PICKETT v. WARDEN RECKTENWALD
OPINION re 5 Petition for Writ of Habeas Corpus filed by DEXTER PICKETT, that petition is denied. Signed by Magistrate Judge Susan Paradise Baxter on 6/6/17. (lrw)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
Civil Action No. 16-cv-23 Erie
Magistrate Judge Susan Paradise Baxter
Presently before the Court is a petition for a writ of habeas corpus filed by federal prisoner
Dexter Pickett (the "Petitioner"), pursuant to 28 U.S.C. § 2241. 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.
From an unspecified date in 2000, until August 2011, the Petitioner committed the criminal
offense conduct that is the basis for his convictions for Conspiracy to Distribute and Possession with
Intent to Distribute Crack and Possession of a Firearm During and in Connection with a Drug
Trafficking Offense, in violation of 21 U.S.C.§ 846 and 18 U.S.C. § 924(c)(1), which are the federal
offenses connected with the sentence that is at issue in this case. (Declaration of Forest B. Kelly (Resp's
Ex. 1), ¶ 7(a)). On March 15, 2011, prior to his indictment on those federal charges, the Petitioner was
arrested by the Yonkers Police Department in Westchester County, New York, and charged in New
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.
York Supreme Court in Westchester County (the "State Court") with the state criminal offense of
Criminal Possession of a Weapon in the Second Degree. (Id., ¶¶ 5(b), 7(b)).
Because local/state, non-federal authorities arrested the Petitioner first, he was in the "primary
custody" (sometimes referred to as "primary jurisdiction") of the State of New York. 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
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 six occasions from August 11, 2011, through January 3, 2013, the United States District
Court for the Southern District of New York (the "District Court") issued a writ of habeas corpus
ad prosequendum and directed the United States Marshals Service to produce the Petitioner in federal
court for the processing of his federal criminal charges. (Kelly Decl., ¶ 7(c)-(n)). At the conclusion of
each of the District Court's proceedings, the Petitioner was returned to state/local authorities in
satisfaction of the federal writ. Although the Petitioner was temporarily transferred to the physical
custody of federal authorities on each of these occasions, the State of New York 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.
The Petitioner pleaded guilty to two counts pursuant to a federal plea agreement, and on
January 4, 2013, the District Court sentenced him to a 120-month term of imprisonment. (Kelly Decl.,
¶ 7(l), (n)). The federal sentencing order was silent with respect to the relationship of the 120-month
sentence to any other sentence to which the Petitioner was, or would be, subject. (Id., ¶ 7(n)). After the
District Court sentenced the Petitioner, the United States Marshals Service returned physical custody of
him to the authorities with the State of New York in satisfaction of a federal writ of habeas corpus
ad prosequendum. (Id.) The federal Judgment was filed as a detainer.
On January 17, 2013, the State Court sentenced the Petitioner to a 3 ½ year term of
imprisonment. The State Court directed that its sentence was to run concurrently with his federal
sentence. (Id., ¶ 7(o)). On March 6, 2014, state authorities released the Petitioner to the federal detainer.
(Id., ¶ 7(q)).
Pursuant to 18 U.S.C. § 3584(a), the BOP has calculated the Petitioner's federal sentence as
consecutive to his state sentence. This means that it has refused to give him a retroactive concurrent
designation (discussed below), which would have allowed the state prison to be the place where he
began service of his federal sentence. (Id., ¶¶ 9-13). Pursuant to 18 U.S.C. § 3585(a), the BOP has
calculated the Petitioner's federal sentence to have commenced on the day the state authorities released
him on parole to the federal detainer (on March 6, 2014). (Id.) The BOP also has determined that the
Petitioner is entitled to no prior custody credit pursuant to 18 U.S.C. § 3585(b). (Id., ¶¶ 14-15).
The Petitioner 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. (ECF No. 5). He contends that he is entitled to
additional credit against his federal sentence. The Respondent filed the answer (ECF No. 13), and the
Petitioner filed a reply (ECF No. 14).
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 v. Keohane, 921 F.2d 476, 478-79 (3d Cir. 1990).
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. 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 Petitioner's contention that the BOP
erred in computing his federal sentence: 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.
§ 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 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 issue in this case are not
published in any federal regulation, and thus are not subject to public notice and comment before
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. 18 U.S.C. § 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.
The BOP policies at 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).
(Emphasis added). See also Sester v. United States, 566 U.S. 231 (2013) (§ 3584(a) authorizes federal
sentencing courts to direct sentences to run concurrently or consecutively with other sentences, whether
such sentences are imposed or have yet to be imposed).
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. In this case, the BOP did not consider
the Petitioner's federal sentence to run concurrently with his state sentence because the 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 (as it did in the
instant case), 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 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.") In
making its decision, 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.
(b) The BOP did not abuse its discretion in declining to grant the Petitioner
a retroactive concurrent designation
After the Petitioner challenged the way the BOP was calculating his federal sentence, the BOP
contacted the District Court to receive input from it. The BOP explained to the District Court the
circumstance of the Petitioner's case and advised that if the District Court intended or desired to have its
sentence run concurrently with the state sentence, it would commence the Petitioner's federal sentence
on the date it was imposed, which would result in a release date of approximately December 22, 2019,
as opposed to his release date (without the retroactive designation) of December 14, 2022. (Kelly Decl.,
¶ 11 & Attach. 1(o), 1/27/15 Letter to District Court). In a written statement, dated February 26, 2015,
the District Court indicated it would defer to the BOP to determine whether the Petitioner was
appropriate for a retroactive designation of the state institution for service of his federal sentence. (Id.,
¶ 12 & Attach. 1(r), § 3621(b) Worksheet).
On April 7, 2015, the BOP conducted a Barden review to determine whether to grant the
Petitioner 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 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 the Petitioner was not appropriate for a
retroactive designation. (Id., ¶ 13 & Attach. 1(r), § 3621(b) Worksheet).
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 Crawford v.
Longley, 561 F.App'x 128, 130 (3d Cir. 2014) (the petitioner's "argument that the BOP 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).")
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)).
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
The BOP has incorporated the common law primary custody doctrine into its policies, which
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.
If the inmate is in the primary custody of the state and the federal sentencing court orders
that he serve his federal sentence concurrent with any state sentence, the BOP will 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.
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
The third scenario is what has occurred in the Petitioner's case. He was in the primary custody of
the State of New York on the date his federal sentence was imposed. Because his federal sentence is
consecutive to his state sentence, the BOP calculated his federal sentence to have commenced under
§ 3585(a) on March 6, 2014, the date the State released him on parole to the federal detainer. (Kelly
Decl., ¶ 9 & Attach. 1(s), Sentence Monitoring Computation Sheet). There is no basis for the Court to
disturb the BOP's determination. The policies it applied to the Petitioner are a permissible construction
of § 3585(a).
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:
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 –
as a result of the offense for which the sentence was imposed; or
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 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 Respondent explains that the records from the New York Department of Corrections reflect
that all time the Petitioner served between March 15, 2011 (the date he was arrest) through
March 5, 2014 (the day before his federal sentence commenced) was credited against his state sentence.
(Kelly Decl., ¶ 15). Accordingly, 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 a 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).
Based upon all of the foregoing, the Petitioner has not demonstrated that he is entitled to a writ
of habeas corpus and, therefore, his petition is denied.3
An appropriate Order is attached.
Dated: June 6, 2017
/s/ Susan Paradise Baxter
SUSAN PARADISE BAXTER
United States Magistrate Judge
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).
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
Civil Action No. 16-cv-23 Erie
Magistrate Judge Susan Paradise Baxter
AND NOW, this 6th day of June, 2017, IT IS HEREBY ORDERED that the petition for a writ of
habeas corpus is DENIED. The Clerk of Court shall mark this case CLOSED.
/s/ Susan Paradise Baxter
SUSAN PARADISE BAXTER
United States Magistrate Judge
Notice by ECF to counsel of record and by U.S. mail the Petitioner at his address of record
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