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Anez v. Sherman

December 17, 2007

RICARDO ANEZ, PETITIONER,
v.
JAMES SHERMAN, RESPONDENT.



The opinion of the court was delivered by: District Judge McLaughlin

Chief Magistrate Judge Baxter

MEMORANDUM ORDER

This habeas action filed pursuant to 28 U.S.C. § 2241 was referred to Chief United States Magistrate Judge Susan Paradise Baxter for a report and recommendation in accordance with 28 U.S.C. § 636(b)(1), and Rules 72.1.3 and 72.1.4 of the Local Rules for Magistrate Judges.

In his petition for writ of habeas corpus before this Court, Petitioner contends that the Bureau of Prisons (the "BOP") erred when it calculated his federal sentence. On October 9, 2007, Magistrate Judge Baxter issued a Report and Recommendation (Doc. No. 18) recommending that the petition be denied. Petitioner has filed Objections to the Report and Recommendation. (Doc. No. 20). Where, as here, objections have been filed, the Court is required to make a de novo determination as to those portions of the Report and Recommendation to which objections were made. See 28 U.S.C.§ 636(b)(1).

We have carefully examined de novo all claims raised by Petitioner in his objections and find that they have no merit. We write only to address his contention that the BOP should have computed his sentence to have commenced on the date it was imposed -- April 12, 2000. He requests that we order the production of his state bail hearing transcripts so that he can support his allegation that he was in primary federal custody on that date. (Doc. No. 21). His request is denied because, as explained below, his allegations are refuted by the records submitted by Respondent, which demonstrate that he was in the primary custody of the State of Ohio on the date his federal sentence was imposed.

I.

18 U.S.C. 3585(a) governs the date upon which a federal sentence commences. It provides:

(a) Commencement of sentence. -- 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.

18 U.S.C. § 3585(a) (emphasis added). A federal sentence cannot commence earlier than the date on which it was imposed. See e.g., United States v. LaBeille-Soto, 163 F.3d 93, 98 (2nd Cir. 1998); Shelvy v. Whitfield, 718 F.2d 441, 444 (D.C. Cir. 1983); see also BOP Program Statement 5880.28, Sentence Computation Manual, Chapt. I.3, Page 13.

BOP policy regarding the application of 18 U.S.C. § 3585(a) is set forth in Program Statement 5880.28, Sentence Computation Manual, Chapter I.3 at Pages 12-13. It instructs:

If the prisoner is serving no other federal sentence at the time the sentence is imposed, and is in exclusive federal custody (not under the jurisdiction of a federal writ of habeas corpus ad prosequendum) at the time of sentencing on the basis of the conviction for which the sentence is imposed, the sentence commences on the date of imposition, even if a state sentence is running along concurrently.

BOP Program Statement 5880.28, Chapt. I.3 at Page 12 (emphasis in original). This policy is an application of the common law doctrine regarding priority of custody that was adopted to provide an orderly method by which to prosecute an individual that has violated the law of more than one sovereign. The doctrine was first recognized by the United States Supreme Court in Ponzi v. Fessenden, 258 U.S. 254 (1922). See e.g., Bowman v. Wilson, 672 F.2d 1145, 1153-54 (3d Cir. 1982); Chambers v. Holland, 920 F.Supp. 618, 621 (M.D. Pa.), aff'd, 100 F.3d 946 (3d Cir. 1996). It was developed to promote comity, mutual assistance, and orderly procedure. Its purpose is not to provide a prisoner with the means to avoid serving time on sentences to which he is subject. Bowman, 672 F.2d at 1153-54 (prisoners "are not the beneficiaries of the rule allocating priority of prosecution to the sovereignty which first takes custody of a person.")

In relevant part, the doctrine provides that the sovereign that first arrests an individual has primary control, or custody, over him. That sovereign's claim over the individual has priority over all other sovereigns that subsequently arrest him, and it is entitled to have him serve a sentence it imposes before he serves a sentence imposed by any other jurisdiction.

See e.g., Bowman, 672 F.2d at 1153. Primary custody remains vested in the sovereign that first arrests the individual until it "relinquishes its priority by, e.g., bail release, dismissal of the state charges, parole release, or expiration of the sentence." Chambers, 920 F.Supp. at 622 (citations omitted). The determination of priority of custody between a state and the federal government is to be resolved by the executive branches of the ...


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