The opinion of the court was delivered by: Magistrate Judge Susan Paradise Baxter
Pending before the Court is Petitioner John Earl Poole, Jr.'s petition for a writ of habeas corpus, which he has filed pursuant to 28 U.S.C. § 2241. He seeks an order from this Court directing the Bureau of Prisons (the "BOP") to credit his federal sentence for time he was "borrowed" by federal authorities from state custody pursuant to a federal writ of habeas corpus ad prosequendum for processing of federal criminal charges.
For the reasons set forth below, the Court will dismiss the petition without prejudice.
The record before the Court establishes the following. On September 24, 2007, Petitioner was sentenced in the Court of Common Pleas of Erie County to a maximum term of six years' imprisonment in Case No. CP1259-2006 for violation of probation. He was paroled from his state sentence on September 29, 2008. On October 29, 2009, the Pennsylvania Board of Probation and Parole ("PBPP") recommitted him to a state correctional facility to serve a six month term for a technical parole violation.
In the meantime, on September 3, 2009, Petitioner was arrested by local law enforcement authorities in Erie, Pennsylvania, for numerous state offenses. The circumstances of this arrest resulted in the federal indictment connected with his federal offense. A federal criminal indictment was filed in the U.S. District Court for the Western District of Pennsylvania on January 19, 2010, charging Petitioner with the offense of Felon in Possession of a Firearm, in violation of 18 U.S.C. § 922(g)(1).
On January 21, 2010, the District Court granted the Government's application for writ of habeas ad prosequendum and directed the U.S. Marshals Service to produce Petitioner in federal court for processing of federal criminal charges. Petitioner, who was in state custody at the State Correctional Institution ("SCI") Albion, was "borrowed" by federal authorities on January 28, 2010, via federal writ of habeas corpus ad prosequendum for processing of the federal criminal charge.
On February 3, 2010, the state charges connected with Petitioner's September 3, 2009, arrest by local authorities were nolle prossed. On April 8, 2010, the PBPP ordered Petitioner recommitted to a state correctional facility to serve an 18 month violation of probation term. On June 22, 2010, the District Court sentenced Petitioner to a 52 month term of imprisonment with a three year term of supervised release to follow for Felon in Possession of a Firearm, in violation of 18 U.S.C. § 922(g)(1). The District Court ordered the federal sentence run consecutively with the state violation of probation term Petitioner was serving. Petitioner was returned to state custody.
The Pennsylvania Department of Corrections considered the federal sentencing date -- June 22, 2010 -- as the date that Petitioner was returned to state custody as a parole violator. The federal Judgment and Commitment Order was lodged with the Pennsylvania Department of Corrections as a detainer.
The Commonwealth of Pennsylvania has applied 137 days of credit toward Petitioner's state violation of probation term for time served from September 4, 2009, through January 19, 2010.
According to the record before this Court, Petitioner is in state custody serving the state parole violation term imposed by the PBPP in connection with Criminal Case No. CP1259-2006. The maximum date of his state parole violator term is September 29, 2014. According to Respondent, Petitioner's federal sentence has not been computed. Upon his release from the state parole violator terms, he will enter federal custody and commence his federal sentence. Soon after his arrival in federal custody, his federal sentence will be computed.
In his petition for a writ of habeas corpus, Petitioner seeks an order from this Court directing that all of the time that he served while he was borrowed by federal authorities pursuant to the writ of habeas corpus ad prosequendum be credited against his federal sentence. Respondent has filed its Answer [ECF No. 7], in which it is asserted that Petitioner's claim for relief is not ripe for adjudication because the BOP has not yet calculated his federal sentence, and because, once the BOP does so, ...