Smith v. Warden USP Allenwood

Filing 10

MEMORANDUM (Order to follow as separate docket entry)Based upon a review of the record there is no evidence upon which to conclude that Petitioners federal sentence was to run concurrently with his state sentences or that the BOP improperly failed to conclude that his Maryland state prison be given a nunc pro tunc designation as the place of service of his federal sentence. As discussed above, the BOP acted properly in not awarding Petitioner double credit for any period of pre-federal sentence confinement. Accordingly, the petition for writ of habeas corpus will be denied. An appropriate Order will enter.Signed by Honorable Richard P. Conaboy on 5/1/18. (cc)

IN THE UNITED STATES DISTRICT COURT
FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA
NATHANIEL SMITH,

:
:
Petitioner
:
:
v.
: CIVIL NO. 3:CV-16-1501
:
WARDEN, USP-ALLENWOOD
: (Judge Conaboy)
:
Respondent
:
________________________________________________________________
MEMORANDUM
Background
Nathaniel Smith, an inmate confined at the Allenwood United
States Penitentiary, White Deer, Pennsylvania (USP-Allenwood),
filed this pro se petition for writ of habeas corpus pursuant to
28 U.S.C. § 2241.
Warden.

Named as Respondent is the USP-Allenwood

Service of the petition was previously ordered.

Petitioner states that he was arrested in the State of
Maryland on February 17, 2010.

On February 26, 2010, Smith was

sentenced to a five (5) year term of incarceration by a Maryland
state court for possession of marijuana.

The pending petition

indicates that additional state charges against were nolle
prossed in favor of federal prosecution.
Petitioner asserts that after he began serving his state
sentence on April 30, 2010, he was transferred to federal
custody for brief periods of time during the subsequent months.

1

On November 17, 2010, Petitioner entered a guilty plea to a
charge of possession of a firearm by a convicted felon in the
United States District Court for the District of Maryland.

On

March 21, 2011, Smith was sentenced in federal court to an
aggregate 89 month term of imprisonment with credit for time
served commencing February 17, 2010.
Smith’s present action does not challenge the legality of
either his state or federal convictions.

Rather, Petitioner

contends that the Bureau of Prisons (BOP) acted improperly by
seeking the issuance of an amended federal sentence because it
concluded that Petitioner was afforded an excessive amount of
pretrial sentence credit.

See Doc. 1-1, p. 1.

Pursuant to that

request, the District of Maryland issued an amended sentencing
judgment which reduced the pretrial sentence credit Smith was
originally awarded.

As a result, Petitioner maintains that he

is improperly being required to spend an additional 464 days in
prison.
Respondent counters that since the time spent by Petitioner
in state custody was credited towards service of his state
sentence, Smith is not entitled to double credit for that period
of time.
Discussion
Title 28, United States Code § 2241, vests the federal

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district courts with jurisdiction to grant a writ of habeas
corpus to persons in custody in violation of the Constitution,
laws, or treaties of the United States.

28 U.S.C. § 2241(c)(3).

Habeas corpus review under § 2241 “allows a federal prisoner to
challenge the ‘execution’ of his sentence.”

Woodall v. Federal

Bureau of Prisons, 432 F.3d 235, 241 (3d Cir. 2005).

Review is

available “where the deprivation of rights is such that it
necessarily impacts the fact or length of detention.”

Leamer v.

Fauver, 288 F.3d 532, 540 (3d Cir. 2002).
Federal habeas relief is available only “where the
deprivation of rights is such that it necessarily impacts the
fact or length of detention.”
540 (3d Cir. 2002).

Leamer v. Fauver, 288 F.3d 532,

Since Petitioner is alleging that the BOP

failed to properly calculate his federal sentence, this matter
is properly asserted under § 2241. It is also noted that there
is no contention by Respondent that Petitioner has not exhausted
his administrative remedies or that his action was untimely
filed.
According to undisputed exhibits provided by both
Petitioner (Doc. 1-1) and the Respondent, on March 2, 2007,
Petitioner was granted supervised release from service of a 36
month term imposed by the District of Maryland following his
conviction for being a felon in possession of a firearm.

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Smith’s supervised release was revoked three separate times over
the next few years.

On August 3, 2009, Smith was released from

federal custody and placed on supervised release for a two year
period.
On February 17, 2010, Petitioner was arrested by state
authorities in Montgomery County, Maryland on multiple charges
including armed robbery, kidnaping, and assault.

The charges

were eventually nolle prossed in favor of federal prosecution.
In an unrelated case, Petitioner was sentenced On February
26, 2010 by a Prince George’s County, Maryland state court to a
five (5) year term of imprisonment (all but three years
suspended and with credit for 123 days) on a charge of
possession with intent to deliver a controlled substance.
On March 24, 2010, Petitioner was sentenced in Hartford
County, Maryland state court to a concurrent (to the Prince
George’s sentence) one year and a day sentence for possession of
a controlled substance not marijuana.
On May 18, 2010 Smith was transferred from state custody to
federal custody pursuant to a writ of habeas corpus ad
prosequendum to face a new federal charges of being a felon in
possession of a firearm and violating the conditions of his
supervised release (from his original federal sentence).

Smith

entered a guilty plea to those federal charges on November 17,

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2010.

He was sentenced on March 21, 2011 to a seventy-eight

(78) month term on the firearms offense and a consecutive eleven
(11) month term of the supervised release violation offense.
The sentence also directed that Petitioner be afforded federal
sentence credit for time served from February 17, 2010, the date
of his arrest on state charges.
Smith was returned to state custody on September 16, 2011
to continue serving his state sentences.

A detainer was lodged

against the Petitioner by federal authorities.

Petitioner

completed service of his state sentences on February 9, 2012 and
was transferred into federal custody.
Following his placement in federal custody the BOP sent a
letter to the District of Maryland advising that the original
federal sentence which awarded credit for time spent by Smith in
state custody from February 17, 2010 (arrest date to March 20,
2011 (federal sentencing) was prohibited under 18 U.S.C. §
3585(b) because Petitioner had received credit against his state
sentence for that same period.

The letter further advised the

District of Maryland that Petitioner could be afforded a
downward adjustment for the period of time spent in state
custody if the district court determined that such a downward
adjustment was appropriate under the federal sentencing
guidelines.

5

An amended sentence imposed by the District of Maryland on
April 2, 2013 did not grant Smith a downward adjustment but did
grant Petitioner credit against his federal sentence for the
following limited time periods: February 17, 2010 to April 29,
2010; May 18, 2010 to May 19, 2010; June 23, 2010 to June 24,
2010; and September 20, 2010 to March 20, 2011, a total of 258
days.
Ad prosequendum writs do not constitute a transfer to
federal custody.
Cir. 2007).

United States v. Vega, 493 F.3d 310, 314 (3d

A prisoner is only entitled to credit against his

federal sentence for a period of time spent in federal detention
pursuant to a writ of habeas corpus ad prosequendum “unless and
until the first sovereign relinquishes jurisdiction over the
prisoner.”

Rios v. Wiley, 201 F.3d 257, 274 (3d Cir. 2000).

18 U.S.C. § 3585(b) further provides that a federal
prisoner shall be given credit towards service of a term of
imprisonment for any time spent in official detention, prior to
the date his/her sentence commences, which has not been credited
towards service of another sentence.

§ 3585(b) generally

prohibits an award of double credit, in other words, a habeas
petitioner may not receive credit on a federal sentence for time

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that has already been credited against a state sentence.1 See
Chambers v.Holland, 920 F. Supp. 618, 623 (M.D. Pa. 1996).
In the present case, Petitioner has not demonstrated any
evidence showing that any time he spent in official detention,
prior to the date his latest federal sentence commenced, which
was not credited towards service of his state sentences was not
applied against his federal sentence.

This is simply not a case

where time spent incarcerated by Smith was not credited towards
service of either his state or federal sentences.
Zickefoose, 2013 WL 1786332 *5(D.N.J.

See Graham v.

April 25, 2013) (BOP

cannot grant credit “against a federal sentence for time that
has been credited against defendant’s state sentence, even
though the defendant was writted to the control of federal

1

§ 3585.

Calculation of a term of imprisonment

(b) Credit for prior custody. -- 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.

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authorities while awaiting federal trial”).
Generally speaking, a federal sentence does not commence
until the Attorney General of the United States receives the
defendant into custody for service of his or her sentence.
United States v. Pungitore, 910 F.2d 1084, 1118-19 (3d Cir.
1990).

However, 8 U.S.C. § 3621(b) authorizes the Federal

Bureau of Prisons (BOP) “to designate the place of confinement
for purposes of serving federal sentences of imprisonment."
Barden v. Keohane, 921 F.2d 476 (3d Cir. 1991).
In Barden, the BOP refused to consider an inmate’s request
that his prior place of confinement, a state prison, be
designated nunc pro tunc as the place of service of his federal
sentence, thereby making the two sentences concurrent.

Holding

that the BOP had the statutory authority to make such a
designation, the Third Circuit Court of Appeals granted habeas
relief by directing that the BOP exercise the discretion the
statute afforded.
As recognized in Barden, § 3621(b) grants the BOP authority
to designate a state prison as the place of service of a federal
inmate’s sentence. “Barden does not authorize the BOP to award
credit for time spent in state custody prior to the imposition
of a federal sentence.”

Gonzalez v. Hawke, 2006 WL 2465307 * 6

(D.N.J. Aug. 21, 2006).

Moreover, “concurrent sentences imposed

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by state judges are nothing more than recommendations to federal
officials.”

Sheika v. BOP, 2007 WL 576346 *4 (D.N.J. Feb. 20,

2007)(the BOP’s failure to adhere to a state sentencing order
was not an abuse of discretion.)
In United States v. Randolph, 80 Fed. Appx. 190, 195-96 (3d
Cir. Oct. 20, 2003) the Court of Appeals stated that if the
federal sentencing court does not address the issue of
concurrence, federal and state terms of imprisonment imposed at
different times must be served consecutively unless the prisoner
can convince the BOP to award nunc pro tunc designation.
Under § 3621(b), the BOP has the authority to recommend
that a state prison be designated as the place of service of a
federal inmate’s sentence in order to make it concurrent with a
state sentence being served at the state facility.2

2

In pertinent part, § 3621(b) provides:

(b) Place of imprisonment.--The Bureau of Prisons shall
designate the place of the prisoner's imprisonment. The
Bureau may designate any available penal or correctional
facility that meets minimum standards of health and
habitability established by the Bureau, whether
maintained by the Federal Government or otherwise and
whether within or without the judicial district in which
the person was convicted, that the Bureau determines to
be appropriate and suitable, considering-(1) the resources of the facility contemplated;
(2) the nature and circumstances of the offense;
(3) the history and characteristics of the prisoner;
(4) any statement by the court that imposed the
sentence-(A) concerning the purposes for which the sentence
9

In the present case the BOP determined that a Barden type
nunc pro tunc designation was not appropriate since the District
of Maryland had not ordered that the federal sentences run
concurrently to the undischarged state sentences.
p. 13-14.

S

See Doc. 5,

“The designation of a state institution for

service of a federal sentence must be consistent with the intent
of the federal sentencing court, or consistent with the goals of
the criminal justice system.”

Sheika v. BOP, 2007 WL 576346 *3

(D.N.J. Feb. 20, 2007).
Since the BOP denied the nunc pro tunc designation request
in Petitioner’s case based upon a negative recommendation
received from the federal sentencing court, there is no basis
for a determination

that the BOP abused its discretion in

denying Smith’s request for nunc pro tunc designation.
Accordingly, there is no grounds for federal habeas corpus
relief.
In conclusion, federal prisoners are not entitled to prior
custody time credit towards service of their federal sentence
for periods of time spent in state custody unless the time was

to imprisonment was determined to be warranted; or
(B) recommending a type of penal or correctional
facility as appropriate; and
(5) any pertinent policy statement issued by the
Sentencing Commission pursuant to Section 994(a)(2) of
Title 28.
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not credited towards their state sentence.

United States v.

Grimes, 641 F.2d 96, 99 (3d Cir. 1981); see also Doyle v.
Department of Justice, 1995 WL 412406 *7 (E.D. Pa. July 7,
1995).
Based upon a review of the record there is no evidence upon
which to conclude that Petitioner’s federal sentence was to run
concurrently with his state sentences or that the BOP improperly
failed to conclude that his Maryland state prison be given a
nunc pro tunc designation as the place of service of his federal
sentence.

As discussed above, the BOP acted properly in not

awarding Petitioner double credit for any period of pre-federal
sentence confinement.

Accordingly, the petition for writ of

habeas corpus will be denied.

An appropriate Order will enter.3

S/Richard P. Conaboy
RICHARD P. CONABOY
United States District Judge
DATED: MAY 1, 2018

3

It is the obligation of this Court to ensure that Smith is
given proper sentence credit for every day of his confinement. In
the event Petitioner can present facts showing that he has not
received credit for any time spent imprisoned, he may file a motion
for reconsideration within fourteen (14) days of the date of this
Memorandum.
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