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Davenport v. Recktenwald

United States District Court, W.D. Pennsylvania

February 22, 2017

BRAD ALLEN DAVENPORT, Petitioner,
v.
M. RECKTENWALD, Respondent.

          OPINION [1]

          SUSAN PARADISE BAXTER, United States Magistrate Judge

         Presently before the Court is a petition for a writ of habeas corpus filed by federal prisoner Brad Allen Davenport (the "Petitioner"), pursuant to 28 U.S.C. § 2241. He was sentenced on April14, 2010, in the United States District Court for the Eastern District of Kentucky to a 210 month term of imprisonment. He contends that the Bureau of Prisons (the "Bureau" or the "BOP"), which is the agency responsible for implementing and applying federal law concerning the computation of federal sentences, see, e.g., United States v. Wilson, 503 U.S. 329 (1992), erred in computing that sentence. For the reasons set forth below, the petition is denied.

         I.

         A. Relevant Background

         The facts in this case are not in dispute. As the Respondents outline in their answer, on December 25, 2008, the Petitioner was arrested by local law enforcement officers in McCreary County, Kentucky, and charged at a case docketed as Criminal Case No. 09-CR-0001 with the state offenses of Theft by Unlawful Taking, First Degree Criminal Mischief, and Second Degree Persistent Felony Offender ("PFO").Upon his arrest, he was taken into local custody.

         Because local/state, non-federal authorities arrested the Petitioner first, he was in the "primary custody" (sometimes referred to as "primary jurisdiction") of the Commonwealth of Kentucky. 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. Ponzi v. Fessenden, 258 U.S. 254 (1922). See, e.g., Bowman v. Wilson, 672 F.2d 1145, 1153-54 (3d Cir. 1982); George v. Longley, 463 F.App'x 136, 138 n.4 (3d Cir. 2012) (per curiam); Elwell v. Fisher, 716 F.3d 477 (8th Cir. 2013). 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 its sentence expires and it releases the inmate, or until it relinquishes its priority through some other act, such as granting bail, dismissing the charges, or releasing the individual on parole. See, e.g., George, 463 F.App'x at 138 n.4.

         On January 26, 2009, the Petitioner was charged in McCreary County Circuit Court with additional state offenses related to state criminal activity that took place on December 25, 2008. In that case, which was docketed as Criminal Case No. 09-CR-0002, he was charged with the state offenses of Third Degree Burglary, Theft by Unlawful Taking, Second Degree Criminal Mischief, and Second Degree PFO.

         On April 7, 2009, the Petitioner pleaded guilty to his charges in Criminal Case No. 09-CR-0001. On June 2, 2009, he was sentenced to seven years imprisonment. The state court directed that the sentence run consecutively with the anticipated seven year sentence yet to be imposed in state Criminal Case No. 09-CR-0002, for a total state sentence of 14 years. The court also directed that the 14-year state sentence run concurrently with any federal sentence to which the Petitioner would be subject. It further directed that the Petitioner receive 159 days of jail time credit, which accounted for the 159 days between December 25, 2008 (the date of the Petitioner's arrest), and June 1, 2009 (the date before he was sentenced). The Petitioner was subsequently sentenced in Criminal Case No. 09-CR-0002 to seven years imprisonment, consecutive to the sentence imposed in Criminal Case No. 09-CR-001.

         On June 25, 2009, while the Petitioner was serving his state sentence, a federal criminal indictment was handed down in the United States District Court for the Eastern District of Kentucky, charging him with six counts of federal weapons offenses for conduct occurring on December 25, 2008. The district court issued a writ of habeas corpus ad prosequendum and directed the United States Marshals Service to produce the Petitioner in federal court for the processing of his federal criminal charges. On July 22, 2009, state authorities temporarily transferred physical custody of the Petitioner to federal authorities pursuant to that writ.

         Although the Petitioner was temporarily transferred to the physical custody of federal authorities pursuant to the writ of habeas corpus ad prosequendum, the Commonwealth of Kentucky maintained primary custody over him. That is because a prisoner detained pursuant to a writ of habeas corpus ad prosequendum remains in the primary custody of the sending sovereign unless and until it relinquishes jurisdiction over him. See, e.g., Ruggiano v. Reish, 307 F.3d 121, 125 n.1 (3d Cir. 2002), superseded on other grounds by U.S.S.G. § 5G1.3(c) app. note 3(E) (2003). See also Elwell, 716 F.3d at 482 ("When the United States obtained physical custody of Elwell based upon the writ of habeas corpus ad prosequendum, the transfer of physical control over Elwell's custody from Iowa to the United States did not terminate Iowa's primary jurisdiction.") The receiving sovereign - in this case, the federal government - is considered simply to be "borrowing" the prisoner from the sending sovereign for the purposes of indicting, arraigning, trying, and/or sentencing him. Id.

         The Petitioner pleaded guilty in his federal criminal case to Felon in Possession of a Firearm, Possession of an Unregistered Short-Barreled Shotgun and Possession of a Short-Barreled Shotgun in Furtherance of a Drug Trafficking Crime. On April 14, 2010, the federal district court sentenced him to a term of 210 months of imprisonment. It directed that the federal sentence was to run concurrently with the state sentences imposed in Criminal Case Nos. 09-CR-0001 and 09-CR-0002. Absent from the federal Judgment and Commitment Order and the Statement of Reasons ("SOR") was any indication of an intent on the part of the federal sentencing court to adjust the Petitioner's sentence or apply a downward departure under U.S.S.G. § 5G1.3, to reduce his federal sentence for time served against his state sentence prior to the commencement of his federal sentence. (See Declaration of Patricia Kitka ("Kitka Decl."), Resp's Ex. 1, at ¶ 6(v)-(m), ¶ 17; Resp's Ex. 1(i), Federal Judgment and Commitment Order).

         Next, the United States Marshals Service returned physical custody of the Petitioner to the authorities with the Commonwealth of Kentucky in satisfaction of the federal writ of habeas corpus ad prosequendum. The BOP designated the Kentucky Department of Corrections as the institution where Petitioner would commence service of his federal sentence, effective April 14, 2010 (the date his federal sentence was imposed).

         On October 3, 2011, the Petitioner was paroled from his state sentence to federal authorities so that he could complete service of his federal sentence. The BOP computed Petitioner's federal sentence to have commenced on the date it was imposed (April 14, 2010) pursuant to 18 U.S.C. § 3585(a). It also determined that the Petitioner was not entitled to any prior custody credit (which could also be described as pre-commencement credit) under 18 U.S.C. § 3585(b). However, the BOP did determine that the Petitioner was entitled to 159 days of credit pursuant to Willis v. United States, 438 F.2d 923 (5th Cir. 1971) for the time served prior to the commencement of his federal sentence from December 25, 2008 (the date he was arrested for conduct related to his federal offense) through June 1, 2009 (the day before his 14-year state sentence commenced). (Kitka Decl., ¶¶ 7-17; Resp's Ex. 1 k, Sentencing Computation Data; Resp's Ex. 1l, Willis Calculation Worksheet).

         The Petitioner challenged the BOP's calculation of his federal sentence through the BOP's administrative remedy process. When he did not receive the relief he sought he filed the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. He contends that he is entitled to additional credit against his federal sentence. In the answer (ECF No. 13), the Respondent asserts that the BOP properly calculated the Petitioner's federal sentence and that the petition should be denied. The Petitioner did not file a reply. See LCvR 2241(D)(2) ("the petitioner may file a Reply (also known as 'a Traverse') within 30 days of the date the respondent files its Response.").

         B. Subject ...


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