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Banks v. Krueger

United States District Court, S.D. Indiana, Terre Haute Division

May 23, 2018

GEORGE BANKS, Petitioner,
J. E. KRUEGER Warden, Respondent.




         George Banks is in federal custody in this District at the United States Penitentiary in Terre Haute, Indiana. He seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2241, arguing that the Federal Bureau of Prisons (“BOP”) improperly denied his request for a retroactive designation under 18 U.S.C. § 3621. For the reasons explained below, the BOP's denial of Mr. Banks's request was based on an error of law and thus constitutes an abuse of discretion. Mr. Banks's § 2241 petition is therefore granted.


         Mr. Banks was arrested and placed in Pennsylvania state custody on February 25, 2011. He was indicted on federal charges on March 16, 2011. During the subsequent months, Mr. Banks made multiple appearances in federal court pursuant to a writ of habeas corpus ad prosequendum, before being returned to state custody. On May 10, 2013, Mr. Banks was sentenced to 120 months' imprisonment in the United States District Court for the Middle District of Pennsylvania (“the federal sentence”). The federal district court made no decision regarding whether the federal sentence would run concurrently or consecutively with any future state sentence. Mr. Banks was returned to state custody and the federal judgment was filed as a detainer.

         The next month, on June 13, 2013, Mr. Banks was sentenced in state court to two to five years' imprisonment for various crimes (“the state sentence”). He was not given any jail credit. Mr. Banks asserts in his habeas petition that the state court ordered his state sentence to run concurrently with his federal sentence.

         Mr. Banks remained in state custody until July 2, 2015, when his state sentence was completed. He was then transferred to federal custody. The BOP credited 839 days-from February 25, 2011 (the date of his arrest) to June 12, 2013 (the date before the state sentence)-to Mr. Bank's federal sentence, as these days were not credited to his state sentence. But Mr. Banks was not credited any days for the time he spent serving his state sentence.

         Mr. Banks submitted a Request for Administrative Remedy with the BOP, asking that his federal sentence run concurrently with the state sentence. In his request, he stated: “I am requesting a nunc pro tunc designation so that my state [and] federal conviction[s] [and] sentences will run concurrent[ly]. The state ordered my sentences to run concurrent[ly] plus I meet all of the criteria listed in Barden v. Keohane.” Dkt. No. 7-13 at 2. The BOP treated the request as one for “nunc pro tunc or retroactive designation, ” and denied the request. Dkt. No. 7-16 at 2. The BOP considered the five factors under 18 U.S.C. § 3621(b), Dkt. No. 7-15 at 2, and it determined that the relevant factors were . . . (2), (3), and (4), ” Dkt. No. 7-16 at 2. It then explained:

The federal judgment was silent on whether your sentence should run consecutively or concurrently to any other sentence. Pursuant to 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. Nevertheless, the federal sentencing court was contacted for a statement concerning its position on a retroactive designation. The federal sentencing court has not yet provided a recommendation concerning a retroactive designation. Based on the foregoing, the [BOP] has determined that a retroactive concurrent designation is not appropriate in you case.



         Mr. Banks challenges the BOP's denial of his request for a retroactive designation. He maintains that the BOP improperly denied him credit toward his federal sentence for the more than two years that he spent in state custody. The respondent disagrees.

         The Attorney General is responsible for computing the terms of imprisonment of federal prisoners. See United States v. Wilson, 503 U.S. 329, (1992). The 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. See 18 U.S.C. § 3585.

         “Under the doctrine of primary custody, an inmate's federal sentence may only commence after the government exercises primary jurisdiction over him.” Pope v. Perdue, --- F.3d ----, 2018 WL 2057464, *3 (7th Cir. May 3, 2018). “In general, the sovereign that first arrests a defendant takes primary custody over him.” Id. Here, it is undisputed that Mr. Banks was in state custody from when he was first arrested by state authorities until July 2, 2015, when he completed his state ...

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