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Gilkey v. C.V. Rivera

United States District Court, E.D. Arkansas, Eastern Division

September 16, 2016

WILLIAM L. GILKEY Reg # XXXXX-XXX, Petitioner,
v.
C.V. RIVERA, Warden, Warden, FCI Forrest City, Respondent.

          William Lyndall Gilkey, Plaintiff, Pro Se.

          C V Rivera, Defendant, represented by Richard M. Pence, Jr., U.S. Attorney's Office.

          RECOMMENDED DISPOSITION INSTRUCTIONS

          J. THOMAS RAY, Magistrate Judge.

         The following Recommended Disposition ("Recommendation") has been sent to United States District Judge James Moody, Jr. You may file written objections to all or part of this Recommendation. If you do so, those objections must: (1) specifically explain the factual and/or legal basis for your objection; and (2) be received by the Clerk of this Court within fourteen (14) days of this Recommendation. By not objecting, you may waive the right to appeal questions of fact.

         I. Background

         Before the Court is a 28 U.S.C. § 2241 Petition for Writ of Habeas Corpus filed by Petitioner, William L. Gilkey ("Gilkey), an inmate in the Federal Correctional Institution in Forrest City, Arkansas (FCI-FC").[1] Doc. 1. Gilkey argues that the Bureau of Prison ("BOP") has improperly denied him a nunc pro tunc designation. Before addressing Gilkey's habeas claim, the Court will review the relevant procedural history of the case.

         On July 7, 2010, Gilkey was arrested and detained by Georgia state authorities in Glynn County on charges of theft by receipt of stolen property. Doc. 6-1, at p. 7.

         On August 5, 2010, a federal grand jury in the Southern District of Georgia returned an indictment charging Gilkey with unlicensed dealing in firearms, carrying firearms during and in relation to drug trafficking. United States v. William Lyndall Gilkey, S.D. Georgia No. 2:10-CR-00033 (" Gilkey I "), at Doc. 3. On August 10, 2010, a writ of habeas corpus ad prosequendum was issued. Gilkey I, Doc. 10. On August 20, 2010, Gilkey was temporarily released from state custody via a federal writ to the United States Marshals Service ("USMS") in connection with his pending federal criminal charges. Doc. 6-1 at pp. 9-10.

         On May 19, 2011, Gilkey was sentenced in Gilkey I to a term of sixty-months for using a firearm during a drug trafficking offense, a violation of 18 U.S.C. § 924(c). The Judgment in Gilkey I states: "This term shall not be served concurrently with any other term of imprisonment." Doc. 6-1 at p. 13.

         On May 19, 2011, with his federal charges resolved and the federal judgment lodged as a detainer, Gilkey was returned to state custody to address the pending state charges in State of Georgia v. William L. Gilkey, Superior Court of Glynn County, Georgia No. CR1100578-63 (" Gilkey II"). Doc. 6-1, ¶ 9 at p. 10.

         On February 6, 2012, Gilkey was sentenced in Gilkey II to a ten-year term of confinement, with five-years to serve and five-years of probation. Docs. 2 at p. 4 & 6-1 at pp. 19-20. The final disposition in Gilkey II directed that Gilkey's state sentence would run concurrently with the federal sentence imposed in Gilkey I. Doc. 2 at p. 4.

         On May 8, 2013, Gilkey completed serving his sentence in Gilkey II and Georgia authorities released him to the custody of the USM to begin serving his federal sentence in Gilkey I. Doc. 6-1 at p. 22.

         The BOP calculated Gilkey's sixty-month federal sentence in Gilkey I as commencing on May 8, 2013, the date he was discharged from his state sentence in Gilkey II and placed in federal custody to begin serving his federal sentence. The BOP's calculation gave Gilkey 271 days of credit for the time spent in state custody, from August 21, 2010, through May 18, 2010, that was not credited against the state sentence. Doc. 6-1 at pp. 24-25.

         In this § 2241 action, Gilkey argues that the BOP should have credited all time served on his state sentence toward his federal sentence. More specifically, Gilkey challenges the BOP's refusal to make a nunc pro tunc designation. For the ...


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