United States District Court, M.D. North Carolina
petitioner Curtis Wayne Costner, a federal prisoner, has
filed a “Motion for Clarification of Sentence”
asking the Court for a written clarification of the
concurrent/consecutive components of his sentence. He also
asks the Court to order his immediate release from prison
because he has served his complete sentence. The Magistrate
Judge recommended that the motion be treated as a petition
under 28 U.S.C. § 2241 and dismissed as filed in the
wrong district. Mr. Costner objects to the consideration of
his motion as a § 2241 petition and asks that the Court
treat it as a motion to clarify. While the Court is
appreciative of the procedural difficulties Mr. Costner is
experiencing in raising his legal claims, the Court accepts
the Recommendation of the Magistrate Judge and will deny his
motion without prejudice.
9, 2015, Mr. Costner was arrested on state charges in
Guilford County Superior Court of Felony Indecent Liberties
With a Child (Docket No. 15CRS79343) and Misdemeanor Sexual
Battery (Docket No. 15CRS79844). At the time of his arrest
Mr. Costner was in possession of a stolen firearm. As such,
he was charged in Guilford County Superior Court with the
additional offenses of Felony Possession of a Stolen Firearm
(Docket No. 15CRS79876) and Felony Possession of a Firearm by
a Felon (Docket No. 15CRS79877). Mr. Costner was taken into
state custody at the time of his July 9 arrest and he has
remained in custody since that time.
that year, and while his state charges were still pending,
Mr. Costner was indicted in this court on one count of
Possession of a Firearm by a Felon based on his firearms
possession on July 9, 2015 - the same conduct at issue on the
pending state firearms charges. On February 4, 2016, Mr.
Costner pled guilty in this court to the charge in the
federal indictment. See Minute Entry; see
also Doc. 16. That summer, the court sentenced him to a
term of twenty-two months in the custody of the Bureau of
Prisons. See Minute Entry June 27, 2016; Doc. 29.
time of his federal change of plea and sentencing, Mr.
Costner was still in state custody on the pending state
charges. See Doc. 24 at ¶ ¶ 27, 34. As
noted, two of those pending charges arose from the same acts
which formed the basis for his federal conviction: Mr.
Costner's possession of the same firearm on the same
date. Other pending charges were unrelated. This court, in
its judgment, ordered that if Mr. Costner were convicted of
any of the related charges in state court, the sentence
should run concurrently, and that if he were convicted of any
unrelated charges in state court, the sentence should run
consecutively. Doc. 29.
Mr. Costner's pending state charges were resolved. On
October 12, 2016, the charges for Felony Possession of a
Stolen Firearm (No. 15CRS79876) and Felony Indecent Liberties
With a Child (No. 15CRS79843) were dismissed and Mr. Costner
pled guilty to the Felony Possession of a Firearm by a Felon
and Misdemeanor Sexual Battery. The Superior Court imposed a
consolidated judgment and a unified sentence of 17 to 30
months, crediting Mr. Costner with 461 days spent in custody
as the result of these charges.
his state court sentencing hearing, Mr. Costner completed his
state sentence in the custody of state authorities and on
March 21, 2017, he was surrendered to the custody of the
federal Bureau of Prisons. Doc. 36-10 (Federal Bureau of
Prisons Sentence Monitoring Computation Data For;
see “Date Committed” Entry). Consistent
with the state court judgment, Mr. Costner served
approximately 18 months as the result of the 17-30 month
his commitment to federal custody, the Bureau of Prisons
advised Mr. Costner through its Sentence Monitoring
Computation System that his projected release date is October
15, 2018, approximately 19 months after he was moved into
federal custody. Id. This decision gives him no
credit for any time spent in state custody.
that he was entitled to credit against his federal sentence
for time spent in state custody because of the Court's
judgment that his federal sentence should run concurrently to
any state sentence imposed on the state firearms charge, Mr.
Costner filed the pending “Motion for Clarification of
Sentence, ” Doc. 1,  asking the Court for a written
clarification of the concurrent/consecutive components of his
sentence. He also asks the Court to order his immediate
release from prison because he has served his complete
Magistrate Judge recommended that the motion be treated as a
petition under 28 U.S.C. § 2241 and dismissed as filed
in the wrong district. Doc. 2. Mr. Costner objects to
consideration of his motion as a § 2241 petition and
asks that the Court treat it as a motion to clarify. Doc. 4
at 2. Upon review, the Court appointed counsel for Mr.
Costner and extended the time for supplemental objections.
Doc. 5. After counsel indicated that the Bureau of Prisons
would be asking the Court informally to clarify its sentence,
Doc. 7 at 4, the Court explained how Mr. Costner's state
sentence affected his federal sentence. Doc. 8. Counsel has
now supplemented his objections, indicating that the BoP has
decided to run Mr. Costner's sentence partially
concurrent and asking for further clarification. Doc. 9. The
government has filed no response.
extent Mr. Costner seeks an order from this Court directing
the Bureau of Prisons to release him because he has served
his sentence, the motion will be denied. As the Magistrate
Judge correctly noted, such a request is appropriately
brought only pursuant to § 2241 in the district where a
petitioner is held in custody.
extent Mr. Costner seeks an order from this Court as to how
the Bureau of Prisons should apply credit due for time served
in state custody before conviction on state charges, such a
matter is also appropriately addressed by a § 2241
petition. “A claim for credit against a sentence
attacks the computation and execution of the sentence rather
than the sentence itself. Judicial review must be sought
under 28 U.S.C. § 2241 in the district of confinement
rather than in the sentencing court.” United States
v. Miller, 871 F.2d 488, 490 (4th Cir. 1989); see
Dean v. United States, No. 3:13cv715, 2014 WL 1316061 at
*4 (W.D. N.C. Apr. 1, 2014) (the decision in Setser v.
United States, 132 S.Ct. 1463 does not authorize
post-judgment modification of a sentence in order to deal
with concurrent/consecutive issues).
extent Mr. Costner asks the Court to clarify its judgment in
light of developments occurring in state court after it
imposed judgment, the Court concludes it is without authority
to issue a corrected judgment. Once a term of imprisonment
has been imposed it is generally considered to be
“final for all purposes.” 18 U.S.C. §
3582(b). Narrow exceptions exist that permit a court to
modify a term of imprisonment, but none exist here.
See 18 U.S.C. § 3582(b), (c). Nor do the