORDER DISMISSING APPLICATION FOR WRIT

RAYMOND P. MOORE, United States District Judge.

This matter is before the Court on an Application (“Application”) for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241. (ECF No. 1). Applicant Dexter Lee Brown (“Brown”), pro se, is a federal inmate in the custody of the Bureau of Prisons (“BOP”) confined at the Federal Correctional Institution at Florence, Colorado (“FCI Florence”). Brown brings this action against the Warden at FCI Florence (“Respondent”) and contends that he is subject to immediate release as the BOP has unfairly and improperly denied him a nunc pro tunc service designation.

Factual Background - Original Facts

The core facts of this matter are not in dispute. As replicated below, unless otherwise noted, the facts are taken from two sources - (i) the Response to Order to Show Cause (“Response”) which includes the Declaration of Bryan Erickson (ECF No, 20, 20-1), and (ii) an opinion of the Eleventh Circuit Court of Appeals described below. To the extent the Application occasionally sets forth different dates for the occurrence of factual events, any such differences are both minor and immaterial.

On August 25, 2000, Brown was arrested by Florida state authorities in connection with a variety of state law offenses, some of which pertained to his possession of a firearm. He was also arrested in connection with violation of state probation. Brown remained in state custody following his arrest. Thereafter, on November 2, 2000, Brown was indicted in the United States District Court for the Southern District of Florida (hereinafter the “Sentencing Court”) for being a felon in possession of a firearm, more specifically an armed career criminal. Because Brown was in state custody, his presence in federal court was secured by writ of habeas corpus ad prosequendum.

On June 11, 2001, after having pled guilty, Brown was sentenced to 180 months imprisonment by the Sentencing Court. His plea was pursuant to Rule 11(a)(2), Fed. R. Crim. P., and Brown reserved the right to appeal the denial of his motion to dismiss for violations of the Speedy Trial Act. Following sentencing, Brown was returned to the state, which still had primary custody of him, and a federal detainer was lodged. An appeal pertaining to the referenced speedy trial issue was timely filed.

On July 12, 2001, the Florida state court sentenced Brown to 13 years imprisonment for violation of probation in a number of state cases. The state court credited Brown with 321 days credit for time served - representing all time from arrest (August 25, 2000) up to the date of the state court sentencing. St. Lucie County Case History, Attachment 1 to Application, ECF No. 1 at 11-14. The state court also declared that the state sentence was to run concurrently with that in the federal case for which Brown had been sentenced in June. Id.

On March 13, 2002, while Brown was still in state custody, the United States Court of Appeals for the Eleventh Circuit decided Brown’s appeal in his favor, finding violations of the Speedy Trial Act, reversing Brown’s conviction, and remanding the case to the Sentencing Court to determine whether dismissal should be with or without prejudice. United States v. Brown, 285 F.3d 959 (11th Cir. 2002).

The Sentencing Court determined the dismissal to be without prejudice and a new indictment containing the original armed career criminal charge was filed on April 25, 2002. Again, a writ of habeas corpus ad prosequendum issued for purposes of securing Brown’s presence for the federal proceedings as Brown was still in state custody. Brown pled guilty to this indictment and was sentenced anew on June 10, 2002[1], to the same 180-month sentence previously imposed. The Sentencing Court was silent as to whether the federal sentence was to be concurrent with the 13-year sentence imposed by the state in July 2001. Again, Brown was returned to the state, and a federal detainer lodged.

On November 14, 2002, Brown completed his Florida state sentence and was released to the BOP for commencement of service of the federal sentence.

The Credit Requests

On July 23, 2014, Brown filed his Application with this Court. In it, Brown sets forth a single claim for relief entitled, “Denial of Nunc Pro Tunc Designation of Sentence.” (ECF No. 1). Brown contends that the BOP has failed to treat his federal sentence as wholly concurrent with the now discharged state sentence, based on an incorrect, and presumably arbitrary, refusal to order a nunc pro tunc designation that his place of service of his federal sentence be the Florida state institution at which the state sentence was served. He asks this Court to correct this refusal by issuance of a writ.

Any uncertainty as to the precise contours of the claim is clarified by that portion of Brown’s Application containing his Request for Relief. There, Brown requested (i) “Nunc Pro Tunc designation from June 14, 2001 to November 13, 2002, ” and (ii) an award of presentence confinement credit “from August 25, 2000 to June 13, 2001.” Ignoring a minor date discrepancy[2], Brown is seeking to have the Court compel a nunc pro tunc designation of his place of confinement sufficient to cover the period of time from the date of his earliest imposed federal sentence to the date when he was in fact released to federal custody by Florida state authorities. He also seeks presentence confinement credit for all time spent in custody prior to the date on which his federal sentence was first imposed. For convenience, these matters will be hereinafter described as two distinct ...


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