# Byrd v. United States

> District Court, M.D. Florida · October 16, 2019

URL: https://www.frixlaw.com/law-library/cases/10103870

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** October 16, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

CHARLES EARNEST BYRD,

Petitioner,

v. Case No. 3:17-cv-514-J-32JRK
3:89-cr-148-J-32JRK

UNITED STATES OF AMERICA,

Respondent.

ORDER
This case is before the Court on Petitioner Charles Earnest Byrd’s Motion
Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (Civ. Doc. 1, § 2255
Motion).1 Petitioner is currently in the custody of the Florida Department of
Corrections (FDOC), serving a sentence of life in prison for second-degree murder.
Petitioner raises only a single claim in the § 2255 Motion: he asks that the Court run
his federal sentence (for obstruction of correspondence under 18 U.S.C. § 1702)
concurrently with his state-court life sentence. The United States has responded,
arguing that the Court lacks jurisdiction because Petitioner was not in custody
pursuant to this Court’s judgment when he filed the § 2255 Motion, and alternatively,
that the § 2255 Motion is untimely and his claim is procedurally defaulted. (Civ. Doc.

1 Citations to the record in the underlying criminal case, United States v. Charles
Earnest Byrd, No. 3:89-cr-148-J-32JRK, will be denoted “Crim. Doc. __.” Citations to
the record in the civil § 2255 case, No. 3:17-cv-514-J-32JRK, will be denoted “Civ. Doc.
__.”
4, Response). Petitioner did not file a reply. Accordingly, the case is ripe for a decision.
Under Rule 8(a) of the Rules Governing Section 2255 Proceedings, the Court
has determined that an evidentiary hearing is not necessary to decide the motion. See

Rosin v. United States, 786 F.3d 873, 877 (11th Cir. 2015) (an evidentiary hearing on
a § 2255 motion is not required when the petitioner asserts allegations that are
affirmatively contradicted by the record or patently frivolous, or if in assuming that
the facts he alleges are true, he still would not be entitled to any relief). For the reasons
below, Petitioner’s § 2255 Motion is due to be dismissed as untimely.

I. Background
Only limited records are available due to the age of this case, but the Court has
attempted to reconstruct the background based on the following documents: the
indictment (Crim. Doc. 1), the judgment (Crim. Doc. 2), and the Presentence

Investigation Report (PSR).
On September 13, 1989, a grand jury charged Petitioner with (1) obstructing
correspondence, in violation of 18 U.S.C. § 1702, (2) forgery of a treasury check, in
violation of 18 U.S.C. §§ 510(a)(1) and 2, and (3) passing a forged instrument, in
violation of §§ 510(a)(1) and 2. (Crim. Doc. 1). Petitioner pled guilty to Count One –
obstruction of correspondence – and in exchange the United States moved to dismiss

Counts Two and Three. (See Crim. Doc. 2). On June 29, 1990, the Court entered
judgment against Petitioner, adjudicating him guilty of Count One and sentencing
him to 12 months in prison followed by a three-year term of supervised release. (Crim.
Doc. 2 at 2, 4). Petitioner did not appeal the sentence.
When the Court entered judgment, Petitioner was already subject to a sentence
of life in prison in the State of Florida for second-degree murder. (PSR at ¶ 37). The
federal judgment was silent about whether Petitioner’s federal sentence was to run

concurrently or consecutively with the state-court sentence. But because the federal
judgment was silent, the federal sentence is presumed to run consecutively with the
state sentence. 18 U.S.C. § 3584(a) (“….Multiple terms of imprisonment imposed at
different times run consecutively unless the court orders that the terms are to run
concurrently.”).
Prison records suggest that Petitioner served only part of his federal term of

imprisonment before entering FDOC’s custody to serve his state sentence. According
to the PSR, Petitioner had been “[i]n federal custody since January 22, 1990,” and was
not subject to any detainers at the time the PSR was written. (See PSR cover page).
Accordingly, the federal judgment remanded Petitioner into the custody of the United
States Marshal. (Crim. Doc. 2 at 3). However, the FDOC’s records show that FDOC
received Petitioner into custody on July 26, 1990, one month after entry of the federal
judgment and only six months after Petitioner entered federal custody.2 Additionally,

FDOC’s records show that Petitioner has been subject to a United States Marshal’s
detainer ever since April 10, 1992, which has not been canceled. A records search of
the Federal Bureau of Prisons (BOP) also turned up a result that appears to match
Petitioner’s identity (Byrd, Charles, Age 70, Register No. 11272-018).3 The BOP record

2http://www.dc.state.fl.us/offenderSearch/detail.aspx?Page=Detail&DCNumber=0243
00&TypeSearch=AI
3 https://www.bop.gov/inmateloc/
reflects that he is not in federal custody and his release date is “unknown.” Moreover,
the available records do not indicate that Petitioner ever served time on his three-year
term of federal supervised release.

II. Discussion
A. Petitioner satisfies the “in custody” requirement.

Title 28 of the United States Code, Section 2255 provides that
[a] prisoner in custody under sentence of a court established by Act of
Congress claiming the right to be released upon the ground that the
sentence was imposed in violation of the Constitution or laws of the
United States …, may move the court which imposed the sentence to
vacate, set aside or correct the sentence.

28 U.S.C. § 2255(a) (emphasis added). The Supreme Court has interpreted similar
language in § 2241(c)(3) “as requiring that the habeas petitioner be ‘in custody’ under
the conviction or sentence under attack at the time his petition is filed.” Maleng v.
Cook, 490 U.S. 488, 490–91 (1989). The “in custody” requirement is jurisdictional, so
the Court must be satisfied that Petitioner is “in custody” under a sentence of this
Court before proceeding further. Id. at 490; see also Bailey v. Hill, 599 F.3d 976, 978
(9th Cir. 2010) (“Section 2254(a)’s ‘in custody’ requirement is jurisdictional and
therefore ‘it is the first question we must consider[.]’”) (citation omitted).
When a prisoner is subject to consecutive sentences, as Petitioner is, the
sentences “should be treated as a continuous series; a prisoner is ‘in custody’ ... ‘if any
consecutive sentence [the prisoner is] scheduled to serve was imposed as the result of
a deprivation of constitutional rights.’” Garlotte v. Fordice, 515 U.S. 39, 40-41 (1995)
(citing Peyton v. Rowe, 391 U.S. 54 (1968)). The same is true even if different
sovereigns imposed the consecutive sentences. See Braden v. 30th Judicial Cir. Ct. of
Ky., 410 U.S. 484, 499-50 (1973) (Alabama prisoner subject to a detainer by Kentucky
could file a habeas petition challenging Kentucky’s alleged denial of the right to a

speedy trial). Thus, the former Fifth Circuit held that Ҥ 2255 is available to a prisoner
in state custody,” like Petitioner, “attacking a federal sentence scheduled to be served
in the future.” Simmons v. United States, 437 F.2d 156, 159 (5th Cir. 1971).4
Petitioner satisfies the “in custody” requirement for two independent reasons.
First, Petitioner is still subject to the undischarged balance of his federal term of
imprisonment. As discussed earlier, this Court sentenced Petitioner to a term of 12

months in prison, which runs consecutively with his state sentence. Petitioner
completed only 6 months of his federal sentence before being transferred to FDOC’s
custody to serve his state prison sentence. Thus, Petitioner is still subject to the
remaining balance of 6 months on his federal prison term. Two facts reinforce this
conclusion: (1) FDOC’s records show that the United States Marshal has maintained
a continuous detainer on Petitioner since April 10, 1992, and (2) BOP’s records reflect
not that Petitioner has been released from its custody, but that his release date is

“unknown,” probably owing to the indeterminate nature of his life sentence in state
prison, hence the indeterminate nature of when he would complete the rest of his
federal prison sentence. Because Petitioner is still subject to a consecutive federal
prison term, he satisfies § 2255(a)’s “in custody” requirement.

4 Decisions handed down by the former Fifth Circuit Court of Appeals before the
close of business on September 30, 1981, are binding in the Eleventh Circuit. Bonner
v. City of Prichard, Ala., 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc).
Alternatively, Petitioner is “in custody” because he is also subject to an
undischarged, three-year term of federal supervised release – however unlikely it is
that Petitioner will serve such a term, practically speaking. A person subject to a term

of supervised release is “in custody” within the meaning of § 2255(a). United States v.
Brown, 117 F.3d 471, 475 (11th Cir. 1997) (citing Jones v. Cunningham, 371 U.S. 236,
240-43 (1963)). A term of supervised release commences only once a person is actually
released from prison. 18 U.S.C. § 3624(e); United States v. Johnson, 529 U.S. 53, 57
(2000). Additionally, time spent serving a state prison sentence generally cannot be
credited toward a federal term of supervised release. 18 U.S.C. § 3624(e) (“A term of

supervised release does not run during any period in which the person is imprisoned
in connection with a conviction for a Federal, State, or local crime unless the
imprisonment is for a period of less than 30 consecutive days.”); United States v.
House, 501 F.3d 928, 930 (8th Cir. 2007). Because Petitioner has continuously been in
BOP or FDOC custody since at least January 1990, he has not served any time on his
federal term of supervised release. Therefore, because Petitioner is still subject to an
undischarged term of federal supervised release (in addition to the undischarged

balance of his federal prison sentence), he is “in custody” for purposes of § 2255(a).
Having determined that Petitioner meets § 2255(a)’s “in custody” requirement,
the Court must reject the United States’ argument that the Court lacks jurisdiction
over the § 2255 Motion. (See Civ. Doc. 4 at 3). Nevertheless, the United States is
correct that Petitioner’s § 2255 Motion is untimely. (Id. at 4).
B. Petitioner’s § 2255 Motion is Untimely

Under the Antiterrorism and Effective Death Penalty Act (AEDPA), there is a
one-year statute of limitations for a federal prisoner to file a motion to vacate, set
aside, or correct sentence. 28 U.S.C. § 2255(f). The limitations period runs from the
latest of four trigger dates.

(1) the date on which the judgment of conviction becomes final;

(2) the date on which the impediment to making a motion created by
governmental action in violation of the Constitution or laws of the
United States is removed, if the movant was prevented from making
a motion by such governmental action;

(3) the date on which the right asserted was initially recognized by the
Supreme Court, if that right has been newly recognized by the
Supreme Court and made retroactively applicable to cases on
collateral review; or

(4) the date on which the facts supporting the claim or claims presented
could have been discovered through the exercise of due diligence.
Id.
“Typically, the applicable triggering date is ‘the date on which the judgment of
conviction becomes final.’” Beeman v. United States, 871 F.3d 1215, 1219 (11th Cir.
2017) (citing 28 U.S.C. § 2255(f)(1)). However, Petitioner is in an unusual position
because his conviction and sentence became final in 1990, before the enactment of
AEDPA on April 24, 1996. Thus, for Petitioner, AEDPA’s statute of limitations began
running on April 24, 1996, giving him through April 23, 1997, to file a § 2255 motion.
Goodman v. United States, 151 F.3d 1335, 1337-38 (11th Cir. 1998).
Even so, Petitioner’s § 2255 Motion is untimely. Petitioner did not submit the §
2255 Motion for mailing until May 1, 2017, more than 20 years after § 2255(f)’s statute
of limitations expired. (See Civ. Doc. 1 at 1). Petitioner neither invokes nor alleges
facts that suggest his claim is timely under §§ 2255(f)(2)-(4). (See Civ. Doc. 1 at 12).
Nor does Petitioner suggest that the doctrines of equitable tolling or actual innocence

allow him to avoid the time bar. In response to Question 18 on the § 2255 form, which
requires the petitioner to “explain why the one-year statute of limitations … does not
bar your motion” if the judgment of conviction became final more than a year earlier,
Petitioner writes: “I haven’t anything to say except [to] place myself at the mercy of
this Honorable Court with all due respect.” (Civ. Doc. 1 at 12). However, the Court has
an obligation to uphold the laws enacted by Congress. Accordingly, the Court must

enforce the statute of limitations and find that the § 2255 Motion is time-barred.
Therefore, in accordance with the Rules Governing Section 2255 Proceedings in
the United States District Courts, it is hereby ORDERED:
1. Petitioner Charles Earnest Byrd’s Motion Under 28 U.S.C. § 2255 to Vacate,
Set Aside, or Correct Sentence (Civ. Doc. 1) is DISMISSED WITH

PREJUDICE as untimely.
2. The Clerk should enter judgment in favor of the United States and against
Petitioner, and close the file.
CERTIFICATE OF APPEALABILITY AND LEAVE TO APPEAL IN FORMA
PAUPERIS DENIED

IT IS FURTHER ORDERED that Petitioner is not entitled to a certificate of
appealability. A prisoner seeking a motion to vacate has no absolute entitlement to
appeal a district court’s denial of his motion. 28 U.S.C. § 2253(c)(1). Rather, a district
court must first issue a certificate of appealability (COA). Id. “A [COA] may issue...
only if the applicant has made a substantial showing of the denial of a constitutional
right.” Id. at § 2253(c)(2). To make such a showing, Petitioner “must demonstrate that
reasonable jurists would find the district court’s assessment of the constitutional
claims debatable or wrong,” Tennard v. Dretke, 542 U.S. 274, 282 (2004) (quoting
Slack v. McDaniel, 529 U.S. 473, 484 (2000)), or that “the issues presented were
‘adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537
U.S. 322, 335-36 (2003) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)).
Petitioner has not made the requisite showing in these circumstances. Because
Petitioner is not entitled to a certificate of appealability, she is not entitled to appeal
in forma pauperis.
DONE AND ORDERED at Jacksonville, Florida this 16th day of October,
2019.

TIMOTHY J. CORRIGAN
United States District Judge

le 19
Copies:
Counsel of record
Petitioner

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10103870. Public record. Not legal advice.