Opinion
Case No. 02-CV-70179-DT
April 30, 2002
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
Petitioner Thurman Jones, currently incarcerated at the Federal Correctional Institution in Milan, Michigan, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. In his petition, filed pro se, Petitioner claims that the Bureau of Prisons ("B.O.P.") erred in denying him presentence credit for his federal sentence on one count of conspiracy to distribute cocaine base in violation of 21 U.S.C. § 846. For the reasons stated below, the petition for writ of habeas corpus will be denied.
I. PROCEDURAL HISTORY
The facts in this case are not in dispute. Petitioner was indicted on his federal cocaine charge by a federal grand jury in the Northern District of Indiana on January 6, 1994. On February 12, 1994, Petitioner was arrested by law enforcement officials in Michigan. On March 11, 1994, Petitioner was sentenced by the Berrien County Circuit Court to twenty to ninety-six months in prison for violating his probation on a state conviction on a possession of cocaine less than twenty five grams, second or subsequent offense.
On June 1, 1994, Petitioner was turned over to the United States Marshals Service pursuant to a writ of habeas corpus ad prosequendam. Petitioner ultimately entered a plea of guilty to one court of conspiracy to distribute cocaine base in the United States District Court for the Northern District of Indiana. On April 18, 1996, Petitioner was sentenced to one hundred and twenty-one months imprisonment. The federal sentence was ordered to run concurrently with Petitioner's state court sentence.
On June 27, 2001, Petitioner filed an "Inmate Request for Administrative Remedy" with the warden at the Federal Correctional Institution in Milan, in which he requested federal sentencing credit from February 12, 1994, to April 18, 1996. The B.O.P. agreed to award Petitioner credit for the time between February 12, 1994, and March 10, 1994, but declined to grant any further sentence credits. After exhausting his administrative remedies, Petitioner filed the instant petition for habeas corpus, seeking relief on the following grounds:
I. The Attorney General, through the B.O.P., has erred in disallowing presentence credits for time spent in federal custody on [a] writ of habeas corpus ad prosequendam from [the] state after [Petitioner's] scheduled parole hearing date.
II. The Attorney General, through the B.O.P., has erred in disallowing presentence credits for time spent in federal custody on [a] writ of habeas corpus ad prosequendam from [the] state prior to [Petitioner's] scheduled parole hearing date.
II. DISCUSSION
In his application for habeas relief, Petitioner claims that he is entitled to receive presentence credit against his federal sentence from the time he was sentenced by the Berrien County Circuit Court for violating probation on March 11, 1994, until he was sentenced on his current federal charge on April 18, 1996. Respondent contends that Petitioner is not entitled to any presentence credit against his federal sentence, because this time was credited against his state sentence.The United States Attorney General, not a federal court, has the authority to compute sentencing credits for the time that a defendant spends in detention prior to sentencing. United States v. Wilson, 503 U.S. 329, 335 (1992); McClain v. Bureau of Prisons, 9 F.3d 503, 505 (6th Cir. 1993). However, a federal district court may grant a prisoner claiming the miscalculation of sentencing credits habeas relief under § 2241. McClain, 9 F.3d at 505. A petition for writ of habeas corpus filed by a federal inmate under 28 U.S.C. § 2241 is proper where the inmate is challenging the manner in which his or her sentence is being executed. Capaldi v. Pontesso, 135 F.3d 1122, 1123 (6th Cir. 1998).
Title 18 of the United States Code, § 3585(b) states in pertinent part as follows:
(b) Credit for prior custody. — A defendant shall be given credit toward the service of a term of imprisonment for any time he has spent in official detention prior to the date the sentence commences —
(1) as a result of the offense for which the sentence was imposed; or
(2) as a result of any other charge for which the defendant was arrested after the commission of the offense for which the sentence was imposed;
that has not been credited against another sentence.
Id. Thus, 18 U.S.C. § 3585(b) authorizes credit against a federal sentence only for time "that has not been credited against another sentence." United States v. Wilson, 503 U.S. at 334. A federal defendant has no right to credit on his federal sentence for any time that has been credited against a prior state sentence. United States v. Labeille-Soto, 163 F.3d 93, 99 (2nd Cir 1998); United States v. Dennis, 926 F.2d 768, 770 (8th Cir. 1991). In the present case, Petitioner is not entitled to presentence credit towards his federal sentence, because he received credit on his state sentence for the time that he spent in federal and state custody prior to his federal sentencing. See Suaza v. Dep't of Justice, 14 Fed. Appx. 318, 319 (6th Cir. 2001).
The fact that Petitioner was turned over from state officials to the United States Marshals Service on a writ of habeas corpus ad prosequendam on June 1, 1994, does not alter the court's conclusion that Petitioner is not entitled to sentencing credits in this case, because Petitioner remained in the primary custody of the State of Michigan. Producing a state prisoner under a writ of habeas corpus ad prosequendam to answer federal criminal charges does not relinquish state custody. Jiminez v. Warden, FDIC, Fort Devens, Massachusetts, 147 F. Supp.2d 24, 28 (D. Mass. 2001); Chambers v. Holland, 920 F. Supp. 618, 622 (M.D. Pa. 1996). A federal sentence therefore does not begin to run at the time that a federal defendant is delivered from state custody for federal prosecution under a writ of habeas corpus ad prosequendam. Jiminez, 147 F. Supp.2d at 28. Primary jurisdiction remains vested in the sovereign that first arrested the defendant until that jurisdiction relinquishes its jurisdiction over the defendant through bail release, dismissal of the pending charges, parole release, or expiration of the sentence. Jiminez, 147 F. Supp.2d at 28; Chambers, 920 F. Supp. at 622. The ban on double credits under § 3585(b) therefore applies equally to situations where a prisoner is in federal control pursuant to a writ of habeas corpus ad prosequendam during the time for which presentence credits are sought. Rios v. Wiley, 201 F.3d 257, 274 (3rd Cir. 2000). This is because a prisoner who is detained pursuant to a writ of habeas corpus ad prosequendam still remains in the primary custody of the first jurisdiction, unless and until that jurisdiction relinquishes jurisdiction over the prisoner. Id. Thus, the reason for disallowing double credit in this situation is that the prisoner is not in custody solely because of the pending federal charges, but is also serving a prior state sentence. Rios, 201 F.3d at 275.
In this case, it is undisputed that Petitioner was not paroled by Michigan authorities and transferred to primary federal custody until January 23, 1997. Petitioner's case thus is distinguishable from the federal prisoner's case in McClain v. Bureau of Prisons, where the prisoner sought credit against his sentence for time spent in federal custody after he had been released on state parole. In that case, the Sixth Circuit concluded that the prisoner's release on parole from state charges essentially put him in exclusive federal custody. McClain, 9 F.3d at 505. By contrast, Petitioner in this case was not paroled by Michigan authorities prior to January 23, 1997. It is clear that Petitioner remained in primary custodial jurisdiction of the State of Michigan during this time period and received credit against his state sentence. This situation therefore presents "the quintessential example of when section 3585(b)'s prohibition of double credit should apply." Rios v. Wiley, 201 F.3d at 275.
Petitioner nonetheless claims that he is entitled to credit against his federal sentence for the time spent in primary state custody because his federal sentence was ordered to run concurrently with his state sentence. This argument is without merit. The federal sentence imposed in Rios ran concurrently with the state sentence that the defendant received. Rios v. Wiley, 201 F.3d at 261. Nevertheless, the Third Circuit concluded that the defendant was precluded under § 3585(b) from receiving credit against his federal sentence for time that was credited against his state sentence. Id. In Chambers v. Holland, supra, the federal district court refused to order that the defendant receive credit against his federal sentence for time spent in custody on state charges, even though the petitioner's charge for possession of a firearm in the commission of a felony was ordered by the sentencing judge to run concurrently to his state criminal charges, albeit consecutively with his federal convictions for using a telephone to facilitate a drug offense. Chambers, 920 F. Supp. at 620, 622. Finally, the Seventh Circuit recently rejected a federal inmate's claim that he should receive federal credit for the time that he spent in state custody prior to his federal sentencing date where the federal court ordered his sentence to run concurrently with his state sentence, because the time spent in state custody was credited by state officials towards completion of his state sentence. Easley v. Stepp, 5 Fed. Appx. 541, 542 (7th Cir. 2001). Because the time that Petitioner spent in custody between March 11, 1994, and April 18, 1996, was credited towards his state sentence, he is not entitled to credit against his federal sentence, even though the sentence was ordered to run concurrently with his state sentence.
Petitioner's reliance on the Seventh Circuit's decision in United States v. Ross, 219 F.3d 592 (7th Cir. 2000) in support of his claim that he should receive federal credits is misplaced. Ross involved the federal court's use of § 5G1.3 of the United States Sentencing Guidelines to reduce a petitioner's sentence at the time of sentence. Id. at 594. To the extent that Petitioner here is arguing that the sentencing court failed to credit his federal sentence pursuant to § 5G1.3 of the federal sentencing guidelines, this court is without jurisdiction to hear such a claim. A motion to vacate sentence under § 2255 is the proper avenue for relief as to a federal inmate's claims that his or her sentence was imposed in violation of the federal constitution or laws. Capaldi v. Pontesso, 135 F.3d at 1123. A federal prisoner may bring a claim challenging his or her conviction or the imposition of sentence under 28 U.S.C. § 2241 only if it appears that the remedy afforded under § 2255 is inadequate or ineffective to test the legality of the defendant's detention. Charles v. Chandler, 180 F.3d 753, 756 (6th Cir. 1999).
A habeas petition by a federal prisoner which claims that the sentencing judge misapplied the sentencing guidelines cannot be entertained where there is no suggestion that the petitioner's remedy through a § 2255 motion to vacate was inadequate or ineffective. Moses v. Tippy, 868 F. Supp. 469, 470-71 (N.D.N Y 1994). In Perkins v. Lamanna, 9 Fed. Appx. 482, 483-84 (6th Cir. 2001), the Sixth Circuit held that a district court properly dismissed a § 2241 habeas petition which alleged that the federal sentencing court erred in failing to apply § 5G1.3 to his sentence, because the petitioner was improperly seeking to challenge the imposition of his sentence under § 2241.
Petitioner has not alleged that his remedy under § 2255 is inadequate or ineffective. If Petitioner wishes to challenge the federal district court's failure to utilize § 5G1.3 of the federal sentencing guidelines, he should file a § 2255 motion to vacate sentence. Easley, 5 Fed. Appx. at 542-43. However, a motion to vacate sentence must be filed in the district that sentenced the defendant. See In Re Gregory, 181 F.3d 713, 714 (6th Cir. 1999). Any motion to vacate sentence must therefore be brought by petitioner in the court which sentenced him, namely, the United States District Court for the Northern District of Indiana.
Finally, Petitioner argues that he is entitled to receive credits against his federal sentence for the time spent in federal custody on the writ of habeas corpus ad prosequendm, because the writ prevented him from appearing before the Michigan Parole Board on November 11, 1994, at which time Petitioner claims that he would have been paroled and primary federal custody would have commenced.
As Respondent indicates, Petitioner offers no proof that a parole hearing date had been scheduled, nor has he offered any proof that the Michigan Parole Board would have released him on that date. Moreover, Petitioner is not entitled to credit for any time spent in state custody under a federal writ of habeas corpus ad prosequendam, even though his placement in federal custody may have prevented him from appearing before a state parole board to gain its approval for his release, where the time spent in state custody under the writ was credited towards his state sentence. Jiminez v. Warden, EDIC, Fort Devens, Massachusetts, 147 F. Supp.2d at 29; See also United States v. Fermin, 252 F.3d 102, 108 n. 10 (2nd Cir. 2001).
III. ORDER
Based upon the foregoing analysis, IT IS ORDERED that the petition for writ of habeas corpus brought pursuant to 28 U.S.C. § 2241 is DENIED. Because a certificate of appealability is not needed to appeal the denial of a habeas petition filed under § 2241, see Hervey v. United States, 105 F. Supp.2d 731, 736 (E.D. Mich. 2000), Petitioner need not apply for one with this court or with the Sixth Circuit before filing an appeal from the denial of his habeas petition.