United States District Court, E.D. Kentucky, Southern Division, Pikeville
MEMORANDUM OPINION AND ORDER
K. CALDWELL, CHIEF JUDGE.
inmate Lorenzo Salas has filed a petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2241. [R. 1] The
Court conducts an initial review of habeas corpus petitions.
28 U.S.C. § 2243; Alexander v. Northern Bureau of
Prisons, 419 F. App'x 544, 545 (6th Cir. 2011). A
petition will be denied “if it plainly appears from the
petition and any attached exhibits that the petitioner is not
entitled to relief.” Rule 4 of the Rules Governing
§ 2254 Cases in the United States District Courts
(applicable to § 2241 petitions pursuant to Rule 1(b)).
The Court evaluates Salas' petition under a more lenient
standard because he is not represented by an attorney.
Erickson v. Pardus, 551 U.S. 89, 94 (2007). At this
stage of the proceedings, the Court accepts the
petitioner's factual allegations as true and construes
all legal claims in his favor. Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555-56 (2007).
December 3, 2007, Salas was arrested by local police in
Austin, Texas for possession of a controlled substance. Two
days later, he was charged with violating the terms of his
parole from a prior conviction for attempted murder. On April
1, 2008, a federal grand jury issued an indictment charging
him with conspiracy and possession with intent to distribute
five kilograms or more of cocaine. A federal bench warrant
was issued for his arrest the same day, and he was taken into
federal custody on April 2, 2008, subject to the state's
detainer for a parole violation. Salas pled guilty to the
federal offense and was sentenced on September 12, 2008 to
144 months imprisonment. United States v. Salas, No.
1: 08-CR-84-SS-1 (W. Tex. 2008).
was then returned to Texas authorities pursuant to the state
detainer, and on October 8, 2008, a revocation sentence was
imposed for violating the terms of his parole. He remained in
Texas custody in service of his state sentence until he was
paroled on August 19, 2009. At this time he was transferred
to BOP custody to begin service of his federal sentence. In
2015, Salas filed a motion in the trial court for additional
credit against his sentence, claiming that the federal court
had ordered his federal sentence to run concurrently with his
state sentence and ordered that he should get “credit
for time served” since his arrest. The trial court
denied that motion in November 2015, both because neither of
those things was true and because Salas' avenue for
relief, if any, was to file a § 2241 petition.
petition, Salas seeks credit against his federal sentence
beginning on December 3, 2007 (the day he was arrested by
state police), presumably through August 19, 2009, the day
before his federal sentence began. As grounds for relief, he
contends that Texas surrendnch warrant. [R. 1 at 7]ered
primary jurisdiction over him when it transferred him to
federal marshals pursuant to the federal be
of a federal prisoner's sentence, including both its
commencement date and any credits for custody before the
sentence is imposed, is determined by federal statute:
(a) 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) 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
(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
18 U.S.C. § 3585. The BOP implements § 3585 through
Program Statement 5880.28.
application of some exception, under Section 3585(a)
Salas' sentence commenced when he was received into
federal custody to begin service of it on August 20, 2009.
Jones v. Eichenlaub, No. 08-CV-13624, 2010 WL
2670920, at *2 (E.D. Mich. 2010) (“A consecutive
[federal] sentence imposed on a defendant already in state
custody, however, cannot commence until the state authorities
relinquish the prisoner on satisfaction of the state
obligation.”) (citing Thomas v. Whalen, 962
F.2d 358, 361 n.3 (4th Cir. 1992)). Because he seeks credit
for time he spent in custody preceding this date, its
availability is governed by Section 3585(b). However, because
the time period he spent in Texas custody was credited
against his state sentence [R. 1-1 at 5], it may not be
“double counted” against his federal sentence.
Huffman v. Perez, No. 99-6700, 2000 WL 1478368 (6th
Cir. Sept. 27, 2000); Broadwater v. Sanders, 59 F.
App'x 112, 113-14 (6th Cir. 2003). Following this
approach, the BOP denied Salas's request for prior
custody credits. [R. 1-1 at 6-7]
reviewed Salas' arguments and the BOP's calculations,
it is clear that Salas is not entitled to the credits he
seeks. Under no circumstances could Salas be entitled to
federal credit from the date of his arrest by state
authorities on December 3, 2007 to the date he was
transferred into federal custody on April 1, 2008. This time
was credited against his state sentence, and Section 3585(b)
forbids counting it a second time against his federal
sentence. United States v. Wilson, 503 U.S. 329, 337
(1992) (“... Congress made clear that a defendant could
not receive a double credit for his detention time.”).
his transfer into federal custody on April 2, 2008, that
transfer did not cause the State of Texas to lose its
priority of jurisdiction. A state surrenders its primary
jurisdiction only through acts clearly reflecting its
intention to do so by (1) dismissing its charges against the
defendant, (2) releasing him on bail, (3) paroling his
sentence, or (4) through the natural expiration of his
sentence. Cf. Elwell v. Fisher, 716 F.3d 477, 481-82
(8th Cir. 2013); Berry v. Sullivan, No.
07-5965(JAP), 2007 WL 4570315, at *3 (D.N.J. 2007). For that
reason, a temporary transfer of a state prisoner into federal
custody through a writ of habeas corpus ad
prosequendum will not subordinate the state's
primary jurisdiction. Rios v. Wiley, 201 F.3d 257,
274 (3d Cir. 2000) (“[A] prisoner detained pursuant to
a writ of habeas corpus ad prosequendum remains in
the primary ...