IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

BENJAMIN S. RZADCA, §

#35448-044, §

 PETITIONER, §

§

V. § CIVIL CASE NO. 3:22-CV-573-B-BK

§

WARDEN, §

 RESPONDENT. §

FINDINGS, CONCLUSIONS AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Pursuant to 28 U.S.C. § 636(b) and Special Order 3, Petitioner Benjamin S. Rzadca’s pro 

se petition for writ of habeas corpus under 28 U.S.C. § 2241 was referred to the United States 

magistrate judge for case management, including the issuance of findings and a recommended 

disposition where appropriate. As detailed here, the petition should be DENIED.

I. BACKGROUND

On January 13, 2008, Missouri state authorities arrested Rzadca for Sexual Misconduct or 

Attempt Involving a Child Under Fifteen and Invasion of Privacy of Multiple Individuals, case 

number 08SL-CR-00212, in the 21st Judicial Circuit Court of St. Louis County, Missouri. Doc. 

9 at 4, 10 (Resp’s App’x.). While those proceedings were pending, Rzadca was indicted in 

federal court for possession of child pornography. United States v. Rzadca, No. 4:08-CR-486 

(E.D. Mo.). On August 19, 2008, the United States Marshals (USM) “borrowed” Rzadca from 

state authorities pursuant to a writ of habeas corpus ad prosequendum for appearance in the 

federal case. Doc. 9 at 4, 10.

On January 20, 2009, pled guilty to two counts of the federal indictment and was 

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sentenced to concurrent 262-month terms of imprisonment. Doc. 9 at 16-17. However, the 

judgment was silent about any future state sentence. Doc. 9, passim. Rzadca was returned the 

state custody after sentencing in the federal case, and a federal detainer was lodged against him. 

Doc. 9 at 5.

Shortly thereafter, Rzadca pled guilty to the pending state charges and was sentenced to 

four-year terms of imprisonment on each count, to be served concurrently with each other and 

the previously imposed federal sentence. Doc. 9 at 23-31. On September 13, 2010, Rzadca was

paroled from his state custody and transferred to the custody of the U.S. Marshal to commence 

serving his federal sentence. Doc. 9 at 38.

Rzadca unsuccessfully petitioned the federal sentencing court to order that his federal and 

state sentences be served concurrently so that the time he spent in state custody could be credited 

toward his federal sentence. Doc. 9 at 48-52 (denying Mot. for Judicial Recommendation for 

Concurrency of Federal and State Sentences due to Relevant Conduct). Rzadca then sought 

prior credit for the state time served through the Bureau of Prisons (BOP) Administrative 

Remedy Program. Doc. 9 at 54-55. Consequently, the Designation and Sentence Computation 

Center (DSCC), contacted the federal sentencing court to obtain its position on granting a 

retroactive designation, but the court replied that “Mr. Rzadca’s federal sentence is to be served 

consecutively to his state sentence.” Doc. 9 at 57-58, 60. The BOP then denied Rzadca’s request

for retroactive designation, relying on the nature of the offense, Rzadca’s criminal history, and 

the sentencing court’s indication that the federal sentence was to be served consecutively to the 

state sentence. Doc. 9 at 76. 

On March 9, 2022, after exhausting his administrative remedies, Rzadca filed the petition 

sub judice, challenging (1) the sentencing court’s decision to run his federal and state sentences 

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consecutively, Doc. 3 at 5-6, and (2) the BOP’s sentence computation and denial of a nunc-protunc designation, Doc. 3 at 6. The government opposes § 2241 relief. Doc. 8. Rzadca has not 

filed a reply. 

Upon review, the Court finds that Rzadca’s claims challenging the sentencing court’s 

decision that his federal and state sentences be served consecutively are not cognizable under § 

2241, and that the BOP correctly computed his sentence. 

II. ANALYSIS

A. Decision to Run Sentence Consecutively not Cognizable under § 2241 

In his first three grounds, Rzadca challenges the federal sentencing court’s decision to run 

his federal and state sentences consecutively. He contends that: (1) a consecutive sentence 

violates the terms of his plea agreement, and (2) the federal sentencing court abused its discretion 

under USSG § 5G1.3(c) because his state and federal charges stem from the same course of 

events and are relevant conduct. Doc. 3 at 5-6. 

A motion under 28 U.S.C. § 2255 “provides the primary means of collaterally attacking a 

federal conviction or sentence and is the appropriate remedy for errors that occurred at or prior to 

the sentencing.” Padilla v. United States, 416 F.3d 424, 425-26 (5th Cir. 2005) (internal 

quotations and citations omitted). A petition under 28 U.S.C. § 2241, on the other hand, “is the 

proper procedural vehicle in which to raise an attack on the manner in which a sentence is 

executed.” Padilla, 416 F.3d at 426 (internal quotations and citations omitted). 

Here, Rzadca’s first three grounds essentially challenge the constitutional validity of his 

federal sentence. Thus, his claims are not cognizable under § 2241 and should be dismissed. 

B. Sentence Computation and Designation Claims have no Merit

In his remaining ground, Rzadca broadly challenges the execution of his sentence and 

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requests that the BOP reconsider his nunc-pro-tunc designation request. Doc. 3 at 6. His claims 

are unavailing, however.

Under 18 U.S.C. § 3585(a), a federal sentence “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.” Under 18 

U.S.C. § 3585(b), a federal prisoner is entitled to receive credit for time he has served in custody 

before his federal sentence, as long as that time has not previously been credited toward any 

other sentence. United States v. Wilson, 503 U.S. 329, 337 (1992); Leal v. Tombone, 341 F.3d 

427, 429 (5th Cir. 2003). Even so, “[w]here a federal sentence was imposed before a state 

sentence, the BOP may indirectly award credit for time served in state prison by designating 

nunc pro tunc the state prison as the place in which the prisoner serves a portion of his federal 

sentence.” Pierce v. Holder, 614 F.3d 158, 160 (5th Cir. 2010) (citing Barden v. Keohane, 921 

F.2d 476, 480 (3d Cir. 1990); Rodriguez v. Pitzer, 76 F. App’x 519, 520 (5th Cir. 2003)).1

Rzadca commenced his federal sentence on September 13, 2010, when he was paroled

from his state sentence. See Jones v. Joslin, 635 F.3d 673, 675 (5th Cir. 2011). Because all time 

he spent in state custody was applied to his state sentence, he is not entitled to credit toward his 

federal sentence for time spent in state custody. Doc. 9 at 5, ¶ 13. See Jones, 635 F.3d at 675

(citing § 3585(b)). 

Rzadca’s argument that the BOP abused its discretion in denying his request to designate 

nunc pro tunc the state prison for the service of his federal sentence, Doc. 3 at 6, is unsupported. 

In accordance with BOP Program Statement 5160.05, the BOP contacted the federal sentencing 

1 BOP’s designation decisions are reviewable under § 2241. See United States v. Jack, 566 F. 

App’x 331, 332 (5th Cir. 2014) (citing Pierce, 614 F.3d at 160). 

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court to request clarification, and that court explicitly stated that Rzadca’s federal sentence “is to 

be served consecutively to his state court sentence.” Doc. 3 at 6; Doc. 3 at 60. The BOP 

therefore did not abuse its wide discretion in declining Rzadca a nunc-pro-tunc designation. See 

Washington v. Chandler, 533 F. App’x 460, 461 (5th Cir. 2013) (affirming dismissal of nuncpro-tunc designation claim because the federal sentencing court did not intend for the federal 

sentence to run concurrent to the state sentence); cf. Pierce, 614 F.3d at 160 (“The BOP retained 

discretion to do [a nunc-pro-tunc designation] because [the] original federal sentence did not 

preclude that sentence from running concurrently to a later-imposed state sentence.”).

That notwithstanding, Rzadca argues that the state court judgment, imposed after his 

federal sentencing, directed that his state sentence should run concurrent with his federal 

sentence. Doc. 3 at 6. Although he correctly recognizes that such judgment is “non-binding on 

the Feds,” Rzadca nevertheless contends that the BOP should give appropriate “weight to [the 

state] sentencing court’s intention for concurrency with the federal sentence.” Doc. 3 at 6. In 

support, Rzadca cites Mangum v. Hallemback, 824 F.3d 98 (4th Cir. 2016); however, it is neither 

binding nor persuasive authority. Doc. 3 at 10. In Mangum, the federal sentencing judge was 

silent about the court’s intention and declined to respond to the BOP’s request for clarification. 

The BOP as a result presumed that “the unelaborated federal sentence should be deemed to run 

consecutively to the later imposed state sentence.” Mangum, 824 F.3d at 101-102. 

Unlike Mangum, the federal sentencing court here responded to the BOP’s request and 

clarified that Rzadca’s federal sentence is to be served consecutively to the later-imposed state 

one. Further, the state court’s judgment is not binding on the BOP. See Leal, 341 F.3d at 427-30

(“[T]he state court order for concurrent sentencing post-dated the federal conviction and sentence 

in this case” and thus “the U.S. Marshals Service was [not] required to comply with the state trial 

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court’s order that [the petitioner] be taken to a federal prison to serve out his concurrent state 

sentence.”); Brown v. Morris, 231 F. App’x 312, 313 (5th Cir. 2007) (“The state court’s 

judgment that [the petitioner’s] state sentence should run concurrently with his federal sentence 

is not binding on the BOP.” (citing Leal, 341 F.3d at 427-30)).

III. CONCLUSION

For all these reasons, Rzadca’s habeas corpus petition under 28 U.S.C. § 2241 should be

DENIED, and this case should be DISMISSED WITH PREJUDICE.

SO RECOMMENDED on February 13, 2023.

INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

A copy of this report and recommendation will be served on all parties in the manner provided by 

law. Any party who objects to any part of this report and recommendation must file specific 

written objections within 14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); FED.

R. CIV. P. 72(b). An objection must identify the finding or recommendation to which objection is 

made, the basis for the objection, and the place in the magistrate judge’s report and 

recommendation the disputed determination is found. An objection that merely incorporates by 

reference or refers to the briefing before the magistrate judge is not specific. Failure to file specific 

written objections will bar the aggrieved party from appealing the factual findings and legal 

conclusions of the magistrate judge that are accepted or adopted by the district court, except upon 

grounds of plain error. See Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1417 (5th Cir. 

1996), modified by statute on other grounds, 28 U.S.C. § 636(b)(1) (extending the time to file 

objections to 14 days). 

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