United States District Court, S.D. Mississippi, Northern Division
REPORT AND RECOMMENDATION
KEITH BALL UNITED STATES MAGISTRATE JUDGE
Penn is a federal prisoner assigned to the Federal
Correctional Complex in Yazoo City,
Mississippi. Penn filed this action pursuant to 28
U.S.C. § 2241 challenging the computation of his
sentence. Having considered the petition and response, the
undersigned recommends that habeas relief be denied.
alleges that the Bureau of Prisons (BOP) has wrongfully
failed to give him credit for time spent in state custody.
The relevant facts are as follows. Penn was arrested by Texas
state authorities on May 30, 2014, for unlawful possession of
a firearm by a felon and for evading arrest detention with a
vehicle. He remained in state custody until July 30, 2014,
when he was transferred to secondary federal custody based
upon federal warrants. On February 10, 2015, the United
States District Court for the Northern District of Texas
sentenced Penn to a term of 30 months for being a felon in
possession of a firearm. The court did not state whether the
sentence was to run concurrently with any subsequent state
sentence. Penn was returned to state custody on March 13,
2015. On March 23, 2015, he was sentenced in state court to a
term of two years. The sentencing court gave Penn credit for
the time served between May 30, 2014, the date of his arrest
by state authorities, and March 23, 2015, his state
sentencing date. Penn completed his state sentence on May 28,
2015, and on that day was transferred to exclusive federal
custody to begin service of his federal sentence.
petition, Penn argues that he is entitled to credit for the
time he spent in state custody prior to completion of his
state sentence (May 30, 2014, until May 28, 2015). The issues
of when a federal sentence begins, and whether credit is to
be given for prior custody, are governed by 18 U.S.C. §
(a) Commencement of sentence.-- 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.
(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
(1) as a result of the offense for which the sentence was
(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.
18 U.S.C. § 3585.
response to the petition, Respondent has submitted the
declaration of Deborah Colston, a management analyst at the
BOP's Designation and Sentence Computation Center, along
with the computation records for Penn's sentence. [11-1
and 11-2]. These documents indicate that because Penn's
federal sentencing order did not specify that the sentence
was to be served concurrently with any subsequent state
sentence, the BOP determined that Penn's sentences were
to be served consecutively. See Hunter v. Tamez, 622
F.3d 427, 431 (5th Cir. 2010) (law is well-settled
that sentences imposed at different times are presumed to run
consecutively, unless district court specifies otherwise).
Thus, the BOP concluded that Penn's sentence commenced on
May 28, 2015, the date he was received by the Attorney
General for service of his sentence. See 18 U.S.C.
§ 3585(a). The BOP further determined that all of
Penn's prior time in custody had been credited against
his state sentence. For this reason, his time spent in state
custody could not be credited against his federal sentence,
as doing so would constitute double credit, which is not
allowed under 18 U.S.C. § 3585(b).
has failed to establish that he is entitled to credit on his
federal sentence for the time spent in custody from May 30,
2014, until May 28, 2015. As Respondent's evidence makes
clear, this period was spent in either exclusive or primary
state custody and was credited toward his state sentence.
Thus, pursuant to 18 U.S.C. § 3585(b), this time could
not also be credited against his federal sentence.
has not shown that he is being held “in violation of
the Constitution or laws or treaties of the United
States.” 28 U.S.C. § 2241(c)(3). Therefore, the
undersigned recommends that relief be denied and that
Penn's petition be dismissed with prejudice.
parties are hereby notified that failure to file written
objections to the proposed findings, conclusions, and
recommendation contained within this report and
recommendation within fourteen (14) days after being served
with a copy shall bar that party, except upon grounds of
plain error, from attacking on appeal the proposed factual
findings and legal conclusions accepted by the district
court. 28 U.S.C. ...