Case Information
IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA BECKLEY DIVISION
RICKY RAUTENKRANZ, )
)
Petitioner, )
)
v. ) CIVIL ACTION NO. 5:10-01230
)
UNITED STATES OF AMERICA, )
)
Respondent. )
PROPOSED FINDINGS AND RECOMMENDATION
On October 19, 2010, Petitioner, an inmate incarcerated at FCI Beckley, Beaver, West Virginia, and acting pro se , filed his Application Under 28 U.S.C. § 2241 for Writ of Habeas Corpus
By a Person in State or Federal Custody. (Document No. 1.) Petitioner alleges that the Federal
Bureau of Prisons [BOP] improperly calculated his term of imprisonment. (Id.) By Standing Order,
this matter was referred to the undersigned United States Magistrate Judge for the submission of
proposed findings of fact and a recommendation for disposition pursuant to 28 U.S.C. § 636(b)(1)(B).
(Document No. 4.)
PROCEDURE AND FACTS
Petitioner was arrested by North Carolina State authorities on May 19, 2007, and held in State custody. United States v. Rautenkranz, Case No. 5:07-cr-261 (E.D.N.C. Feb. 11, 2009), Document
No. 48, pp. 2 - 3. Petitioner was “charged with possession of a firearm by a convicted felon, along
with the outstanding probation violation warrant.” Id., p. 3. Petitioner has remained in continuous
custody since his arrest. Id. The State revoked Petitioner’s probation on June 25, 2007, and he was
ordered to serve two consecutive 11 to 14 month sentences. Id. Petitioner was indicted in the Eastern
District of North Carolina on September 5, 2007, for Possession of a Firearm by a Felon in violation
of 18 U.S.C. §§ 922(g)(1) 924 (e)(1). Id. On April 21, 2008, Petitioner pled guilty in the Eastern
District of North Carolina to one count of Possession of a Firearm by a Felon in violation of 18
U.S.C. §§ 922(g)(1) 924 (e)(1). Id., Document No. 21. On February 11, 2009, the Eastern District
of North Carolina imposed a 102-month term of imprisonment. Id., Document No. 46. The District
Court further directed that “[t]he term of imprisonment imposed by this judgment shall run concurrent
to the defendant’s imprisonment under any previous state or federal sentence.” Id. Petitioner
completed his State sentence and was released to Federal custody on May 20, 2009. Id., Document
No. 48-1.
On October 19, 2010, Petitioner filed his instant Application Under 28 U.S.C. § 2241 for Writ of Habeas Corpus By a Person in State or Federal Custody. (Document No. 1.) First, Petitioner
argues that the BOP is unlawfully computing his sentence because “the sentencing judge clearly
imposed a ‘fully’ concurrent sentence in which the [Petitioner] would be credited for his entire length
of incarceration. (Id., pp. 2 - 4.) Petitioner states that he should be “credited for his ENTIRE length
of incarceration, from the offense date for the sentencing charge, May 19, 2007.” (Id., p. 4.) Second,
Petitioner contends that he should be awarded prior custody credit for the time he served in State
custody. (Id., p. 4.) Petitioner states that the BOP “erroneously stopped the Movant’s presentencing
credit after only 37 days of confinement on the federal charge.” (Id.) Petitioner explains that the
“order for concurrent service of my federal sentence with my state sentence is such an order in my
case, so that the entirety of the state sentence.” (Id., p. 5.) As relief, Petitioner requests that the Court
award him Federal credit for the “entire length of his incarceration.” (Id., p. 6.)
ANALYSIS Essentially, Petitioner contends that he is entitled to credit for time spent in State custody beginning on June 25, 2007, the date the State revoked his probation, and ending on February 11,
2009, when the BOP began computation of his Federal sentence for Criminal Action 5:07-0261. The
authority to calculate a federal prisoner’s period of incarceration of the sentence imposed, and to
provide credit for time served, is delegated to the Attorney General, who exercises it through the
BOP. See United States v. Wilson, 503 U.S. 329, 334 - 335, 112 S.Ct. 1351, 117 L.Ed.2d 593 (1992).
In addressing any sentencing computation issue, a District Court must consider: (1) when the
sentence commenced; and (2) the extent to which the petitioner may be entitled to credit for time
spent in custody prior to commencement of the sentence. Chambers v. Holland, 920 F.Supp. 618, 621
(M.D.Pa.), affd, 100 F.3d 946 (3d Cir. 1996).
A. Petitioner’s sentence did not commence until February 11, 2009.
Title 18 U.S.C. § 3585(a) governs the date a federal sentence commences. Section 3585(a) provides as follows: “A sentence to a term of imprisonment commences on the date the defendant
is received in custody awaiting transportation to, or arrives voluntarily to commence service of
sentence at, the official detention facility at which the sentence is to be served.” Generally, the first
arresting sovereign acquires primary jurisdiction “for purposes of trial, sentencing, and incarceration.
However, the sovereign with priority of jurisdiction . . . may elect under the doctrine of comity to
relinquish it to another sovereign.” United States v. Warren, 610 F.2d 680, 684-85 (9th Cir. 1980).
Primary jurisdiction can be relinquished by operation of law, such as bail release, expiration of
sentence, or dismissal of charges. United States v. Cole, 416 F.3d 894, 897 (8 Cir. 2005). In the
instant case, State authorities arrested Petitioner on May 19, 2007. Accordingly, State authorities
obtained primary jurisdiction on May 19, 2007. On June 25, 2007, the State revoked Petitioner’s
probation and imposed two consecutive 11 to 14 month sentences. On February 11, 2009, the Eastern
District of North Carolina imposed a 102-month term of imprisonment. The District Court further
directed that “[t]he term of imprisonment imposed by this judgment shall run concurrent to the
defendant’s imprisonment under any previous state or federal sentence.” The record indicates that
Petitioner’s Federal sentence commenced on February 11, 2009, the date his Federal sentence was
imposed. Petitioner argues that the BOP should have awarded him Federal credit beginning June 25,
2007 (the date the State revoked his probation) in order to effectuate the Federal judge’s
determination that his Federal and State sentences should run concurrently. A federal sentence,
however, cannot commence prior to the date it is pronounced even if made concurrent with a sentence
already being served. Miramontes v. Driver, 243 Fed.Appx. 855 (5 th Cir. 2007)(finding that
“defendant was not entitled to credit against subsequently imposed sentence for time served which
had previously been credited against first-imposed sentence, despite second sentencing court’s order
that sentences at issue be served concurrently”); Coloma v. Holder, 445 F.3d 1282 (11 Cir.
2006)(finding that petitioner’s sentence on second conviction that was ordered to run concurrently
with his sentence on related first conviction, was not retroactive to the beginning of the first
sentence); United States v. LaBeilla-Soto, 163 F.3d 93, 98 (2 nd Cir. 1998)(finding that “the district
court had no authority to grant defendant sentencing credit for time he spent in federal custody before
sentencing”); United States v. Flores, 616 F.2d 840, 841 (5 Cir. 1980)(stating that a federal sentence
“cannot commence prior to the date it is pronounced, even if made concurrent with a sentence already
being served”); Shelvy v. Whitfield, 718 F.2d 441, 444 (D.C.Cir. 1983)(stating that “a federal
sentence made concurrent with a sentence already being served does not operate in a ‘fully
concurrent’ manner. Rather, the second sentence runs together with the remainder of the one then
being served”). Although the Eastern District of North Carolina ordered that Petitioner’s Federal
sentence to run concurrently with his State sentence, Petitioner’s sentences may not run fully
concurrently. Accordingly, Petitioner’s Federal sentence did not commenced until February 11, 2009,
the date his Federal sentence was imposed.
B. Petitioner is not entitled to prior custody credit.
Title 18 U.S.C. § 3585(b) provides as follows:
(b) Credit for prior custody. -- A defendant shall be given credit toward the service of a term of imprisonment for any time he has spent in official detention prior to the date the sentence commences - -
(1) as a result of the offense for which the sentence was imposed; or (2) as a result of any other charge for which the defendant was arrested after the commission of the offense for which the sentence was imposed; that has not be credited against another sentence.
The United States Supreme Court has held that under Section 3585(b), “Congress made clear that a
defendant could not receive double credit for his detention time.” Wilson, 503 U.S. at 337, 112 S.Ct.
at 1355 - 1356; also see United States v. Mojabi, 161 F.Supp.2d 33, 36 (D.Mass. 2001)(holding that
“[s]ection 3885(b) prohibits ‘double credit,’ i.e. awarding credit for presentence time served against
one sentence if that time has already been credited against another sentence”).
In the instant case, the Court finds that Petitioner is not entitled to receive prior custody credit.
Petitioner is seeking Federal credit for time period beginning June 25, 2007 (the day his State
sentence was imposed) through February 10, 2009 (the day before his Federal sentence was
imposed). Petitioner received credit towards his State sentence for the time period of June 25, 2007
(the day his State sentence was imposed) through February 10, 2009 (the day before his Federal
sentence was imposed). The BOP may not grant prior custody credit for time that has been credited
against another sentence. See United States v. Goulden, 54 F.3d 774 (4 Cir. 1995)(unpublished
opinion)(holding that credit is only available for time spent in custody which has not been credited
against another sentence); United States v. Brown, 977 F.2d 574 (4 Cir. 1992)(finding that “a
defendant may receive credit against his federal sentence for time spent in official detention prior to
the date his sentence commences unless it has been credited against another sentence”). Based on the
foregoing, the undersigned finds that Petitioner is not entitled to Federal credit for June 25, 2007,
through February 10, 2009.
PROPOSAL AND RECOMMENDATION Based upon the foregoing, it is therefore respectfully PROPOSED that the District Court confirm and accept the foregoing factual findings and legal conclusions and RECOMMENDED that
the District Court DISMISS Petitioner’s Petition for Writ of Habeas Corpus by a Person in Federal
‘ Willis time’ because it was not time spent in non-federal presentence custody”). In the instant case,
Petitioner does not assert that he was denied pre-sentence credit against his Federal sentence.
Petitioner acknowledges that the received 37 days of jail credit to both his State and Federal
sentences.
Custody under 28 U.S.C. § 2241(Document No. 1.), and REMOVE this matter from the Court’s
docket. The Petitioner is hereby notified that this “Proposed Findings and Recommendation” is hereby FILED , and a copy will be submitted to the Honorable United States District Judge Irene C.
Berger. Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1)(B), and Rule
R. Clarke VanDervortUnited States Magistrate Judge 6(d) and 72(b), Federal Rules of Civil Procedure, the Petitioner shall have seventeen days (fourteen
days, filing of objections and three days, mailing/service) from the date of filing of this Proposed
Findings and Recommendation within which to file with the Clerk of this Court specific written
objections identifying the portions of the Findings and Recommendation to which objection is made
and the basis of such objection. Extension of this time period may be granted for good cause.
Failure to file written objections as set forth above shall constitute a waiver of de novo review by the District Court and a waiver of appellate review by the Circuit Court of Appeals. Snyder v.
Ridenour, 889 F.2d 1363 (4th Cir. 1989); Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466, 88 L. Ed. 2d
435 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91
(4th Cir. 1984), cert. denied, 467 U.S. 1208, 104 S. Ct. 2395, 81 L. Ed. 2d 352 (1984). Copies of such
objections shall be served on opposing parties, District Judge Berger, and this Magistrate Judge.
The Clerk is requested to send a copy of this Proposed Findings and Recommendation to Petitioner, who is acting pro se .
ENTER: October 17, 2013.
[1] Because Plaintiff is acting pro se , the documents which he has filed in this case are held to a less stringent standard than if they were prepared by a lawyer and therefore, they are construed liberally. See Haines v. Kerner , 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972).
[2] Petitioner acknowledges that the received 37 days of jail credit to both his State and Federal sentences. Petitioner complains that his Federal credit stops on June 25, 2007. United States v. Rautenkranz , Case No. 5:07-cr-261 (E.D.N.C. Feb. 11, 2009), Document No. 48, p. 3.
[3] Notwithstanding the limitation imposed under Section 3585(b), the Fifth Circuit indicated that a petitioner was entitled to time spent in pre-sentence State custody that was attributable to the federal offense even if the petitioner was given credit on his State sentence for that period of time. Willis v. United States , 438 F.2d 923, 925 (5 th Cir. 1971)(finding that where a petitioner “was denied release on bail [by the State] because the federal detainer was lodged against him, then that was time spent in custody in connection with the [federal] offense). In Kayfez v. Casele , 993 F.2d 1288 (7 th Cir. 1993), the Seventh Circuit found a petitioner serving a concurrent State and federal sentence was entitled to credit against his federal sentence for all of his pre-sentence incarceration even though the pre-sentence time had already been credited against his State sentence. Kayfez v. Casele, 993 F.2d 1288, 1290 (7 Cir. 1993)(recognizing that by approving “ Willis time,” the BOP often permits what amounts to a form of “double credit” despite the language in Section 3585(b)). The Seventh Circuit, however, acknowledged the limits of its holding in Kayfez by finding that its decision does not require federal pre-sentence credits for time served after the commencement of a separate State sentence. Grigsby v. Bledsoe , 223 Fed.Appx. 486, 489 (7 Cir. 2007)(finding that defendant’s reliance upon Kayfez was misplaced because “the time for which he seeks credit is not