United States District Court, N.D. West Virginia, Elkins
ORDER ADOPTING REPORT AND RECOMMENDATION
Preston Bailey, UNITED-STATES DISTRICT JUDGE
day, the above-styled matter came before this Court for
consideration of the Report and Recommendation of United
States Magistrate Judge Michael John Aloi [Doc. 28]. Pursuant
to this Court's Local Rules, this action was referred to
Magistrate Judge Aloi for submission of a proposed report and
a recommendation (“R&R”). Magistrate Judge
Aloi filed his R&R on March 27, 2017, wherein he
recommends this Court deny and dismiss without prejudice the
28 U.S.C. § 2241 petition.
to 28 U.S.C. § 636(b)(1)(c), this Court is required to
make a de novo review of those portions of the
magistrate judge's findings to which objection is made.
However, the Court is not required to review, under a de
novo or any other standard, the factual or legal
conclusions of the magistrate judge as to those portions of
the findings or recommendation to which no objections are
addressed. Thomas v. Arn, 474 U.S. 140, 150 (1985).
In addition, failure to file timely objections constitutes a
waiver of de novo review and the right to appeal
this Court's Order. 28 U.S.C. § 636(b)(1);
Snyder v. Ridenour, 889 F.2d 1363, 1366 (4th Cir.
1989); United States v. Schronce, 727 F.2d 91, 94
(4th Cir. 1984). Here, objections to Magistrate Judge
Aloi's R&R were due within fourteen (14) days of
receipt, pursuant to 28 U.S.C. § 636(b)(1) and
Fed.R.Civ.P. 72(b). The docket reflects that service was
accepted on March 29, 2017 [Doc. 29]. The petitioner timely
filed his Objections on April 17, 2017 [Doc. 31].
Accordingly, this Court will review the portions of the
R&R to which objection was filed under a de novo
standard of review. This Court will review the remaining
portions of the R&R for clear error.
Petitioner was arrested on September 20, 2005, in Kentucky on
several state charges. He was on parole at the time and
remained in the custody of the State of Kentucky.
Petitioner's parole was revoked in October of 2005.
November 8, 2005, petitioner was indicted in the United
States District Court for the Western District of Kentucky,
for Felon in Possession of a Firearm. On January 12, 2006,
the United States Marshals Service took temporary custody of
the petitioner pursuant to a writ of habeas corpus ad
prosequendum to be federally prosecuted. Petitioner was
released from his parole sentence on April 10, 2006, while in
the temporary custody of the Marshals; however, a state
detainer remained in place for the state charges incurred on
September 20, 2005. On October 6, 2008, the Western District
of Kentucky sentenced petitioner to a term of 180 months'
imprisonment for being a Felon in Possession of a firearm.
October 28, 2008, petitioner was returned to state custody
with the federal sentence lodged as a detainer. On December
7, 2009, petitioner was sentenced in state court to 5
years' imprisonment. The state court ordered this
sentence to run concurrent with petitioner's federal
sentence. Petitioner was credited with time served from
September 29, 2005, through December 7, 2009. Accordingly,
the state ordered that petitioner had completed his five year
sentence, and on December 8, 2009, petitioner was turned back
over to the Marshals pursuant to the federal detainer. The
only days petitioner spent in state custody which were not
credited toward his state sentence were September 20, 2005,
through September 28, 2005, which days were credited toward
his federal sentence.
maintains that the Bureau of Prisons (“BOP”) has
not credited him the correct amount of time served in
computing his federal sentence. A federal sentence, however,
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). And the mere fact that a state
prisoner is in federal court on a federal writ of habeas
corpus ad prosequendum does not mean the
prisoner's federal sentence has commenced. Rather, the
state retains primary jurisdiction over the prisoner, and
federal custody commences only when the state authorities
relinquish the prisoner on satisfaction of the state
obligation. See Thomas v. Whalen, 962 F.2d 358, 361
n.3 (4th Cir. 1992). Additionally, prior custody credit
cannot be awarded to a prisoner if the prisoner has already
received credit towards another sentence. See United
States v. Brown, 977 F.2d 574 (4th Cir. 1992). Finally,
it is the province of the BOP to calculate a prisoner's
sentence. See United States v. Wilson, 503 U.S. 329
petitioner was in the custody of the State of Kentucky until
his state sentence was completed on December 7, 2009.
Subsequently, he was released to the custody of the United
States Marshals Service on December 8, 2009, pursuant to the
federal detainer that had been lodged. As such, his federal
sentence commenced December 8, 2009.
outset, petitioner states that he strongly objects to the
entire R&R. Such blanket objections need not be addressed
by this Court. Petitioner proceeds to refine his objection to
argue his position that with educational and vocational
programs and good time conduct his five year state sentence
would really only have been two years. While this may be a
common practice in the state penal system, this Court is not
going to speculate as to why the defendant was in state
custody until December of 2009. This Court is only concerned
with the date his federal sentenced commenced.
as the R&R notes, the BOP computation center sought the
sentencing judge's opinion regarding a retroactive
designation for the defendant's sentences to run
concurrent, but he did not respond. As such, in the absence
of the sentencing judge issuing an order for a nunc pro
tunc designation, the BOP was within its discretion not
to designate the state prison nunc pro tunc.
Therefore, the R&R correctly concluded that the
petitioner has received the maximum credit to which he is
entitled under 18 U.S.C. § 3585(b). Accordingly, the
petitioner's Objections are OVERRULED.
careful review of the above, it is the opinion of this Court
that the Report and Recommendation [Doc. 28] should be, and
is, hereby ORDERED ADOPTED for the reasons more fully stated
in the magistrate judge's report. The petitioner's
Objections [Doc. 31] are OVERRULED. The respondent's
Motion to Dismiss or for Summary Judgment [Doc. 19] is
GRANTED. Accordingly, the petitioner's § 2241
petition [Doc. 1] is hereby DENIED and DISMISSED WITHOUT
PREJUDICE. This Court further DIRECTS the Clerk to enter
judgment in favor of the respondent and to STRIKE this case
from the active docket of this Court.
final matter, upon an independent review of the record, this
Court hereby DENIES the petitioner a
certificate of appealability on the dismissed claims, finding
that he has failed to make “a substantial showing of
the denial of a ...