IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

TIMMY MILLS, )

Petitioner, ) Civil Action No. 08-339 Erie

)

v. ) Magistrate Judge Susan Paradise Baxter

) 

FRANCISCO J. QUINTANA, )

Warden, FCI McKean, )

Respondent. )

OPINION AND ORDER1

I. Introduction

Petitioner Timmy Mills is a federal prisoner who was incarcerated at the Federal

Correctional Institution, McKean ("FCI McKean") at the time he commenced the instant action. 

He is serving a 70 month term of imprisonment imposed on November 19, 2007, by the United

States District Court for the Northern District of West Virginia. He received 91 days of prior

custody credit pursuant to 18 U.S.C. § 3585(b) and his full term will expire on June 19, 2013. His

projected release date presently is set at September 18, 2012, assuming he receives all good conduct

time available. 

Petitioner has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241

[Document # 5] in which he disputes the Bureau of Prisons' (the "BOP's") computation of his

sentence. Specifically, he contends that he is entitled to more sentencing credit. For the reasons set

forth below, the petition is denied.

II. Background

On May 21, 2006, Petitioner was arrested by local police in Martinsburg, West Virginia, and

charged with domestic battery. He remained in local custody until he was released on bond on May

1

In accordance with the provisions of 28 U.S.C. § 636(c)(1), the parties have voluntarily consented to have a United States

Magistrate Judge conduct proceedings in this case, including entry of a final judgment. Documents ## 14, 16.

1

Case 1:08-cv-00339-SPB Document 20 Filed 06/28/10 Page 1 of 12
26, 2006. (Ex. 2, ¶¶ 5(h), 5(j)). On October 28, 2006, local police once again arrested Petitioner, 2

this time charging him with the state offenses of Driving with a Suspended/Revoked License,

Providing False Information, and Driving Under the Influence. (Id., ¶ 5(c)). After the arrest, he

remained in local custody. (Id., ¶¶ 5(c)-(g)). 

On November 9, 2006, Petitioner pleaded guilty to the state criminal charges connected with

the October 28, 2006, arrest. He was sentenced to one year imprisonment. (Id., ¶ 5(c); see also Ex.

2b).

On November 27, 2006, the United States Marshals Service ("USMS") lodged a detainer

with the state/local jail authorities at the Eastern Regional Jail in Martinsburg. (Ex. 2c). On

December 4, 2006, the United States District Court for the Northern District of West Virginia issued

a writ of habeas corpus ad prosequendum directing the USMS and the Administrator of the Eastern

3

Regional Jail to produce Petitioner at the federal courthouse for an initial appearance. (Ex. 1c). 

When Petitioner arrived there on December 7, 2006, the USMS executed a federal arrest warrant

upon him. He was charged with several federal drug crimes. (Ex. 1d). 

On December 12, 2006, Petitioner once again was produced in federal court via a federal

writ of habeas corpus ad prosequendum. (Ex. 1g; Ex. 2d). He was arraigned and, after arraignment,

he was remanded to the custody of the USMS pending processing of the federal criminal charges. 

(Ex. 1f).

On February 7, 2007, Petitioner pleaded guilty to Distribution of 0.61 grams of Cocaine

Base, in violation of 21 U.S.C. § 841(a)(1). (Ex. 2, ¶ 5(a)). On March 19, 2007, in response to his

unopposed Motion to Reconsider Sentence, the state court amended his state sentence to one year

with credit for time served and indicated his state sentence was "to run concurrent with his federal

2

All "Ex." citations are to those documents attached to the Response at Document # 12.

3

A prisoner detained pursuant to a writ of habeas corpus ad prosequendum is considered to remain in the primary custody

of the sending sovereign unless and until that sovereign relinquishes jurisdiction over the person. See, e.g., Ruggiano v.

Reish, 307 F.3d 121, 125 n.1 (3d Cir. 2002). The sending sovereign retains primary custody and the receiving sovereign

(in this case, the federal government) is considered simply to be "borrowing" the prisoner from the sending sovereign for

the purposes of indicting, arraigning, trying, and sentencing him. Id.

2

Case 1:08-cv-00339-SPB Document 20 Filed 06/28/10 Page 2 of 12
sentence now being served." (Ex. 2e). He completed service of his state sentence on August 25,

2007. (Ex. 2, ¶ 5(g); Ex. 2f). 

Next, on November 19, 2007, Petitioner was sentenced in the District Court for the Northern

District of West Virginia to a 70 month term of imprisonment, with a three year term of supervised

release to follow. (Ex. 2g at 2). The federal sentencing court directed that its sentence run

concurrent with Petitioner's state sentence. (Id.) As it later explained, it was unaware at the time

that Petitioner already had completed service of his state sentence. The federal sentencing court also

made several "recommendations to the [BOP,]" including that Petitioner be credited for time served

since December 7, 2006. Id. (emphasis added). 

The BOP has computed Petitioner's federal sentence as having commenced on November

19, 2007 (the date of imposition). (Ex. 2, ¶¶ 8-9; Ex. 2h). It has further determined that he is

entitled to receive 91 days of prior custody credit for the time that he served prior to the

commencement of his federal sentence from May 21, 2006 through May 26, 2006, and from August

26, 2007 through November 18, 2007. (Id., ¶¶ 10-13; Ex. 1a at 3; Ex. 2h at 2). 

Petitioner challenges the BOP's calculation of his sentence. He argues that it is at odds with

the federal sentencing court's "recommended credit for time served since December 7, 2006, the

date which the federal detainer was issued." Document # 5 at 2-3. As relief, he seeks an order from

this Court directing the BOP to give him additional sentencing credit. Petitioner sought this relief

through the BOP's administrative remedy process and the BOP denied his request. (Ex. 1b). 4

Moreover, in April 2008, after learning that the BOP would not give him additional

sentencing credit, Petitioner filed a motion with his federal sentencing court and sought a reduction

of his 70 month term of imprisonment. On May 30, 2008, that court issued an Order denying the 5

motion. It held:

[T]he Court sentenced the defendant to a 70 month term of incarceration on

4

Therefore, Petitioner properly exhausted his administrative remedies before filing the instant petition for habeas relief.

5

The District Court for the Northern District of West Virginia's docket is available online and this Court takes judicial

notice of it and all docket entries at United States v. Timmy Mills, Docket No. 3:06-cr-70 (N.D. W.Va.).

3

Case 1:08-cv-00339-SPB Document 20 Filed 06/28/10 Page 3 of 12
November 19, 2007. In doing so, the Court provided that the defendant's federal

sentence shall run concurrent to his state sentence, based on defense counsel's

misrepresentation that the defendant had not yet completed his state sentence. In

addition, the Court recommended that the defendant be given credit for time served

since December 7, 2006, the date on which the federal detainer was issued. 

Upon arrival at the federal institution for service of sentence, the BOP

provided the defendant with a projected release date of September 18, 2012. 

Believing this release date to be at odds with his Court-imposed sentence, the

defendant contacted the BOP's Designation and Sentence Computation Center

(DSCC) for an explanation. In response, the DSCC informed the defendant that his

federal sentence could not be made to run concurrent to his state sentence, as his state

sentence was already completed at the time the federal sentence was imposed. In

addition, the DSCC informed the petitioner that he was only eligible to receive credit

for time served since the completion of his sentence on August 25, 2007, because

prior to this time the defendant was in state custody in relation to a state sentence,

which was not effected by the federal detainer. As a result of his dealings with the

DSCC, the defendant wrote the Court seeking to obtain credit for time served from

December 7, 2006 to August 25, 2007.

In regard to the applicable law, the BOP has broad authority in implementing

the sentence imposed by the Court. For instance, it is the BOP, and not the district

judge, that has the authority to determine when a sentence is deemed to commence

and whether the defendant should receive credit for time spent in prior custody. 

United States v. Pinevro, 112 F.3d 43, 45 (2d Cir. 1997); Mixon v. Paul, 175 F.2d

441 (4 Cir. 1949).... th

* * *

...While the Court is sympathetic to the defendant's position, the Court is constrained

by existing precedent. Here, defendant's belief that the BOP is improperly

implementing his sentence stems not from illegal action on the part of the BOP but

rather from false expectations created by defense counsel's misrepresentation. More

specifically, the defendant's federal sentence could not have been made to run

concurrent with his state sentence because, at the time of sentencing, the defendant

had already completed his state time. Additionally, the time spent in custody from

December 7, 2006 to August 25, 2007 could not properly be credited toward his

federal sentence because that time was "credited against another sentence," 18 U.S.C.

§ 3585(b) [discussed below], and because the detainer did not effect the defendant's

state-custody status. Thomas v. Whalen, 92 F.2d 358, 359 (4 Cir. 1992). th

5/30/08 Order (Document # 310) in United States v. Timmy Mills, Docket No. 3:06-cr-70 (N.D.

W.Va.). 

After the federal sentencing court rejected Petitioner's motion to receive additional credit,

Petitioner filed the instant Petition for Writ of Habeas Corpus [Document # 5] with this Court. He

contends that the BOP must give him the additional sentencing credit that he seeks. Respondent has

filed his Response, Document # 12, to which Petitioner has filed a reply, Document # 15. 

4

Case 1:08-cv-00339-SPB Document 20 Filed 06/28/10 Page 4 of 12
III. Discussion

A. Subject Matter Jurisdiction

A challenge to a federal sentence as imposed must be made under 28 U.S.C. § 2255 and filed

with the federal district court that convicted and sentenced the petitioner. In cases such as this,

where the petitioner is challenging the BOP's execution of his federal sentence, the habeas petition

is properly brought in the district of confinement under 28 U.S.C. § 2241. See, e.g., Barden v.

Keohane, 921 F.2d 476, 478-79 (3d Cir. 1990). At the time this petition was filed, Petitioner was

incarcerated at FCI McKean. He has since been transferred to FCI Fort Dix, New Jersey.

B. Legal Analysis

A federal habeas court may only extend a writ of habeas corpus to a federal inmate if he

demonstrates that "[h]e is in custody in violation of the Constitution or laws of the United States[.]"

28 U.S.C. § 2241(c)(3). Petitioner contends that he is in custody in violation of the federal

sentencing statutes because the BOP has calculated his sentence incorrectly. His arguments are

without merit. 

The BOP is the agency responsible for implementing and applying federal law concerning

the computation of federal sentences. See, e.g., United States v. Wilson, 503 U.S. 329, 331 (1992);

28 C.F.R. § 0.96. A federal prisoner's sentence calculation is governed by 18 U.S.C. § 3585,

Calculation of a term of imprisonment. Paragraph (a) of the statute governs the date upon which a

prisoner's sentence commences, and paragraph (b) governs credit he receives for time he spent in

official detention prior to the date his sentence commenced. The BOP's policies regarding sentence

computation are set forth in Program Statement 5880.28, Sentence Computation Manual ("PS

5880.28").

6

(1) Petitioner's federal sentence commenced on the date it was imposed

6

BOP programs statements are available in full on its website, www.bop.gov.

5

Case 1:08-cv-00339-SPB Document 20 Filed 06/28/10 Page 5 of 12
18 U.S.C. § 3585(a) 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. 

The BOP has interpreted § 3585(a) such that it will not commence a federal sentence earlier than the

date on which it was imposed. PS 5880.28, Chapt. 1, Page 13 ("In no case can a federal sentence of 7

imprisonment commence earlier than the date on which it is imposed."). See also, United States v.

LaBeille-Soto, 163 F.3d 93, 98 (2 Cir. 1998) ("We see nothing in [§ 3585(a)] to indicate that the nd

court is permitted to order that the sentence be deemed to have commenced on an earlier date. 

Indeed, the determination of the precise date on which a sentence begins appears to have been

intended to be a ministerial decision that depends on the timing of the defendant's arrival at the

appropriate place with respect to the sentence that is to be served, and we have held that after a

defendant is sentenced, it falls to the BOP, not the district judge, to determine when a sentence is

deemed to commence[.]") (internal quotations and brackets omitted); DeMartino v. Thompson, No.

96-6322, 1997 WL 362260 at *2 (10 Cir. July 1, 1997) ("Logically, a [federal sentence] cannot th

commence prior to the date it is pronounced, even if made concurrent with a sentence already being

served." (quoting United States v. Flores, 616 F.2d 840, 841 (5th Cir.1980)); Rashid v. Quintana,

Docket No. 1:08-cv-107, 2009 WL 3271214 at *4-5 (W.D. Pa. Oct. 9, 2009), aff'd 2010 WL

1141386 (3d Cir. Mar. 25, 2010) (same). 

Where, as here, an inmate is subject to service of a federal sentence only, the BOP's

application of § 3585(a) is straightforward. Peterson, Docket No. 1:07-56, 2009 WL 55913 at *3-5. 

After a district court has imposed the sentence, the BOP will designate the inmate to a federal

detention facility and it will calculate the sentence as having commenced on the date it was

imposed, which is the earliest possible date that an inmate's federal sentence can commence under

any circumstances. PS 5880.28, Chapt. 1, Page 12. That is what occurred in this case. The District

7

Thus, a federal sentence cannot commence prior to the date it is pronounced, even if made concurrent with a sentence

already being served. Peterson v. Marberry, Docket No. 1:07-56, 2009 WL 55913 at *3-5 (W.D. Pa. Jan. 5, 2009) (citing

PS 5880.28, Chapt. 1, Pages 12-13, and explaining in detail BOP policies regarding § 3585(a)).

6

Case 1:08-cv-00339-SPB Document 20 Filed 06/28/10 Page 6 of 12
Court for the Northern District of West Virginia imposed Petitioner's sentence on November 19,

2007, and the BOP determined that his sentence commenced on that date. Petitioner thus is

receiving the maximum amount of sentencing credit available under § 3585(a).

 

(2) Petitioner is not entitled to additional prior custody credit

Because the BOP commenced Petitioner's sentence on the earliest possible date, his request

for additional sentencing credit must be treated as a request for pre-commencement credit (known as

prior custody credit), which is governed by 18 U.S.C. § 3585(b). It provides:

(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 – 

(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.

18 U.S.C. § 3585(b) (emphasis added). The intent of the last clause of § 3585(b) is to prohibit

double sentencing credit situations. Wilson, 503 U.S. at 337 (explaining that with the enactment of

§ 3585(b), "Congress made it clear that a defendant could not receive a double credit for his

detention time."). Thus, the BOP may not grant prior custody credit under § 3585(b) for time that

has been credited against another sentence. Rios v. Wiley, 201 F.3d 257, 272 (3d Cir. 2001);8

United States v. Vega, 493 F.3d 310, 314 (3d Cir. 2007). 

For purposes of Petitioner's federal sentence computation, the conduct connected with his

federal offense occurred on January 12, 2006. (Ex. 2g at 1). Thus, under § 3585(b)(2), only time

that he served in official detention between January 12, 2006 and November 18, 2007 (the day

before his federal sentence commenced), may be considered for treatment as federal prior custody

8

Rios was superseded by statute on unrelated grounds to the extent that the court applied a version of the United States

Sentencing Guidelines § 5G1.3 prior to its amendment, effective November 1, 1995. See United States v. Saintville, 218

F.3d 246, 247 (3d Cir. 2000).

7

Case 1:08-cv-00339-SPB Document 20 Filed 06/28/10 Page 7 of 12
credit. 

Petitioner's records indicate that between January 12, 2006, and November 19, 2007, he was

incarcerated from May 21, 2006 through May 26, 2006 (7 days), and from October 28, 2006 through

November 18, 2007 (387 days). (Ex. 2, ¶ 11). The BOP has calculated that he is entitled to receive

a total of 91 days prior custody credit for the time that he served in official detention from May 21,

2006 through May 26, 2006 (7 days), and from August 26, 2007 (the day after his state sentence

expired) through November 18, 2007 (the day before his federal sentence commenced) (84 days). 

(Id., ¶ 13; Ex. 2h at 2). Thus, the span of time Petitioner seeks to have credited against his federal

sentence is the period spanning October 28, 2006, through August 25, 2007. Because records from

the state of West Virginia indicate that all of that time was credited against his state sentence (id.;

Ex. 2f), the BOP is statutorily precluded from granting Petitioner with prior custody credit under

§ 3585(b) for any time he spent in official detention between those dates. Rios, 201 F.3d at 271-76; 

Vega, 493 F.3d at 314. 

(3) Petitioner is not entitled to qualified credit under Kayfez or Willis

Petitioner also raises an argument based on BOP policies that creates a limited exception to

§ 3585(b)'s rule against double credit in accordance with the decisions in Kayfez v. Gasele, 993 F.2d

1288 (7th Cir. 1993) and Willis v. United States, 438 F.2d 923 (5 Cir. 1971). 

th 9

Pursuant to Kayfez, the BOP will grant to a federal prisoner an amount of qualified double

credit if the following conditions are present: (1) the non-federal and federal sentences are

9

BOP policy provides that if a prisoner's federal and state sentences are concurrent, and the federal sentence is to run

longer than the state sentence (not counting any credits), "[p]rior custody credits shall be given for any time spent in

non-federal presentence custody that begins on or after the date of the federal offense up to the date that the first sentence

begins to run, federal or non-federal." PS 5880.28, Chapt. 1 at Page 22. The BOP refers to these credits as "Willis time

credits" after the decision that prompted the policy (Willis v. United States, 438 F.2d 923 (5th Cir. 1971)). Id. In

Kayfez, the BOP had refused to credit against the petitioner's federal sentence the time he spent in state custody before

receiving his first sentence (federal in that case) because that time already had been credited to his concurrent state

sentence. 993 F.2d at 1289. The BOP insisted that, because his state sentence was longer than his federal sentence, the

period he sought credit for did not qualify as "Willis time." Id. at 1290. The Seventh Circuit Court concluded, however,

that because the petitioner had been in presentence custody for 416 days, and his state sentence was longer than his

federal sentence by only 358 days, the BOP had to give him 58-days of credit to his federal sentence in order to receive

the full benefit of the 416-day credit he technically had received. Id.

8

Case 1:08-cv-00339-SPB Document 20 Filed 06/28/10 Page 8 of 12
concurrent; (2) the raw effective full term ("EFT") date of the non-federal term is later than the raw

10

EFT of the federal term; and (3) the non-federal raw EFT, after application of qualified non-federal

presentence time, is reduced to a date that is earlier than the federal raw EFT date. See PS 11

5880.28, Chapt. 1 at Pages 22B-24 and (Ex. 2, ¶ 15). Pursuant to Willis, the BOP will award an

amount of non-federal presentence credit if the following conditions are present: (1) the non-federal

and the federal sentences are concurrent; and (2) the non-federal raw EFT is either the same or

earlier than the federal raw EFT. Id.; (Ex. 2, ¶ 16). 

In calculating Petitioner's sentence, the BOP determined that neither the Kayfez nor the

Willis rule could be applied because, as already explained, his federal sentence could not run

concurrently with his state sentence. (Ex. 2, ¶ 17). There is no basis for this Court to interfere with

the BOP's determination. Petitioner's federal sentence simply could not be served concurrent with

his state sentence because that sentence had been fully discharged at the time that his federal

sentence was imposed. (Ex. 2, ¶ 17). Although the federal sentencing court initially directed that

the federal sentence run concurrent with the state sentence, its erroneous belief that Petitioner was

still serving his state sentence cannot change the fact that the two sentences were not concurrent. 

This Court's only authority is to determine if the BOP calculated Petitioner's sentence in accordance

with federal law, and there is no question that it did. 

The Court also notes that the federal sentencing court could have adjusted the length of

Petitioner's sentence once it learned, through Petitioner's April 2008 motion, that he could not

receive credit for all time served since December 7, 2006. It expressly declined to do so. The court

left the 70 month term of imprisonment intact and acknowledged that the BOP, and not it, makes the

determination as to the amount of sentencing credit Petitioner can receive under federal law. 

10

The Raw EFT is the full term date of a sentence without reference to prior custody credit or good conduct time. It is

determined by adding the length of the sentence imposed to the commencement date of the sentence. PS 5880.28, Chapt.

1 at Page 14.

11

Qualified non-federal presentence time is the number of days between the date of nonfederal arrest and the date the first

sentence (whether federal or non-federal) commences. See PS 5880.28, Chapt. 1 at Page 23.

9

Case 1:08-cv-00339-SPB Document 20 Filed 06/28/10 Page 9 of 12
5/30/08 Order (Document # 310) in United States v. Timmy Mills, Docket No. 3:06-cr-70 (N.D.

W.Va.). 

(4) 18 U.S.C. § 3568 has been Repealed And Does Not Apply

Petitioner also argues that pursuant to 18 U.S.C. § 3568 (repealed) and case law interpreting

that statute, he should receive prior custody credit for the time he served in state custody that was

also credited against his state sentence. This argument lacks merit because § 3568 has been

repealed and superceded by 18 U.S.C. § 3585, which was enacted under the Sentencing Reform Act

of 1984 ("SRA"). The provisions of the SRA went into effect on November 1, 1987, and applied to

offenses committed afer November 1, 1987. See Gallardo v. Quinlan, 874 F.2d 186, 188 (3d Cir.

1989) (per curiam). 

Section § 3568 (repealed) provided:

The sentence of imprisonment of any person convicted of an offense shall commence

to run from the date on which such person is received at the penitentiary,

reformatory, or jail for service of such sentence. The Attorney General shall give

any such person credit toward service of his sentence for any days spent in

custody in connection with the offense or acts for which sentence was imposed.

18 U.S.C. § 3568 (emphasis added) (repealed Nov. 1, 1987). 

In Wilson, the Supreme Court observed that the SRA rewrote § 3568 and recodified it at

§ 3585(b). 503 U.S. at 332. It explained that § 3585(b) altered § 3568 in that the recodified

version, "Congress made clear that a defendant could not receive a double credit for his detention

time." Id. at 337. 

In Davis v. Attorney General, 425 F.2d 238 (5th Cir. 1970), the case cited by Petitioner, the

United States Court of Appeals for the Fifth Circuit interpreted § 3568 as permitting an inmate to

receive federal jail time credit for the time that he served in state custody while he was serving a

state sentence, after a federal detainer was lodged with state prison officials. The Davis court

explained that once the federal detainer was lodged, all of the time served in state custody was time

served in connection with the federal offense. 425 F.2d at 240. Davis cannot be applied to this case

because Petitioner's federal offense conduct was committed on January 12, 2006, which is after the

effective date of the SRA. Because Petitioner's sentence computation is governed by § 3585 – and

10

Case 1:08-cv-00339-SPB Document 20 Filed 06/28/10 Page 10 of 12
not by § 3568 – the time that he served after the federal detainer was lodged with state prison

officials does not qualify as federal prior custody credit. See 18 U.S.C. § 3585(b).

C. Certificate of Appealability

Section 102 of the Antiterrorism and Effective Death Penalty Act (28 U.S.C. § 2253 (as

amended)) codified standards governing the issuance of a certificate of appealability for appellate

review of a district court's disposition of a habeas petition. Federal prisoner appeals from the denial

of a § 2241 habeas corpus proceeding are not governed by the certificate of appealability

requirement. United States v. Cepero, 224 F.3d 256, 264-65 (3d Cir. 2000); 28 U.S.C.

§ 2253(c)(1)(B).

IV. CONCLUSION

For the foregoing reasons, this Court denies the Petition for Writ of Habeas Corpus. An

appropriate Order follows.

11

Case 1:08-cv-00339-SPB Document 20 Filed 06/28/10 Page 11 of 12
IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

TIMMY MILLS, )

Petitioner, ) Civil Action No. 08-339 Erie

)

v. ) Magistrate Judge Susan Paradise Baxter

) 

FRANCISCO J. QUINTANA, )

Warden, FCI McKean, )

Respondent. )

ORDER

AND NOW, this 28 day of June, 2010; th

IT IS HEREBY ORDERED that the Petition For Writ Of Habeas Corpus is DENIED. The

Clerk of Courts is hereby directed to close this case.

/s/ Susan Paradise Baxter 

SUSAN PARADISE BAXTER

United States Magistrate Judge

Case 1:08-cv-00339-SPB Document 20 Filed 06/28/10 Page 12 of 12