Porter Bush v. John Fox ( 2011 )

Case: 11-40410 Document: 00511695225 Page: 1 Date Filed: 12/14/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 14, 2011
No. 11-40410
Summary Calendar Lyle W. Cayce
Clerk
PORTER LEE BUSH,
Petitioner-Appellant
v.
JOHN B. FOX, Warden,
Respondent-Appellee
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:08-CV-397
Before BENAVIDES, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
Porter Lee Bush, federal prisoner # 88804-079, appeals following the
denial of his 28 U.S.C. § 2241 motion wherein he challenged the calculation of
his federal sentence for being a felon in possession of a firearm in violation of 18
U.S.C. §§ 922, 924. He argues that the district court erred by granting the
Respondent’s motion for summary judgment because there existed a genuine
factual dispute regarding his claim that he began serving his federal sentence
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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No. 11-40410
on February 20, 2002. He also argues that he was forced to serve the sentence
in installments.
Section 2241 is the proper procedural vehicle for Bush’s claims. See Jeffers
v. Chandler, 253 F.3d 827, 830 (5th Cir. 2001); United States v. Garcia-Gutierrez,
835 F.2d 585, 586 (5th Cir. 1988). “In the context of a § 2241 petition, this court
reviews the district court’s determinations of law de novo and its findings of fact
for clear error.” Royal v. Tombone, 141 F.3d 596, 599 (5th Cir. 1998) (internal
quotation marks and citation omitted).
This court reviews a grant of summary judgment de novo, using the same
standard as the district court. Carnaby v. City of Houston, 636 F.3d 183, 187
(5th Cir. 2011). Summary judgment is proper “if the movant shows that there
is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” FEDERAL RULE OF CIVIL PROCEDURE 56(a). The
movant need not negate the elements of the nonmovant’s case, however. Little
v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc). If the movant
meets his burden of demonstrating the absence of a genuine issue of material
fact, the nonmovant “must go beyond the pleadings and designate specific facts
showing that there is a genuine issue for trial.” Id. The nonmovant may not
satisfy this burden by relying on conclusional allegations and unsubstantiated
assertions. Carnaby, 636 F.3d at 187. Further, although factual controversies
are resolved in favor of the nonmovant, this court will not in the absence of any
proof, assume that the nonmovant could prove the facts necessary to sustain the
complaint. Little, 37 F.3d at 1075.
A federal sentence of imprisonment “commences on the date the defendant
is received in custody awaiting transportation to, or arrives voluntarily to
commence service of sentence at, the official detention facility at which the
sentence is to be served.” 18 U.S.C. § 3585(a). Subsection (b) of § 3585 provides:
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No. 11-40410
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.
§ 3585(b)(emphasis added). “Credit [on a federal sentence] for state
incarceration is given pursuant to 18 U.S.C. § 3568 [now codified at § 3585(b)]
only when it was exclusively the product of such action by federal
law-enforcement officials as to justify treating the state jail as the practical
equivalent of a federal one.” United States v. Dovalina, 711 F.2d 737, 740 (5th
Cir. 1983) (internal quotation and citation omitted).
The Respondent submitted competent summary judgment evidence,
including a declaration made in accordance with 28 U.S.C. § 1746, which
established that Bush was in state custody prior to his appearance in federal
court on a writ of habeas corpus ad prosequendum. Accordingly, his state
custody remained uninterrupted. See Causey v. Civiletti, 621 F.2d 691, 693-94
(5th Cir. 1980); see also Cain v. Menifee, 269 F. App’x 420, 424 (5th Cir. 2008).
We liberally construe Bush’s brief to assert that he pleaded guilty to the
state burglary charge pursuant to an agreement with the state wherein he would
be transported to federal custody to begin serving his “concurrent sentence.” He
thus suggests that he is entitled to “double credit” for his detention time. This
argument lacks merit because when it enacted § 3585(b), “Congress made clear
that a defendant could not receive a double credit for his detention time.” See
United States v. Wilson, 503 U.S. 329, 337 (1992). Finally, Bush asserts that if
he had not been in federal custody when he was acquitted of the state murder
charge, he would have been free to leave jail on his state bond for burglary
because it had never been revoked. We note, however, that Bush pleaded guilty
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No. 11-40410
to the state burglary charge on the same day he was acquitted of the murder
charge.
In sum, Bush has not shown that the district court erred in granting
summary judgment and in concluding that he did not begin serving his federal
sentence until November 2005. Accordingly, we do not reach his argument that
he was forced to serve his sentence in installments. Bush’s motion to expedite
the appeal is DENIED.
AFFIRMED.
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