* After examining the briefs and appellate record, th is panel has determined

unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. This Order and Judgment is not binding p recedent, except under the doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

1 Mr. Bluitt also moves for leave to proceed on appea l in forma pauperis (“IFP”), under 28 U.S.C. § 1915. Mr. Bluitt’s moti on to proceed IFP was denied by the district court because the court found that Bluitt had sufficient funds ($202.97) to prepay the filing fee. Mr. Bluitt sub sequently submitted the $105 filing fee via money order, but because the money o rder did not reference a case number, the district court did not credit the payme nt, and instead apparently returned the money order to the prison. Mr. Bluittrenewed his motion to proceed IFP in this court. The updated financial affidavitsubmitted in support of his (continued...) 

## F I L E D United States Court of Appeals Tenth Circuit 

### OCT 8 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

TAYARI KANYA BLUITT, Petitioner - Appellant, v. A.M. FLOWERS, Warden, Respondent - Appellee. No. 98-6067 (D.C. No. CIV-97-79-L) (W.D. Okla.)

ORDER AND JUDGMENT *

Before BALDOCK , EBEL and MURPHY , Circuit Judges.
Tayari Kanya Bluitt, a federal prisoner appearing p ro se, appeals the district court’s denial of his petition for habeas relief as serted under 28 U.S.C. § 2241. 11 (...continued)

renewed motion reflects only $0.12 in drawable fund s on deposit. We therefore grant his motion to proceed IFP on appeal. - 2 - Mr. Bluitt argues that, under 18 U.S.C. § 3585(b), he is entitled to credit toward his federal sentence for time spent in state custody. Having carefully considered the record and Mr. Bluitt’s arguments, we affirm th e district court. The record reveals the following facts. Mr. Bluitt was arrested by the Plano, Texas Police Department on July 30, 1993, an d was released on bond the following day. On August 12, 1993, he was again ar rested and remained in state custody. On February 4, 1994, Mr. Bluitt was taken into temporary federal custody pursuant to a writ of habeas corpus ad pros equendum. He pled guilty to two federal firearms possession charges and on May 6, 1994, was sentenced to concurrent terms of 78 months. Mr. Bluitt was then returned to state custody. On July 22, 1994, Mr. Bluitt was sentenced in state co urt to concurrent five-year terms on state charges of possession of a prohibite d weapon and criminal mischief. At that time, Mr. Bluitt’s presentence c onfinement from August 12, 1993 through July 22, 1994 was credited against his state sentence. On September 11, 1995, Mr. Bluitt was released by T exas authorities under mandatory supervision and was transferred to federa l custody to begin serving his federal sentences. Mr. Bluitt now argues that he i s entitled to receive credit toward his federal sentence for the period between August 12, 1993 (the date of- 3 -

arrest), and September 11, 1995 (the date he was re leased from state custody). The statute upon which Mr. Bluitt relies provides: (b) Credit for prior custody. –A defendant shall be given credit toward the service of a term of imprisonment for any time he h as spent in official detention prior to the date the sentence commences

– (1) as a result of the offense for which the senten ce was imposed; or (2) as a result of any other charge for which the defendant was arrested afterthe commission of the offense for which the senten ce was imposed; that has not been credited against another sentence

. 18 U.S.C. § 3585(b) (emphasis supplied). Mr. Bluitt argues that, at the time of his federal sentencing on May 6, 1994, his time served in presentence detention had not ye t been credited to any other sentence; consequently, he is entitled under § 3585 (b) to credit toward his federal sentence for the period served between his arrest a nd sentencing. Mr. Bluitt’s relies on United States v. Wilson , 916 F.2d 1115, 1117 (6th Cir. 1990), for the proposition that a federal district court must appl y the mandate of § 3585(b) at the time the federal sentence is imposed . However, the Sixth Circuit’s interpretation of § 3585(b) in Wilson was overturned by the Supreme Court, which held th at the Attorney General, through the Bureau of Prisons, ma kes the credit determination at the time the defendant begins to serve his feder al sentence . See United States v. Wilson , 503 U.S. 329, 335 (1992). It is clear that by Se ptember 11, 1995, when Mr. Bluitt was transferred to federal custody to be gin serving his federal sentences, his presentence detention time had alrea dy been credited toward his2 Petitioner relies on a section of the standard stat e judgment forms entitled

“Concurrent Unless Otherwise Specified.” This sect ion was left blank, presumably indicating the state court’s intention t o have Mr. Bluitt’s two state terms of imprisonment run concurrently to each othe r . - 4 - state sentences. Therefore, under the plain langua ge of § 3585(b), Mr. Bluitt is not entitled to double credit for this time served. See United States v. Dennis , 926 F.2d 768, 770 (8th Cir. 1991). Mr. Bluitt also asserts that his state sentences we re ordered to run concurrently with his federal sentences, thereby en titling him to credit for time served in state custody through September 11, 1995. Mr. Bluitt’s argument is unsupported by the record. No affirmative evidence exists indicating that the state court ordered his state sentences to run conc urrently with his federal
sentences. 2 Petitioner’s argument fails even if the state courthad affirmatively attempted to impose concurrent sentences. Under 18 U.S.C. § 3584(a), “[m]ultiple terms of imprisonment imposed at differ ent times run consecutively unless the court orders that the terms are to run c oncurrently.” At the time of his federal sentencing, the district court did not orde r Mr. Bluitt’s federal sentences to run concurrently with any future sentences to be imposed with respect to Mr. Bluitt’s pending state charges. As a result, under§ 3584(a), his federal and state sentences were to run consecutively. Such a determ ination is a “federal matter- 5 -

which cannot be overridden by a state court provisi on for concurrent sentencing on a subsequently-obtained state conviction.” Bloom gren v. Belaski , 948 F.2d 688, 691 (10th Cir. 1991). In sum, at the time Mr. Bluitt was transferred into federal custody to begin serving his federal sentences, he already had been credited with 346 days of presentence detention time against his state senten ce, such that he was not entitled under 18 U.S.C. § 3585(b) to have that time credite d to his federal sentence. Moreover, because his state and federal sentences w ere not ordered to run concurrently to each other, petitioner was not enti tled to receive credit on his current federal sentences for time served on his st ate sentence. Consequently, Mr. Bluitt was not entitled to credit for time spent in state custody from August 12, 1993, to September 11, 1995. The judgment of the district court is AFFIRMED. The mandate shall issue forthwith.
ENTERED FOR THE COURT

David M. Ebel Circuit Judge