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BOSTON v. ASHCROFT

December 2, 2005.

ROBERT BOSTON, Petitioner,
v.
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 custody.

I. Background

  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.

  II. Analysis

  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 disagree.

  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, ...


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