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, ...