2013 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

11-21-2013 

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w . v i l l a no v a . e du/thir dc ir c uit_2013/15241

ALD
- 027 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 13

- 3422

___________ ANDRE MYERS, Appellant

.

v. WARDEN MARIANA, FCI Loretto

____________________________________ On Appeal from the United States District Co urt for the Western District of Pennsylvania (D.C. Civil No. 13

- cv - 00030) District Judge: Honorable Kim R. Gibson

____________________________________ Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) or Summary Action Pursuant to Th ird Circuit LAR 27.4 and I.O.P. 10.6

October 31, 2013

Before: RENDELL, FISHER and GREENAWAY, JR., Circuit Judges

(Opinion filed : November 21, 2013 )

_________ O P I N I O N

_________ PER CURIAM
An dre Myers appeals from an order of the United States District Court for the2

Western District of Pennsylvania that denied his petition for a writ of habeas corpus. We will summarily affirm because no substantial question is presented by this appeal. Myers was arrested on a federal offense in November 1999 and released on bond 11 days later. 1 On March 8, 2000, Myers was arrested by New York authorities for a parole violation. Myers was transferred from state parole custody to the New York State Department of Corrections on June 9, 2000, to continue service of his original state sentence. The State credited Myers with 93 days of jail time for the period of March 8, 2000 through June 8, 2000. The state parole board issued a notice on February 5, 2001, indicating that Myers had an “open date,” or “earliest release date” of March 8, 2001. On March 12, 2001, while in state custody, Myers was “borrowed” on a writ of habeas corpus ad prosequendum to answer the federal charges . Myers was c onvicted following a jury trial and was sentenced to a 235

- month term of imprisonment. The judgment did not specify whether it was to run concurrent or consecutive to any other
sentence. 2 Myers was returned to state authorities on November 29, 2001. Mye rs was released to federal custody on January 18, 2002, his maximum release date. Myers filed t his habeas petition seeking credit against his federal sentence for time served in state custody from March 9, 2001 to January 18, 2002 . Because Myers’ claim

c hallenges execution of his sentence , it is cognizable in a § 2241 petition. See McGee v.

1 The Fed eral Bureau of Prisons (“BOP”) later credited Myers’ federal sentence for these 11 days. On March 14, 2000, Myers was indicted and an arrest warrant was issued for his violation of 18 U.S. C. §§ 922(g)(1) and 924(a)(2) (felon in possession of a firearm and ammunition).

2 Under 18 U.S.C. § 3584(a) , “[m]ultiple terms of imprisonment imposed at different times run consecutively unless the court orders that the terms are to run concurrently”; see also BOP Sentenc e Computation Manual at 31

- 33.3

Martinez , 627 F.3d 933, 935 (3d Cir. 2010) . We have jurisdiction under 28 U.S.C. § 1291 . We exercise de novo review over the denial of Myers’ habeas petition. See Vega v. United States , 493 F.3d 310, 314 (3d Cir. 2007)

. In calculating a federal prisoner’s sentence, the BOP determine s (1) when the federal sentence commenced, and (2) whether there are any credits to which the prisoner may be entitled. See 18 U.S.C . § 3585 . In the instant case, the BOP correctly determined that pursuant to § 3585(a), Myers’ federal sentence commenced on January 18 , 2002, the date he was released to federal custody for service of his sentence

. See Rios v. Wiley , 201 F.3d 257, 274 ( 3d Cir. 2000) (“[A] prisoner detained pursuant to a writ of habeas
corpus ad prosequendum remains in the primary custody of the first jurisdiction unless and until the first sovereign relinquishes jurisdiction over the prisoner.”). Pursuant to § 3585(b), t he BOP must give a defendant credit for any time that he spent in official detention prior to the date on which he commenced service of that sentence, as a result of the offense for which the sentence was imposed or any other charge for which he was

arres ted after he committed that offense, that has not been credit ed against another sentence. That section expressly prohibits awarding a prisoner “double credit for his detention time.” United States v. Wilson , 503 U.S. 329, 337 (1992)

. As the District
Cou rt determined, all of the time that Myers served in custody has been credited toward either his state or his federal sentence, and he is not entitled to any additional credit

. Myers argues that he i s entitled to credit for the ten

- month delay between the date he was first eligible for parole and the date he was released from state custody , because the federal detainer prevented him from being considered and released for state parole.4

Although § 3585 generally prohibits the award of “double credit,” some f ederal courts have held that credit toward a federal sentence should be given where the federal detainer alone caused continued state confinement. See Shaw v. Smith , 680 F.2d 1104, 1106 (5th Cir. 1982) (credit against federal sentence required “if the con tinued state confinement was exclusively the product of such action by federal law

- enforcement officials as to justify treating the state jail as the practical equivalent of a federal one.”) (citation omitted). 3 We need not determine whether we would foll ow such reasoning, as Myers’
belief that he may have been granted earlier release on parole had he been in the custody of New York State in March 2001 is not supported by the record, 4 and is simply insufficient to mandate th at the BOP award such credit. M oreover, although the federal sentencing court had the authority to account for this time period, there is no support for the argument that it intended to do so. As no substantial question is presented on appeal, we will summarily affirm the District Co urt’s judgment. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.

3 Shaw was decided before § 3585 was amended to explicitly prohibit double credit.

4 Myers relies on Rosemond v. Menifee , 137 F. Supp. 2d 270 (S.D.N.Y. 2000) , where a petitioner was borrowed on a federal writ just two days prior to his conditional re lease date from state custody. The state was without authority to release him while he was in temporary federal custody pursuant to the writ , but when he was returned to state custody, the state released him just two days later . Given the facts presented, the Rosemond cou rt held that the BOP could not “ unilaterally lengthen a petitioner’s state sen tence by use of a federal writ,” and that “to deny petitioner credi t toward his federal sentence

-- for time that w as not credited toward his state sentence which was lengthened solely by the actio ns of the federal authorities

-- would represent a manifest injustice.” Id. at 275. In contrast here, federal authorities did not “borrow” Myers until four days after his ear liest release date. And once Myers was returned to state authorities, they did not immediately release him, but waited until the day of his maximum release date, suggesting that the delay in his release was not due to any action by federal authorities.