United States District Court, S.D. Indiana, Terre Haute Division
RYAN J. HOWARD, Petitioner,
S. JULIAN, Warden, Respondent.
ENTRY DISMISSING ACTION AND DIRECTING ENTRY OF FINAL
Jane Magnus-Stinson, Chief Judge
Howard is confined in this District and seeks a writ of
habeas corpus. His claim is that the Federal Bureau of
Prisons (“BOP”) has not accurately computed his
sentence imposed by the United States District Court for the
Eastern District of Kentucky (“the federal
considered the pleadings and the expanded record, and being
duly advised, the Court finds that the federal sentence has
been properly computed. Accordingly, Howard's petition
for writ of habeas corpus must be denied.
This disposition is compelled by the following facts and
federal sentence is an executed term of 46 months imposed on
August 19, 2015 for a drug offense.
Howard was in custody in various jurisdictions and for
various reasons prior to the imposition of the federal
sentence. Howard was released from a Florida state sentence
on September 16, 2015 and transferred on that date to the
custody of the United States Marshal to begin serving the
Howard has been in custody of various jurisdictions since his
arrest in California on May 4, 2014. He has received credit
toward one of his sentences for each and every day spent in
custody since that date. Pursuant to 18 U.S.C. §
3585(b), however, Howard has not received credit toward the
federal sentence for time credited toward other sentences.
computation of a federal sentence is governed by 18 U.S.C.
§ 3585. The statute contains a two-step determination:
1) the date on which the federal sentence commenced; and 2)
whether it is appropriate for any credit to be awarded for
time spent in custody before the federal sentence commenced.
18 U.S.C. § 3585.
federal sentence commenced when the State of Florida
relinquished jurisdiction over Howard to federal authorities
on September 16, 2016. See 18 U.S.C. § 3585(a)
(“A sentence to a term of imprisonment commences on the
date the defendant is received in custody awaiting
transportation to, or arrives voluntarily to commence service
of sentence at, the official detention facility at which the
sentence is to be served.”).
a. The federal sentence did not begin when he was in federal
custody on the writ ad prosequendum. United
States v. Evans, 159 F.3d 908, 912 (4th Cir. 1998)
(“A federal sentence does not begin to run . . . when a
prisoner in state custody is produced for prosecution in
federal court pursuant to a federal writ of habeas corpus
ad prosequendum. Rather, the state retains primary
jurisdiction over the prisoner, and federal custody commences
only when the state authorities relinquish the prisoner on
satisfaction of the state obligation.”). “A writ
of habeas corpus ad prosequendum is only a
‘loan' of the prisoner to another jurisdiction for
criminal proceedings in the receiving jurisdiction.”
Causey v. Civiletti, 621 F.2d 691, 694 (5th Cir.
1980). The writ of habeas corpus ad prosequendum
enables a jurisdiction “to take temporary custody of a
prisoner confined within another jurisdiction and indict,
prosecute, and sentence such prisoner.” Flick v.
Blevins, 887 F.2d 778, 781 (7th Cir. 1989). Where, as
here, “the writ expressly requires the return of the
prisoner to the ‘sending' state, the sending state
retains full jurisdiction over the prisoner since the
prisoner is only ‘on loan' to the prosecuting
jurisdiction.” Id. (citations omitted);
Jake v. Herschberger, 173 F.3d 1059, 1061 n.1 (7th
Cir. 1999) (“Because the receiving sovereign merely
obtains limited jurisdiction over the ‘borrowed'
prisoner, the prisoner is still under the jurisdiction of the
sending sovereign, and is considered to be in the custody of
the sending sovereign not the receiving sovereign.”).
b. Howard claims that federal authorities obtained primary
jurisdiction over him before the imposition of the federal
sentence, but he provides no factual basis for this claim.
Primary jurisdiction is established by the sovereign that
first arrests the defendant and continues until that
sovereign relinquishes it by bond, acquittal, dismissal of
charges, parole, probation, or discharge of sentence. See
United States v. Cole, 416 F.3d 894, 897 (8th Cir.
2005); Del Guzzi v. United States, 980 F.2d 1269
(9th Cir. 1992). The expanded record shows, as recounted
above, that Florida acquired and maintained primary
jurisdiction over Howard, despite various delays in the
resolution of those charges and Howard's completion of
the Florida sentence, and despite the imposition of the
federal sentence while Howard had been produced in federal
court in Kentucky pursuant to a federal writ of habeas corpus
Pursuant to 18 U.S.C. § 3585(a), “[a] defendant
shall be given credit toward the service of a term of
imprisonment for any time he has spent in official detention
prior to the date the sentence commences (1) as a result of
the offense for which the sentence was imposed; or (2) as a
result of any other charge for which the defendant was
arrested after the commission of the offense for which the
sentence was imposed; that has not been credited against
another sentence.” The Supreme Court has held that
under Section 3585(b), “Congress made clear that a
defendant could not receive double credit for his detention
time.” United States v. Wilson, 503 U.S. 329,
337 (1992). The Seventh Circuit has likewise made clear that
§ 3585(b) forbids the Bureau of Prisons from giving
prior custody credit when that credit has been applied to
another sentence. See Gigsby v. Bledsoe, 223
Fed.Appx. 486, 489 (7th Cir. 2007); United States v.
Ross, 219 F.3d 592, 594 (7th Cir. 2000). In
Gigsby, the Seventh Circuit determined that where
the state credited the petitioner for time spent in custody
before the commencement of his federal sentence, he was not
entitled to the same benefit from the BOP merely because his
subsequent federal sentence was ordered to run concurrently.
Gigsby, 223 Fed.Appx at 489.
defendant convicted of unrelated federal charges is not
entitled to credit against his federal sentence for time
served on a state conviction, even if the state court orders
the state sentence to run concurrent with the federal
sentence. Blaylock v. Bezy, 188 F. App'x 492,
493 (7th Cir. 2006) (“[I]t would offend the mutual
respect between sovereigns to allow a state judge to tell
federal authorities to administer a federal sentence
concurrently with a state sentence. That is why it is well
established that federal officials . . . are under no
obligation to follow a state judge's order that state and
federal sentences are to be served concurrently.”);
Jake v. Herschberger, 173 F.3d 1059, 1065 (7th Cir.
1999) (“[A] determination as to concurrence of sentence
made by one sovereign does not bind the other. A prisoner may
not, by agreeing with the state authorities to make his
sentence concurrent with a federal sentence, ‘compel
the federal government to grant a concurrent
sentence.'”); Bloomgren v. Belaski, 948
F.2d 688, 691 (10th Cir. 1991) (“The determination by
federal authorities that [the prisoner's] federal
sentence would run consecutively to his state sentence is a
federal matter which cannot be overridden by a state court
provision for concurrent sentencing on a
subsequently-obtained state conviction.”); see also
Romandine v. United States, 206 F.3d 731, 737-38 (7th
Cir. 2000) (“A judge cannot make his sentence
concurrent to nonexistent sentences that some other tribunal
may or may not impose . . . .”). As the court explained
in Jake v. Hershberger, 173 F.3d at 1066,
“[t]he state court's designation of
[defendant's] state sentence as concurrent with his prior
federal sentence created no obligation on the Attorney
General to provide him with credit for time served in the
state prison.” 8. While the Bureau of Prisons can
implement a concurrent sentence by designating a state
facility as the place of federal confinement, 18 U.S.C.
§§ 3585(a) and 3621(b), it cannot give credit for
any period of pre-sentence custody that has already been
credited toward another sentence, 18 U.S.C. §
3585(b)(2). The Bureau of Prison did consider Howard for a
nunc pro tunc designation, permitted by 18 U.S.C.
§ 3621(b), but declined to make that designation. The
record establishes that the Bureau of Prisons conducted a
proper inquiry of the § 3621(b) factors before
determining that a nunc pro tunc designation was not
writ of “habeas corpus is available to challenge the
duration as well as the fact of custody.” Waletzki
v. Keohane,13 F.3d 1079, 1080 (7th Cir. 1994). An
inmate may challenge the Bureau of Prisons' computation
of his sentence pursuant to 28 U.S.C. § 2241. United
States v. Tindall,455 F.3d 885, 888 (8th Cir. 2006),
cert. denied,549 U.S. 1152 (2007). That is what
Howard has done in the present case, but the pleadings and
the expanded ...