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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

UNITED STATES OF AMERICA, 

vs. Case No. 4:89cr4006-WS

KENNETH B. GASTON,

Defendant.

 /

REPORT AND RECOMMENDATION ON NUNC PRO TUNC MOTION

Defendant filed a document titled "motion for nunc pro tunc correction of

sentence." Doc. 768, p. 2 (as filed, page one of the document is the cover letter to the

clerk). 

Defendant alleges that he was found guilty of cocaine trafficking by a jury in Leon

County on January 13, 1989, and had a federal detainer against him while awaiting the

state trial. Id. He pleaded nolo contendere in the Circuit Court in Leon County to

delivery of a controlled substance to a minor and possession of cocaine on March 8,

1989. Id., p. 3. On the same date he was sentenced to three years imprisonment with

credit for 243 days served as to both the trafficking and possession charges, and three

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1

 Given the age of the case, this portion of the docket is on the old paper docket

form, rather than the electronic docket. The file itself has not been sent to federal

archives. 

Case No. 4:89crcv4006-WS

years with credit for 135 days served on the other charge, all to run concurrently with

each other and any federal prison sentence he might receive. Id. 

Defendant alleges that he was taken into federal custody after his state

sentencing, found guilty in this case on September 15, and sentenced on December 27,

1989. Id., p. 3. 

According to this court's docket and file,1

 Defendant was originally indicted on

January 6, 1989; a superseding indictment was entered on March 2, 1989, and second

superseding indictment was entered on April 6, 1989. Docs. 5, 24, and 89. Following

the superseding indictment an order was entered requiring Defendant to either file

written plea papers by March 10, or appear in court on March 13, 1989. Doc. 30. 

A warrant was executed on March 9, 1989, and the first appearance held the

next day. Docs. 33 and 39. After the first appearance, Defendant was detained in

federal pretrial custody by stipulation. Doc. 39, p. 5. A guilty verdict was returned on

September 15, 1989. Doc. 314. Sentencing was held on December 27, and judgment

entered on the docket on December 28, 1989. Docs. 379 and 381. 

Defendant complains that it was determined that he could not receive credit

toward his federal sentence as long as his state sentence was still running, regardless

of the state court's order that its sentence be served concurrently with any federal

sentence. He claims he has sought relief over the past 18 years, and that all of his time

was served in federal prison. 

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Case No. 4:89crcv4006-WS

For relief, Defendant asks for an amended judgment:

showing the 24 months not being credited for serving his concurrent state

sentence at a Federal Prison, not in the state – be credited and that his jail

credit from March 8th, 1989 till September 4th, 1990 be also credited

since he was continually in Federal Custody and never in state custody

during the imposition of this instant sentence.

Id., p. 8. 

Contrary to the claim that he was never in state custody, Defendant alleges that

in February or March of 1990, he was transported from federal to state custody to serve

his state sentence, then returned to federal custody in August or September of 1990,

when it was determined he could not be received into state custody since he had

already started the federal sentence. Doc. 768, pp. 4-5. 

It seems unlikely that Defendant's federal sentence was not credited for the time

he was in federal custody, at least after the federal sentence was imposed. The Bureau

of Prisons (BOP) does not take a prisoner into custody to serve the rest of a state

sentence before serving a federal sentence. A prisoner generally serves his state

sentence in state custody and then is received into federal custody. 

Commencement of a federal sentence and presentence credit are governed by

18 U.S.C. § 3585, which provides: 

 (a) Commencement of sentence.– 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.

 (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–

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Case No. 4:89crcv4006-WS

(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 been credited against another sentence. 

(Emphasis added).

The Attorney General through the BOP, not the sentencing court, computes

credit under § 3585(b), and judicial review is available only after exhaustion of

administrative remedies. United States v. Williams, 425 F.3d 987, 990 (11th Cir. 2005)

(citation omitted). A 28 U.S.C. § 2241 petition for writ of habeas corpus seeking credit

on this basis is brought after exhaustion of remedies, and "[e]xhaustion of administrative

remedies is jurisdictional." Id., (citations omitted). See also Winck v. England, 327 F.3d

1296, 1300, n. 1 (11th Cir. 2003) (exhaustion is jurisdictional, collecting cases). 

It is not clear whether Defendant has fully exhausted the BOP administrative

remedy process. Even if he had, this court would lack jurisdiction to consider a § 2241

petition as Defendant is in federal custody in Georgia. Rumsfeld v. Padilla, 542 U.S.

426, 442-444, 124 S.Ct. 2711, 2722-23, 159 L.Ed.2d 513 (2004).

A common situation presented to this court – which does not appear to be the

situation here – is where a state sentence is made concurrent to a federal sentence, but

the sentences are not served concurrently because the prisoner was not immediately

taken into federal custody after imposition of the federal sentence, and his federal

sentence, as a consequence, did not commence under § 3585(a). In such a case the

BOP has discretion to designate a state facility as the "official detention facility" for a

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2

 The court in Barden found that the BOP has authority to make a nunc pro tunc

designation of a state facility as the place for service of a federal sentence, so that time

in state custody would count toward the federal sentence. 921 F.2d 476, 478 (3d Cir.

1990). See also United States v. Pineyro, 112 F.3d 43, 45 (2d Cir. 1997) (treating

motion as a request that the court recommend a nunc pro tunc designation to the BOP). 

3

 Whether Defendant was returned to state custody or remained in federal

custody after his first appearance on March 3, 1989, he was presumably receiving credit

against his state sentence for purposes of § 3585(b). 

Case No. 4:89crcv4006-WS

federal sentence under § 3621(b). See also BOP Policy Statement § 5160.05 (2003)

(formerly § 5160.04) ("designation of state institution for service of federal sentence"). 

This can be done nunc pro tunc, to award credit for time served before the designation. 

An inmate request for pre-sentence credit against a federal sentence for time spent

serving a state sentence is considered by the BOP as a request for nunc pro tunc

designation. § 5160.05(9)(b)(4) (2003) (referencing Barden v. Keohane, 921 F.2d 476

(3d Cir. 1990).2

 In determining whether a nunc pro tunc designation is appropriate, the

BOP sends a letter to the federal sentencing court asking if it has objections to the

designation. § 5160.05(9)(b)(4)(c). 

A nunc pro tunc designation, if available at all, would only help this Defendant for

the time spent in state custody or serving his state sentence prior to imposition of his

federal sentence.3

 In any event, Defendant has not provided any information regarding

exhaustion of BOP remedies, and the BOP has not asked the court if it has objections

to a nunc pro tunc designation. Aside from responding to the BOP's request to the

sentencing court (if ever a request is made), this court has no authority to review the

calculation of credit by the BOP. That claim should be made by § 2241 petition, filed in

the district of confinement after exhaustion of administrative remedies. 

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Case No. 4:89crcv4006-WS

Defendant's federal sentence was imposed after the state court imposed

sentence, and this court did not direct that the sentences be concurrent. Terms of

imprisonment imposed at different times are considered to run consecutively unless the

court orders them to run concurrently. 18 U.S.C. § 3584(a). 

It is therefore RECOMMENDED that Defendant's nunc pro tunc motion, doc. 768,

be DENIED.

IN CHAMBERS at Tallahassee, Florida, on October 2, 2007.

 S/ William C. Sherrill, Jr. 

WILLIAM C. SHERRILL, JR.

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

A party may file specific, written objections to the proposed findings and

recommendations within 15 days after being served with a copy of this report and

recommendation. A party may respond to another party's objections within 10 days after

being served with a copy thereof. Failure to file specific objections limits the scope of

review of proposed factual findings and recommendations.

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