* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

F I L E D

United States Court of Appeals

Tenth Circuit

JUL 1 1997

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

VINCENT A. DEMARTINO,

Petitioner-Appellant,

v.

R.G. THOMPSON, Warden;

KATHLEEN HAWK, Director,

Bureau of Prisons,

Respondents-Appellees.

No. 96-6322

(D.C. No. CIV-96-515-R)

(W.D. Okla.)

ORDER AND JUDGMENT*

Before BRORBY, BARRETT, and MURPHY, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.
-2-

Vincent A. DeMartino, a federal inmate, appeals the denial of his petition

for writ of habeas corpus pursuant to 28 U.S.C. § 2241. We exercise jurisdiction

under 28 U.S.C. § 1291; review the district court’s legal conclusions de novo, see

Harvey v. Shillinger, 76 F.3d 1528, 1532 (10th Cir.), cert. denied 117 S. Ct. 253

(1996); and affirm.

I. BACKGROUND

Mr. DeMartino is a prisoner in the federal correctional institution in El

Reno, Oklahoma, where he is serving a sentence imposed by the United States

District Court for the Eastern District of New York. In December 1991, when he

was on parole from a federal offense, Mr. DeMartino was arrested in New York

City for possession of a handgun and taken into federal custody under a parole

violation warrant. The arrest led to the decision of the United States Parole

Commission, on March 2, 1992, to revoke Mr. DeMartino’s parole and impose the

remainder of his sentence (nine years, ten months, and twenty days) as a parole

violator term. Mr. DeMartino administratively appealed the decision.

Also as a result of the arrest, Mr. DeMartino was found guilty of being a

felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). At a

sentencing hearing held on April 23, 1993, the court sentenced him for “a period

of 48 months, the sentence to run consecutive with the [nine-year violator]

sentence that the defendant is presently serving.” Appellant’s App. at 15. The
1 The district court referred the petition to a magistrate judge and, on

June 27, 1996, the magistrate judge concluded that the Bureau of Prisons had

properly implemented the sentence. Mr. DeMartino filed written objections to the

magistrate’s report and recommendation. On September 5, 1996, the district court

denied the objections and adopted the report in its entirety.

-3-

judgment order, entered the same day, stated that the sentence was “sixty-three

months imprisonment, forty-eight of which is to run consecutively to the sentence

he is concurrently serving.” Id. at 19. The United States Bureau of Prisons

implemented the sentence as written: fifteen months to be served concurrently

with the violator term and forty-eight months to be served consecutively. 

In the summer of 1995, the Parole Commission reversed its order on the

parole violator charge and issued a nunc pro tunc order of re-parole, effective

July 17, 1993. The nunc pro tunc order ended Mr. DeMartino’s parole violator

term three months after his sentencing on the § 922(g)(1) charge. Because there

were twelve months remaining of the fifteen-month concurrent term, the Bureau

of Prisons determined that Mr. DeMartino must serve these months consecutively

to the violator term. Mr. DeMartino, however, claimed that the concurrent

portion of the § 922(g)(1) sentence ended at the same time as the parole violator

sentence.

After exhausting his administrative remedies, Mr. DeMartino filed this

habeas action. The district court denied the petition1 and Mr. DeMartino now

appeals, arguing that he is entitled to habeas relief for two reasons: (1) an alleged
-4-

conflict between the oral and written sentences and (2) the theory that his

concurrent terms began and ended at the same time. 

II. DISCUSSION

Mr. DeMartino’s primary argument, that the oral sentence controls over the

written judgment, has no place in this § 2241 habeas action. A petition under

§ 2241, filed in the district where the petitioner is confined, is used to attack the

execution of a sentence. See Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir.

1996). In contrast, an attack on the validity of a sentence requires a petition

under § 2255. See McIntosh v. United States Parole Comm’n, No. 96-1221, 1997

WL 321272, at *2 (10th Cir. June 13, 1997). Such a petition must be filed in the

district that imposed the sentence. See Bradshaw, 86 F.3d at 166.

As the district court properly concluded, Mr. DeMartino’s assertion raises

the issue of what sentence was actually imposed. Because it presents an undiluted

challenge to the validity of the sentence itself, the claim must be brought to the

sentencing court, under § 2255. We agree that the district court lacked

jurisdiction to consider this aspect of Mr. DeMartino’s argument. 

We also agree with the district court’s disposition of the contention that the

concurrent portion of the § 922(g)(1) sentence must be fully concurrent with the

parole violator term. “[A] federal sentence made concurrent with a sentence

already being served does not operate in a ‘fully concurrent’ manner. Rather, the
2 Section 3585(a), a provision of the Sentencing Reform Act of 1984, became

effective in 1987. Its predecessor, § 3568, also provided that a federal sentence

commences when the defendant is received into federal custody. See United

States v. Fuentes, 107 F.3d 1515, 1520 (11th Cir. 1997). Case law determining

commencement date under § 3568 is equally applicable to § 3585(a).

-5-

second sentence runs together with the remainder of the one then being served.” 

Shelvy v. Whitfield, 718 F.2d 441, 444 (D.C. Cir. 1983) (italics in original).

Essentially, Mr. DeMartino is arguing that both the parole violator and

§ 922(g)(1) terms began in December 1991, when the parole violator warrant was

executed, and ended in July 1993, when the nunc pro tunc order of re-parole was

issued. This theory merges the two separate steps involved in the Bureau of

Prisons’ computation of a federal sentence: first, the establishment of the

commencement date, governed by 18 U.S.C. § 3585(a); and second, a

determination of credit for time already spent in custody, governed by 18 U.S.C. §

3585(b). 

Under § 3585(a), a federal sentence commences on the date the defendant is

received in custody to begin service of his sentence.2

 Logically, it “cannot

commence prior to the date it is pronounced, even if made concurrent with a

sentence already being served.” United States v. Flores, 616 F.2d 840, 841 (5th

Cir. 1980). Thus, Mr. DeMartino did not begin his § 922(g)(1) term of

imprisonment until he was sentenced on that offense.
-6-

The second step in the computation involves a determination of whether a

defendant is entitled to any credit for time spent in custody prior to

commencement of the sentence. Under § 3585(b), a defendant may receive credit

for such time if it “has not been credited against another sentence.” Through this

provision, Congress made it “clear that a defendant could not receive a double

credit for his detention time.” United States v. Wilson, 503 U.S. 329, 337 (1992). 

Accordingly, Mr. DeMartino’s § 922(g)(1) sentence is not shortened through

operation of § 3585(b). The time he spent in official detention prior to sentencing

was credited against the parole violator term and may not also be credited against

the § 922(g)(1) sentence. 

III. CONCLUSION

Because Mr. DeMartino did not serve the full fifteen months of the

concurrent term during the period between sentencing and re-parole, he must

serve the remainder of that time consecutively, followed by the forty-eight months

of the consecutive term. For substantially the same reasons relied upon by the

district court, we AFFIRM the judgment of the United States District Court for

the Western District of Oklahoma. We GRANT Mr. DeMartino’s motion to file a

supplemental appendix.

Entered for the Court

Wade Brorby

Circuit Judge