Petitioner urges that once the Attorney General accepted the Ohio federal judge's recommendation that the Ohio state institution be designated as the place for service of the Ohio federal sentence, petitioner was then in federal custody for all purposes under § 3568, including the service of his prior West Virginia federal sentence. However, as will be seen below, petitioner's argument does not survive close scrutiny.
Once a federal offender is sentenced, the sentencing judge must commit him to the custody of the Attorney General who designates the particular institution for service of the sentence. The commencement date of every federal prison term, as prescribed by 18 U.S.C. § 3568, commences to run from the date such person is received at the federal institution for service of such sentence. Where a federal sentence is imposed while the prisoner is serving a state sentence, the federal sentence does not begin to run until the offender is received in federal custody to commence serving that sentence. See United States v. Kanton, 362 F.2d 178 (7th Cir. 1966); United States v. Farmer, 343 F. Supp. 955 (E.D.Tenn. 1972); Verdejo v. Willingham, 198 F. Supp. 748 (M.D.Pa. 1961). Furthermore, the recognized rule of presumptive concurrence in the absence of a specific directive that the sentences be served consecutively, has no application where, as here, one sentence is imposed by a state court and the other by a federal court. See Verdejo v. Willingham, 198 supra.
A federal court has no power or authority to commit a prisoner to a state penitentiary. United States v. Janiec, 505 F.2d 983 (3d Cir. 1974); United States v. Tomaiolo, 294 F. Supp. 1296 (E.D.N.Y. 1969). Only the Attorney General or his authorized representative may designate the place of confinement where a federal sentence is to be served. 18 U.S.C. § 4082; Hamilton v. Salter, 361 F.2d 579 (4th Cir. 1966); United States v. Farmer, 343 F. Supp. supra. Hence, any recommendation by a district court that a federal sentence shall run concurrently with a state sentence and be served simultaneously in the state institution is mere surplusage in the sentence and may be disregarded entirely by the Attorney General. See, e.g. United States v. Janiec, 505 F.2d supra; Hash v. Henderson, 385 F.2d 475 (8th Cir. 1967); Hamilton v. Salter, 361 F.2d supra; Verdejo v. Willingham 198 F. Supp. supra.
Thus, in the instant case, when the federal judge in Ohio recommended that the sentence on the Ohio federal charge run concurrently with the state sentence petitioner was then serving, it was nothing more than a request to the Attorney General that he designate the Ohio and Pennsylvania state prisons as the place for serving the Ohio federal sentence. This request could have been totally disregarded by the Attorney General. It was only because of this request and the subsequent designation by the Attorney General that any credit was given on the Ohio federal sentence for the time served in the state prisons.
No such designation was requested or made with respect to the West Virginia sentence.
In the absence of such a designation, § 3568 clearly provides that that sentence would not commence until petitioner was received in federal custody for the service of that sentence. To adopt petitioner's theory of having both federal sentences commence on the same date while in state custody would afford the Ohio federal court power it does not have.
Moreover, it would have the effect of negating the sentence of the West Virginia federal judge who made no request that a state institution be designated for service of the federal sentence. Thus, it is clear that petitioner's sentence from the Northern District of West Virginia did not commence to run until he was received in federal custody in Lewisburg on February 20, 1974.
Therefore, for the reasons stated above, petitioner's request for a writ of habeas corpus must be denied.
William J. Nealon / United States District Judge
Dated: August 6, 1975