Commodore v. Walton

Filing 21

MEMORANDUM AND OPINION denying Corey Commodores petition for habeas relief under 28 U.S.C. § 2241. This cause of action is DISMISSED with prejudice. The Clerk of Court is DIRECTED to enter judgment accordingly. Signed by Magistrate Judge Clifford J. Proud on 1/14/14. (klh2)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

COREY COMMODORE,
Petitioner,
vs.
J.S. WALTON,
Respondent.

)
)
)
)
)
)
)
)
)

CIVIL NO. 13-444-CJP1

MEMORANDUM AND ORDER
PROUD, Magistrate Judge:
Petitioner Corey Commodore, an inmate in the Federal Bureau of Prisons
(“BOP”) incarcerated at USP-Marion, filed a Petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2241 challenging the BOP’s determination regarding the
commencement date of his federal sentence. For the reasons set forth below, the
Petition is denied.
FACTUAL BACKGROUND
On April 14, 2005, while on parole in the Commonwealth of Kentucky for
armed robbery, Corey Commodore was arrested by local authorities in Lexington,
Kentucky and charged with firearms violations, criminal trespassing, and
fleeing/evading the police (Doc. 14-1, p. 3, Doc. 1-1, p. 6).

On July 2, 2005,

federal authorities indicted Commodore on charges related to the same incident
1

This case was assigned to the undersigned for final disposition upon consent of the parties
pursuant to 28 U.S.C. §636(c) (Doc. 20).

Page 1 of 14

(Doc. 14-1, p. 3).

The Commonwealth of Kentucky then formally revoked

Commodore’s parole on July 13, 2005 (Doc. 14-1, p. 3), and due to the federal
prosecution, dismissed the state charges against Commodore (Doc. 14-1, p. 3).
On August 8, 2005, because Commodore was in the custody of Kentucky
serving his parole revocation sentence, the United States District Court for the
Eastern District of Kentucky issued a writ of habeas corpus ad prosequendum so
that Commodore could be taken into temporary federal custody to proceed with
the federal charges against him (Doc. 14-1, pp. 9–10). Commodore appeared on
August 29, 2005 in the Eastern District of Kentucky for his arraignment pursuant
to the writ ad prosequendum (See Doc. 14-1, pp. 9–10). Several months later,
Commodore pleaded guilty to one count of felon in possession of a firearm and
ammunition, and one count of possession of a firearm with an obliterated serial
number (Doc. 14-1, p. 11). On February 3, 2006, Commodore was sentenced to a
term of 57-months imprisonment and three years of supervised release (Doc. 141, pp. 11–16). His federal sentence was ordered to run consecutive to any prior
sentence (Doc. 14-1, pp. 11–16).
The writ ad prosequendum required Commodore to be returned to state
custody upon completion of the federal proceedings (Doc. 14-1, pp. 9–10).
However, federal authorities mistakenly transferred Commodore to the Federal
Transfer Center in Oklahoma City where he was designated to serve his federal
sentence at the Federal Correctional Institution in Terre Haute, Indiana (“FCITerre Haute”) (Doc. 1; Doc. 14-1, p. 4). Commodore arrived at FCI-Terre Haute
Page 2 of 14

on March 8, 2006 (Doc. 1; Doc. 14-1, p. 4).
Less than two weeks after his arrival at FCI-Terre Haute, the prison staff
discovered the mistake—Commodore was in federal custody pursuant to the writ
ad

prosequendum,

and

therefore

still

in

the

primary

custody

of

the

Commonwealth of Kentucky (Doc. 14-1, p. 4). On March 22, 2006, Commodore
was released from the writ for transportation back to the Kentucky Department of
Corrections to complete his state sentence (Doc. 1; Doc. 14-1, pp. 4, 7). The
United States Marshal Service then filed a detainer with the Commonwealth of
Kentucky (Doc. 1; Doc. 14-1, pp. 4, 17).
On June 29, 2011, Commodore was released from the Kentucky
Department of Corrections on parole to the federal detainer (Doc. 1; Doc. 14-1, p.
4).

He was sent to the United States Penitentiary in Marion, Illinois where he is

presently incarcerated (Doc. 14-1, p. 4).

The BOP computed Commodore’s

federal sentence as commencing on June 29, 2011 (Doc. 14-1, p. 4). The BOP
also determined that Commodore should not receive credit toward his federal
sentence for any of the time he spent in custody from the date of his state arrest
on April 14, 2005 through the date he was paroled from state custody on June
29, 2011 because he received credit against his state sentence for that time (Doc.
14-1, pp. 4, 17, 18).
PROCEDURAL BACKGROUND
On May 27, 2010, Commodore filed a petition for a writ of habeas corpus

Page 3 of 14

pursuant to 28 U.S.C. § 2241 in the Eastern District of Kentucky challenging the
computation of his state sentence (See Doc. 11-2). That petition was dismissed
without prejudice for failure to exhaust his administrative remedies (Doc. 11-2).
On September 8, 2011, Commodore filed a second § 2241 petition in the
Southern District of Illinois challenging the computation of his federal sentence.
Commodore v. Roal, Case No. 11-cv-818-DRH (S. D. Ill.). That petition was also
dismissed without prejudice for failure to exhaust his administrative remedies.
On May 8, 2013, after exhausting his administrative remedies (see Doc. 11, pp. 1-12), the present § 2241 action was filed (Doc. 1). Commodore argues
that, in accord with 18 U.S.C. § 3585(a), his federal sentence commenced on
March 8, 2006, the day he was received at FCI- Terre Haute. Commodore further
argues that his federal sentence could not be interrupted by the government so as
to require him to serve it in installments. In other words, his federal sentence
commenced on March 8, 2006 and continued to run during the period when he
was returned to state custody, between March 24, 2006, and June 29, 2011. The
essence of Commodore’s argument is that while his federal sentence was
supposed to run consecutive to his state sentence, his mistaken designation and
delivery to FCI-Terre Haute converted his federal sentence to run concurrent to
his state sentence. As a result, Commodore argues that his federal sentence has
been served in its entirety and requests the Court to order his immediate release
from prison.

Page 4 of 14

DISCUSSION
The authority to calculate a federal prisoner's period of incarceration for
the sentence imposed, and to provide credit for time served, is delegated to the
Attorney General, acting through the Bureau of Prisons.

United States v.

Wilson, 503 U.S. 329, 335 (1992). In instances, such as Commodore’s, where the
prisoner believes the BOP has erred in its calculation of his federal sentence, the
prisoner can challenge the execution of his sentence by bringing a petition for a
writ of habeas corpus under 28 U.S.C. § 2241. Romandine v. United States, 206
F.3d 731, 736 (7th Cir. 2000).
A.

The BOP Did Not Err In Determining That Commodore’s Federal
Sentence Commenced on June 29, 2011

Commodore’s first argument is that the BOP erred in determining the date
on which his federal sentence commenced.

The BOP determined that

Commodore was not received into federal custody, and therefore his federal
sentence did not commence, until June 29, 2011—the date he was paroled from
his state sentence and transferred to the federal authorities pursuant to the
federal detainer. Commodore, however, claims that he was actually taken into
federal custody, and his federal sentence commenced, on March 8, 2006—the
date he was mistakenly delivered to FCI-Terre Haute (Doc. 1). The Court finds
that Commodore’s argument is meritless; it was rejected long ago by the Seventh
Circuit and it is also contrary to the BOP’s governing policies.

Page 5 of 14

Under 18 U.S.C. § 3585(a), a federal sentence does not commence until the
defendant “is received in [federal] custody awaiting transportation to . . . the
official detention facility at which the sentence is to be served.” 18 U.S.C. §
3585(a).

See also Binford v. United States, 436 F.3d 1252, 1255 (10th Cir.

2006) (“A federal sentence does not commence until a prisoner is actually
received into federal custody for that purpose.”)
It is undisputed that Commodore was in the primary custody of the
Commonwealth of Kentucky following his arrest in April 2005 on state charges.
E.g., United States v. Cole, 416 F.3d 894, 897 (8th Cir. 2005) (“As between the
state and federal sovereigns, primary jurisdiction over a person is generally
determined by which one first obtains custody of, or arrests, the person.”)
It is also undisputed that Commodore remained in the primary custody of
the Commonwealth of Kentucky when he was temporarily transferred to federal
authorities for the federal proceedings pursuant to a writ of habeas corpus ad
prosequendum. Jake v. Herschberger, 173 F.3d 1059, 1062 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.”); Sinito v. Kindt, 954 F.2d 467, (7th Cir. 1992) (“The
issuance of the writ of habeas corpus ad prosequendum did not alter [the
prisoner’s] custody status. It merely changed the location of his custody for the
sentence he was already serving.”); Flick v. Blevins, 887 F.2d 778, 781 (7th Cir.
Page 6 of 14

1989) (per

curiam)

(prisoner

delivered

on

writ

of

habeas

corpus

ad

prosequendum is simply “on loan” for prosecution by receiving authority, and
sending authority “retains full jurisdiction” over prisoner).
The issue here is whether primary custody over Commodore was
transferred from the Commonwealth of Kentucky to the United States after
completion of the federal proceedings when Commodore was mistakenly delivered
to FCI-Terre Haute instead of being returned to Kentucky. It was established long
ago that the answer to this question is “no”—an error by federal authorities in
failing to return a prisoner obtained by a writ ad prosequendum does not divest
the sending sovereign of its primary custody over the prisoner.

See Flick v.

Blevins, 887 F.2d at 778, 782 (7th Cir. 1989); Crawford v. Jackson, 589 F.2d
693, 695 (D.C. Cir. 1978).
When a prisoner is obtained by federal authorities pursuant to a writ ad
prosequendum, he is not in federal custody but rather “on loan” from the sending
state.

Flick, 887 F.2d at 781.

The sending state’s primary custody over the

prisoner continues uninterrupted until that state affirmatively relinquishes its
jurisdiction. Fisher v. Holinka, 323 F.App'x 451, 453 (7th Cir. 2009) (“[O]nly the
sending authority . . . can relinquish primary jurisdiction.”); United States v.
Cole, 416 F.3d 894, 897 (8th Cir. 2005) (“Primary jurisdiction continues until the
first sovereign relinquishes its priority in some way” through release on bail,
dismissal of charges, parole, or expiration of sentence).

Page 7 of 14

Accordingly, an error by federal authorities in failing to return the prisoner
as required by the writ does not divest the sending state of primary custody over
the prisoner because the sending state has taken no affirmative action.

See

Crawford v. Jackson, 589 F.2d 693, 695 (D.C. Cir. 1978) (“Failure to [return] a
prisoner does not alter that ‘borrowed’ status, transforming a state prisoner into a
federal prisoner.”). See also Fisher v. Holinka, 323 F.App'x 451, 453 (7th Cir.
2009) (holding the BOP's misclassification of prisoner as a “designated” inmate,
which the BOP recognized and corrected twelve days later, did not strip Arizona
of primary custody).
In turn, because the sending state retains primary custody over the
prisoner, the federal government does not have the authority to commence the
prisoner’s federal sentence at that time. See Flick, 887 F.2d at 782 (“[T]he failure
to return a prisoner obtained by the writ ad prosequendum does not mean that
the federal sentence ‘commences’ . . . .”)

See also United States v. Lemus-

Rodriguez, 495 F. App’x 723, 726 (7th Cir. 2012) (“[B]ecause the sending state
retains primary jurisdiction over the prisoner, ‘federal custody commences only
when the state authorities relinquish the prisoner on satisfaction of the state
obligation.’”) (quoting United States v. Evans, 159 F.3d 908, 912 (4th Cir.
1998)); Ray v. Bezy, 190 F. App'x 502, 504 (7th Cir. 2006) (holding prisoner’s
federal sentence did not commence when he was prematurely delivered to BOP
before his state sentence had expired; instead he “spent several weeks . . . as a
‘guest’ of the federal government”); Binford v. United States, 436 F.3d 1252,
Page 8 of 14

1256 (3d Cir. 2006) (holding federal sentence did not commence when, after
conclusion of federal prosecution, prisoner spent several weeks in BOP facility
due to mistake of marshals service in delivering him there instead of returning
him to state on expired writ of habeas corpus ad prosequendum).
The BOP has incorporated these principles into its governing policies. In
Program Statement 5160.05, the BOP addressed the situation where an inmate is
improperly designated to a federal correctional facility for commencement of his
federal sentence when he should have been returned to, or remained in, state
custody for the completion of a state sentence that must be served first. The BOP
expressly instructed that when an inmate has been designated to a federal
detention facility by mistake, “the federal sentence should be considered as not
having commenced since transfer to the Bureau was in error and the prisoner
should have been returned to the state after federal sentencing as a required
condition of the federal writ” and “the federal J & C will be lodged as a detainer,
through the USMS, with the state authorities.”

U.S. DEP’T

OF

JUSTICE, BOP

PROGRAM STATEMENT NO. 5160.05 pp. 11–12, ¶ 10(g) (2003).
Here, the errors made by the federal authorities and the BOP in designating
and delivering Commodore to a federal correctional facility when he should have
been returned to Kentucky did not divest Kentucky of its primary jurisdiction.
Furthermore, there is no evidence that Kentucky took any action to relinquish
primary custody over Commodore before June 29, 2011, when Commodore was
released on parole.

For example, when Commodore was taken into federal
Page 9 of 14

custody in August 2005 for federal prosecution, it was pursuant to a writ of
habeas corpus ad prosequendum—indicating Kentucky considered Commodore
as merely “on loan” to the federal authorities.

Kentucky also credited

Commodore’s state sentence with the period of time from when he was sent out
on the writ ad prosequendum until he was returned to the Kentucky Department
of Corrections2—indicating Kentucky considered Commodore in its primary
custody during that entire period, including the time he was mistakenly detained
at FCI-Terre Haute.
In summary, the Commonwealth of Kentucky retained primary custody
over Commodore while he was in temporary federal custody under the writ ad
prosequendum.

Kentucky did not relinquish its primary custody over

Commodore until June 29, 2011 when Commodore was released on parole. As
such, the federal government did not have the authority to place Commodore into
federal custody for purposes of commencing his federal sentence prior to that
time. Thus the BOP properly calculated Commodore’s federal sentence as having
commenced on June 29, 2011, the date he was received into exclusive federal
custody for service of his federal sentence.
B.

The Common Law Rule Prohibiting “Installment Punishment”
Does Not Apply Here

Commodore also argues that his federal sentence is in violation of the rule
2

Commodore was temporarily transferred from the Kentucky Department of Corrections to
federal authorities pursuant to a writ of habeas corpus ad prosequendum on August 29, 2005
(Doc. 14-1, p. 4). On March 24, 2006, he was released from the writ ad prosequendum and
delivered to the United States Marshal Service for transportation back to the Kentucky
Department of Corrections (Doc. 14-1, p. 4). It appears that Commodore was delivered to the
Kentucky Department of Corrections on April 4, 2006 (Doc. 1; Doc. 14-1, p. 6).

Page 10 of 14

that federal sentences must be served continuously and cannot be broken up into
installments.

There does exist a common law rule against “installment

punishment” that prohibits federal officials from delaying the expiration of a
sentence either by delaying commencement or by releasing a prisoner and then
reimprisoning him. Dunne v. Keohane, 14 F.3d 335, 336 (7th Cir. 1994).
However, the Court has already determined that Commodore’s federal sentence
did not commence until June 29, 2011, and he has indisputably served that
sentence continuously since then.

Therefore, the common law rule against

installment punishment clearly does not apply here.
Nevertheless, even if the Court determined that Commodore’s federal
sentence commenced on March 8, 2006 as he claims, the common law rule
against installment punishment still would not apply. According to Commodore,
his federal prison term was interrupted by his state prison term, and because of
the rule that a sentence must be served continuously absent some fault of the
prisoner, the BOP was required to let his federal sentence continue to run; in
other words, the BOP had to allow him to serve both sentences at the same time.
The rule against installment punishment is not a “get out of jail early card.”
Free v. Miles, 333 F.3d 550, 555 (5th Cir. 2003). Rather, the rule is aimed at
preventing the government from indefinitely delaying the expiration of the
defendant’s sentence. Dunne, 14 F.3d at 336–37. See also Free, 333. F.3d at
554 (“[The rule’s] sole purpose is to prevent the government from abusing its
coercive power to imprison a person by artificially extending the duration of his
Page 11 of 14

sentence through releases and re-incarcerations.”)

In Dunne, an inmate’s

classification was changed from state prisoner, to federal prisoner, back to state
prisoner, and then back to federal prisoner again for the purpose of having him
finish his state sentence before serving his consecutive federal sentence. Dunne,
14 F.3d at 335–36. Because his sentences were to run consecutive to each other,
and he had been in continuous custody the entire time, “with no release into the
free community,” his repeated reclassification did not result in a postponement of
the date on which his last sentence would expire. Id. at 337. Because there was
no postponement, there was no violation of the rule against installment
punishment. Id.
Here, Commodore had to serve a state sentence and federal sentence, and
the federal sentencing court specified that the federal sentence was to run
consecutive to the state sentence. If Commodore’s federal sentence commenced
on March 8, 2006, then like the inmate in Dunne, Commodore was shuffled back
and forth from state custody, to federal custody, then back to state custody, and
then back to federal custody again for the purpose of finishing his state sentence
before he finished serving his consecutive federal sentence.3 However, because his
sentences were to run consecutive to each other, and he had been in continuous
custody since his arrest in April 2005 with no release into the free community,
3

Following his arrest in April 2005, Commodore was in state custody serving his state sentence.
Commodore was then in federal custody and his federal sentence commenced when he was
designated and delivered to FCI-Terre Haute on March 8, 2006. Commodore resumed serving his
state sentence on March 24, 2006 when he was released from the writ ad prosequendum and
delivered to the United States Marshal Service for transportation back to the Kentucky
Department of Corrections. Commodore then resumed serving his federal sentence on June 29,
2011 when he was paroled from his state sentence and returned to federal custody.

Page 12 of 14

being shuffled between jurisdictions did not postpone the end of his federal
sentence. Put differently, even if he was transferred to state custody for service of
his state sentence after mistakenly serving a brief portion of his federal sentence,
there is no danger that his total time of incarceration will be extended a single day
beyond the time contemplated by the sentencing courts.

See Bintzler v.

Gonzales, 239 F. App’x 271, 275 (7th Cir. 2007); Ray v. Bezy, 190 F. App’x 502,
504 (7th Cir. 2006); Binford v. United States, 436 F.3d 1252, 1256 (10th Cir.
2006); Free, 333 F.3d at 553–55; Dunne, 14 F.3d at 337. Because the expiration
of his federal sentence has not been postponed, there is no violation of the rule
against installment punishment. That Commodore will serve his federal sentence
“in two shifts between sovereigns rather than one is of no moment.” Free, 333
F.3d at 555.
As the Tenth Circuit stated, while Commodore “would have us believe he
has been sentenced to [extra time] because of the government’s error, in reality,
he has only been denied a windfall which would have been his because the
government made an error which it quickly rectified.” Stroble v. Terrell, 200 F.
App’x 811, 817 (10th Cir. 2006).

Because the rule against installment

punishment does not apply here, Commodore is not entitled to credit on his
federal sentence for time served in state custody.
CONCLUSION
Corey Commodore’s petition for habeas relief under 28 U.S.C. § 2241 (Doc.

Page 13 of 14

1) is DENIED. This cause of action is DISMISSED with prejudice. The Clerk of
Court is DIRECTED to enter judgment accordingly.

IT IS SO ORDERED.
DATED: January 14, 2014
s/ Clifford J. Proud
CLIFFORD J. PROUD
United States Magistrate Judge

Page 14 of 14