The opinion of the court was delivered by: Susan Paradise Baxter United States Magistrate Judge
Magistrate Judge Susan Paradise Baxter
Petitioner Robert Lee Lemons is a federal inmate who was incarcerated at the Federal Correctional Institution, McKean ("FCI McKean"), located in Bradford, Pennsylvania, at the time he filed the instant action. He is serving a 212-month term of imprisonment, which was imposed by the United States District Court for the Northern District of Ohio on May 15, 2003. Before the Court is his petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241, in which he disputes the Federal Bureau of Prisons' (the "BOP's" or "Bureau's") computation of his federal sentence. He claims he is entitled to additional credit against his sentence.*fn2
A. Relevant Facts and Procedural History
On January 6, 2001, Petitioner was arrested by local law enforcement in Cuyahoga County, Ohio, and charged with the state offenses of Aggravated Robbery, Felonious Assault, Failure to Comply with Order, Possession of Drugs, and Preparation of Drugs for Sale. His case was docketed in the Cuyahoga County Common Pleas Court at CR-01-403088. On January 8, 2001, he was released from jail after posting bail. [ECF No. 22-2 at p. 8, Decl. of J.R. Johnson, Ex. 2 at ¶ 8(a); ECF No. 22-2 at p. 18, Ex. 2a,Case Summary, State of Ohio v. Robert L. Lemons, No. CR-01-403088 (C.P. Cuyahoga Co.)].
On August 16, 2001, Petitioner did not appear in state court for processing of the state criminal charges in Case No. CR-01-403088. As a result, the state court forfeited his bond and ordered a warrant be issued for his arrest. [ECF No. 22-2 at p. 8, Ex. 2 at ¶ 8(b); ECF No. 22-2 at p. 18, Ex. 2a].
On September 16, 2001, members of the South East Area Law Enforcement Narcotic Task Force executed a search warrant at Petitioner's residence and recovered 64.13 grams of crack cocaine. Petitioner was arrested on September 18, 2001, in Cuyahoga County, Ohio, and was charged with state criminal offenses. Thereafter, he was held in state/county custody pending the state criminal charges. [ECF No. 22-2 at pp. 8-9, Ex. 2 at ¶ 8(c)-(d); ECF No. 22-3 at p. 10, Ex. 2f].
As will be discussed below, the crack cocaine found during the September 16, 2001, search of Petitioner's residence would later form the basis of federal criminal charges against him. [ECF No. 22-2 at pp. 8-9 n.1]. However, because state/local authorities had arrested Petitioner first,*fn3 federal authorities always considered him to be in the "primary custody" of the State of Ohio. The "primary custody" doctrine developed to provide different sovereigns (in this case the state and the federal governments) with an orderly method by which to prosecute and incarcerate an individual who has violated each sovereign's laws. See 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). In relevant part, the doctrine provides that the sovereign that first arrests an individual has primary custody over him. That sovereign's claim over the individual has priority over all other sovereigns that subsequently arrest him. The sovereign with primary custody is entitled to have the individual serve a sentence it imposes before he serves a sentence imposed by any other jurisdiction, regardless of the chronological order of sentence imposition. See, e.g., Bowman, 672 F.2d at 1153-54. 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).
On November 14, 2001, Petitioner (who was in prison in the Cuyahoga County Jail, see ECF No. 22-3 at p. 10) was arrested by state/local authorities again -- this time on charges of Trafficking in Drugs, Possession of Drugs, Drug Trafficking With a Juvenile, and Possession of Criminal Tools. This criminal case was docketed in the Cuyahoga County Common Pleas Court at No. CR-01-415864. [ECF No. 22-2 at p. 4].
The Common Pleas Court eventually ordered that Petitioner be transferred to a healthcare institution so that he could be restored to competency to stand trial against the state criminal charges. [ECF No. 22-2 at pp. 8-9, Ex. 2 at ¶ 7 & ¶ 8(e) (citing docket sheet in State of Ohio v. Robert Lemons, CR-01-415864 (C.P. Cuyahoga Co.)]. In accordance with that order, Petitioner was placed at the Northcoast Behavioral Healthcare System on or around April 4, 2002. On or around July 4, 2002, he was returned to the Cuyahoga County Jail. [ECF No. 22-2 at p. 9, Ex. 2 at ¶¶ 8(g)-(h); ECF No. 22-3, Ex. 2f].
In the meantime, on January 18, 2002, while Petitioner was in state/local custody, a federal criminal complaint was filed in the United States District Court for the Northern District of Ohio at Criminal Docket No 1:02-cr-00349. On July 31, 2002, he was arrested by agents of the United States Drug Enforcement Administration pursuant to those federal criminal charges. [ECF No. 22-2 at p. 9, Ex. 2 at ¶¶ 8(f), 8(i); ECF No. 22-2 at p. 24, Ex. 2c, United States Marshals Service ("USMS") Form 129]. On that same day, he was produced in the federal district court for a preliminary examination pursuant to a writ of habeas corpus ad prosequendum.*fn4 After Petitioner waived the preliminary examination, he was returned to state authorities in satisfaction of the federal writ. [ECF No. 22-2 at p. 9, Ex. 2 at ¶ 8(g)].
On February 12, 2003, Petitioner again was produced in federal district court pursuant to a federal writ of habeas corpus ad prosequendum. He entered a guilty plea to the federal charge of Possession with Intent to Distribute Cocaine Base. After he entered the federal guilty plea, he was returned to state/local custody in satisfaction of the federal writ. [ECF No. 22-2 at p. 10, Ex. 2 at ¶¶ 8(k)-(l)].
On May 15, 2003, Petitioner was produced once more in federal district court pursuant to a federal writ of habeas corpus ad prosequendum. He was sentenced to a 212 month term of imprisonment to be followed by a ten year term of supervised release. [ECF No. 22-2 at p. 10, Ex. 2 at ¶ 8(m)]. The district court was silent as to whether it intended its sentence run concurrently with any other sentence. [ECF No. 22-3 at pp. 1-2, Ex. 2d, Federal Judgment and Commitment Order]. After imposition of the federal sentence, Petitioner was returned to state/local custody in satisfaction of the federal writ. [ECF No. 22-2 at p. 10, Ex. 2 at 8(n)].
On May 20, 2003, Petitioner appeared in state court in Case Nos. CR-01-415864 and CR-01-403088. Pursuant to the terms of a plea agreement, he pleaded guilty to Robbery, Attempted Assault, Failure to Comply with Order/Signal, and Possession of Drugs in Case No. CR-01-403088. According to Petitioner, the State of Ohio dismissed all criminal charges in connection with Case Number CR-01-415864 "due to the federal conviction and sentence[.]" [ECF No. 25 at p. 6; see also ECF No 22-2 at pp. 8, 10, Ex. 2 at ¶¶ 7, 8(o)).
Upon accepting Petitioner's guilty plea, the Court of Common Pleas for Cuyahoga County imposed a term of imprisonment of five years at the Lorain Correctional Institution, which is a state prison. The state court directed that its sentence run concurrently with the federal sentence. The state court also directed that Petitioner receive credit for all of the time that he served in official detention prior to the commencement of the state sentence. [ECF No. 22-2 at pp. 6-7, 10, Ex. 2 at ¶¶ 6, 8(p); ECF No. 22-3 at p. 8, Ex. 2e, State Judgment and Commitment Order].
Petitioner was delivered to the Lorain Correctional Institution on June 4, 2003. However, five days later, on June 9, 2003, state prison authorities returned him to the county jail facility so that he could be transferred to the USMS "to begin sentence in federal case[.]" [ECF No. 22-2 at pp. 7, 10, Ex. 2 at ¶¶ 6, 8(q)]. According to Petitioner, "[w]hen the county jail contacted the U.S. Marshals, they refused to take me into custody, so on June 13, 2003, I was returned to Lorain Correctional Institutional for service of my state sentence." [ECF No. 24 at p. 5, Petitioner's Decl. at ¶ 15; see also ECF No. 22-2 at p. 7].
Petitioner contends that the federal government had primary custody over him as of June 9, 2003, but the BOP determined that it did not and that is why the USMS would not accept him into its custody. There is no basis for this Court to disturb the BOP's determination and Petitioner has no standing to challenge it. Bowman, 672 F.2d at 1153-54 (quoting Derengowski v. United States Marshal, 377 F.2d 223, 224 (8th Cir. 1967) for the proposition that: "'[t]he exercise of jurisdiction over a prisoner who has violated the law of more than one sovereignty and the priority of prosecution of the prisoner is solely a question of comity between the sovereignties which is not subject to attack by the prisoner.' He has no standing to raise the issue.")). See also Rashid v. Quintana, No. 1:08-cv-107, 2009 WL 3271214 at *1 n.3 (W.D. Pa. Oct. 9, 2009), aff'd 372 F.App'x 260 (3d Cir. 2010).
Several years later, on December 13, 2006, Petitioner was physically released from the state sentence and accepted by the USMS for service of his federal sentence. The BOP calculated Petitioner's federal sentence as having commenced on that date. It also determined that Petitioner is entitled to 92 days of pre-sentence commencement credit (commonly known as "prior custody credit"). The BOP has calculated Petitioner's federal sentence as consecutive to his state sentence. This means that it has refused to give him a retroactive concurrent designation under 18 U.S.C. § 3621(b) (discussed below), which would have allowed the state prison to be the place where he began service of his federal sentence.*fn5 [ECF No. 22-1 at p. 9, Ex. 1a; see also ECF No. 22-2 at p. 24, Ex. 2c; ECF No. 22-2 at p. 10, Ex. 2 at ¶¶ 8(s)-(t)]. Assuming that Petitioner receives all good conduct time available to him under 18 U.S.C. § 3624(b), his projected release date is May 6, 2022.
In the instant petition for writ of habeas corpus, Petitioner challenges the BOP's decision and contends that it should calculate his federal sentence as having commenced on June 9, 2003.
That is the date that state prison authorities originally returned him to the county jail facility so that he could be transferred to federal ...