Opinion
5:21-cv-167-SB (MAR)
11-09-2021
BRIAN COLLINS, Petitioner, v. WARDEN, Respondent.
FINAL REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
HONORABLE MARGO A. ROCCONI UNITED STATES MAGISTRATE JUDGE
This Final Report and Recommendation is submitted to the Honorable Stanley Blumenfeld, Jr., United States District Judge, pursuant to 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.
This Court has issued a Final Report and Recommendation that is nearly identical to the original Report and Recommendation, Dkt. 24, except that the Court has:
(1) Removed subsection VI. Denying a Certificate of Appealability; and
(2) Updated various stylistic/formatting elements throughout the document, all of which have no bearing on the outcome of the Court's determination in the original Report and Recommendation filed in this matter.
I. SUMMARY OF RECOMMENDATION
Petitioner Brian Collins (“Petitioner”) has filed Petition for Writ of Habeas Corpus by a Person in Federal Custody (“Petition”) pursuant to 28 U.S.C. § 2241 (“section 2241”), with the assistance of counsel. ECF Docket No. (“Dkt.”) 1. Petitioner asserts a single claim, that the Bureau of Prison's (“BOP”) improperly calculated/computed Petitioner's federal sentence. Dkts. 1 at 1-2, 6; 2 at 1-2, 5-6; 16 at 6.
Petitioner relies upon a portion of the BOP's initial determination in the Central Office Administrative Remedy Appeal Response (“BOP's initial determination”) to argue that he is entitled to credit toward his federal sentence for the time he spent in state custody serving his state sentence from July 16, 2010, through December 1, 2015. Dkt. 2 at 4-5. However, for reasons discussed in detail below, the relevant portion of the BOP's initial determination appears erroneous. Accordingly, Petitioner's argument fails. Even assuming the BOP's initial determination was not erroneous, Petitioner fails to provide support for why, or how, the credit applied to his state sentence from July 16, 2010 through December 1, 2015, could also be applied to his consecutive federal sentence.
Administrative Remedy No. 980743-A2 Part B - Response. Dkt. 2 at 2-4, 8-11.
To the extent that Petitioner challenges the federal sentencing court's authority to sentence him to a consecutive, not concurrent sentence, his argument fails because it is well within the discretion of the sentencing court to sentence Petitioner to a consecutive sentence. See Oregon v. Ice, 555 U.S. 160, 168 (2009) (explaining that the decision to impose consecutive or concurrent sentences rests “exclusively with the judge.”).
Thus, Because Petitioner's single claim is without merit, the Petition should be DENIED with prejudice.
II. PROCEDURAL HISTORY
A. FEDERAL HABEAS PETITION
On January 28, 2021, after exhausting his administrative remedies, Petitioner filed the instant Petition pursuant to 28 U.S.C. § 2241, which asserts a single claim challenging the BOP's computation of his federal sentence. Dkts. 1 at 1-2, 6; 2 at 1- 2, 5-6; 16 at 6. Specifically, Petitioner argues that the BOP miscalculated his sentence by misapplying Petitioner's prior custody credit, and that, as a result, Petitioner should have received credit toward his federal sentence for the time between July 16, 2010 through December 1, 2015. Dkts 1 at 6; 2 at 1-2, 5.
As discussed further below, the BOP's computation crediting Petitioner for the time between October 22, 2009, through July 15, 2010, appears to have been in error. See Dkt. 16-1 at 2-3; 16-3 at 4.
On March 11, 2021, Respondent filed a Response to the Petition, arguing that Petitioner is not entitled to credit for the time he spent in state custody serving his state sentence from October 22, 2009, through December 1, 2015, and that the sentencing court's order for his federal sentence to run consecutive to his state sentence was lawful. Dkt. 16 at 3, 14-19.
The matter thus stands submitted.
III.
SUMMARY OF FACTS
Petitioner relies on the BOP's initial determination for a summary of the facts relevant to the instant Petition:
On October 5, 2006, [Petitioner] was arrested by federal authorities, for Armed Bank Robbery, Possession of a Firearm During and in Relation to Armed Bank Robbery, and Assaulting a Federal Agent. These charges were docketed in the United States District Court for the Northern District of Georgia, Case No. 1:06-cr-00436-ODE-CCH.
While being held in pre-trial confinement at the U.S. Penitentiary in Atlanta for Case No. 1:06-cr-00436-ODE-CCH, [Petitioner] attempted to
escape custody on February 7, 2007. As a result of this attempt, an indicted [sic] was filed on March 20, 2007, in the United States District Court for the Northern District of Georgia, Case No. 1:07-CR-91-01-CC, for Attempted Escape by Inmate in Custody of an Institution and Possession of Contraband by a Prison Inmate.
On November 1, 2007, the charges in Case No. 1:06-cr-00436-ODE-CCH, were dismissed without prejudice on a motion from the government, however, [Petitioner] remained in custody on Case No. 1:07-CR-91-01-CC. On November 29, 2007, [Petitioner was] sentenced in Case No. 1:07-CR-91-01-CC, to a term of 36-month imprisonment.
[Petitioner's] 36 month sentence in Case No. 1:07-CR-91-01-CC commenced on November 29, 2007, the date of imposition, and received 295 days of qualified presentence credit for the time spent in custody from February 7, 2007, through November 28, 2007. After the application [sic] 108 days Good Conduct Time in accordance with Title 18 U.S.C. section 3624(b), [Petitioner's] projected release date was scheduled for October 21, 2009.
On January 30, 2009, while [Petitioner served his] sentence in Case No. 1:07-CR-91-01-CC, [Petitioner was] temporarily removed from federal custody pursuant to a writ of habeas corpus ad prosequendum in Erie County Court, New York, Case No. 00622-2006 for Criminal Possession of a Weapon.
On July 7, 2009, an indictment was filed in the United States District Court for the Northern District of Georgia, Case No. 1:09-CR-321-ODE, charging [Petitioner] with Robbery, Use of a Firearm during a Crime of Violence, and Assault on a Federal Officer. Due to this new pending case, the United States Marshals Service (USMS) lodged a detainer on October 1, 2009.
After [Petitioner satisfied his] sentence in Case No. 1:07-CR-91-01-CC on October 21, 2009, [he was] released to the detainer in Case No. 1:09-CR-321-ODE, however, [Petitioner was] still in temporary state custody pursuant to the writ in Case No. 00622-2006.
On November 18, 2009, [Petitioner was] sentenced in Erie County Court, Case No. 00622-2006, to 7-years custody. Immediately following
[Petitioner's] sentencing, state authorities inadvertently transported [Petitioner] to the New York State Department of Corrections for service of the sentence.
On January 25, 2010, [Petitioner was] taken into custody by the USMS for Case No. 1:09-CR-321-ODE, and ultimately sentenced on July 15, 2010, to 154-months imprisonment. The respective judgment ordered, “This total sentence shall run consecutively to the sentences the defendant is currently serving in case #00622-2006 and case #01062-2006 in Buffalo, New York.” Because the court ordered that [Petitioner's] federal sentence shall run consecutively to [Petitioner's] New York State sentences, the USMS returned [Petitioner] to the custody of state authorities, and filed a detainer for the consecutive federal sentence.
According to officials with the New York State Department of Corrections, [Petitioner's] state sentence commenced on November 18, 2009, and received 32 days jail time credit. On December 2, 2015, [Petitioner was] paroled from [his] state sentence and released to the USMS custody via the federal detainer.
Under the provisions of Title 18 U.S.C. § 3585(a), “A sentence to a term of imprisonment commences on the date the defendant is received in custody awaiting transportation to…. the official detention facility at which the sentence is to be served.” Because the federal court ordered that [Petitioner's] sentence run consecutively to the New York State sentences, [Petitioner's] federal sentence commenced December 2, 2015, the day [Petitioner] paroled from [his] state sentence, and [was] taken into USMS custody.
Title 18 U.S.C. § 3585(b) and Bureau of Prisons Program Statement 5880.28, Sentence Computation Manual (CCCA of 1984), state in part, “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 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.” In [Petitioner's] case, time spent in primary federal custody from October 5, 2006, through February 6, 2007, and October 22, 2009, through July 15, 2010, is credited to [Petitioner's] federal sentence. [Petitioner is] not entitled to credit from February 7, 2007, through October 21, 2009, as it was applied to [Petitioner's] federal sentence in Case No. 1:07-CR-91-01-CC. Additionally, on July 15, 2010, the federal court relinquished primary jurisdiction by ordering a consecutive sentence, therefore, [Petitioner is] not entitled to credit for time spent in service of [his] state sentence from July 16, 2010, through December 1, 2015.
[Petitioner's] sentence has been computed as directed by federal statute, and Bureau of Prisons Program Statement 5880.28 Sentence Computation Manual (CCCA of 1984).Dkt. 2 at 2-4, 9-11 (emphasis omitted).
The BOP's use of “inadvertently” here appears to suggest that Petitioner should have been transported to federal custody pursuant to the October 1, 2009 detainer the USMS lodged against Petitioner in connection with Case No. 1:09-CR-321-ODE. Dkt. 2 at 2-4, 9-11. Ultimately, on January 15, 2010, the federal government secured temporary custody of Petitioner via a writ of habeas ad prosequendum ("Federal writ") filed in the United States District Court for the Northern District of Georgia. Dkts. 2 at 3, 10; 16-1 at 2, 4; 16-3 at 2.
IV. PETITIONER'S CLAIMS FOR RELIEF
Petitioner requests that the Court recalculate/recompute Petitioner's federal sentence in accordance with the controlling law; credit Petitioner credit from July 16, 2010 through December 1, 2015, against his federal sentence; and thereafter, order Petitioner's immediate release from custody. Dkts. 1 at 6-7; 2 at 1-2, 5.
V. DISCUSSION
A. JURISDICTION AND VENUE
1. Jurisdiction
In order to obtain habeas relief, a petitioner must show that his custody violates the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2241(c)(3). Because Petitioner challenges the legality of his custody based on a dispute regarding the calculation of his release date by the BOP, the Petition is properly brought pursuant to 28 U.S.C. § 2241. See Tucker v. Carlson, 925 F.2d 330, 331 (9th Cir. 1991) (challenge to decision not to credit prisoner's time in state custody toward shortening of prisoner's federal sentence is “an action maintainable only in a petition for habeas corpus filed pursuant to 28 U.S.C. § 2241.” (referencing United States v. Giddings, 740 F.2d 770, 772 (9th Cir. 1984))).
2. Venue
Venue is proper in the district wherein the petitioner is in custody or the district wherein the state court that convicted and sentenced the petitioner is located. 28 U.S.C. § 2241(d). Petitioner brought the instant Petition while incarcerated at the United States Penitentiary - Victorville (“USP Victorville”) in the County of San Bernardino in the Central District of California. Dkt. 1 at 1. Venue is therefore proper in this district.
B. EXHAUSTION
Petitioner has exhausted the administrative remedy process on all three (3) levels with BOP. Dkts. 16 at 4; 16-5 at 9-10. On February 19, 2020, Petitioner filed his most recent Administrative Remedy Appeal related to the Petition with the BOP's Central Office, arguing that the BOP miscalculated his federal sentence and that he was entitled to credit from October 21, 2009 to December 1, 2015, against his sentence because: (1) he was in federal custody throughout that period of time and (2) the federal government placed a detainer on him on October 1, 2009, relating to the charges he is currently incarcerated for. Dkts. 2 at 8; 16 at 4; 16-5 at 10. On April 16, 2020, the Central Office replied to Petitioner's Administrative Remedy Appeal and denied his appeal. Dkts. 2 at 2-4, 9-11; 16 at 4; 16-5 at 10.
C. PETITIONER IS NOT ENTITLED TO CREDIT TOWARDS HIS FEDERAL SENTENCE FOR TIME SERVED IN STATE CUSTODY FROM JULY 16, 2010 THROUGH DECEMBER 1, 2015
The general rule regarding commencement of a sentence is that:
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) (“section 3585(a)”). “A federal sentence commences only when the federal government has physical possession of and primary jurisdiction over the defendant[.]” Johnson v. Gill, 883 F.3d 756, 764 (9th Cir. 2018).
Petitioner does not contest that the federal government took physical possession of him on December 2, 2015, when Petitioner was paroled on his New York state sentence and taken into federal custody by USMS via the detainer filed in Case No. 1:09-CR-321-ODE. See Dkts. 1 at 6; 2 at 1-2, 6; 16-1 at 3; 16-4 at 4. Rather, Petitioner contends that the BOP erred in not crediting toward his federal sentence the time he served in state prison from July 16, 2010 through December 1, 2015, when, according to Petitioner, the federal government still had primary jurisdiction over him. Dkts. 1 at 6; 2 at 1-2, 6.
Accordingly, the relevant issues here are: (1) whether the federal government relinquished, or transferred, primary jurisdiction to the state of New York when Petitioner's federal sentence expired while Petitioner was “on loan” in New York state custody pursuant to a writ of habeas corpus ad prosequendum filed in New York state court (“New York writ”); and (2) whether, depending on which sovereign had primary jurisdiction over Petitioner, the BOP's initial determination that the federal court relinquished primary jurisdiction by ordering a consecutive sentence is moot.
1. Primary jurisdiction
a. Applicable law
Primary jurisdiction refers to the determination of priority of custody and service of sentence between state and federal sovereigns. Warren, 610 F.2d at 684- 85. A lack of primary jurisdiction does not mean that a sovereign does not have jurisdiction over a defendant-it simply means that the sovereign lacks priority of jurisdiction for purposes of trial, sentencing, and incarceration. Taylor v. Reno, 164 F.3d 440, 444 n.1 (9th Cir. 1998). When the state government has primary jurisdiction, a prisoner must first serve his state sentence before serving his consecutive federal sentence. Taylor, 164 F.3d at 444.
Normally, the sovereign that first arrests a defendant has primary jurisdiction until that sovereign relinquishes primary jurisdiction to another sovereign. Warren, 610 F.2d at 684-85. “A sovereign may intentionally relinquish primary jurisdiction over a defendant in several ways.” Cox v. McGrew, No. SACV 12-0666-CJC (JPR), 2013 WL 3811823, at *5 (C.D. Cal. July 22, 2013). For instance, primary jurisdiction is transferred to the federal authorities when a petitioner is released from state custody on parole, or the expiration of a sentence. McCall v. McGrew, No. CV 12-7839-VAP (DTB), 2013 WL 4508370, at *3 (C.D. Cal. Aug. 22, 2013); see also Butler v. Sanders, No. CV 11-8625-JHN (JEM) (C.D. Cal. Jan. 23, 2012) (noting primary jurisdiction transferred from state to federal authorities on the day petitioner was released on parole by the state and custody was transferred to the BOP).
Primary jurisdiction does not, however, transfer “[w]hen an accused is transferred pursuant to a writ of habeas corpus ad prosequendum” because the transferee-accused “is considered to be ‘on loan' to the federal authorities so that the sending state's jurisdiction over the accused continues uninterrupted.” Thomas v. Brewer, 923 F.2d 1361, 1366-67 (9th Cir. 1991) (internal quotation marks omitted).
“The writ of habeas corpus ad prosequendum is proper to bring a prisoner under incarceration by state or federal court to trial for alleged violations of laws.” Morgan v. United States, 380 F.2d 686, 699 (9th Cir. 1967).
b. Analysis
(1) January 30, 2009: first writ of habeas corpus ad prosequendum
On January 30, 2009, while Petitioner was serving his federal sentence in Case No. 1:07-CR-91-01-CC, he was temporarily removed from federal custody pursuant to the New York writ. Dkt. 2 at 3, 9. At this point, the federal government had not transferred primary jurisdiction because Petitioner was only “on loan” pursuant to the New York writ. See Thomas, 923 F.2d at 1366-67.
(2) October 21, 2009: expiration of federal sentence in Case No. 1:07-CR-91-01-CC
While in temporary state custody on the New York writ, an indictment was filed against Petitioner in the Northern District of Georgia, Case No. 1:09-CR-321-ODE on July 7, 2009. Dkt. 2 at 3, 10. A warrant for Petitioner's arrest was issued in the Northern District of Georgia on September 30, 2009 and the United States Marshals Service (“USMS”) subsequently lodged a detainer against Petitioner on October 1, 2009. Id.; Dkt. 16-2 at 2. Petitioner completed his sentence in Case No. 1:07-CR-91-01-CC on October 21, 2009, when the sentence expired on the date originally projected. Dkts. 2 at 3, 10; 16-1 at 4.
At this point, though Petitioner was originally “on loan” from the federal government pursuant to the New York writ, the federal government effectively relinquished primary jurisdiction over Petitioner when his sentence expired. See Dkts. 2 at 9; 16-1 at 4; see also Butler, No. CV 11-8625-JHN (JEM); Gonzales-Cardenas v. Gutierrez, No. CV 13-02295 JAK RZ, 2014 WL 4244335, at *3 (C.D. Cal. Aug. 26, 2014) (finding “that the state relinquished primary jurisdiction on October 11, 2011, when Petitioner was discharged to post release county supervision”). Thus, Petitioner remained in state custody on the New York writ, though now in the primary jurisdiction of New York state.
(3) October 22, 2009 through July 15, 2010: state sentence and second, federal writ of habeas corpus ad prosequendum
On November 18, 2009, Petitioner was sentenced to seven (7) years in state prison, after which he was immediately transported to the New York State Department of Corrections to serve out his state sentence. Dkt. 2 at 3, 10. On January 25, 2010, while in state custody, Petitioner was taken into temporary federal custody by the USMS for Case No. 1:09-CR-321-ODE pursuant to a writ of habeas corpus ad prosequendum filed in the Northern District of Georgia (“Federal writ”) on January 14, 2010. Id.; Dkt. 16-1 at 2, 4; 16-3 at 2. On July 15, 2010, Petitioner was sentenced in Case No. 1:09-CR-321-ODE to a 154-month federal sentence, to run consecutively to Petitioner's state sentence. Dkt. 2 at 3, 10.
On December 2, 2015, Petitioner was paroled from his New York state sentence and taken into custody by the USMS via a detainer filed in Case No. 1:09-CR-321-ODE to begin serving the sentence he now challenges in the instant Petition. Dkt. 2 at 4, 10.
Petitioner contends that he is entitled to credit toward his federal sentence in Case No. 1:09-CR-321-ODE from July 16, 2010, the day after he was sentenced through December 2, 2015, the day he was paroled from his New York state court sentence and taken into USMS custody. Dkt. 2 at 2, 5, 9-11. To reach this conclusion, in part, Petitioner argues that he was in federal custody from October 22, 2009, the day after his federal sentence in Case No. 1:07-CR-91-01-CC expired, through July 15, 2010, when he was sentenced in Case No. 1:09-CR-321-ODE. Dkt. 2 at 5. In support of this position, Petitioner cites to the BOP's initial determination:
In [Petitioner's] case, time spent in primary federal custody from October 5, 2006, through February 6, 2007, and October 22, 2009, through July 15, 2010, is credited to [Petitioner's] federal sentence. [Petitioner is] not entitled to credit from February 7, 2007, through October 21, 2009, as it was applied to [Petitioner's] federal sentence in Case No. 1:07-CR-91-01-CC.Dkt. 2 at 4, 11.
However, while it is clear Petitioner was under the primary jurisdiction of the federal government from February 7, 2007 through October 21, 2009, it appears that the BOP erred in determining that Petitioner was under the primary jurisdiction of the federal government from October 22, 2009 through July 15, 2010. Primary jurisdiction over Petitioner would have transferred to the state of New York on October 22, 2009, when Petitioner's federal sentence expired in Case No. 1:07-CR-91-01-CC, where it would have remained until Petitioner was paroled from his New York state sentence on December 2, 2015. Dkt. 2 at 4, 10; see also Butler, No. CV 11-8625-JHN (JEM); Gonzales-Cardenas, 2014 WL 4244335, at *3. Indeed, as BOP Correctional Programs Specialist at BOP's Designation and Sentence Computation Center Jan Stopps explained in her declaration:
Exhibit C of Respondent's Answer, Petitioner's “PUBLIC INFORMATION INMATE DATA” report, as of March 5, 2021, includes in the computation of Petitioner's sentence jail credit only from October 5, 2006, through February 6, 2007. Dkt. 16-1 at 2-3; 16-3 at 4. The BOP's initial determination Petitioner relies on was issued in April 2020, nearly a year before the “PUBLIC INFORMATION INMATE DATA REPORT” Respondent's Answer includes. Dkts. 2 at 11; 16-3. Otherwise, there is no indication that Petitioner's current sentence has received jail credit from the period of October 22, 2009 through July 15, 2010, further suggesting that Petitioner was not under primary jurisdiction of the federal government during the time he contends.
As discussed above, like the New York writ, Petitioner was only “on loan” from New York state to the federal government pursuant to the Federal writ. See Thomas, 923 F.2d at 1366-67. Thus, New York state did not relinquish primary jurisdiction at any point from October 22, 2009 through December 2, 2015.
On January 14, 2010, in recognition of the fact that primary jurisdiction had transferred to the state of New York, the District Court in the Northern District of Georgia issued a writ of habeas corpus ad prosequendum for the pending federal case in in [sic] Case No. 1:09-cr-321-ODE.Dkt. 16-1 at 2; 16-3 at 2.
It is generally accepted in the Ninth Circuit that when a sovereign brings a petitioner before it pursuant to a writ of habeas corpus ad prosequendum, this is considered “further indication that the state had primary jurisdiction over” the petitioner. Reynolds v. Thomas, 603 F.3d 1144, 1152 (9th Cir. 2010), abrogated on other grounds by Sester v. United States, 566 U.S. 231 (2012); see also Thomas, 923 F.2d at 1365; Gunton v. Squier, 185 F.2d 470, 470-71 (9th Cir. 1950).
Accordingly, the state of New York had primary jurisdiction over Petitioner from October 22, 2009 through July 15, 2010.
3. Computation of custody credits
a. Applicable law
The determination of credit toward a defendant's sentence is set forth in 18 U.S.C. § 3585(b) (“section 3585(b)”), which states that:
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). Thus, where a petitioner's time in state custody has already been credited towards his state sentence, he may “not receive double credit for his detention time.” United States v. Wilson, 503 U.S. 329, 337 (1992).
b. Analysis
Petitioner argues “[t]he BOP erred in refusing to grant [Petitioner] credit from July 16, 2010 through December 1, 2015, against his federal sentence on the basis that ‘the federal court relinquished primary jurisdiction by ordering a consecutive sentence.' ” Dkt. 2 at 2-5, 9-11 (emphasis omitted).
In support of his position, Petitioner cites to United States v. Warren, where the Ninth Circuit held:
Determination of priority of custody and service of sentence between state and federal sovereigns is a matter of comity to be resolved by the executive branches of the two sovereigns. Normally, the sovereign which first arrests an individual acquires priority of jurisdiction for purposes of trial, sentencing, and incarceration. However, the sovereign with priority of jurisdiction, here, the United States, may elect under the doctrine of comity to relinquish it to another sovereign. This discretionary election is an executive, and not a judicial function.610 F.2d 680, 684-85 (9th Cir 1980); Dkt 2 at 5. Accordingly, Petitioner argues that “[b]ecause the determination of [Petitioner's] custody was always an executive- instead of judicial function-the BOP's treatment of the federal court's consecutive sentence as dispositive of the custody issue was error.” Dkt. 2 at 5.
Essentially, Petitioner contends that the federal sentencing court could not have relinquished primary jurisdiction to the state of New York by ordering a consecutive sentence because the judicial branch does not have the requisite authority to relinquish primary jurisdiction, as discussed by the Ninth Circuit in Warren. Meaning that, “since primary custody did not terminate as a result of the federal sentencing court's consecutive sentence order-[Petitioner] remained in primary federal custody from July 16, 2010 through December 1, 2015.” Id. Thus, even though he was serving a state sentence in New York for the period in question, Petitioner argues he “is entitled to credit from July 16, 2010 through December 1, 2015, against his federal sentence.” Id. Petitioner's argument is without merit.
Petitioner's argument regarding the BOP's custody credit computation is entirely predicated on an error in the BOP's initial determination of primary jurisdiction. As discussed above, Petitioner was not under primary jurisdiction of the federal government from October 22, 2009 through July 15, 2010, because he was “on loan” from New York state pursuant to the Federal writ. It follows that the federal court, as described in the BOP's initial determination, could not have “relinquished primary jurisdiction by ordering a consecutive sentence” because the federal government, be it the executive or judicial branches, did not have primary jurisdiction over Petitioner at the time he was sentenced in Case No. 1:09-CR-321-ODE. Dkts. 2 at 4, 10-11; 16-1 at 2. As such, the BOP's initial computation, and Petitioner's argument which relies on this computation, are moot.
Further, even if Petitioner's underlying argument had merit, because the time from July 16, 2010 through December 1, 2015, has already been credited toward Petitioner's state sentence, see Dkt. 16-1 at 2-3; 16-3 at 4, this time cannot be credited toward his federal sentence. See 28 U.S.C. 3585(b)(2); Wilson, 503 U.S. at 337 (finding that the BOP had correctly calculated petitioner's sentence where it had declined to award petitioner credit for time spent in custody that had been credited toward his state-imposed sentence).
VI. RECOMMENDATION
IT IS THEREFORE RECOMMENDED that the District Court issue an Order:
(1) accepting this Report and Recommendation;
(2) DENYING an evidentiary hearing; and
(3) directing that Judgment be entered DENYING the Petition and dismissing this action with prejudice.
VII. NOTICE
Reports and Recommendations are not appealable to the Court of Appeals, but may be subject to the right of any party to file objections as provided in the Local Rules Governing the Duties of Magistrate Judges and review by the District Judge whose initials appear in the docket number. No. Notice of Appeal pursuant to the Federal Rules of Appellate Procedure should be filed until entry of the judgment of the District Court.