Wilson v. Herrera ( 1999 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
SEP 29 1999
TENTH CIRCUIT
PATRICK FISHER
Clerk
DAVID LAWRENCE WILSON,
Petitioner-Appellant,
v. No. 99-1271
A. HERRERA, (D.C. No. 99-K-765)
(D.Colo.)
Respondent-Appellee.
ORDER AND JUDGMENT *
Before ANDERSON, KELLY and BRISCOE, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
David Lawrence Wilson appeals the district court’s denial of his 28 U.S.C.
§ 2241 petition for writ of habeas corpus. He alleges the Bureau of Prisons failed
to credit his sentence for time spent in custody. We grant Wilson’s application to
This order and judgment is not binding precedent, except under the
*
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
proceed in forma pauperis on appeal and affirm.
On November 30, 1983, Wilson was convicted in Florida state court of
bank robbery and he was sentenced to seven years in prison. On April 23, 1984,
he was convicted in Oregon federal district court of bank robbery and he was
sentenced to fifteen years in prison, to be served consecutive to the Florida
sentence. On February 4, 1987, Wilson was paroled in Florida and released from
prison because the government had not filed a detainer for the Oregon conviction.
Florida state officials rearrested him the next day and held him until September
11, 1988, when he was finally released after the government failed to file a
detainer. On August 11, 1989, Wilson was arrested in Utah for his outstanding
Oregon sentence and for another federal bank robbery charge. On December 18,
1989, the Utah federal district court sentenced him to a sentence that was
eventually reduced to 151 months, to be served concurrent with the Oregon
sentence. Wilson’s Oregon sentence expired on January 16, 1997.
In his § 2241 petition, Wilson sought credit for time spent in custody (1)
after he was rearrested by Florida officials on February 5, 1987, until his release
on September 11, 1988, and (2) from August 11, 1989, to December 18, 1989,
while he was in custody on the Utah charge. On appeal, Wilson only asserts he is
entitled to credit against his Utah sentence for time spent in custody from August
11, 1989, to December 18, 1989. The district court found the time was credited to
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his Oregon sentence and it could not be credited also against his Utah sentence.
We first note Wilson failed to exhaust his administrative remedies with the
Attorney General. See United States v. Woods , 888 F.2d 653, 654 (1989).
However, his failure to exhaust these remedies does not preclude our review
because the government failed to raise an objection. See id. We review de novo
the district court’s denial of habeas corpus relief. Bradshaw v. Story , 86 F.3d
164, 166 (10th Cir. 1996).
Wilson was in prison from August 1989 until December 1989 serving his
Oregon sentence. His Oregon and Utah sentences are unrelated and do not
involve the same charged conduct.
A defendant shall be given credit toward the service of a term of
imprisonment for any time he has spent in official detention prior to the
date the sentence commences--
(1) as a result of the offense for which the sentence was imposed; or
(2) as a result of any other charge for which the defendant was
arrested after the commission of the offense for which the sentence
was imposed;
that has not been credited against another sentence .
18 U.S.C. § 3585(b) (emphasis added). Under § 3585(b), Wilson is not entitled to
credit against his Utah conviction for time spent serving his Oregon sentence.
The government’s motion to supplement the record on appeal with
presentence investigation reports under seal is GRANTED. We DENY Wilson’s
application for a certificate of appealability as moot. See McIntosh v. United
States Parole Comm’n , 115 F.3d 809, 810 n.1 (10th Cir. 1997) (AEDPA does not
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apply to § 2241 appeals). Wilson’s motion to proceed on appeal in forma
pauperis is GRANTED. The district court’s denial of Wilson’s 28 U.S.C. § 2241petition is AFFIRMED. The mandate shall issue forthwith.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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