Adams v. Morrison

* 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that this opinion should not be published and is not precedent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.
United States Court of Appeals
Fifth Circuit
F I L E D
December 24, 2003
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-40521
Summary Calendar
WAYNE DYANE ADAMS,
Petitioner-Appellant,
versus
MARVIN D. MORRISON, Warden,
Respondent-Appellee.
--------------------
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:03-CV-43
--------------------
Before HIGGINBOTHAM, DAVIS, and PRADO, Circuit Judges.
PER CURIAM:*
Wayne Dyane Adams, federal prisoner # 34109-077, appeals
the denial of his 28 U.S.C. § 2241 petition. The respondent
has filed a motion to seal exhibits. Adams pleaded guilty to a
charge of giving a false statement in connection with a firearm
offense. The district court sentenced him to 41 months’
imprisonment. Later, in state court, Adams was sentenced to 24
months’ imprisonment for a state probation violation.

-- 1 of 3 --

No. 03-40521
-2-
Adams asserts that he was entitled to credit towards his
federal sentence for the time he spent in federal custody due
to a transfer error. For the first time in his 28 U.S.C. § 2241
petition, he argues that the Bureau of Prisons (BOP) was required
to run his federal sentence concurrently with his state sentence
as provided by the state sentencing order.
The district court’s factual findings are reviewed for clear
error, and legal determinations are reviewed de novo. Royal v.
Tombone, 141 F.3d 596, 599 (5th Cir. 1998). The Attorney
General, through the BOP, determines what credit, if any, will
be awarded to a prisoner for time spent in custody prior to the
commencement of his sentence. See United States v. Wilson,
503 U.S. 329, 337 (1992).
Adams is not entitled to the credit that he seeks because
the time was fully credited against his state sentence. See
18 U.S.C. § 3585(b); Vignera v. Attorney General, 455 F.2d 637,
638 (5th Cir. 1972). The district court reviewed Adams’s
argument that his federal sentence was to run concurrently with
his state sentence on the merits. Adams has failed to exhaust
his administrative remedies with respect to this argument. See
Dickerson v. Louisiana, 816 F.2d 220, 225 (5th Cir. 1987).
Nevertheless, the judgment can be affirmed on the alternative
ground that, because Adams has properly received full credit
against his state sentence, he is not entitled to credit on his
federal sentence. See Emery v. Johnson, 139 F.3d 191, 195 (5th

-- 2 of 3 --

No. 03-40521
-3-
Cir. 1997); Bickford v. Int’l Speedway Corp. 654 F.2d 1028, 1031
(5th Cir. 1981). Accordingly, the judgment of the district court
is AFFIRMED. The respondent’s motion to seal exhibits is
GRANTED.

-- 3 of 3 --