United States District Court, W.D. Pennsylvania
PARADISE BAXTER, United States Magistrate Judge
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
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.
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.
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.
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.
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.
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.
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).
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).
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
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.").