IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

DARYL A. LUDY, )

)

Petitioner, )

)

v. ) Civil Action No. 05-277E

) JUDGE SEAN McLAUGHLIN

WARDEN, FCI MCKEAN, ) MAGISTRATE JUDGE BAXTER

)

Respondent. )

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

I. RECOMMENDATION

It is respectfully recommended that the Petition for Writ of Habeas Corpus filed by a

federal prisoner be denied, and that the Motion to Expedite this case (Docket #11) be denied as moot.

II. REPORT

This is a petition filed pursuant to 28 U.S.C. § 2241 by Daryl A. Ludy who is a federal

prisoner serving a sentence of 40 months for Conspiracy, Money Laundering and Possession of a

Firearm by Convicted Felon. The sentence of incarceration was imposed in June 2001 by the United

States District Court for the Eastern District of Michigan along with a 3 year term of supervised

release.

The instant petition raises questions concerning what credit, if any, petitioner Ludy

should receive for time he spent in state custody prior to October 13, 2004, when he was officially

paroled by the state of Michigan to a federal detainer. Ludy has been given credit against his federal

sentence for all time since October 13, 2004, but he argues that he is entitled to credit for all time

spent in state custody in Michigan beginning on April 13, 2002. A response has been filed to the

petition (Docket #5), Petitioner filed a traverse (Docket #6), Respondent filed a sur-reply (Docket #7)

and Petitioner filed a second traverse (Docket #10). Petitioner has also filed a Motion to Expedite

(Docket #11) asking that the court quickly rule on his petition. The petition and motion are ripe for

disposition.

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A. Subject matter jurisdiction.

Initially the Court notes that, although a challenge to a federal sentence as imposed

must be made under 28 U.S.C. § 2255, a claim concerning execution of a federal sentence by federal

prison and parole authorities is properly brought under 28 U.S.C. § 2241. Bennett v. Soto, 850 F.2d

161 (3d Cir.1988); Gomori v. Arnold, 533 F.2d 871 (3d Cir.), cert. denied, 429 U.S. 851 (1976).

Because Petitioner is primarily challenging the terms (i.e., execution) of his sentence, his habeas

petition is properly brought under Section 2241.

B. Exhaustion.

A federal prisoner seeking habeas relief under 28 U.S.C. § 2241 first must exhaust

administrative remedies before bringing his or her claim to federal court. United States v. Wilson, 503

U.S. 329, 334-35, 112 S.Ct. 1351, 117 L.Ed.2d 593 (1992); Moscato v. Federal Bureau of Prisons, 98

F.3d 757 (3d Cir.1996); United States v. Keller, 58 F.3d 884 (2d Cir.1995); United States v. Brann,

990 F.2d 98, 104 (3d Cir.1993). The Bureau of Prisons is the agency charged with administering the

federal prison system. Reno v. Koray, 515 U.S. 50, 57, 115 S.Ct. 2021, 132 L.Ed.2d 46 (1995);

Wilson, 503 U.S. at 334-335. For federal prisoners challenging Bureau of Prisons determinations, the

initial venue is the administrative process. The Bureau of Prisons codified its Administrative Remedy

Program ("ARP") in 28 C.F.R. Part 542, which provides detailed procedures and guidelines for federal

prisoners to seek administrative review of any aspect of their confinement. Respondent concedes that

Petitioner has pursued an appeal of the challenged action through all levels of administrative review

and, hence, available administrative remedies have been exhausted in this case.

C. Relevant facts.

Petitioner Ludy's federal sentence was imposed on June 15, 2001, in the United States

District Court for the Eastern District of Michigan, and he was "permitted to remain on an unsecured

bond with the condition that he report as directed to the designated custodial facility." (Docket #5,

Document 2b). Petitioner was directed to report to a designated federal correctional facility on August

31, 2001, but he concedes that he failed to report as ordered (Id.; Docket #6, page 3). An arrest

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warrant was issued by the sentencing court on September 6, 2001 (Docket #5, Document 2c), but

Petitioner was not taken into custody by federal authorities.

On April 13, 2002, Petitioner was arrested by Oak Park police officers in Michigan

(Docket #6, page 3) pursuant to new state criminal charges. Bond was set at $100,000 with a notation

that Petitioner would be released, if at all, to federal authorities (Id.). Petitioner did not post bond, and

ultimately pled guilty in state court on July 10, 2002, at which time he was sentenced to 2 years and

6 months to 40 years for the offense of Uttering and Publishing (Docket #5, Document 2e). The state

court awarded Petitioner credit for 87 days time served (covering the period from his arrest on April

13, 2002, until sentencing on July 10, 2002). The state sentence was amended on May 18, 2004, to

direct that it be served concurrently with the earlier imposed federal sentence (Id., Document 1f). On

October 13, 2004, Petitioner was paroled from his state sentence to a federal detainer (Id., Document

1g). He was given credit against his state sentence for time served from July 10, 2002, through

October 13, 2004, making the total time credited to his state sentence 2 years and 6 months (Id.,

Documents 2e and 2f).

Petitioner was designated to FCI McKean in November 2004. The Bureau of Prisons

has credited Petitioner for time served against his federal sentence since October 13, 2004, as well as

two other days, March 29, 2000 and April 26, 2000, which had not been credited against any other

sentence (Id., Documents 1a and 1h).

D. Applicable legal standard.

The Attorney General is responsible for computing federal sentences for all offenses

committed on or after November 1, 1987,United States v. Wilson, 503 U.S. 329 (1992) and 18 U.S.C.

§ 3585, and the Attorney General has delegated that authority to the Director of the Bureau of Prisons,

28 C.F.R. § 0.96 (1992). Also relevant to this petition is the concept of "primary jurisdiction." When

two different sovereigns have custody of a criminal defendant over time, the general rule is that the

sovereign who acquires custody first in time has primary jurisdiction over the defendant. See

Chambers v. Holland, 920 F.Supp. 618, 622 (M.D.Pa.), aff'd, 100 F.3d 946 (3d Cir.1996) and cases

cited therein.

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Primary jurisdiction remains vested in the [jurisdiction] which first arrested the

defendant until that jurisdiction relinquishes its priority by, e.g., bail release,

dismissal of the state charges, parole release, or expiration of the sentence.

Chambers, 920 F.Supp. at 622 (citations omitted).

In a habeas proceeding where computation of a federal sentence is at issue, a court must

consider two separate matters. First, the court must establish when the federal sentence commences;

and second, the court must determine the extent to which the petitioner may be entitled to credit for

time spent in custody prior to commencement of the sentence. Chambers, 920 F.Supp. at 621. This

is so since the applicable statute applies different standards to time served after a federal sentence

commences, and time served prior to that time. 18 U.S.C. § 3585.

E. Analysis.

The first inquiry, concerning the commencement of the federal sentence, is governed

by 18 U.S.C. § 3585(a):

(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.

(Emphasis added). Here, the federal sentence "commenced" when Petitioner was delivered to federal

custody on October 13, 2004. Petitioner's argument that the order directing him to report to a federal

facility in August 2001 suffices to commence his sentence is simply wrong since he was not "received

in custody" and did not arrive voluntarily to commence service of his sentence. Petitioner has been

credited for all time served after October 13, 2004 and, accordingly, § 3585(a) is not at issue here.

Petitioner's argument centers on his claim that he is entitled to pre-sentence credit

pursuant to § 3585(b). While the BOP has given Petitioner credit for time served from the date he was

released to federal custody, October 13, 2004, he nonetheless argues that he is entitled to credit against

his federal sentence for all time spent in custody from the date his federal sentence was imposed in

June 2001. Petitioner was not immediately incarcerated after his sentence was imposed, however, and

was not again in custody until April 15, 2002, when he was arrested on state charges. Thus, the time

period at issue is the 30 months he spent in state custody from April 15, 2002, until October 13, 2004.

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The provisions of 18 U.S.C. §3585(b) govern pre-sentence credit issues:

(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 (emphasis added). Here, the United States has presented uncontradicted evidence

that Petitioner received credit against his state sentence for all time spent in custody from the date of

his arrest on April 15, 2002, until October 13, 2004. Therefore, pursuant to the express terms of §

3585, Petitioner is not entitled to credit against his federal sentence for this period since he has already

been given credit against another sentence.

Petitioner nonetheless argues that the federal authorities were the first to assert primary

jurisdiction over him and that he should receive credit for all time served in state custody. "As

between the state and federal sovereigns, primary jurisdiction over a person is generally determined

by which one first obtains custody of, or arrests, the person." U.S. v. Cole, 416 F.3d 894, 897 (8th Cir.

2005); Chambers, supra. While it is true that federal authorities were the first to assert jurisdiction

over petitioner, this jurisdiction was relinquished when Petitoiner was released on bond after his

sentencewasimposed. "Primary jurisdiction continues until the first sovereign relinquishes its priority

in some way. Generally, a sovereign can only relinquish primary jurisdiction in one of four ways: 1)

release on bail . . .." Cole, 416 F.3d at 897.

The decision in Cole is instructive in this case. Cole was arrested by federal

authorities, but was released on bond after a mental health evaluation. Thereafter, the state of

Arkansas arrested Cole and thereby obtained the primary jurisdiction over Cole which the federal

authorities had relinquished. Cole was thereafter "loaned" to the United States for prosecution at

which time a federal sentence was imposed. The federal sentence never commenced, however,

because Cole was immediately returned to the state of Arkansas, which had itself never relinquished

primary jurisdiction.

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1 Petitioner is also not entitled to rely upon the state court's belated attempt to make its sentence

concurrent to the already imposed federal sentence. A federal sentence and state sentence are

presumed to be imposed consecutively unless the federal court specifically indicates

otherwise. 18 U.S.C. §3584(a). Here, the federal sentence was imposed long before the state

charges even arose, and could not have been imposed concurrently to a state sentence which

did not even exist.

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This case is similar to Cole in that Petitioner Ludy was initially under the primary

jurisdiction of the United States due to the imposition of a federal sentence. However, as in Cole,

Ludy was released on bond at which point the United States relinquished primary jurisdiction. The

issuance of an arrest warrant by the federal court on September 6, 2001, does not change this analysis

since that warrant was not executed and the federal authorities did not again "obtain custody" of

petitioner until October 13, 2004. Cole, 416 F.3d at 897 (controlling factor on which sovereign may

proceed is actual physical custody of prisoner). Therefore, when Petitioner was arrested in Michigan

in April, 2002, the State of Michigan obtained primary jurisdiction over him and did not relinquish

same until October 13, 2004. Petitioner is not entitled to credit against his federal sentence for time

served in state custody.1

Petitioner also argues that, had he posted bond in the state court in 2002, he would have

been released to the federal detainer at that time and would have been entitled to credit against his

federal sentence from that date. Indeed, petitioner could have begun service of his federal sentence

in this fashion. Of course, Petitioner could also have started his federal sentence running on August

31, 2001, if he had surrendered to federal custody as ordered. In each instance, however, Petitioner's

own actions or inactions are the impediment to his obtaining credit against his federal sentence. On

the record actually before the court applicable law supports the Bureau of Prison's computation of the

credit for time served to which petitioner is entitled. This petition should be denied.

III. CONCLUSION

For the foregoing reasons, it is respectfully recommended that the Petition for Writ of

Habeas Corpus filed by a federal prisoner be denied, and that the Motion to Expedite this case

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(Docket #11) be denied as moot.

In accordance with the Magistrates Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Rule

72.1.4(B) of the Local Rules for Magistrates, the parties are allowed ten (10) days from the date of

service to file objections to this report and recommendation. Any party opposing the objections shall

have seven (7) days from the date of service of objections to respond thereto. Failure to file timely

objections may constitute a waiver of any appellate rights.

 /s/ Susan Paradise Baxter 

SUSAN PARADISE BAXTER

UNITED STATES MAGISTRATE JUDGE

Dated: October 27, 2006

cc: The Honorable Sean J. McLaughlin 

United States District Judge

Daryl A. Ludy

20280-039 

F.C.I. McKEAN 

P.O. Box 8000 

Bradford, PA 16701 

Christy C. Weigand, Esquire

Assistant United States Attorney

401 U.S. Post Office & Courthouse

Pittsburgh, PA 15219

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