The opinion of the court was delivered by: Judge Rambo
Before the court is a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241, filed by Petitioner Whirlee Rudolph ("Rudolph"), an inmate formerly incarcerated at the United States Penitentiary Canaan in Waymart, Pennsylvania.*fn1
Rudolph is challenging the Bureau of Prisons' ("BOP") calculation of his federal sentence. Specifically, he claims he is entitled to nunc pro tunc designation of federal service at a state facility. For the reasons that follow, the petition will be denied.
While awaiting sentencing on federal charges stemming from an incident occurring on October 24, 2001,*fn2 on November 3, 2003, Rudolph was arrested and taken into custody by New York State authorities for criminal possession of a controlled substance. (Doc. 6-2 at 36.) Rudolph remained in the primary custody of New York State authorities until June 15, 2004, at which time he was produced in federal district court from state custody pursuant to a federal writ of habeas corpus ad prosequendum for sentencing on the charges stemming from the October 24, 2001 incident. (Doc. 6-3 at 16.) At that time, New York State authorities still maintained primary custody over Rudolph, with federal officials assuming secondary custody over him.
On June 15, 2004, after entering a plea of guilty, Rudolph was sentenced by the United States District Court for the Northern District of New York to a term of imprisonment of ninety-seven (97) months for one count of distribution of cocaine base pursuant to 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B). (Doc. 6-2 at 9.) At sentencing, the district court considered whether Rudolph should receive nunc pro tunc, or retroactive,designation to a New York State facility as the place of service for his federal sentence. (See Doc. 1 at 10-18.) Doing so would have resulted in Rudolph's federal sentence running concurrent to a state sentence. However, at the time of federal sentencing, a state sentence had not yet been imposed, and it was unclear whether Rudolph would receive a concurrent or consecutive sentence in state court. Therefore, rather than imposing a concurrent sentence at that time, the district court invited the parties to return to that court to raise the issue of designation of federal service at the state facility once the state sentence had been imposed. (Id. at 17-18.) The court did not give a specific time frame for such a request, but did point out to the parties that the court's jurisdiction over such a matter was limited to, at the most, one year through a § 2255 motion. (Id. at 14.) As a result, the district court's judgment and commitment order does not contain any reference to concurrent sentences. (See Doc 6-2 at 9-14.)
Following this federal sentencing hearing, Rudolph was returned to the primary custody of New York State authorities. On July 16, 2004, after pleading guilty to the charge of criminal possession of a controlled substance, Rudolph was sentenced in state court to a term of imprisonment of four (4) years to life, to run concurrently with the previously imposed federal sentence. (Doc. 1 at 20.) After the state sentence was imposed, Rudolph did not timely return to federal court to raise the issue of nunc pro tunc designation.*fn3
Rudolph was released from primary state custody on August 24, 2006. (Doc. 6-2 at 24.) The BOP calculated Rudolph's federal sentence as commencing on that date and running continuously since that date. (Id.) The BOP also reviewed Rudolph's case to determine whether he had any periods of which would qualify him for an award of jail time credit or "prior custody credit" pursuant to 18 U.S.C. § 3585(b). As a result, he received prior custody credit of seven days.*fn4
(Id.) Further, the BOP presumed that Rudolph's state and federal sentences would not run concurrently because the district court's judgment and commitment order was silent on the matter. (Doc. 6 at 3.) Rudolph's records reveal that all time he spent in primary state custody, beginning June 15, 2004 through August 23, 2006, was awarded and credited toward Rudolph's state sentence. (Doc. 1 at 23.) Thus, under 18 U.S.C. § 3585(b), Rudolph was not entitled to receive credit toward his federal sentence for this period of time.
Rudolph subsequently appealed the BOP's computation of his sentence to the Warden, Regional Director, and the BOP's Central Office, requesting a nunc pro tunc designation at a state facility in order to receive jail credit toward his federal sentence.*fn5 (See Doc. 1 at 21-23.) As a result, the BOP reviewed Rudolph's request for nunc pro tunc designation. (Doc. 6-2 at 38.) As part of the review process, by letter dated June 28, 2007, the BOP contacted the federal sentencing judge to determine his intent. The sentencing judge, after reviewing the previous record, opined that there should be no additional credit given to Rudolph.*fn6 (Doc. 6-3 at 1-2.) After considering this and other factors under 18 U.S.C. § 3621(b),*fn7 on August 10, 2007 the BOP informed Rudolph that a nunc pro tunc designation was not appropriate in this case. (Id. at 4-5.)
On January 18, 2008, Rudolph filed, pro se,a motion to correct his sentence pursuant to Federal Rule of Criminal Procedure 35 or, in the alternative, 28 U.S.C. § 2255, in New York Northern District Court. (Doc. 1 at 26.) The district court denied the motion as untimely on January 24, 2008. (Id. at 27.)
On March 21, 2008, the Federal Public Defender filed a motion to reduce Rudolph's sentence pursuant to 18 U.S.C. § 3582(c)(2) in light of Amendment 706 to the sentencing guidelines, which reduced the base offense level listed on the drug quantity table for most crack cocaine offenses. (Doc. 15-2 at 7.) The district court granted the motion and reduced Rudolph's term of imprisonment from ninety-seven (97) to seventy-eight (78) months. (See id. at 10.) Rudolph filed a motion for reconsideration on August 4, 2008, contending that the district court should enter a new judgment and commitment order recommending to the BOP a retroactive designation of federal service at a state facility in order to receive credit toward his federal sentence for that time served. (See id. at 8.) The motion for reconsideration was denied on September 24, 2008. (See id.) Rudolph's subsequent appeal to the United States Court of Appeals for the Second Circuit is presently pending. (See id. at 9.)
Rudolph filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 on February 25, 2008. (Doc. 1.) On April 7, 2008, an order to show cause was issued, directing the Respondent to reply to Rudolph's ...