United States District Court, E.D. Kentucky, Southern Division, London
OPINION & ORDER
R. Wilhoit, Jr., Judge
inmate Leo Moss has filed a petition for a writ of habeas
corpus in an effort to compel the Bureau of Prisons to credit
the time he spent in state prison against his federal
sentence. [D. E. No. 1] After all, the state court judge who
imposed his state sentence in 2015 ordered it to run
concurrently with his preexisting 2012 federal sentence. [D.
E. No. 1-1 at 1]
raised this issue in an earlier § 2241 petition that he
fried in Florida, but after he was transferred to a federal
prison in West Virginia, the petition was transferred as
well. Moss v. Cheatum, No. 1: 18-CV-23955-UU (S.D.
Fla. 2018). When Moss failed to comply with a court order to
refile his petition on a court-approved form, the petition
was denied in March 2019. Moss v. Cheatum, No. 1:
18-CV-228-TSK-MJA (N.D. W.Va. 2018). Five months later, Moss
sought essentially the same relief by filing a motion in his
criminal case, which was denied. United States v.
Moss, No. 1: 11-CR-20671-UU-1 (S.D. Fla. 2011) [D. E.
No. 45 therein].
present § 2241 petition is flawed as well: he didn't
pay the five dollar filing fee or move for pauper
status, and while he pursued this issue to the BOP's
regional office in January 2018 [D. E. No. 1-2 at 2], there
is no indication that he appealed to its Central Office,
leaving his claim likely unexhausted. Nonetheless, in the
interest of helping Moss to understand the BOP's reasons
for denying him credit - which are, regrettably, correct -
the Court will excuse these shortcomings and address the
merits of his petition. Alexander v. Northern Bureau of
Prisons, 419 Fed.Appx. 544, 545 (6th Cir. 2011)
(describing the initial review requirement in 28 U.S.C.
2011, Moss was arrested by local police in Miami, Florida and
charged with several state crimes. In September 2011, Moss
was indicted on federal charges for carjacking and using a
firearm during the commission of a crime of violence. Because
Moss was being held in a local jail, he was taken into
federal custody via a writ of habeas corpus ad
prosequendum to be arraigned on the federal charges.
After Moss reached a plea agreement with the United States,
in July 2012 the trial court sentenced him to a combined term
of 120 months imprisonment for his federal offenses. The
judgment did not mention the still-pending state charges.
Moss was then returned to state custody. In January 2015, the
state court sentenced Moss to five years imprisonment, which
it directed to be served concurrently with Moss's
pre-existing federal sentence. Moss completed service of his
state sentence in April 2016, and was then transferred into
BOP custody. [D. E. No. 1-1 at 1-2]; United States
v. Mass, No. 1: 11-CR-20671-UU-1 (S.D. Fla. 2011).
filed an inmate grievance shortly after he learned that the
BOP was commencing his federal sentence not when his state
sentence was imposed, but only once he was taken into BOP
custody to begin his federal sentence in April 2016. The BOP
responded that 18 U.S.C. § 3585(b) does not permit
him to receive credit for the time he spent in Florida
custody because that time had already been credited to his
state sentence. See Wilson, 503 U.S. at 335
("[A] defendant [can] not receive a double credit for
his detention time" under § 3585(b)). The BOP also
considered whether it should nonetheless designate,
retroactive to the date his state sentence was imposed, the
state facility where Moss served his state sentence as the
place for service of his federal sentence pursuant to BOP
Program Statement 5160.05 (2003). If such a retroactive
designation is made, it would give practical effect to the
state court's order of concurrency. Barden v.
Keohane, 921 F.2d 476 (3d Cir. 1990). However, the BOP
determined that such a designation was not appropriate in
light of the factors set forth in the BOP's Program
Statement and the sentencing judge's continued silence in
the face of the BOP's inquiry regarding whether she
favored such a designation.
was correct to conclude that Section 3585(b) does not permit
Moss to receive the credit he seeks. Calculation 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. See also BOP Program Statement
Section 3585(a), Moss's sentence commenced when he was
received into federal custody to begin service of it in April
2016. 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 Moss seeks credit
for the approximately four years he spent in custody before
that date, its availability is governed by Section 3585(b).
However, because the time period Moss spent in state prison
was credited against his five year Florida sentences, it may
not be "double counted" against his federal
sentence. Broadwater v. Sanders, 59 Fed.Appx. 112,
113-14 (6th Cir. 2003).
fact that the state court ordered its sentence to run
concurrently with his pre-existing federal sentence does not
change this result. While "a state court may express its
intent that a defendant's state sentence run concurrently
with a previously imposed federal sentence, this intent is
not binding on federal courts or the BOP." United
States v. Allen,124 Fed.Appx. 719, 720 (3d Cir. 2005)
(citing Barden v. Keohane,921 F.2d 476 (3d Cir.
1990)). Because of the Supremacy Clause, a state court order
that its sentence should run concurrently with a
prisoner's prior federal sentence does not and cannot
thereby cause a previously imposed federal sentence to
commence until the state sentence has expired. 18 U.S.C.
§ 3585(a); Reynolds v. Thomas,603 F.3d 1144,
1149-51 (9th Cir. 2010). See Simms v. United States,
No. 08-cv-43-HRW, 2009 WL 3061994, at *4-5 (E.D. Ky. 2008)
(holding that, under such circumstances, a "state
court's expressed ...