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Pickett v. Recktenwald

United States District Court, W.D. Pennsylvania

June 6, 2017


          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 Dexter Pickett (the "Petitioner"), pursuant to 28 U.S.C. § 2241. 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 his sentence. For the reasons set forth below, the petition is denied.


         A. Relevant Background

         From an unspecified date in 2000, until August 2011, the Petitioner committed the criminal offense conduct that is the basis for his convictions for Conspiracy to Distribute and Possession with Intent to Distribute Crack and Possession of a Firearm During and in Connection with a Drug Trafficking Offense, in violation of 21 U.S.C.§ 846 and 18 U.S.C. § 924(c)(1), which are the federal offenses connected with the sentence that is at issue in this case. (Declaration of Forest B. Kelly (Resp's Ex. 1), ¶ 7(a)). On March 15, 2011, prior to his indictment on those federal charges, the Petitioner was arrested by the Yonkers Police Department in Westchester County, New York, and charged in New York Supreme Court in Westchester County (the "State Court") with the state criminal offense of Criminal Possession of a Weapon in the Second Degree. (Id., ¶¶ 5(b), 7(b)).

         Because local/state, non-federal authorities arrested the Petitioner first, he was in the "primary custody" (sometimes referred to as "primary jurisdiction") of the State of New York. 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 six occasions from August 11, 2011, through January 3, 2013, the United States District Court for the Southern District of New York (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. (Kelly Decl., ¶ 7(c)-(n)). At the conclusion of each of the District Court's proceedings, the Petitioner was returned to state/local authorities in satisfaction of the federal writ. Although the Petitioner was temporarily transferred to the physical custody of federal authorities on each of these occasions, the State of New York 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 to two counts pursuant to a federal plea agreement, and on January 4, 2013, the District Court sentenced him to a 120-month term of imprisonment. (Kelly Decl., ¶ 7(1), (n)). The federal sentencing order was silent with respect to the relationship of the 120-month sentence to any other sentence to which the Petitioner was, or would be, subject. (Id., ¶ 7(n)). After the District Court sentenced the Petitioner, the United States Marshals Service returned physical custody of him to the authorities with the State of New York in satisfaction of a federal writ of habeas corpus ad prosequendum. (Id.) The federal Judgment was filed as a detainer.

         On January 17, 2013, the State Court sentenced the Petitioner to a 3 ½ year term of imprisonment. The State Court directed that its sentence was to run concurrently with his federal sentence. (Id., ¶ 7(o)). On March 6, 2014, state authorities released the Petitioner to the federal detainer. (Id., ¶ 7(q)).

         Pursuant to 18 U.S.C. § 3584(a), the BOP has calculated the Petitioner's federal sentence as consecutive to his state sentence. This means that it has refused to give him a retroactive concurrent designation (discussed below), which would have allowed the state prison to be the place where he began service of his federal sentence. (Id., ¶¶ 9-13). Pursuant to 18 U.S.C. § 3585(a), the BOP has calculated the Petitioner's federal sentence to have commenced on the day the state authorities released him on parole to the federal detainer (on March 6, 2014). (Id.) The BOP also has determined that the Petitioner is entitled to no prior custody credit pursuant to 18 U.S.C. § 3585(b). (Id., ¶¶ 14-15).

         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. (ECF No. 5). He contends that he is entitled to additional credit against his federal sentence. The Respondent filed the answer (ECF No. 13), and the Petitioner filed a reply (ECF No. 14).

         B. Subject Matter Jurisdiction

         "Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute[.]"Cardona v. Bledsoe, 681 F.3d 533, 535 (3d Cir. 2012) (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)). 28 U.S.C. § 2241 "confers habeas jurisdiction to hear the petition of a federal prisoner who is challenging not the validity but the execution of his sentence, " McGee v. Martinez, 627 F.3d 933, 935 (3d Cir. 2010), such as, for example, the way in which the BOP is computing his sentence. See, e.g., Barden v. Keohane, 921 F.2d 476, 478-79 (3d Cir. 1990). Such petitions are filed in the federal court of the judicial district where the federal prisoner is incarcerated. Thus, this Court has jurisdiction under § 2241 to consider the Petitioner's claim that the BOP erred in computing his sentence. A federal habeas court may only extend a writ of habeas corpus to a federal inmate if he demonstrates that "[h]e is in custody in violation of the Constitution or laws of the United States[.]"28 U.S.C. § 2241(c)(3).

         C. Discussion

         The following statutes are relevant to the evaluation of the Petitioner's contention that the BOP erred in computing his federal sentence: 18 U.S.C. § 3584(a), which governs a federal sentencing court's authority to order that a federal sentence be served concurrently with a state sentence; 18 U.S.C. § 3585(a), which governs the date upon which a federal sentence commences; and 18 U.S.C. § 3585(b), which governs the amount of prior custody credit that an inmate may receive. The BOP's policies regarding sentence computation are set forth in Program Statement 5880.28, Sentence Computation Manual ("PS 5880.28"). Also relevant to this case is Program Statement 5160.05, Designation of State Institution for Service of Federal Sentence ("PS 5160.05"). The BOP policies at issue in this case are not published in any federal regulation, and thus are not subject to public notice and comment before adoption.[2]

         1. The determination of whether a federal sentence is concurrent with, or consecutive to, a state sentence

         (a) Statutory and ...

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