                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                                 August 12, 2009
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                            FOR THE TENTH CIRCUIT


    EDWIN KINDELL THOMAS,

                Plaintiff-Appellant,

    v.                                                 No. 08-6219
                                                (D.C. No. 5:08-CV-00440-C)
    H.A. LEDEZMA, Warden,                              (W.D. Okla.)

                Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before TACHA, PORFILIO, and ANDERSON, Circuit Judges.



         Edwin Thomas is a federal prisoner serving an 84-month sentence for

possession of a firearm. He seeks credit toward his federal sentence for time

previously served on a Texas state sentence. Initially, he attempted to obtain this

credit by pursuing his administrative remedies within the prison system. When

that proved unsuccessful, he brought this 28 U.S.C. § 2241 petition for writ of



*
       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. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
habeas corpus. 1 The district court granted summary judgment in favor of his

custodian, Warden H.A. Ledezma, finding that the uncontroverted evidence

demonstrated that Mr. Thomas had already received all of the credit to which he

was entitled. We affirm.

                                 BACKGROUND

      This procedurally-complex case involves the interaction and computation of

three different sentences. Accordingly, we will carefully detail the relevant facts

before proceeding to our analysis of the issues.

      Mr. Thomas received the first of his three sentences (No. 20,996-85) from

Brazos County, Texas in 1992, when he was sentenced there to fourteen years’

incarceration for possession of cocaine. He began serving time toward this

sentence on September 25, 1991 and remained incarcerated for nearly six years

until July 2, 1997, when Brazos County released him on parole. 2

      He was free after that for about fifteen months, until September 18, 1998,

when he was arrested by Burleson County, Texas authorities on drug and firearms


1
      The district court treated his habeas petition as one brought under
28 U.S.C. § 2254, which requires a certificate of appealability (COA) to proceed
on appeal. See 28 U.S.C. § 2253(c). But since the petition challenges the
execution of his sentence, it is more properly viewed as a § 2241 petition.
Section 2241 appeals by federal prisoners like Mr. Thomas do not require a COA.
See McIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 810 n.1 (10th Cir. 1997).
2
       Mr. Thomas was not actually sentenced in Brazos County until June 3,
1992, but he was incarcerated beginning on September 25, 1991, the date of his
arrest. The service of his sentence is counted from the earlier date.

                                        -2-
charges. He was released on bond the next day. This arrest ultimately resulted in

his other two sentences: a federal sentence for possession of a firearm by a felon,

and a Burleson County state sentence for controlled substance charges.

      Six days later, on September 25, 1998, he was re-arrested for violating the

terms of his Brazos County parole. He remained in jail from September 25, 1998

through November 27, 1998, pending disposition of the Burleson County charges.

On November 28, 1998, the Texas Department of Criminal Justice (TDCJ)

re-commenced his service of his Brazos County sentence, though his parole had

not yet officially been revoked.

      On December 10, 1998, Mr. Thomas was “borrowed” via a writ of habeas

corpus ad prosequendum (HCAP) from state detention in Burleson County to be

prosecuted by federal authorities. On April 9, 1999, based on his guilty plea, he

was sentenced to 84 months’ incarceration by the Federal District Court for the

Western District of Texas for possession of a firearm by a felon. The federal

judgment was silent concerning whether it would run concurrently or

consecutively to any sentence to be imposed in Burleson County as a result of

Mr. Thomas’s September 18, 1998, arrest.

      Mr. Thomas was returned to the custody of Burleson County on April 21,

1999. He was subsequently charged in that county with unlawful possession of a

firearm (enhanced) (Case No. 11,902) and possession of a controlled substance

(enhanced) (Case No. 11,903). On July 7, 1999, he pleaded guilty to possession

                                         -3-
of a controlled substance (Case No. 11,903) and was sentenced in Burleson

County to another fourteen-year sentence. The charge in Case No. 11,902 was

dismissed as part of the plea agreement.

      On August 11, 1999, Brazos County officially revoked Mr. Thomas’s

parole. He was ordered to serve the remainder of his fourteen-year sentence in

Case No. 20,996-85. 3

      Mr. Thomas subsequently filed a state habeas corpus petition, contending

that his guilty plea in Burleson County had been involuntary. He noted that his

Burleson County plea agreement had included a provision that his state sentence

would run concurrently with his federal sentence. See R. at 138. 4 In spite of this

provision in his state plea agreement, he contended, the federal authorities had

refused to credit him with time he was serving in Burleson County. On

October 26, 2005, the Texas Court of Criminal Appeals (TCCA) determined, per

curiam, that Mr. Thomas was entitled to relief based on the involuntary nature of

his plea. Accordingly, it set aside the judgment based on the guilty plea in Case




3
       He was determined to be “out of custody” (and hence, received no credit
towards his Brazos County sentence) during the 513 days that elapsed between
July 3, 1997 (the day after he was paroled) and November 27, 1998 (the day prior
to the recommencement of his Brazos County sentence).
4
       The judgment on his guilty plea provided, generically, that it would run
“CONCURRENT UNLESS OTHERWISE SPECIFIED” but said nothing
specifically about the federal sentence. R. at 139.

                                           -4-
No. 11,903, and remanded to permit Mr. Thomas to answer the Burleson County

charges against him.

      On December 12, 2005, Mr. Thomas was transferred from the TDCJ to

Burleson County to face charges. Rather than re-prosecute him, however, on

December 29, 2006, the state moved in the district court in Burleson County to

dismiss Cases 11,902 and 11,903, on the basis that Mr. Thomas had been

convicted in the federal case based on the same incident. On January 18, 2007,

his Burleson County sentence was dismissed in favor of his federal sentence.

      Meanwhile, on April 3, 2006, Mr. Thomas had posted bond in Burleson

County based on the TCCA decision. On April 5, 2006, he was released in error

to the United States Marshals for service of his federal sentence. In fact, he was

still serving time on his fourteen-year Brazos County sentence and should have

finished that sentence before being released to federal custody. On April 27,

2006, he was moved (again, in error) to the custody of the Bureau of Prisons

(BOP) at the Federal Correctional Institution (FCI) in Three Rivers, Texas.

      The BOP prepared a sentence computation that showed Mr. Thomas began

serving his federal sentence on April 5, 2006, when his custody was transferred to

the federal marshals. As part of the BOP’s computation, he was credited with

time served toward his federal sentence for two time periods: the time between

his initial arrest by Burleson County authorities on September 18, 1998, until his

release the next day on bond, and the time he spent in jail in Burleson County

                                         -5-
from September 25, 1998 through November 27, 1998, as this time had not

previously been credited to his Brazos County sentence.

      On December 14, 2006, Mr. Thomas was paroled from his fourteen-year

Brazos County sentence. He continues to serve his federal sentence.

      Mr. Thomas began exhausting his administrative remedies with the BOP in

October 2006. He contended that his federal sentence should have been run

concurrently to his state sentences; that he had been serving his federal sentence

since its imposition; and that he had therefore completed his federal sentence and

was entitled to immediate release. His administrative appeals were denied. But

when he reached the national level, the BOP considered his request for sentencing

credit as a request for nunc pro tunc (NPT) designation of his federal sentence to

run concurrently with the Burleson County sentence, a matter that the federal

court had never expressly resolved in its sentencing.

      On July 10, 2007, the BOP wrote to Judge Sparks, the judge who had

sentenced Mr. Thomas in the Western District of Texas, asking him to state his

position with respect to a retroactive designation of Mr. Thomas’s federal

sentence to run concurrently with the Burleson County sentence. Judge Sparks

responded that he could think of no reason not to run the sentences consecutively

and that he would not recommend a concurrent designation. 5 The BOP


5
      Judge Sparks noted:
                                                                       (continued...)

                                         -6-
subsequently denied Mr. Thomas’s request for a NPT designation. He is now

serving time on his federal conviction at the FCI in El Reno, Oklahoma. His

anticipated release date from federal custody is June 3, 2012.

                                       ANALYSIS

         We review the district court’s legal conclusions in denying Mr. Thomas’s

habeas claims de novo, see Weekes v. Fleming, 301 F.3d 1175, 1176-77 (10th Cir.

2002), and its factual findings for clear error, Martinez v. Flowers, 164 F.3d

1257, 1258 (10th Cir. 1998). In his pro se briefing, Mr. Thomas makes three

basic arguments: (1) he should have begun serving his federal sentence as soon as

it was imposed; (2) he should have received credit toward his federal sentence for

the time he spent on his Burleson County state sentence; and (3) his Texas state

sentences should have been run concurrently, not consecutively, with his federal

sentence. We will consider each of these arguments in turn.


5
    (...continued)
          Edwin Thomas is a person addicted both to drugs and criminal
          conduct. At the time I sentenced him, he was thirty years old and
          already had perfected a criminal history of VI under the Sentencing
          Guidelines. His guideline range was 84 to 105 months. He was
          sentenced at the bottom of the guidelines because of his drug
          addiction [a]ffecting his personal and criminal conduct while out of
          the penitentiary.

         A review of this case will confirm that Mr. Thomas was arrested
         possessing marijuana and crack cocaine, along with two pistols and
         one shotgun all within reach of his vehicle.

R. at 101.

                                           -7-
      1. Time Federal Sentence Began

      Mr. Thomas argues that he began serving his federal sentence on April 9,

1999, the date he was sentenced in federal court, rather than on April 5, 2006,

when he was transferred from state custody to the custody of federal marshals.

His argument appears to rest on the fact that his Burleson County sentence was

not imposed until July 7, 1999, after his federal sentence came into existence and

(according to his theory) he had been serving time on the federal sentence for

nearly three months. He adds that the district court misconstrued his argument,

which is that the later-imposed Burleson County sentence ran concurrently to the

federal sentence, and not vice versa.

      This analysis fails to take into account the effect of the Brazos County

sentence, which the TDCJ re-commenced on November 28, 1998, before

Mr. Thomas was sentenced in the federal case. After his federal sentence was

imposed, he was returned to state custody, still serving a state sentence from

Brazos County. Any time he served before being transferred to Burleson County

custody was thus state time, not federal time.

      Also, although the federal sentence was imposed prior to his Burleson

County sentence, under the applicable law his federal time did not actually begin

to run until he was taken into federal custody, which only occurred on April 5,

2006. See Binford v. United States, 436 F.3d 1252, 1255 (10th Cir. 2006)

(holding that “[a] federal sentence does not commence until a prisoner is actually

                                        -8-
received into federal custody for that purpose.”); see also 18 U.S.C. § 3585(a). 6

Finally, we note that the federal authorities had no duty to take him immediately

into custody before he had completed the service of his state sentences.

Bloomgren v. Belaski, 948 F.2d 688, 691 (10th Cir. 1991); see also Weekes,

301 F.3d at 1180 (“The sovereign that first acquires custody of a defendant in a

criminal case is entitled to custody until it has exhausted its remedy against the

defendant.”).

      2. Credit for Time Served

      Mr. Thomas also argues that he was entitled to credit against his federal

sentence for time he spent incarcerated on his Burleson County sentence. The

district court found that he had already received credit for this time against his

Brazos County sentence, and that awarding him credit against the federal sentence

as well would constitute impermissible double credit. We agree.

      The applicable statute reads as follows:

      (b) Credit for prior custody.--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




6
       The temporary federal custody pursuant to the HCAP did not “begin” the
service of Mr. Thomas’s sentence, because he was surrendered back to state
custody without having been received at a federal penal institution for service of
his federal sentence. See Weekes, 301 F.3d at 1179-80.

                                         -9-
      (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).

      Against this theory, Mr. Thomas argues that the time he spent on his

Burleson County sentence was not, in fact, credited against his Brazos County

sentence because the Burleson County sentence was ultimately overturned by the

TCCA. He cites no authority for this proposition, which defies logic. He fails to

show that the ultimate disposition of the Burleson County sentence has anything

to do with whether time he spent serving it was credited to his Brazos County

sentence. He also presents no evidence to rebut the warden’s evidence that he

received full credit.

      3. Concurrent vs. Consecutive Sentencing

      Finally, Mr. Thomas argues that his federal and Burleson County sentences

should have been run concurrently, not consecutively. Federal law is to the

contrary. See 18 U.S.C. § 3584(a) (stating that “[m]ultiple terms of imprisonment

imposed at different times run consecutively unless the court orders that the terms

are to run concurrently.” (emphasis added)). The federal district court that

sentenced Mr. Thomas made no determination that the federal term would run

concurrently with the pending state sentence. But when later asked whether the

sentences should run concurrently, the federal sentencing judge indicated that

                                        -10-
they should not. The BOP subsequently denied NPT concurrent sentencing

designation.

      Mr. Thomas argues, however, that the sentences should run concurrently

because that is what he agreed to in his state plea agreement. But as we recently

explained in a factually similar case, “[a]lthough [Mr. Thomas’s] state sentence

provides for concurrent service of the federal and state sentences, the state court’s

decision cannot alter the federal-court sentence,” which runs consecutively to, not

concurrently with, the state sentence. United States v. Eccleston, 521 F.3d 1249,

1254 (10th Cir.) (citing Bloomgren, 948 F.2d at 691) (holding that whether a

defendant’s “federal sentence would run consecutively to his state sentence is a

federal matter which cannot be overridden by a state court provision for

concurrent sentencing on a subsequently-obtained state conviction.”)), cert.

denied, 129 S. Ct. 430 (2008).

      The judgment of the district court is AFFIRMED. Mr. Thomas’s motion to

proceed on appeal in forma pauperis is GRANTED.


                                                     Entered for the Court



                                                     Deanell Reece Tacha
                                                     Circuit Judge




                                         -11-
