THOMPSON v. RECKTENWALD
OPINION that the petition is denied. Signed by Magistrate Judge Susan Paradise Baxter on 8/4/17. (lrw)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
Civil Action No. 16-246 Erie
Magistrate Judge Susan Paradise Baxter
Presently before the Court is a petition for a writ of habeas corpus filed by federal prisoner James
Thompson (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.
On April 13, 2012, the Petitioner was arrested by members of the Susquehanna Township Police
Department. (Resp's Ex. No. 2(a) at 1). He was charged with state drug-related offenses in the Court of
Common Pleas of Dauphin County, Pennsylvania. (Id.) At the time of his arrest, the Petitioner was on
parole and was being supervised by of the Pennsylvania Board of Probation and Parole (the "Parole
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.
Board"). (Resp's Ex. 2(a) at 1-2; Resp's Ex. 2(c)). After his arrest, he was incarcerated in the Dauphin
County Prison.2 (See Resp's Ex. 2(d)).
At this time, the Petitioner was in the "primary custody" (sometimes referred to as "primary
jurisdiction") of the Commonwealth of Pennsylvania. 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
On November 28, 2012, the grand jury for the Middle District of Pennsylvania returned a fivecount Superseding Indictment against the Petitioner and eighteen other defendants.3 (Resp's Ex. 4). The
first count of the Superseding Indictment alleged that from December of 2007 and continuing until
As the Respondent explains, court records reflect that although the Petitioner's bail with respect to the state charges
was set on April 13, 2012, he was not released from custody because the Parole Board had filed a parole detainer/warrant
against him. (ECF No. 10 at 3 n.1; Resp's Ex. 2(c)).
The Petitioner was not named as a defendant in the original Indictment, which was returned on July 25, 2012.
(Resp's. Ex. 3).
August 27, 2012, the Petitioner and the defendants violated 21 U.S.C. § 846 by conspiring to distribute
more than five kilograms of cocaine and more than 280 grams of crack. (Id. at 1-2). The Petitioner and
the others were charged at Count Two with aiding and abetting in the distribution of more than five
kilograms of cocaine and more than 280 grams of crack in violation of 21 U.S.C. § 841(a)(1) and
18 U.S.C. § 2. (Id. at 3-4). The Petitioner was also charged at Count Four with participating in a money
laundering conspiracy in contravention of 18 U.S.C. § 1956(h). (Id. at 5-6).
On December 3, 2012, the United States District Court for the Middle District of Pennsylvania
issued a writ of habeas corpus ad prosequendum directing the warden of the Dauphin County Prison to
produce the Petitioner for prosecution in federal court. (Resp's Ex. 2(d)). Pursuant to the writ's authority,
the Petitioner was removed from the Dauphin County Prison on December 11, 2012,4 April 7, 2014, and
September 16, 2014, by the United States Marshals Service and transported to and from federal court for
judicial proceedings. (Resp's Ex. 2(e)). The Petitioner pleaded guilty to violating 21 U.S.C. § 846,
conspiracy to distribute cocaine and on September 16, 2014, the District Court sentenced him to a 96month term of imprisonment. (Resp's Ex. 2(f)). The District Court was silent with respect to the
relationship of the 96-month sentence to any other sentence to which the Petitioner was, or would be,
At the conclusion of each of the District Court's proceedings, the Petitioner was returned to
Dauphin County Prison 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 Commonwealth
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
The Petitioner was arrested on his federal criminal charges at the Dauphin County Prison on December 11, 2012.
(Resp's Ex. 2(e)).
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. After the District Court sentenced
the Petitioner on September 16, 2014, and the United States Marshals Service returned him to Dauphin
County Prison for the final time, the federal Judgment was filed with state authorities as a detainer.
(Resp's Ex. 2(e)).
On October 31, 2014, the Petitioner's state parole was revoked and the Parole Board recalculated
his maximum sentence to expire on January 28, 2016. (Resp's Exs. 2(c) and 2(g)). On December 8,
2014, the state charges that had been filed by the Susquehanna Township Police Department were nolle
prossed (Resp's Exs. 2(a), 2(b)), and the Petitioner was transferred to a state correctional institution to
serve his parole-violator term. (Resp's. Exs. 2(c), 2(e), 2(i)). He completed service of that term on
January 28, 2016, and on that date state authorities released him to the federal detainer.
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. (Resp's Ex. 2(m); Resp's Ex. 2, ¶ 16). 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 to the federal detainer (on January 28, 2016). (Resp's Ex. 2(p) at 3; Resp's
Ex. 2, ¶ 18). The BOP also has determined that the Petitioner is entitled to 688 days of prior custody
credit pursuant to 18 U.S.C. § 3585(b), to account for time served in official custody that was not
credited against his state sentence. Specifically, he received sentencing credit for time served from
December 12, 2012, through December 30, 2014. (Id.; Resp's Ex. 2, ¶¶ 18-19).
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. 4). He contends that he is entitled to
additional credit against his federal sentence. The Respondent filed the answer (ECF No. 10), and the
Petitioner filed a reply (ECF No. 19).
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").5
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.
(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).
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).
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. An 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
wrote a letter to the District Court judge, dated June 28, 2016, explaining:
On September 16, 2014, the Court sentenced [the Petitioner] to a 96-month term
of confinement for Conspiracy to Manufacture, Distribute, and Possess with Intent to
Manufacture and Distribute Cocaine Hydrochloride. At the time the federal sentence was
imposed, [the Petitioner] was under the primary jurisdiction of state authorities in
Pennsylvania and in federal custody pursuant to a writ. The respective Judgment in a
Criminal Case was silent regarding any relationship with the forthcoming action in the
state court. Following sentencing, [the Petitioner] was returned to state authorities and the
U.S. District Court judgment was filed as a detainer.
On October 31, 2014, [the Petitioner's] parole was revoked and he was continued
in custody in service of his original 3-year to 6-year term of confinement for Possession
with Intent to Deliver a Controlled Substance, Possession of Drug Paraphernalia,
Possession of Instrument of Crime, and Delivery of a Controlled Substance. The Court
did not address how the state terms would be served in relation to the federal sentence.
On January 28, 2016, [the Petitioner's] state sentence was satisfied and he was
released to the federal detainer to commence the service of his federal sentence as
provided by Title 18 U.S.C. § 3585(a).
[The Petitioner] has requested that his federal sentence be served concurrently
with the state term, which would be accomplished by the Bureau of Prisons (Bureau)
designating the state institution for service of his federal sentence. Such action would
thereby reduce the total amount of time spent in custody. In Setser v. United States, __
U.S. __ , 132 S.Ct. 1463, 192 L.Ed.2nd 455 (2012), the United States Supreme Court held
that the authority to order a federal sentence concurrent of consecutive with any other
sentence rests with the federal sentencing court.
Such a retroactive designation is made if the federal sentencing Court indicates
the federal term is to be concurrent with the state term, or if the federal sentencing Court
does not state its intention, such designation may be completed after the review of all
factors under Title 18 U.S.C. § 3621(b).
The Bureau strives to administer sentences in accordance with federal statutes,
Bureau policy, and the intent of the sentencing court. It is the Bureau's preference that the
federal sentencing court state its position with respect to a retroactive designation. If,
after 60 days, a response has not been received from the Court, the Bureau will complete
its review and make a decision regarding this case.
Should the Court indicate the sentence is to run concurrent with the state term, the
Bureau will commence the sentence in the above judgment on September 16, 2014, the
date of imposition, which will result in [the Petitioner's] release from custody on or about
April 2, 2019. Should the Court indicate the term is to run consecutive to the state term,
he will continue to a current projected release date of February 27, 2021.
(Resp's Ex. 2(k)).
The District Court judge responded to the BOP in a letter dated June 28, 2016. He wrote that he
was "satisfied to allow the Bureau to determine the issue outlined in your letter." (Resp's Ex. 2(l)).
The BOP then 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. (Resp's Ex. 2(m)).
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.
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 Commonwealth 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 January 28, 2016, the date the Commonwealth released him to the federal detainer. 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).
As set forth above, the BOP gave the Petitioner credit 688 days of prior custody credit under
§ 3585(b) for the time he served from December 12, 2012, through December 30, 2014. The BOP
cannot give the Petitioner any additional credit under § 3585(b) because that 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). (Resp's
Ex. 2, ¶ 18). As with the other determinations at issue in this case, there is no basis for this Court to
disturb the BOP's determination that the Petitioner is not entitled to additional prior custody credit.
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.6
An appropriate Order is attached.
Dated: August 4, 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. 16-246 Erie
Magistrate Judge Susan Paradise Baxter
AND NOW, this 4th day of August, 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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