United States District Court, W.D. Pennsylvania
December 2, 2005.
ROBERT BOSTON, Petitioner,
JOHN ASHCROFT, Respondent.
The opinion of the court was delivered by: SEAN McLAUGHLIN, District Judge
MEMORANDUM OPINION AND ORDER
Petitioner, Robert Boston, filed a habeas corpus application
under 28 U.S.C. § 2241(Dkt. #1) on October 8, 2003. Petitioner's
habeas petition contends that he should be awarded credit against
his federal sentence for certain time that he spent in state
On July 27, 2005, the Magistrate Judge recommended that we
grant the petition as to the time Petitioner spent in state
custody between November 24, 1999 and April 1, 2003. (Dkt. #18)
Subsequently, the government filed objections to the report and
recommendation. (Dkt. #19). Petitioner filed a reply (Dkt. #20),
and the government filed a reply (Dkt. #21). This matter is now
ripe for review.
As a preliminary matter, we adopt and incorporate herein the
Magistrate Judge's summation of the factual and procedural
history of this case (Report and Recommendation, pp. 1-3). Stated
briefly, Petitioner was arrested by Wisconsin state officials for
possession of a firearm on February 2, 1999, but no state charges
were filed. Instead, federal charges against Petitioner as a
felon in possession of a firearm were filed on February 5, 1999.
Petitioner continued to be held by the state of Wisconsin
throughout the federal proceedings, which culminated in a guilty
plea on April 23, 1999.
Simultaneously, the same weapons possession activity served as
the basis for the revocation of parole by Wisconsin authorities
on May 5, 1999. Wisconsin authorities directed that Petitioner serve 2 years, 1 month and 20 days incarceration for violating
his parole from a 1990 state drug conviction.
On November 3, 1999, Petitioner was sentenced in federal court
to a period of 162 months incarceration on the felon in
possession charge, with that sentence to run consecutive to the
state sentence. The federal sentence was later reduced to 145
months. On or around November 24, 1999, Petitioner was
transported to a federal facility and began to serve his federal
sentence. Soon afterwards, however, officials at FPC Oxford
determined that Petitioner was under the primary jurisdiction of
the state of Wisconsin. He was then returned to Wisconsin custody
and remained incarcerated in a Wisconsin facility until April 1,
2003, at which time he was paroled to a federal detainer.
All of the time Petitioner spent in custody between February 2,
1999, and April 1, 2003, has been credited against his state
sentence. The issue is whether, as the Magistrate Judge
recommended, Petitioner is entitled to credit against his federal
sentence for the period of custody from November 24, 1999, and
April 1, 2003. The Bureau of Prisons has computed Boston's
sentence as commencing on April 1, 2003.
In computing a federal sentence, two separate issues must be
considered. First, the commencement date of the federal sentence
must be determined, and, second, the extent to which a defendant
can receive credit for time spent in custody prior to
commencement of sentence must be established. Chambers v.
Holland, 920 F.Supp. 618, 621 (E.D. Pa.), aff'd., 100 F.3d 946
(3rd Cir. 1996).
A 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). Thus, a federal sentence does not commence
until a prisoner is actually received into federal custody for
that purpose. McCarthy v. Doe, 146 F.3d 118, 122 (2nd Cir.
1998); Barden v. Keohane, 921 F.2d 476 (3rd Cir. 1990). By
order of the federal sentencing court, Petitioner's federal
sentence was directed to run consecutively to the pending state
sentence for violating his parole. Here, we conclude that the
federal sentenced commenced on November 24, 1999.
The Magistrate Judge, relying on Weekes v. Fleming,
301 F.3d 1175 (10th Cir. 2002), and our previous decision in Bond v.
LaManna, Doc. No. 02-302 (W.D. Pa. 2004),*fn1 held that
Petitioner's federal sentence, which began to run on November 24,
1999, was not interrupted by his transfer to state custody. In
arriving at that recommendation, the Magistrate Judge adopted the
analysis in Weekes relevant to a defendant's right to
continuous, uninterrupted service of a federal sentence.
Consequently, the Magistrate Judge concluded that, once
Petitioner's federal sentence commenced, that sentence was not
interrupted by Petitioner's transfer to state prison. We
In Weekes, the defendant was arrested on drug charges by
state authorities on April 20, 1994, and charges were filed. He
was then taken into federal custody on May 16, 1994, and pending
state charges were thereafter dismissed, leaving only the federal
charges against him. Weekes was transferred back to state custody
on May 25, 1994, to appear for a probation violation proceeding.
His state probation was revoked, and he was sentenced to 2 to 5
years imprisonment by the state authorities. Weekes was then
returned to federal custody and received a sentence of 188 months
incarceration on the federal charges. Weekes,
301 F.3d at 1177-78.
Weekes was designated to begin serving his federal sentence on
February 21, 1995, and he was received at FCI Lompoc on March 24,
1995. After his arrival at FCI Lompoc, BOP staff determined that
Weekes' federal sentence was intended to be served consecutively
to his state sentence. Thus, Weekes was transferred from his
designated federal institution to state custody. This occurred on
April 20, 1995. Weekes was released by the state and given back
into federal custody on April 18, 1999. In calculating Weekes'
federal sentence, the BOP did not give Weekes credit for any of
the time spent in state custody. Id.
The Court of Appeals for the Tenth Circuit determined that
Weekes' federal sentence "commenced" upon, and continued to run
from, his designation for assignment to FCI Lompoc on February
21, 1995, since the federal authorities had primary custody over
Weekes at the time the federal sentence was imposed. Id. at
1181. The Court then addressed the question of whether "the
United States may interrupt the service of a federal sentence
without giving the federal prisoner credit on that federal sentence." Id. at 1180. Recognizing the
general rule that "unless interrupted by fault of the prisoner . . .
a prison sentence runs continuously from the date on which
the defendant surrenders to begin serving it," the Court held
that, because Weekes had been under the primary custody of the
federal government when he began serving his federal sentence,
the federal government made a mistake in returning him to state
authorities. Id. (citing Dunne v. Keohane, 14 F.3d 335, 336
(7th Cir. 1994)). Thus, although both of the sentencing
judges intended for Weekes to serve his sentences consecutively,
the Tenth Circuit relied upon the "continuous service" rule to
credit Weekes with federal time served for his stay in state
prison. Id. at 1181-82.
Other courts have not enforced the continuous service rule so
strictly. In Free v. Miles, 333 F.3d 550 (5th Cir. 2003),
the Fifth Circuit addressed a similar situation to that presented
in Weekes, Bond, and the case at bar. In Free, the
Petitioner, who had been serving a state sentence, was
transferred to federal authorities by way of a writ of habeas
corpus ad prosequendum to be sentenced on federal
charges.*fn2 Following sentencing, Free was immediately sent
to a federal facility, where he remained for 6 months. At that
time, federal officials realized that they had made a mistake and
that Free should have been returned to the Texas Department of
Corrections to complete his state sentence before starting to
serve his federal sentence. Free then filed a habeas corpus
petition asserting that, because his federal sentence had
"commenced" on the date that he had originally and erroneously
been delivered to the federal facility, his federal sentence
should be credited with all the time served after that date,
including the two years he spent in state prison. Free relied
upon the same argument proffered in Weekes and Bond, to wit,
that a prisoner is entitled to time served when he is
incarcerated discontinuously through no fault of his own.
The Fifth Circuit, rather than treating the continuous service
doctrine as a bright line rule, adopted a flexible approach based
upon the purpose of the rule, that being "to prevent the
government from abusing its coercive power to imprison a person
by artificially extending the duration of his sentence through
releases and re-incarcerations." Free, 333 F.3d 554.
Specifically, the Court looked at the intention of the sentencing judges to
impose consecutive sentences and held that the continuous service
rule did not apply because "[i]t [was] apparent from the record
that Free's total time of incarceration in both federal state
prisons has not been and will not be increased by even a
single day as a result of his mistakenly serving the first six
months of his federal sentence prior to completing the service of
his state sentence." Id. at 555. The Court concluded that it
was "of no moment" that Free served his sentence "in two shifts
between sovereigns rather than one" because he ended up serving
"the correct total time of his consecutive state and federal
sentences." Id. This approach prevents the continuous service
rule from becoming a "get out of jail early" card for prisoners.
This approach has been utilized by other courts in analogous
situations. In Cox v. United States, 551 F.2d 1096 (7th
Cir. 1977), for example, a prisoner began serving a federal
sentence, was returned to state officials when his state appeals
failed, and then returned to federal prison to resume his
consecutive sentence. The Seventh Circuit held that:
Insofar as interruption of plaintiff's federal
sentence postponed the date on which he would
ultimately complete his imprisonment, it was entirely
consistent with the consecutive nature of the
sentence imposed . . . The fact that plaintiff's
state sentence had been suspended pending the outcome
of his collateral attack may not serve to defeat the
federal trial judge's power to impose a consecutive
sentence. We therefore hold that a plaintiff's
interrupted federal sentence did not constitute
punishment by installments in violation of the common
Cox, 551 F.2d at 1099. See also Cox v. Federal Bureau of
Prisons, 643 F.2d 534
, 537 (8th Cir. 1981) (same); Dunne v.
Keohane, 14 F.3d 335
, 336-37 (7th Cir. 1994) (recognizing
that, where a prisoner's federal sentence is interrupted by a
stint in state prison, rather than a release into the free
community, there is no "postponement" of the federal sentence;
therefore, the rule against piecemeal incarceration is not
violated); Sanders v. Keohane, 577 F.2d 62 (6th Cir. 1989)
(holding that an interruption of a prisoner's federal sentence to
serve a state sentence did not constitute a retroactive
enhancement of the sentence, as the sentences were imposed
consecutively, and the prisoner's overall prison time remained
the same); Stroble v. Connor, 2005 WL 2175161 (D. Kan. 2005)
(adopting the rule in Free and thus declining to apply the
continuous service rule where a prisoner's overall period of
incarceration is not extended beyond that contemplated by the
sentencing courts); Burns v. Tapia, 2005 WL 2105983 (W.D. La.
2005) (same). As evidenced by the record, Petitioner's period of
incarceration has not been extended in any way due to the
erroneous transfer to state custody. Rather, he is serving
multiple, consecutive sentences, as ordered by the sentencing
courts. Moreover, we agree with the admonishment in Free that
the continuous service rule should not operate as a "get out of
jail early card." Therefore, we find that relief is
For the reasons state above, we REJECT the Magistrate Judge's
report and recommendation (Dkt. #18) as to Petitioner's
allegation that he is entitled to credit for time served between
November 24, 1999, and April 1, 2003. Accordingly, Petitioner's
Petition for Writ of Habeas Corpus (Dkt. #1) is hereby DISMISSED. ORDER
AND NOW, this 2nd day of December, 2005, for the reasons
set forth above, it is hereby ORDERED that the Magistrate Judge's
report and recommendation is REJECTED and Petitioner's Petition
for Writ of Habeas Corpus is DENIED.
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