HERNANDEZ-FIGUEROA v. RECTENWALD
Filing
15
OPINION that the petition for writ of habeas corpus will be denied. An appropriate order will follow. Signed by Magistrate Judge Susan Paradise Baxter on 8/19/16. (lrw)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
JOSE O. HERNANDEZ-FIGUEROA,
Petitioner,
v.
M. RECTENWALD,
Respondent.
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Civil Action No. 15-175 Erie
Magistrate Judge Susan Paradise Baxter
OPINION1
Presently before the Court is a petition for a writ of habeas corpus filed by federal prisoner
Jose O. Hernandez-Figueroa (the "Petitioner"), pursuant to 28 U.S.C. § 2241. He was sentenced on
December 8, 2006, in the United States District Court for the District of Puerto Rico in Criminal Case
Number 06-CR-119-01 (D. PR) to a 97 month term of imprisonment for his role in the robbery of a
federally insured bank. He contends that the Bureau of Prisons (the "Bureau" or the "BOP"), which is
the agency responsible for implementing and applying federal law concerning the computation of
federal sentences, see, e.g., United States v. Wilson, 503 U.S. 329 (1992), erred in computing his
sentence. For the reasons set forth below, the petition is denied.
I.
A.
Relevant Background
On January 27, 2006, the Petitioner committed an armed robbery at the Financiera Commoloco
located in Mayaguez, Puerto Rico. During the commission of this offense, he illegally appropriated
$741.00 from an individual victim. (See Declaration of Angelicia Holland ("Holland Decl."), Resp's
Ex. 1, at ¶ 4v).
1
In accordance with the provisions of 28 U.S.C. § 636(c)(1), the parties have voluntarily consented to have a
U.S. Magistrate Judge conduct proceedings in this case, including entry of a final judgment.
1
On February 6, 2006, the Petitioner committed the criminal conduct related to his federal
offenses. Specifically, at about 3:19 p.m., the Petitioner and another individual entered the Banco
Popular branch located on the Mayaguez Campus of the University of Puerto Rico and stole $79,960.00
at gunpoint. (Id. at ¶ 4iii).
On March 8, 2006, the Petitioner was arrested by local law enforcement in the Commonwealth
of Puerto Rico and charged with the local criminal offense of Armed Robbery and Weapons Law
Violation (local Case Numbers ISCR200601813 and ISCR200601814). These charges were for the
Petitioner's role in the January 27, 2006, bank robbery at the Commoloco branch in Mayaguez (the nonfederally insured financial institution). (Resp's Ex. 1n, Order, Hernandez-Figueroa v. United States, C.A.
No. 14-1369 (D.PR, Jun. 24, 2014), at 1-3; Holland Decl. at ¶ 9(c)). Because local, non-federal
authorities arrested the Petitioner first, he was in the "primary custody" (sometimes referred to as
"primary jurisdiction") of the Commonwealth of Puerto Rico. (Holland Decl. at ¶ 12). The "primary
custody" doctrine developed to provide different sovereigns (in this case the state and the federal
governments) with an orderly method by which to prosecute and incarcerate an individual who has
violated each sovereign's laws. Ponzi v. Fessenden, 258 U.S. 254 (1922). See, e.g., Bowman v. Wilson,
672 F.2d 1145, 1153-54 (3d Cir. 1982); George v. Longley, 463 F.App'x 136, 138 n.4 (3d Cir. 2012)
(per curiam); Elwell v. Fisher, 716 F.3d 477 (8th Cir. 2013). In relevant part, the doctrine provides that
the sovereign that first arrests an individual has primary custody over him. That sovereign's claim over
the individual has priority over all other sovereigns that subsequently arrest him. The sovereign with
primary custody is entitled to have the individual serve a sentence it imposes before he serves a sentence
imposed by any other jurisdiction, regardless of the chronological order of sentence imposition. See,
e.g., Bowman, 672 F.2d at 1153-54. Primary custody remains vested in the sovereign that first arrests
the individual until its sentence expires and it releases the inmate, or until it relinquishes its priority
2
through some other act, such as granting bail, dismissing the charges, or releasing the individual on
parole. See, e.g., George, 463 F.App'x at 138 n.4.
On that same day (March 8, 2006), a federal criminal complaint was filed in the United States
District Court for the District of Puerto Rico charging the Petitioner with crimes related to his role in the
February 6, 2006, robbery at the Banco Popular bank (the federally insured financial institution). (Resp's
Ex. 1n, Order, Hernandez-Figueroa, C.A. No. 14-1369, at 1-3; Resp's Ex. 1e, Criminal Complaint). The
district court issued a federal warrant for the Petitioner's arrest, and on March 9, 2006, it issued a writ of
habeas corpus ad prosequendum. (Holland Decl. at ¶ 9(e)-(f)). The Federal Bureau of Investigation
executed the federal arrest warrant on March 9, 2006, and the following day the Commonwealth
temporarily transferred physical custody of the Petitioner to federal authorities pursuant to a federal writ
of habeas corpus ad prosequendum. (Id. at ¶ 9(g)-(h)).
Although the Petitioner was temporarily transferred to the physical custody of federal authorities
pursuant to the writ of habeas corpus ad prosequendum, the Commonwealth of Puerto Rico maintained
primary custody over him. That is because a prisoner detained pursuant to a writ of habeas corpus
ad prosequendum remains in the primary custody of the sending sovereign unless and until it
relinquishes jurisdiction over him. See, e.g., Ruggiano v. Reish, 307 F.3d 121, 125 n.1 (3d Cir. 2002),
superseded on other grounds by U.S.S.G. § 5G1.3(c) app. note 3(E) (2003). See also Elwell, 716 F.3d at
482 ("When the United States obtained physical custody of Elwell based upon the writ of habeas corpus
ad prosequendum, the transfer of physical control over Elwell's custody from Iowa to the United States
did not terminate Iowa's primary jurisdiction.") The receiving sovereign – in this case, the federal
government – is considered simply to be "borrowing" the prisoner from the sending sovereign for the
purposes of indicting, arraigning, trying, and/or sentencing him. Id.
3
On August 30, 2006, the Petitioner pleaded guilty in the United States District Court for the
District of Puerto Rico to Bank Robbery, Aiding and Abetting, and Using and Brandishing of a Firearm
in Relation to a Crime of Violence and Aiding and Abetting, in violation of 18 U.S.C. § 2113(a),
2113(d), (2) and 924(c)(1)(A)(ii). The applicable sentencing guideline range for count one was 37-46
months and the mandatory minimum term for count two was 60 months. The United States agreed to
recommend an imprisonment term at the lower end of the guidelines ranges. Under the terms of the plea
agreement, no further adjustments or departures would be sought by either party. (Holland Decl. at ¶ 4ii,
¶ 9(i)-(j)).
On December 8, 2006, the district court sentenced the Petitioner to 37 months of imprisonment
as to count one and 60 months of imprisonment for count two, to run consecutively with each other, for
a total term of imprisonment of 97 months. (Id. at ¶ 9(k); Resp's Ex. 1i, Federal Judgment and
Commitment Order). The Judgment and Commitment Order directed that the Petitioner receive credit
for time served, that he serve his sentence in the New York-Pennsylvania area, and that he be permitted
to participate in the most rigorous substance abuse treatment program available and be provided
vocational training while incarcerated. The federal sentencing order was silent with respect to the
relationship of the Petitioner's federal sentence with any other sentence to which he was subject or
would be subject. The Statement of Reasons prepared by the sentencing court made no reference to
U.S.S.G. § 5G1 or an intent to either adjust the Petitioner's federal sentence or fashion a downward
departure from the applicable sentencing guidelines. (Id. at ¶ 5, ¶ 9(l)). And as the Respondent explains
in detail in the answer, a review of the transcript of the federal sentencing hearing reflects that neither
the United States nor the Petitioner raised U.S.S.G § 5G1.3, and the court did not indicate any intention
to either downwardly depart or adjust the Petitioner's sentence. Indeed, absent from the transcript is any
reference to either "time served" or prior custody credit, as referenced in the federal Judgment and
4
Commitment Order. (See Answer, ECF No. 13 at 4-8; Resp's Ex. 1i at 2; Holland Decl., at ¶ 8, ¶ 9(m)).
The United States Marshals Service subsequently returned physical custody of the Petitioner to the
authorities with the Commonwealth of Puerto Rico in satisfaction of the federal writ of habeas corpus
ad prosequendum. (Holland Decl. at ¶ 9(o)).
On December 20, 2006, the Petitioner was sentenced in the local court in Puerto Rico to a term
of three years plus one day imprisonment in Criminal Case Number ISCR20061813, to be served
consecutively with a five year term of imprisonment in Criminal Case Number ISCR20061814. The
court directed that its sentence was to run concurrently with any other sentence the Petitioner was
ordered to serve by the federal court. (Id. at ¶ 9(n); Resp's Ex. 1j, State Sentencing Order, at 1, 5).
Several years later, on October 15, 2013, the Petitioner satisfied the sentence imposed by the
Commonwealth. Records from the Puerto Rico Department of Corrections reflect that all time served
from March 8, 2006 through October 15, 2013, was credited against the sentence imposed by the
Commonwealth. (Id. at ¶ 9(p); Resp's Ex. 1k, fax coversheet and response from Puerto Rico Department
of Corrections to Federal Bureau of Prisons). On December 10, 2013, the Petitioner was released to
federal authorities for service of his federal sentence. (Id. at ¶ 9(q); Resp's Ex. 1h, at 2; Resp's Ex. 1l,
Puerto Rico Department of Corrections Records Department faxed Certificate of Release).
Pursuant to 18 U.S.C. § 3584(a), the BOP has calculated the Petitioner's federal sentence as
consecutive to the sentence he served for the Commonwealth of Puerto Rico. This means that it has
refused to give him a retroactive concurrent designation under 18 U.S.C. § 3621(b) (discussed below),
which would have allowed the Commonwealth prison to be the place where he began service of his
federal sentence.2 Pursuant to 18 U.S.C. § 3585(a), the BOP has calculated the Petitioner's federal
2
When a federal court imposes a prison sentence, Congress has authorized the BOP to designate "any available penal
or correctional facility that meets minimum standards of health and habitability ... whether maintained by the Federal
Government or otherwise[.]" 18 U.S.C. § 3621(b). This statute provides the BOP with broad discretion to choose the location
5
sentence to have commenced on December 10, 2013, the date he was produced for service of his federal
sentence. The BOP also has determined that the Petitioner is entitled to 55 days of prior custody credit
pursuant to 18 U.S.C. § 3585(b) for that time that he spent in official detention from March 8, 2006
through December 9, 2013, that was not credited against any other sentence. (Holland Decl. at ¶¶ 10-20).
Assuming he receives all good conduct time available to him under 18 U.S.C. § 3524(b), his projected
release date is October 31, 2020.
On May 7, 2014, the Petitioner filed with his federal sentencing court a Motion to Vacate, Set
Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. He argued that he was supposed to serve his
federal and state sentences concurrently because both sentences were imposed for the same offense. He
further argued that during imposition of the federal sentence, the court expressed its willingness to grant
his request for the concurrent running of his federal sentence with the state sentence, but failed to
include this intent in the Judgment and Commitment Order. (Id. at ¶ 9(s); Resp's Ex. 1n, Order,
Hernandez-Figueroa, C.A. No. 14-1369, at 2-3).
On June 24, 2014, the federal sentencing court denied the Petitioner's § 2255 Motion. It noted
that the proper vehicle for the Petitioner to challenge the BOP's calculation of his sentence is a § 2241
habeas petition filed in the district court located in his place of confinement. (Resp's Ex. 1n, Order,
Hernandez-Figueroa, C.A. No. 14-1369, at 6-7). It also stressed that "the record is devoid of any
indication that the Court intended [the Petitioner's] federal sentence to run concurrent to his state
sentence for an unrelated offense (id. at 7), and explained:
After conducting an exhaustive review of the record, the Court agrees with the
government that it was never the intention of the Court to have the Petitioner serve his
federal sentence concurrent to his state sentence. We briefly explain.
of an inmate's imprisonment, so long as the factors enumerated in the statute are considered. Barden v. Keohane, 921 F.2d
476 (3d Cir. 1990).
6
At the sentencing hearing, neither party requested that Petitioner's federal
sentence run concurrent to his similar, yet unrelated, armed robbery case pending in state
court. Accordingly, judgment was entered with no mention of Petitioner's pending state
charges.
The Court stresses that Petitioner was charged with two different bank robberies
to two different financial institutions on two different dates. The robbery that occurred at
the federally insured financial institution was charged as a federal crime whereas the
robbery occurring at the non-federally insured financial institution was charged in state
court.
Additionally, the Court accentuates that it is irrelevant whether the state court
intended that Petitioner's state sentence be served concurrently to the federal sentence, as
a state court has no authority to order how a federal prisoner will serve his sentence. See
Fegans v. U.S., 506 F.3d 1101, 1104 (8th Cir. 2007) ("It is well-settled that the state
court's intent is not binding, so the state court's action raises the defendant's expectations
but does not resolve the issue."); Abdul-Malik v. Hawk-Sawyer, 403 F.3d 72, 75 (2d Cir.
2005) (holding that "when a defendant is sentenced first in federal court and then on an
unrelated offense in state court, neither judge can effect concurrent sentencing even if
that is the intention of both."). Furthermore, federal prisoners cannot generally receive
credit for time spent in state prison on an unrelated offense. See Setser v. U.S., ___ U.S.
___, 132 S.Ct. 1463, 1472 (2012) ("If a prisoner ... starts in state custody, serves his state
sentence, and then moves to federal custody, it will always be the Federal Government
. . . that decides whether he will receive credit for the time served in state custody."); U.S.
v. Winter, 730 F.2d 825 (1st Cir. 1984).
(Id. at 5-6).
The Petitioner also challenged the BOP's calculation of his federal sentence through the BOP's
administrative remedy process. When he did not receive the relief he sought he filed the instant petition
for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. He contends that he is entitled to additional
credit against his federal sentence. In the answer, the Respondent asserts that the BOP properly
calculated the Petitioner's federal sentence and that the petition should be denied. The Petitioner did not
file a reply. See LCvR 2241(D)(2) ("the petitioner may file a Reply (also known as 'a Traverse') within
30 days of the date the respondent files its Response.").
7
B.
Subject Matter Jurisdiction
"Federal courts are courts of limited jurisdiction. They possess only that power authorized by
Constitution and statute[.]" Cardona v. Bledsoe, 681 F.3d 533, 535 (3d Cir. 2012) (quoting Kokkonen v.
Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)). 28 U.S.C. § 2241 "confers habeas jurisdiction
to hear the petition of a federal prisoner who is challenging not the validity but the execution of his
sentence," McGee v. Martinez, 627 F.3d 933, 935 (3d Cir. 2010), such as, for example, the way in which
the BOP is computing his sentence. See, e.g., Barden, 921 F.2d at 478-79. Such petitions are filed in the
federal court of the judicial district where the federal prisoner is incarcerated. Thus, this Court has
jurisdiction under § 2241 to consider the Petitioner's claim that the BOP erred in computing his
sentence.
C.
Discussion
A federal habeas court may only extend a writ of habeas corpus to a federal inmate if he
demonstrates that "[h]e is in custody in violation of the Constitution or laws of the United States[.]"
28 U.S.C. § 2241(c)(3). The following statutes are relevant to the evaluation of the petition: 18 U.S.C.
§ 3584(a), which governs a federal sentencing court's authority to order that a federal sentence be served
concurrently with a state sentence; 18 U.S.C. § 3621(b), which governs the BOP's authority to designate
a state prison as a place of confinement for service of a federal sentence; 18 U.S.C. § 3585(a), which
governs the date upon which a federal sentence commences; and 18 U.S.C. § 3585(b), which governs
the amount of prior custody credit, or pre-commencement credit, that an inmate may receive. The BOP's
policies regarding sentence computation are set forth in Program Statement 5880.28, Sentence
Computation Manual ("PS 5880.28"). Also relevant to this case is Program Statement 5160.05,
Designation of State Institution for Service of Federal Sentence ("PS 5160.05"). The BOP policies at
8
issue in this case are not published in any federal regulation, and thus are not subject to public notice and
comment before adoption. Although they are not entitled to the deference described in Chevron U.S.A.
v. National Resources Defense Council, 467 U.S. 837 (1984), they are entitled to "some deference" from
this Court so long as they set forth "a permissible construction of" the statutes at issue. Blood v.
Bledsoe, 648 F.3d 203, 207-08 (3d Cir. 2011) (per curiam) (citing Reno v. Koray, 515 U.S. 50, 61
(1995)), cert. denied, 132 S.Ct. 1068 (2012).
1.
The determination of whether a federal sentence is concurrent with, or
consecutive to, a state sentence
(a) Statutory and policy background
In determining whether the Petitioner is entitled to any habeas relief, the Court must first
examine whether the BOP violated federal law in computing his federal sentence as consecutive to his
state sentences pursuant to 18 U.S.C. § 3584(a). This analysis also requires a consideration of whether
the BOP abused its discretion in declining to grant him a retroactive, or nunc pro tunc, concurrent
designation pursuant to 18 U.S.C. § 3621(b) and Barden v. Keohane, 921 F.2d 476 (3d Cir. 1990). See
PS 5160.05, Pages 5-7.
Section § 3584(a) provides, in relevant part:
[I]f a term of imprisonment is imposed on a defendant who is already subject to an
undischarged term of imprisonment, the terms may run concurrently or consecutively.…
Multiple terms of imprisonment imposed at different times run consecutively unless the
court orders that the terms are to run concurrently.3
(Emphasis added).
3
The BOP recognizes that "[o]n occasion, a federal court will order the federal sentence to run concurrently with or
consecutively to a not yet imposed term of imprisonment. Case law supports a court's discretion to enter such an order and
the federal sentence shall be enforced in the manner prescribed by the court." PS 5880.28, Chapt. 1, Page 32A. The Supreme
Court confirmed in Setser v. United States, — U.S. — , 132 S.Ct. 1463 (2012), that a district court has the authority to order,
when it is imposing a federal sentence, that that sentence is to be served consecutive to, or concurrent with, an anticipated
sentence that has not yet been imposed.
9
In applying § 3584(a), the BOP presumes that federal and state sentences are to be served
consecutively unless the federal sentencing court orders that the sentences are to be served concurrently.
See PS 5880.28, Chapt. 1, Pages 31-33; PS 5160.05, Pages 2-7. As the Petitioner's federal sentencing
court explained, when it imposed his sentence it did not order that his federal sentence was to be served
concurrent with any state sentence. Therefore, although the local court in Puerto Rico subsequently
directed that the term of imprisonment that it imposed was to run concurrently with the federal sentence,
the BOP did not automatically consider the Petitioner's federal sentence to run concurrent with his state
sentence because the federal district court had not so ordered. The BOP is charged with carrying out the
sentence that the federal court imposed, not the sentence the state court imposed. Barden, 921 F.2d at
480-84.
Importantly, however, the BOP considered, as it must under Barden and its own policies,
whether it should exercise its discretion and grant the Petitioner a retroactive concurrent designation
pursuant to § 3621(b). In Barden, the United States Court of Appeals for the Third Circuit discussed the
BOP's authority to effectuate the service of concurrent federal and state sentences in circumstances when
the intent of the federal sentencing court or the goals of the criminal justice system would make the
exercise of that authority appropriate. See also PS 5160.05, Pages 5-7. For example, the BOP recognizes
that the following might occur: the state/local authorities had primary custody over an inmate, his
federal sentence is imposed first, the federal sentencing court does not order that the federal sentence be
served concurrently with any state sentence, and then the state court subsequently imposes a sentence
and orders that it is to be served concurrently with the federal sentence. When this occurs, the inmate
typically will have served his state sentence at a state institution and upon release is sent to federal
custody for service of his federal sentence. The inmate is permitted to request that the BOP retroactively
designate the state institution as the correctional institution where he began service of his federal
10
sentence pursuant to its authority under 18 U.S.C. § 3621(b), which in effect amounts to the imposition
of a retroactive concurrent federal sentence. Barden, 921 F.2d at 478-83; PS 5160.05, Pages 5-7.
Although the BOP must consider the inmate's request for concurrent service of sentences, it is
not obligated to grant the request. Id. at 478 n.4 ("We recognize that neither the federal courts nor the
Bureau are bound in any way by the state court's direction that the state and federal sentences run
concurrently."); PS 5160.05, Page 6 ("there is no obligation under Barden for the Bureau to grant the
request by designating a state institution retroactively as the place to serve the federal sentence."). The
BOP will review the federal sentencing court's Judgment and Commitment Order, the state sentence data
records, and any other pertinent information relating to the federal and state sentences. PS 5160.05,
Pages 5-7. BOP policy further instructs:
(c) In making the determination[ ] if a designation for concurrent service may be
appropriate (e.g., the federal sentence is imposed first and there is no order or
recommendation regarding the service of the sentence in relationship to the yet to be
imposed state term), the [The Regional Inmate Systems Administrator ("RISA")] will
send a letter to the sentencing court (either the Chambers of the Judge, U.S. Attorney's
Office, and/or U.S. Probation Office, as appropriate) inquiring whether the court has any
objections. Regardless of where the original inquiry is directed, the U.S. Attorney's
Office and U.S. Probation Office will receive a courtesy copy.
PS 5160.05, Page 6.
(b) The BOP did not abuse its discretion in denying the Petitioner's request
for a retroactive concurrent designation under § 3621
When the Petitioner learned how the BOP is calculating his federal sentence, he filed an
administrative remedy. In accordance with § 3621 and its policies, the BOP conducted a Barden review
to determine whether to grant him a retroactive concurrent designation. The five factors set for in
§ 3621(b) were considered with respect to the Petitioner's particular circumstances. Those factors are:
(1) the resources of the facility contemplated; (2) the nature and circumstances of the offense; (3) the
11
history and characteristics of the prisoner; (4) any statement by the court that imposed the sentence
concerning the purposes for which the sentence to imprisonment was determined to be warranted or
recommending a type of penal or correctional facility as appropriate; and (5) any pertinent policy
statement issued by the Sentencing Commission. After its evaluation, the BOP determined that he
Petitioner was not appropriate for a retroactive designation. (Resp's Ex. 1q, Factors Under 18 U.S.C.
§ 3621(b) Worksheet, dated October 14, 2014). In making this determination, the BOP considered:
1) that the Petitioner was at FCI McKean (Medium Security Level Institution) serving a
97 month sentence for Bank Robbery, Aiding and Abetting, and Using and Brandishing
of a Firearm in Relation to a Crime of Violence;
2) Petitioner served an eight year Commonwealth sentence for Robbery and a Weapons
Law Violation;
3) the conduct involved in the federal and state convictions were not related;
4) Petitioner had no other prior convictions and no disciplinary history in federal or state
prison; and,
5) that when it contacted the Petitioner's federal sentencing court, that court directed it to
its order dated June 24, 2014, in which it stated "that it was never the intention of the
Court to have the Petitioner serve his federal sentence concurrent to his state sentence."
(Id.)
This Court cannot conclude that the BOP's decision was an abuse of its discretion. It was in
accordance with the federal sentencing statutes and applicable agency policy, PS 5160.05, Pages 5-7,
and there is no basis for this Court to disturb it. See Barden, 921 F.2d at 484. See also George, 463
F.App'x at 140 (finding that the BOP did not abuse its discretion in denying a nunc pro tunc designation
and noting that "the BOP followed the guidelines we established in Barden …; moreover, the federal
sentencing court was (and remains) silent on whether the federal sentence was to be consecutive or
concurrent, in light of the default presumption of consecutive sentences, see 18 U.S.C. § 3584(a).");
Crawford v. Longley, 561 F.App'x 128, 130 (3d Cir. 2014) (the petitioner's "argument that the BOP
12
should have granted the nunc pro tunc designation to fulfill the wishes of the state court judge that his
state sentence be concurrent to his federal sentence is meritless, as 'neither the federal courts not the
[BOP] are bound in any way be the state court's direction that the state and federal sentences run
concurrently.' Barden, 921 F.2d at 478 n.4 (citing U.S.Const.art.VI, cl. 2).").
2.
Calculation of the date upon which a federal sentence commences
18 U.S.C. § 3585(a) governs the date a federal sentence commences. It provides:
(a) Commencement of sentence. – 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.
18 U.S.C. § 3585(a).
The BOP, and not the federal sentencing court, determines the date upon which a federal
sentence commences. See, e.g., Ruggiano, 307 F.3d at 126. The BOP will not commence a sentence
earlier than the date it is imposed, even if made concurrent with a sentence already being served.
PS 5880.28, Chapt. 1, Page 13 ("In no case can a federal sentence of imprisonment commence earlier
than the date on which it is imposed."). See, e.g., Rashid v. Quintana, 372 F.App'x 260, 262 (3d Cir.
2010) (per curiam) ("a federal sentence cannot begin to run earlier than on the date on which it is
imposed.") (citing Unites States v. Labeille-Soto, 163 F.3d 93, 98 (2d Cir. 1998), which stated: "We see
nothing in [§ 3585(a)] to indicate that the court is permitted to order that the sentence be deemed to have
commenced on an earlier date. Indeed, the determination of the precise date on which a sentence begins
appears to have been intended to be a ministerial decision that depends on the timing of the defendant's
arrival at the appropriate place with respect to the sentence that is to be served, and we have held that
after a defendant is sentenced, it falls to the BOP, not the district judge, to determine when a sentence is
deemed to commence[.]" (internal quotations and brackets omitted)).
13
When an inmate is only facing service of a federal sentence, the application of § 3585(a) is
straightforward. The BOP will designate the inmate to a federal detention facility and it will calculate
the federal sentence to have commenced on the date it was imposed. PS 5880.28, Chapt. 1, Page 12.
Oftentimes, however, as in the instant case, an inmate is subject to multiple sentences, e.g., at the time
his federal sentence is imposed he is or will soon be subject to a state sentence. In that case, the federal
and state governments must resolve where and/or in what order the inmate will serve his multiple
sentences. As discussed above, at common law the "primary custody" doctrine developed to assist the
sovereigns in making these determinations and to provide an orderly method by which to prosecute and
incarcerate an individual that violated the law of more than one sovereign. Once again, the primary
custody doctrine provides that the sovereign that first arrests an individual has primary custody over
him. That sovereign's claim over the individual has priority over all other sovereigns that subsequently
arrest him. The sovereign with primary custody is entitled to have the individual serve a sentence it
imposes before he serves a sentence imposed by any other jurisdiction. See, e.g., Bowman, 672 F.2d at
1153-54. Primary custody remains vested in the sovereign that first arrests the individual until it
relinquishes its priority by, e.g., granting bail, dismissing the charges, releasing the individual to parole
or at the expiration of his sentence. See, e.g., George, 463 F.App'x at 138 n.4
The BOP has incorporated the common law primary custody doctrine into its policies, which
provide:
1.
If the federal government has primary custody of an inmate on the date his federal
sentence is imposed, it is entitled to have that inmate serve his federal sentence upon
imposition. In such a case, the BOP will designate the inmate to a federal detention
facility for service of the federal sentence and will calculate that sentence to have
commenced on the date the federal sentencing court imposed it, even if at that same time
the inmate is serving a concurrent state sentence. PS 5880.28, Chapt. 1, Pages 12-13.
2.
If the inmate is in the primary custody of the state and the federal sentencing court orders
that he serve his federal sentence concurrently with any state sentence, the BOP will
14
return physical custody of the inmate to the state, designate the state facility as the initial
place of service of the federal sentence pursuant to its authority under 18 U.S.C.
§ 3621(b), and calculate his federal sentence to have commenced on the date the federal
court imposed it. PS 5880.28, Chapt. 1, Page 13, 32A-33; PS 5160.05, Pages 2-12.
3.
If an inmate is in the primary custody of the state when his federal sentence is imposed
and if his federal sentence is consecutive to any state sentence, the inmate will be
returned to the state after federal sentencing. The BOP will commence the inmate's
federal sentence under § 3585(a) when the state relinquishes its priority and releases him
to federal custody. PS 5880.28, Chapt. 1, Pages 12-13, 31-33; see also PS 5160.05, Pages
2-12.
The third scenario is what occurred in the Petitioner's case. He was in the primary custody of the
Commonwealth of Puerto Rico on the date his federal sentence was imposed. Because his federal
sentence is consecutive to his sentence imposed by the Commonwealth, the BOP has calculated his 97month4 federal sentence to have commenced under § 3585(a) on December 10, 2013, the date he was
released by Commonwealth authorities to the United States Marshals Service for service of his federal
sentence. (Holland Decl. at ¶ 9(r), (z), ¶¶ 11-16). There is no basis for the Court to disturb the BOP's
determination in this regard. The policies it applied to the Petitioner are a permissible construction of
§ 3585(a).
3.
Calculation of prior custody credit under § 3585(b)
Section 3585(b) governs the amount of credit an inmate is entitled to receive for time served in
official detention prior to the commencement of his federal sentence. It provides:
4
Petitioner does not contend that the BOP failed to recognize that his federal sentencing court gave him a downward
departure under U.S.S.G. § 5G1.3 and that it misconstrued the length of his sentence. To the extent that his argument is that
the federal sentencing court erred in failing to give him a downward departure under § 5G1.3, such a claim is not cognizable
in a habeas petition filed under § 2241. Rather, it had to be raised to the sentencing court and then in an appeal to the
appropriate court of appeals. In addition, as the Respondent explains in the answer, according to the Petitioner's PSR, upon
execution of the federal plea agreement, the Petitioner and the government agreed not to seek any additional departures or
adjustments to his sentence other than those contained in the plea agreement. Moreover, in the Order denying the Petitioner's
§ 2255 motion, the federal sentencing court articulated that the criminal conduct relating to his federal conviction and
sentence was different and distinct from the criminal conduct relating to the sentence imposed by the Commonwealth of
Puerto Rico; therefore, the Petitioner is not entitled to a downward departure. (Holland Decl. at ¶ 4ii, ¶ 21; Resp's Ex. 1n,
Order, Hernandez-Figueroa, C.A. No. 14-1369).
15
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.
(Emphasis added).
The intent of the last clause of § 3585(b) is to prohibit double sentencing credit situations.
Wilson, 503 U.S. at 337 (explaining that with the enactment of § 3585(b), "Congress made it clear that a
defendant could not receive a double credit for his detention time."). The BOP may not grant prior
custody credit under § 3585(b) for time that has been credited against another sentence. See, e.g., Vega
v. United States, 493 F.3d 310, 314 (3d Cir. 2007).
The BOP has determined that the Petitioner is entitled to 55 days of prior custody credit under
§ 3585(b). (Holland Decl. at ¶ 19). That credit accounts for all the time that the Petitioner served from
March 8, 2006 (the date he was arrested and detained by non-federal authorities) to December 9, 2013
(the day before his federal sentence commenced) that was not credited against the eight year non-federal
sentence imposed by the Commonwealth of Puerto Rico in Case Number ISCR20061813 and Case
Number ISC20061814. (Id. at ¶¶ 19-20). The BOP cannot give the Petitioner any additional credit under
§ 3585(b) for the time he spent in official detention during the relevant time period because all of that
other time was credited against his state sentence. See, e.g., Vega, 493 F.3d at 314 (the BOP did not err
when it disallowed credit under § 3585(b) because the time at issue had been credited against the
petitioner's state sentence). And, although the federal judgment and commitment Order directs that
"[t]ime served shall be credited," a federal sentencing courts lack the authority to award prior custody
16
credit under § 3585(b). Only the Attorney General, through the BOP, has that authority. Wilson, 503
U.S. at 334.
II.
For the reasons set forth above, the petition for a writ of habeas corpus is denied.5 An appropriate
Order follows.
Dated: August 19, 2016
/s/ Susan Paradise Baxter
SUSAN PARADISE BAXTER
United States Magistrate Judge
5
Section 102 of the Antiterrorism and Effective Death Penalty Act (28 U.S.C. § 2253 (as amended)) codified
standards governing the issuance of a certificate of appealability for appellate review of a district court's disposition of a
habeas petition. Federal prisoner appeals from the denial of a § 2241 habeas corpus proceeding are not governed by the
certificate of appealability requirement. United States v. Cepero, 224 F.3d 256, 264-65 (3d Cir. 2000) (en banc), abrogated on
other grounds by Gonzalez v. Thaler, 132 S.Ct. 641 (2012); 28 U.S.C. § 2253(c)(1)(B).
17
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