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Charles L. Malone v. Mike Babcock

May 29, 2012

CHARLES L. MALONE, PETITIONER,
v.
MIKE BABCOCK, WARDEN,
RESPONDENT.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER AND FINDINGS AND RECOMMENDATIONS

Petitioner is a federal prisoner, proceeding without counsel, with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. On February 2, 2012, respondent filed a motion to dismiss. On March 22, 2012, petitioner filed an opposition. No reply was filed. As set forth below, the court recommends that respondent's motion to dismiss be granted.

I. Background

Petitioner was arrested on April 28, 2004, by the Texarkana, Bowie County, Texas Police Department, for possession of a controlled substance, Case No. 05F0266-102. Petitioner posted bond, and was released on April 29, 2004. (Dkt. No. 9-1 at 3.)

On April 30, 2005, petitioner was arrested by the Texarkana, Texas Police Department, for unlawful possession of a firearm by a felon, Case No. 05F0267-102. Petitioner posted bond and was released on the same day. (Dkt. No. 9-1 at 3.)

On May 17, 2005, petitioner was arrested by the Texarkana, Texas Police Department, for unlawful possession of a firearm by a felon, Case No. 06F0202-102. Petitioner posted bond and was released on May 18, 2005. (Dkt. No. 9-1 at 3.)

On December 2, 2005, petitioner was arrested by the Long Beach, California, Police Department, on a Bowie County, Texas warrant for failure to appear in Case Nos. 05F0266-102, 05F0267-102, and 05F0202-102. (Dkt. No. 9-1 at 4.) Petitioner was extradited to Bowie County, Texas, on December 16, 2005. (Id.)

On January 30, 2006, petitioner was temporarily transferred to federal custody pursuant to a writ of habeas corpus ad prosequendum on Prohibited Person in Possession of a Firearm in the Eastern District of Texas. (Dkt. Nos. 9-1 at 4; 9-2 at 5.) On November 30, 2006, petitioner was sentenced in the United States District Court, Eastern District of Texas, Case No. 5:06CR00001-001, to a term of 120 months for Prohibited Person in Possession of a Firearm. (Dkt. No. 9-1 at 4.) The federal Judgment and Commitment order was silent on whether petitioner's sentence should run consecutively or concurrently with any subsequent prison sentences based on Texas convictions.*fn1 (Dkt. No. 9-2 at 9.) On December 5, 2006, petitioner was returned to the custody of the Texas state authorities. (Dkt. No. 9-1 at 4.)

On May 22, 2008, petitioner was sentenced in the 102nd District Court, Bowie County, Texas, as follows:

(1) in Case No. 05F0266-102 - Possession of a Controlled Substance - a term of six months with credit for time served from April 28, 2004, to April 29, 2004, and from December 17, 2005, to May 22, 2008. (Dkt. No. 9-1 at 4-5.)

(2) in Case No. 05F0267-102 - Unlawful Possession of a Firearm by a Felon - a term of 2 years with credit for time served from April 30, 2005, to April 30, 2005, and from December 17, 2005, to May 22, 2008. (Dkt. No. 9-1 at 5.)

(3) in Case No. 06F0202-102 - Unlawful Possession of a Firearm by a Felon - a term of 2 years with credit for time served from May 17, 2005, to May 18, 2005, and from December 17, 2005, to May 22, 2008. (Dkt. No. 9-1 at 5.)

All state sentences were ordered to run concurrently. (Dkt. No. 9-2 at 17, 19, 21.) The Judgment of Conviction states that "If Defendant is to serve sentence in TDCJ ("Texas Department of Criminal Justice"), enter incarceration periods in chronological order: From 5/17/2005 to 5/18/2005; from 12/17/2005 to 5/22/2008. (Dkt. No. 9-2 at 21.)

On May 23, 2008, Bowie County, Texas authorities determined petitioner had satisfied his Texas state sentences and released him to the custody of federal authorities. Texas Department of Criminal Justice ("TDCJ") authorities confirmed petitioner received credit toward his state sentences for all time spent in custody from April 28, 2004, through April 29, 2004; April 30, 2005; May 17, 2005, through May 18, 2005; and December 17, 2005, through May 22, 2008. (Dkt. No. 9-2 at 23.) These dates include the ...


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