United States District Court, W.D. Oklahoma
TIMOTHY D. DEGIUSTI, UNITED STATES DISTRICT JUDGE
matter is before the Court for review of the Report and
Recommendation (“Report”) [Doc. No. 23] issued by
United States Magistrate Judge Gary M. Purcell pursuant to 28
U.S.C. § 636(b)(1)(B). Judge Purcell recommends the
denial of the Petition for Writ of Habeas Corpus Under 28
U.S.C. § 2241. Petitioner, pro se, has timely
objected [Doc. No. 24] to the Report. Accordingly, the Court
must make a de novo determination of any portion of
the Report to which a specific objection is made, and may
accept, modify, or reject the recommended decision in whole
or in part. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P.
a federal prisoner, seeks credit towards his federal sentence
for the time he spent in state custody discharging his state
sentence. In his Report, Judge Purcell conducts a thorough
analysis of the issues raised in the Petition and recommends
that the Petition be denied. Judge Purcell concludes that 18
U.S.C. § 3585(a) prohibits the Bureau of Prisons
(“BOP”) from applying the time he served in state
custody towards his federal sentence. Petitioner objects to
support of his objection to Judge Purcell's
determination, Petitioner states that “[t]he Court has
inadvertently misconstrued Petitioner['s]
assertion.” Objection at 2. Petitioner argues for the
first time that his argument to apply the time he served in
state custody toward his federal sentence is based on the
position that “a federal sentence must generally be
served continuously unless interrupted by some fault of the
prisoner and he cannot be required to serve it in
installments.” Objection at 3. The Court has reviewed
all of the filings in this case and notes that Petitioner has
not articulated this argument prior to his Objection.
Petitioner's position has consistently been that he is
entitled to credit towards his federal sentence because the
state court ordered his state sentence to run concurrently
with his federal sentence. See Petition for Writ of
Habeas Corpus Under 28 U.S.C. § 2241 [Doc. No. 11] at 8;
Motion for Nunc Pro Tunc [Doc. No. 1-3] at 1, 2; Motion for
Correction of Sentence [Doc. No. 1-4] at 4, 7.
raised for the first time in objections to the magistrate
judge's recommendation are deemed waived.”
Gonzales v. Ledezma, 417 Fed.Appx. 824, 826 (10th
Cir. 2011) (quoting Marshall v. Chater, 75 F.3d
1421, 1426 (10th Cir. 1996)). However, even if the Court
considered Plaintiff's new argument, it is unpersuasive.
Petitioner contends that he began serving his federal
sentence when “the U.S. Marshals lodged a detainer
against him” and that his subsequent relinquishment to
state custody constituted an impermissible interruption in
his federal sentence. Objection at 3, 4. In support thereof,
Petitioner cites to Weekes v. Fleming, 301 F.3d 1175
(10th Cir. 2002) and Binford v. United States, 436
F.3d 1252 (10th Cir. 2006). Petitioner is correct that both
Weekes and Binford recognized that
“[a] federal sentence must generally be served
continuously ‘unless interrupted by . . . some fault of
the prisoner, and he cannot be required to serve it in
installments.'” Binford, 436 F.3d at 1255
(quoting Weekes, 301 F.3d at 1179) (internal
quotation omitted). However, unlike the prisoners in
Weekes and Binford, Petitioner was never in
federal custody for the purpose of serving his federal
sentence prior to serving his state sentence.
federal sentence 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). “A federal
sentence does not commence until a prisoner is actually
received into federal custody for that purpose.”
Binford, 436 F.3d at 1255. Therefore, “[w]hen
a state surrenders one of its prisoners to the federal
government for the purpose of trial on charges pending there,
a judgment and sentence upon conviction in the federal court
does not begin to run, if the prisoner is delivered back to
state authorities, until the prisoner is thereafter returned
to federal custody and received at a federal penal
institution for service of his sentence.” Williams
v. Taylor, 327 F.2d 322, 323 (10th Cir. 1964).
concedes he was “taken into temporary federal
custody” on his federal charges and remained in
temporary federal custody until he was returned to state
custody on August 3, 2012. Report at 2. Petitioner likewise
concedes that he “was released to federal custody to
begin serving his 120-month federal sentence” on
January 24, 2014. Report at 3. However, in calculating the
date of commencement of his federal sentence, Petitioner does
not rely on the date he was received into federal custody for
the purpose of serving his federal sentence but on the date
the U.S. Marshal issued a detainer to the state prison.
Objection at 4.
detainer is simply “a request filed by a criminal
justice agency with the institution in which a prisoner is
incarcerated, asking that the prisoner be held for the
agency, or that the agency be advised when the prisoner's
release is imminent.” Fex v. Michigan, 507
U.S. 43, 44 (1993); see also, U.S. v. Mauro, 436
U.S. 340, 359, 98 S.Ct. 1834, 1846, 56 L.Ed.2d 329 (1978)
(“[a] detainer is a notification filed with the
institution in which a prisoner is serving a sentence”)
(quoting H.R. Rep. No. 91-1018, p. 2 (1970); S. Rep. No.
91-1356, p. 2 (1970); U.S. Code Cong. & Admin. News 1970,
p. 4865). A detainer, as defined by the Supreme Court, does
not act as a means to take a prisoner into custody.
Therefore, Petitioner's argument that he was
impermissibly required to serve an “interrupted,
” noncontinuous federal sentence which requires that
the time he served in state custody be credited to his
federal sentence is without merit.
does not otherwise object to Judge Purcell's Report. The
Court finds that Judge Purcell thoroughly addressed
Petitioner's sentencing calculation and the appropriate
credit to be applied to Petitioner's federal sentence.
The Court concurs with Judge Purcell's analysis and finds
that Petitioner is not entitled to application of the credits
he seeks towards his federal sentence.
conducted a de novo review, the Court adopts the
Report and Recommendation in its entirety and overrules
IS THEREFORE ORDERED that Petitioner's objection
[Doc. No. 24] is OVERRULED and Judge
Purcell's Report [Doc. No. 23] is
ADOPTED in its entirety. The Petition for
Writ of Habeas Corpus Under 28 U.S.C § 2241 [Doc. No.
11] is denied. Judgement will be entered accordingly.
IS FURTHER ORDERED that pursuant to Rule 11(a) of
the Rules Governing Section 2254 Cases, the Court must issue
or deny a certificate of appealability (COA) when it enters a
final order adverse to a petitioner. The requirement of
§ 2253(c)(1) to obtain a COA also applies when a habeas
petitioner is proceeding under § 2241. Montez v.
McKinna, 208 F.3d 862, 869 (10th Cir. 2000). A COA may
issue only upon “a substantial showing of the denial of
a constitutional right.” See 28 U.S.C. §
2253(c)(2). “A petitioner satisfies this standard by
demonstrating that jurists of reason could disagree with the
district court's resolution of his constitutional claims
or that jurists could conclude the issues presented are
adequate to deserve encouragement to proceed further.”
Miller-El v. Cockrell, 537 U.S. 322, 327 (2003);
see Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Upon consideration, the Court finds the requisite standard is
not met in this case. Therefore, a COA is denied.