UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

BRIAN GRANT, : 

CIVIL ACTION NO. 3:22-0962 

Petitioner : 

 (JUDGE MANNION)

v. : 

 

WARDEN THOMPSON, : 

 Respondent : 

MEMORANDUM

Petitioner, Brian Grant, an inmate confined in the Allenwood Low 

Security Correctional Institution, White Deer, Pennsylvania, filed the above 

captioned petition for writ of habeas corpus, pursuant to 28 U.S.C. §2241. 

(Doc. 1). Grant challenges the calculation of his release date set by the 

Federal Bureau of Prisons’ (“BOP). Id. He believes that “the BOP violated 

the terms of the sentence imposed by U.S. District Judge Cynthia M. Rufe, 

on May 2, 2011, in the United States v. Grant, Criminal No. 09CR000457 

judgment (E.D. Penn. May 2, 2011) by failing to run Grant’s 210-month term 

fully concurrent with: 

120-month (non-relevant conduct) sentence imposed by the 

state of Pennsylvania on March 31, 2008, in Pennsylvania v. 

Grant, Case no. CP-51-CR-0512561-2006 judgment vacated 

and expunged on November 20, 2015, and;

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A 60-month (relevant conduct) sentence imposed by the state of 

Pennsylvania on September 3, 2008, in Pennsylvania v. Grant, 

Case no. CP-46-CR-0005652-2007 judgment. 

(Doc. 1 at 1). Thus, he “argues that Judge Rufe ordered his federal sentence 

to run fully concurrently with both his Pennsylvania Sentences pursuant to 

Sentencing Guideline 5G1.3(b) and (c), but the BOP failed to comply with 

Judge Rufe’s sentence by refusing to give him credit for all the time he 

served on his relevant conduct Pennsylvania sentence prior to imposition of 

the federal sentence.” Id. For relief, he seeks credit for 968 days “served in 

his ’undischarged relevant conduct’ state offense, bringing his state and 

federal sentences fully concurrent. A response (Doc. 11) and traverse (Doc. 

12) having been filed, the petition is ripe for disposition. 

For the reasons that follow, the Court will deny the petition for writ of 

habeas corpus as to Petitioner’s request for credit toward his federal 

sentence. The Court will direct further briefing with respect to Petitioner’s 

request for a sentence adjustment pursuant to U.S.S.G. §5G1.3(b). 

I. Background

On October 24, 2006, Petitioner was arrested by Philadelphia County 

officials for Manufacturing, Delivering or Possessing a Controlled Substance.

(Doc. 11-1 at 6). On March 21, 2007, these charges were withdrawn. Id.

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On November 3, 2006, Grant was transferred from Philadelphia

County to Montgomery County, Pennsylvania to face a parole violation in

that county in Docket Nos. CP-46-CR-0008964-2004 and CP-46_CR0008964-2004. (Doc. 11-1 at 8-32). 

On January 29, 2007, the Montgomery County court sentenced 

Petitioner to a six-month to eleven-month and twenty-six-day sentence with 

credit from October 24, 2006, through January 29, 2007. (Doc. 11-1 at 11). 

On April 24, 2007, Petitioner completed his parole revocation sentence 

and was released from custody by Montgomery County officials. (Doc. 11-1

at 6). 

On July 28, 2007, Montgomery County Pa. officials again arrested

Petitioner in Docket No. CP-46-CR-0005652-2007 for Acquiring or Obtaining 

Possession of a Controlled Substance. (Doc. 11-1 at 22). On July 31, 2007, 

Petitioner posted bond and was released from custody. Id.

On November 13, 2007, a jury in the Philadelphia County Court of

Common Pleas found Petitioner guilty of Manufacture or Deliver a Controlled

Substance by a Person not Registered in Docket No. CP-51-CR-0512561-

2006. (Doc. 11-1 at 34, 49). 

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On March 31, 2008, the Philadelphia County court sentenced

Petitioner to a ten-year term of imprisonment, but later vacated this sentence 

on November 20, 2015. (Doc. 11-1 at 46).

On September 3, 2008, the Court of Common Pleas of Montgomery

County sentenced Petitioner to a five-month and twenty-seven-day term of

imprisonment for his probation violation in Case No. CP-46-CR-0008964-

2004. (Doc. 11-1 at 19). Also on September 3, 2008, Petitioner received a 

five-year sentence for Acquiring or Obtaining Possession of a Controlled

Substance in Case No. CP-46-CR-0005862-2007. (Doc. 11-1 at 29). The 

state applied 296 days of credit, from November 13, 2007, to September 3, 

2008, to case nos. CP-46-CR-0008964-2004 and CP-46-CR-0005862-2004.

(Doc. 11-1 at 11, 23). 

On December 8, 2009, The United States Marshals Service (USMS)

borrowed Petitioner from state custody pursuant to a writ of habeas corpus 

ad prosequendum to face prosecution in the United States District Court for 

the Eastern District of Pennsylvania in Criminal Case No. 09-CR-000457.

(Doc. 11-1 at 55). 

On May 2, 2011, Petitioner pled guilty to Conspiracy to Interfere with 

Interstate Commerce by Robbery (Count 1); Interference with Interstate 

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Commerce by Robbery and Aiding and Abetting (Counts 2, 4, 6, 8); Carrying 

and Using a Firearm During and in Relation to a Crime of Violence and Aiding 

and Abetting (Counts 3, 5); and Acquiring or Obtaining Possession of a 

Controlled Substance by Fraud (Count 10). (Doc. 11-1 at 59). The Eastern 

District Court sentenced him to a 210-month aggregate term of imprisonment 

consisting of 126 months of Counts 1, 2, 4, 6, and 8; 60 months on Count 10 

to run concurrent; and 42 months on Counts 3 and 5 to run consecutive to 

each other and consecutive to Counts 1, 2, 4, 6, and 8. (Doc. 11-1 at 61). 

The district court also recommended the sentence run concurrent to his state 

sentence and that he receive credit for all time served in local, state, and 

federal custody. Id. Petitioner was returned to Pennsylvania state custody on 

May 11, 2011, with the federal judgment lodged as a detainer. (Doc. 11-1 at 

57). 

On April 4, 2014, the Pennsylvania Department of Corrections paroled 

Petitioner from state custody and released him to the custody of the USMS 

to serve his federal sentence. (Doc. 11-1 at 69). His projected release date 

is March 29, 2026, via good conduct time. (Doc. 11-1 at 86). 

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II. Discussion

As mentioned above, Petitioner argues that his federal sentence was 

to run fully concurrent with his state sentences. He interprets this to mean 

that his federal sentence should have begun on September 3, 2008, the date 

his relevant conduct sentence was imposed by the Court of Common Pleas 

of Montgomery County. In response, Respondent contends that the BOP 

correctly calculated Petitioner’s sentence. In particular, Respondent argues 

that the time at issue cannot count against his federal sentence because: (1) 

a sentence cannot commence prior to its date of imposition, and (2) 

Petitioner cannot receive prior custody credit, because he has already 

received credit for that period of time against his state sentences and the 

BOP is statutorily prohibited from double-counting. (Doc. 11). 

 Under our jurisprudence, the “authority to calculate a federal sentence 

and provide credit for time served ... [belongs] to the Attorney General, who 

acts through the BOP.” Goodman v. Grondolsky, 427 F. App’x. 81, 82 (3d 

Cir. 2011) (per curiam) (citing United States v. Wilson, 503 U.S. 329, 333–

35 (1992)). “In calculating a federal sentence, the BOP first determines when 

the sentence commenced and then determines whether the prisoner is 

entitled to any credits toward his sentence.” Id. (citing 18 U.S.C. §3585). 

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In the present case, to the extent Petitioner contends that the BOP 

should have started counting his federal sentence on the date his relevant 

conduct state sentence was imposed, September 3, 2008, the Court 

disagrees. 

A federal sentence, “commences when the defendant is received by 

the Attorney General for service of his federal sentence.” See, e.g., Rashid 

v. Quintana, 372 F. App’x 260, 262–63 (3d Cir. 2010) (citing 18 U.S.C.

§3585(a)). “As a result, a federal sentence cannot begin to run earlier than 

on the date on which it is imposed.” Id.; Taylor v. Holt, 309 F. App’x 591, 

592–93 (3d Cir. 2009). In other words, “the earliest possible date a federal 

sentence may commence is the date it was imposed.” E.g., Pitts v. 

Spaulding, No. 15-0644, 2015 WL 8482041, at *4 (M.D. Pa. Dec. 10, 2015)

(internal quotation marks omitted).

With those principles in mind, the BOP could not commence 

Petitioner’s federal sentence at any point earlier than its date of imposition, 

on May 2, 2011. Rashid, 372 F. App’x at 262; Proctor v. Finley, No. 19-630, 

2020 WL 618621, at *3 (M.D. Pa. Feb. 10, 2020). At that point, Petitioner 

was serving his pre-existing Montgomery County sentence of sixty months, 

which commenced on September 3, 2008. As a result, the BOP could not 

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have counted the time between September 3, 2008, and May 2, 2011, as 

ordinary time served against Petitioner’s federal sentence. Therefore, since 

the BOP commenced Petitioner’s federal sentence on the date it was 

imposed, rather than the date he entered BOP custody, his federal sentence 

is concurrent to his state sentence to the maximum extent permissible by law 

-- from May 2, 2011 (the date his federal sentence was imposed) until April 

4, 2014 (the date he paroled from his state sentence to serve remainder of 

federal sentence). 

Moreover, a federal sentence does not begin to run when a federal 

defendant is produced from state custody pursuant to a federal writ of 

habeas corpus from non-federal custody because, in such a situation, the 

state authorities retain primary custody over the prisoner. Holloman v. 

Warden Fairton FCI, 635 F. App’x 12, 14 (3d Cir. 2015) (“The production of 

a defendant pursuant to a writ of habeas corpus ad prosequendum does not 

affect the jurisdiction of the sovereign with primary custody over a

defendant.”); Taccetta v. Federal Bureau of Prisons, 606 F. App’x 661, 663 

(3d Cir. 2015) (finding that under the primary custody doctrine, the first 

sovereign to arrest the defendant is entitled to have the defendant serve that 

sovereign’s sentence before one imposed by another sovereign). 

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Here, on September 3, 2008. Petitioner was in the primary custody of 

the Commonwealth of Pennsylvania. Petitioner remained in the primary 

custody of Pennsylvania until April 4, 2014, when he was paroled from his 

state sentence into federal custody. As it is clear from the case law on this 

issue, a temporary transfer pursuant to a writ of habeas corpus ad 

prosequendum does not relinquish primary custody to the transferee 

authority. Thus, Petitioner remained in the primary custody of Pennsylvania 

until April 4, 2014, when he was released on parole. Consequently, during 

the time the USMS borrowed Petitioner from state custody to face federal 

charges, specifically, December 8, 2009, to May 11, 2011, Petitioner, was in 

the primary custody of the State of Pennsylvania and the State applied that 

time toward Petitioner’s state sentences. 

To the extent that Petitioner argues that he should also receive credit 

toward his federal sentence from July 28, 2007, through July 31, 20071 and 

1 This period of time consists of the date Petitioner was brought into 

custody by Montgomery County officials through the date he posted bail and 

was released. 

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November 13, 2007, through September 2, 20082

, (Doc. 1 at 3), the Court 

disagrees. Under 18 U.S.C. §3585(b), which governs prior custody credit:

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-

(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). Consequently, the BOP could not award Petitioner credit 

on his federal sentence for the time period from July 28, 2007, through July 

31, 2007, and November 13, 2007, through September 2, 2008, because the 

State of Pennsylvania already applied that time to his state sentences. 18 

U.S.C. §3585(b). Stated differently, §3585(b) prohibits Petitioner from 

receiving double credit for that time period. 

2 This period of time runs from the date Petitioner was found guilty of 

his Philadelphia County charges to the date Petitioner pled guilty to the 

Montgomery charges. 

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Petitioner’s final argument is that he is entitled to a §5G1.3(b) 

adjustment to his federal sentence. (Doc. 1 at 9). He argues that “based on 

the (November 20, 2015) vacatur of his non-relevant conduct state offense, 

[his] Sentencing Guideline application changes from U.S.S.G. 5G1.3(c) to 

U.S.S.G. 5G1.3(b), thus the only remaining undischarged state case is the 

‘relevant conduct’ case which [Petitioner] was sentenced to 2-5 years on 

September 3, 2008.” Id. Petitioner concludes that “for time already spent in 

custody for solely relevant conduct, the sentence shall be adjusted 

downward” and that the application of §5G1.3 “to an undischarged state 

sentence lies totally within the discretion of the district court.” Id. Petitioner 

claims that he raised this argument before the sentencing court, who, on May 

27, 2022, issued an order3 finding that “if applicable as a matter of law, 

3 The Eastern District’s May 27, 2022 Order, acting on Petitioner’s 

motion for reconsideration of their May 10, 2022 Order denying Petitioner’s 

“Nunc Pro Tunc Petition” and pro se “Motion for Reduction in Sentence under 

18 U.S.C. §3582,” found that “in his motion [for reconsideration], Grant 

argues that although his sentence was correct at the time of sentencing, the 

post-sentencing vacatur of his prior unrelated state sentence entitles him to 

a downward adjustment under §5G1.3(b) of the Sentencing Guidelines for 

pretrial detention that is now credited to a related state sentence.” See United 

States v. Grant, Criminal No. 09-0457 (E.D. Pa. Docket Sheet at Doc. 85).

(footnote continued on next page) 

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‘section 5GI.3(b) is mandatory,’ and under §2241 the ‘reviewing court (or the 

BOP) can definitively determine the amount of an adjustment awarded under 

section 5G1.3(b).” Id. Respondent does not address Petitioner’s request for 

a sentence adjustment pursuant to U.S.S.G. §5G1.3(b)(1). Petitioner makes 

note of this in his traverse. (Doc. 12 at 3). As such, the Court will direct 

Respondent to file a supplemental response addressing Petitioner’s request 

for adjustment of his federal sentence under §5G1.3(b). 

 III. Conclusion

For the reasons stated above, the petition for a writ of habeas corpus 

will be DENIED as to all claims for sentence credit except Petitioner’s request

for sentence adjustment under U.S.S.G. §5G1.3(b). Respondent will be 

directed to file a supplemental response. 

A separate Order will be issued.

 s/ Malachy E. Mannion MALACHY E. MANNION

 United States District Judge

DATED: January 9, 2024 

22-0962-01 

The Court found the relief sought by Petitioner to be properly brought under 

28 U.S.C. §2241, not §2255. Id. 

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