United States District Court, W.D. Oklahoma
REPORT AND RECOMMENDATION
PURCELL, UNITED STATES MAGISTRATE JUDGE.
a federal inmate appearing pro se, brings this
habeas action under 28 U.S.C. § 2241 challenging the
Bureau of Prison's (BOP) calculation of his federal
sentence. The matter has been referred to the undersigned
Magistrate Judge for initial proceedings consistent with 28
U.S.C. § 636(b)(1)(B). Respondent has filed a Response,
Doc. No. 21, but Petitioner has not replied.
material facts, as set forth in the Response and supported by
the Declaration of James D. Crook, Doc. No. 21-1,
not at issue. Texas state authorities arrested Petitioner on
April 9, 2010, in Dimmit County, Texas, for Possession of a
Controlled Substance, Methamphetamine. On April 11, 2010,
Petitioner was released on bond. See Dimmitt County
Jail Form, Arrest Date April 9, 2010. Doc. No. 21-2.
Petitioner was charged with this crime in the Dimmitt County
District Court, No. 10-06-02583-DCRAJA. Doc. No. 21-9.
he was out on bail, Petitioner was arrested a second time by
Texas State authorities in Dimmit County, Texas, on a warrant
for violating his parole by Driving While Intoxicated, Second
Offense. See Dimmitt County Jail Form, Arrest Date
April 21, 2010, Doc. 21-3. Petitioner was charged with this
crime in the Dimmit County District Court, No. 10546. Doc.
August 26, 2010, Petitioner appeared before the Dimmit County
District Court in No. 10546, pled guilty to the charges of
Driving While Intoxicated, and was sentenced to time served.
Doc. No. 21-4.
he could be released, however, Petitioner was taken into
temporary federal custody on an arrest warrant for Conspiracy
to Transport Illegal Aliens and a Writ of Habeas Corpus Ad
Prosequendum. He was charged with this crime in the United
States District Court for the Western District of Texas, No.
CR-10-1204. Doc. Nos. 21-6, 21-7. In late July 2012,
Petitioner pled guilty to Conspiracy to Transport Illegal
Aliens, and the federal court sentenced him to 120
months' imprisonment. The judgment of the federal court
was silent as to whether the sentence would be served
concurrently or consecutively to any future state sentence.
See Judgment in Criminal Case, No.
DR-10-CR-1205(7)-AM. Doc. No. 21-7.
was returned to state custody on August 3, 2012. See
Individual Custody Detention Report, Doc. No. 21-8 at 4. On
December 12, 2012, Petitioner pled guilty to the State felony
drug charge and was sentenced to eighteen months'
imprisonment in a state facility. The state court calculated
the date Petitioner started serving his state sentence as
August 1, 2012. The state court judgment provided for the
state sentence to run concurrently with the federal sentence.
See Judgment of Conviction, District Court for
Dimmit County, Texas Doc. No. 21-9.
remained in state custody serving his state sentence until
January 27, 2014, when he was released to federal custody to
begin serving his 120-month federal sentence. See
Individual Custody Detention Report Doc. No. 21-8 at 5;
see also Commitment Inquiry, Doc. No. 21-10. The BOP
computed Petitioner's sentence, giving him credit for the
time he spent in temporary federal custody-from August 26,
2010 through July 31, 2012. See Arrest Warrant, Doc.
No. 21-6; Public Information Report, Doc. No. 21-11 at 3.
Petitioner was not given credit for the time he spent in
state custody discharging his state court sentence.
the BOP grievance process, Petitioner sought credit towards
his federal sentence for the time he spent serving his state
sentence. His requests were denied. See Sentry
Admin. Remedy History, Doc. No. 21-12. Thereafter, he filed a
Motion for Order Nunc Pro Tunc in the federal sentencing
court. Petitioner sought to have the federal court amend its
order to reflect that his federal sentence was to have been
served concurrently with the state sentence entered after the
federal sentence. The court denied his motion. See
Order, Doc. No. 21-18.
this Court, Petitioner again seeks credit towards his federal
sentence for the time he spent in state custody discharging
his state sentence.
computes federal sentences by (1) determining the
commencement date of the federal sentence and (2) determining
the extent to which a defendant can receive credit for time
spent in custody prior to commencement of his sentence.
Binford v. United States, 436 F.3d 1252, 1254 (10th
Cir. 2006). Determinations regarding the commencement of a
sentence are governed by 18 U.S.C. § 3585(a). “A
federal sentence commences when a prisoner is received into
federal custody for that purpose.” Esquivel v.
Warden, 462 Fed.Appx. 825, 827 (10th Cir. 2012) (citing