           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                          October 22, 2009

                                       No. 08-10314                    Charles R. Fulbruge III
                                                                               Clerk

LAMAR EDISON, JR.,

                                                   Petitioner - Appellant
v.

DAVID BERKEBILE, Warden at Federal Correctional Institution Seagoville,


                                                   Respondent - Appellee




                   Appeal from the United States District Court
                        for the Northern District of Texas
                                 3:07-cv-00549-D


Before HIGGINBOTHAM, STEWART, and OWEN, Circuit Judges.
PER CURIAM:*
       Petitioner-appellant Lamar Edison, Jr. (“Edison”) appeals the district
court’s denial of his 28 U.S.C. § 2241 petition challenging the computation of his
federal sentence. We AFFIRM.
                 FACTUAL AND PROCEDURAL BACKGROUND
       On May 18, 1993, Edison was arrested on drug charges in Gardena,
California. On May 20, 1993, he was transferred to the custody of the U.S.


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                  No. 08-10314

Marshals Service (“USMS”) pursuant to a warrant issued by the district court
in the Southern District of Mississippi. Edison remained in custody until June
4, 1993, when he was released on a secured bond. On July 16, 1993, a federal
grand jury in the Southern District of Mississippi returned a two-count
indictment charging Edison with drug conspiracy and distribution of crack
cocaine for sale. The case was transferred to the district court for the Central
District of California. Edison pleaded guilty to the crack-cocaine distribution
charge in exchange for dismissal of the conspiracy charge, and remained out on
bond. After Edison failed to appear for sentencing, a warrant was issued for his
arrest. On December 8, 1994, Edison was arrested in Chicago and convicted for
an unrelated drug offense. He remained in state pre-sentence custody until May
12, 1997, when he was sentenced to fifteen years in Illinois state prison. He was
given credit towards his state sentence for the time he spent in custody between
his arrest in Chicago and the date of his sentencing in Illinois state court.
      On September 8, 1997, Edison was transferred to the custody of the USMS
pursuant to a writ of habeas corpus ad prosequendum. On December 8, 1997,
Edison appeared before Judge Rea in the Central District of California and was
sentenced to 324 months imprisonment. The judgment and commitment order
stated, “Said sentence shall run concurrent to the sentence imposed in [Illinois
state court] with no credit for time served prior to the time [Edison] was writted
to federal custody.” Edison did not appeal the sentence. He was returned to
state custody and served the remainder of his state term until December 4, 2001,
when he was transferred to the custody of the federal Bureau of Prisons (“BOP”)
to begin his federal sentence at the Federal Correctional Institution at
Seagoville.   The BOP calculated Edison’s federal sentence as starting on
December 8, 1997, the date he was sentenced on his federal conviction,
consistent with Judge Rea’s order that his federal term be concurrent with his
state term.

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      Edison then filed a petition pursuant to 28 U.S.C. § 2255 in the California
district court challenging his federal conviction and sentence. Three of the four
claims, none of which are relevant to this appeal, were denied by the California
district court as time barred.1 Edison’s fourth claim alleged that the BOP had
determined that he was entitled to credit for time served prior to his federal
sentence, but that the language of the district court’s judgment (denying credit
for time served) precluded the BOP from applying the credit against his
sentence. The California district court agreed with the Government’s assertion
that Edison’s fourth claim was properly construed as a claim pursuant to 28
U.S.C. § 2241 because Edison questioned whether the BOP correctly calculated
his sentence. The California district court transferred the claim to the Northern
District of Texas where Edison is incarcerated.
      The magistrate judge (“MJ”) found that, under normal circumstances,
Edison would have been entitled to all of the credit he sought. However, due to
the limitation Judge Rea placed on credits given on the federal sentence, the MJ
concluded that the BOP had properly denied pre-sentence credit. To the extent
that Edison argued that Judge Rea had overstepped his bounds in placing the
limitation on credit given for time served, the MJ found that Edison should have
made that argument on direct appeal. In addition, the MJ noted that Edison did
receive credit for the period December 8, 1997 (the date he was sentenced by
Judge Rea) to December 4, 2001 (the date when he was transferred to federal
custody to begin serving his federal sentence). The MJ thus recommended that
Edison's § 2241 petition be denied and dismissed. The district court adopted the
MJ’s report and recommendation and denied and dismissed Edison’s petition.
Edison filed a timely notice of appeal.



      1
          Edison has never appealed the district court’s ruling that these claims are time
barred.

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                                        No. 08-10314

                                        DISCUSSION
           Edison asserts that (1) the sentencing court erred in denying him credit
for time served prior to Edison’s federal conviction; and (2) the BOP erred in
giving credence to Judge Rea’s denial of the credit for time served prior to his
federal sentence. To the extent that Edison attacks the validity of his sentence,2
his arguments are not within this court’s jurisdiction for two reasons. First,
Edison failed to challenge the judgment and commitment order on direct appeal.3
See 18 U.S.C. § 3742(a) (permitting appeal by defendants). Second, claims
contesting the legality of a sentence are not properly brought under a § 2241
petition absent a showing that the claim may be brought under § 2255’s savings
clause. See Pack v. Yusuff, 218 F.3d 448, 452 (5th Cir. 2000). Here, Edison
makes no such showing. Accordingly, we consider only whether the BOP erred
in giving credence to Judge Rea’s denial of the credit for time served prior to
Edison’s federal sentence.
A.     Standard of Review
       In an appeal from the denial of habeas relief, this court reviews a district
court’s findings of fact for clear error and issues of law de novo. Jeffers v.
Chandler, 253 F.3d 827, 830 (5th Cir. 2001).
B.     Parties’ Arguments
       Edison alleges that he is entitled to an extra 896 days prior-custody credit
on his federal sentence for two periods: (1) from May 18, 1993, to June 4, 1993
(the date of his initial arrest in California until his release on bond); and (2) from



       2
         Edison’s pro se appellate brief states, “For all the reasons stated above the sentencing
court’s decision to deny jail credit in the first place and the Texas district court’s decision to
uphold the sentencing court’s arbitrary and capricious denial of jail credit was wrong.” Pet’r’s
Br. 6 (emphasis added); see also id. at 11 (requesting remand to the district court with
instructions to order the BOP to recalculate his federal sentence “without consideration to the
erroneous judgment and commitment” from the sentencing court).
       3
           Edison was represented by counsel during his sentencing.

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December 8, 1994, to May 11, 1997 (the date of his state arrest in Chicago until
the day before he was sentenced in Illinois). He believes that he should have
received that credit pursuant to 18 U.S.C. § 3585(b) and Willis v. United States,
449 F.2d 923 (5th Cir. 1971), and that Judge Rea’s order denying him that credit
was in contravention of § 3585(b).
C.    Applicable Law
      “The Attorney General, through the [BOP], determines what credit, if any,
will be awarded to prisoners for time spent in custody prior to the
commencement of their federal sentences.” Leal v. Tombone, 341 F.3d 427, 428
(5th Cir. 2003) (citing United States v. Wilson, 503 U.S. 329, 331-32, 334 (1992)).
For offenses committed after November 1, 1987, prior custody credit is governed
by 18 U.S.C. § 3585(b), which provides in relevant part:
      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). In other words, federal inmates are not
entitled to “double-credit” to both state and federal sentences for time spent in
pre-sentence custody. See id.
      We recognized an exception to the pre-sentence credit rule in Willis v.
United States, 438 F.2d 923 (5th Cir. 1971), when an inmate is serving
concurrent federal and state terms with a state full-term date that is equal to or
less than the federal full-term date. When this exception applies, an inmate is
entitled to receive Willis credit toward his federal sentence for all pre-sentence,
non-federal custody that occurs on or after the date of the federal offense until

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the date that the first sentence (state or federal) begins. See BOP Program
Statement 5880.28, Sentence Computation Manual, 7/19/99, p. 1 - 22
(recognizing the Willis exception).4
D.      Analysis
        1. Time Period from May 18, 1993 to June 4, 1993
        Under § 3585(b), Edison would be entitled to pre-sentence credit towards
his federal sentence for the 18-day period from May 18, 1993, to June 4, 1993
(the date of his initial arrest in California until his release on bond) because time
was served as a direct result of the federal offense for which he was sentenced
in the Central District of California, and the time was not credited toward his
state sentence. The judgment and commitment order, however, stated that
Edison was not entitled to time served before he was writted into federal
custody—in this case, before September 8, 1997. Accordingly, the magistrate
and district courts correctly concluded that the BOP did not err in denying
Edison pre-sentence credit for the time period from May 18, 1993 to June 4,
1993.
        2. Time Period from December 8, 1994 to May 11, 1997
        Under § 3585(b), Edison would not be entitled to pre-sentence credit
towards his federal sentence for the 886-day time period from December 8, 1994
to May 11, 1997 (the date of his arrest in Chicago until the date before he was
sentenced in Illinois state court), because the time had previously been credited
towards his state sentence. Pursuant to the Willis exception, however, Edison
would be entitled to the credit because: (1) the time is prior to his federal
sentence on December 8, 1997; (2) during the relevant time period he was in
state custody; and (3) the relevant time period occurred after May 18, 1993, the
date of his federal offense, and before May 12, 1997, the date that his first

        4
            BOP Program Statements are available at http://www.bop.gov, via the “Policy/Forms”
link.

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sentence (in this case, state) began. See BOP Program Statement 5880.28, at p.
1 - 22. For the same reasons as noted above, however, Edison is not entitled to
credit for the time served pursuant to the sentencing court’s commitment and
order. Accordingly, the magistrate and district courts correctly concluded that
the BOP did not err in denying Edison pre-sentence credit for the time period
from December 8, 1994 to May 11, 1997.
                               CONCLUSION
      For all the foregoing reasons, the judgment of the district court is
AFFIRMED.




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