2013 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

11-21-2013

Andre Myers v. Warden Loretto FCI

Precedential or Non-Precedential: Non-Precedential

Docket No. 13-3422

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2013

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2013 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"Andre Myers v. Warden Loretto FCI" (2013). 2013 Decisions. Paper 1524.

http://digitalcommons.law.villanova.edu/thirdcircuit_2013/1524
1

ALD-027 NOT PRECEDENTIAL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 Court

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 Third 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

Andre Myers appeals from an order of the United States District Court for the 
2

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 convicted 

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. Myers was 

released to federal custody on January 18, 2002, his maximum release date.

Myers filed this 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 

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

 

1

The Federal 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 

Sentence 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 determines (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), the 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 

arrested after he committed that offense, that has not been credited 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 

Court 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 is 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 federal 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 continued 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 follow 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,4and is simply 

insufficient to mandate that the BOP award such credit. Moreover, 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 Court’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 release 

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 court held that the BOP could not “unilaterally lengthen a petitioner’s state 

sentence by use of a federal writ,” and that “to deny petitioner credit toward his federal 

sentence--for time that was not credited toward his state sentence which was lengthened 

solely by the actions 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 earliest 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.