United States District Court, W.D. Pennsylvania
PARADISE BAXTER United States Magistrate Judge
Presently before the Court is a petition for a writ of habeas
corpus filed by federal prisoner Harold Bursey (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
federal sentence. For the reasons set forth below, the
petition is denied.
A. Relevant Background
May 2009 to December 2009, the Petitioner committed the
federal offense of Conspiracy to Possess with Intent to
Distribute Heroin, Cocaine, Cocaine Base, and Marijuana.
(Declaration of Forest Kelly (Resp's Ex. 2), ¶ 3).
He was arrested by state authorities in Detroit, Michigan, on
October 19, 2010, for the state offense of Possession with
Intent to Deliver More than 50, but Less than 450, Grams of
Cocaine. He was later released on bond from the Wayne County
Jail. (Id., ¶ 4). On November 11, 2011, he was
sentenced in Wayne County, Michigan, to a term of
imprisonment of from three to 20 years. (Id.,
time, the Petitioner was in the "primary custody"
(sometimes referred to as "primary jurisdiction")
of the State of Michigan. 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.
February 6, 2012, the Petitioner was transferred to the
physical custody of federal authorities pursuant to a writ of
habeas corpus ad prosequendum issued by the United States
District Court for the Eastern District of Michigan (the
"District Court"). It had issued the writ so that
the Petitioner could appear in federal court for the
processing of his federal criminal charges. (Kelly Decl.,
the Petitioner was temporarily transferred to the physical
custody of federal authorities pursuant to the writ of habeas
corpus ad prosequendum, the State of Michigan 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 subsequently pleaded guilty in the District Court
to the federal offense of Conspiracy to Possess with Intent
to Distribute Heroin, Cocaine, Cocaine Base, and Marijuana
for a period of time spanning from May 2009 to December 2009.
(Kelly Decl., Attach. 2(b), Judgment). On March 12, 2013, the
District Court sentenced him to a 120-month term of
imprisonment (which it later reduced to 84 months). The
District Court ordered the sentence to run concurrently with
the Petitioner's undischarged state sentence. (Kelly
Decl., ¶ 8).
March 13, 2013, the United States Marshals Service returned
physical custody of the Petitioner to the authorities with
the State of Michigan in satisfaction of the federal writ of
habeas corpus ad prosequendum. (Id., ¶ 9). On
January 7, 2015, the state authorities released the
Petitioner to federal authorities. (Id., ¶ 10).
computed Petitioner's federal sentence to have commenced
on the date it was imposed (March 12, 2013) pursuant to 18
U.S.C. § 3585(a). It also determined that the Petitioner
was entitled to one day of prior custody credit (which could
also be described as pre-commencement credit) under 18 U.S.C.
§ 3585(b). (Id., ¶¶ 11-14 &
Attach. 2(1), Public Information Inmate Data).
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. 4). 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. 17).
Subject Matter Jurisdiction
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, 921 F.2d at 478-79. 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. §