2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-25-2010

Angel DeJesus v. Michael Zenk

Precedential or Non-Precedential: Non-Precedential

Docket No. 10-1226

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Recommended Citation

"Angel DeJesus v. Michael Zenk" (2010). 2010 Decisions. Paper 1629.

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CLD-140 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 10-1226

___________

ANGEL MARIA DEJESUS, 

 Appellant

v.

MR. MICHAEL ZENK, Warden of MVCC; 

CORNELL COMPANIES, INC.; 

FEDERAL BUREAU OF PRISONS

____________________________________

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Civ. No. 08-cv-00155)

District Judge: Honorable Kim R. Gibson

____________________________________

Submitted for Possible Summary Action 

Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6

March 4, 2010

Before: BARRY, FISHER and STAPLETON, Circuit Judges

(Opinion filed: March 25, 2010 )

_________

OPINION

_________

PER CURIAM.

Angel Maria DeJesus, a federal inmate in Pennsylvania, filed a petition for a writ

of habeas corpus under 28 U.S.C. § 2241 in the United States District Court for the
 A writ of habeas corpus ad prosequendum “merely ‘loans’ the prisoner to federal 1

authorities.” Rios v. Wiley, 201 F.3d 257, 275 (3d Cir. 2000).

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Western District of Pennsylvania, claiming that the Bureau of Prisons (BOP) erred in

refusing to designate nunc pro tunc a state correctional facility for service of his federal

sentence so that DeJesus “could gain credit against his federal sentence.” Ptn. at 2. The

District Court adopted a Magistrate Judge’s Report and Recommendation and denied the

petition. DeJesus timely filed this appeal. We have appellate jurisdiction under

28 U.S.C. § 1291. We will summarily affirm because this appeal presents “no substantial

question.” 3d Cir. IOP Ch. 10.6 and L.A.R. 27.4.

The essential facts are not in dispute. On July 17, 2003, DeJesus was arrested in

New York for a drug possession offense, and later sentenced by a New York court to 3 to

6 years in prison. On September 16, 2005, while serving the state sentence, DeJesus was

indicted in the United States District Court for the Southern District of New York on a

charge of illegal reentry after deportation. On September 29, 2005, pursuant to a writ of

habeas corpus ad prosequendum, DeJesus was taken into federal custody for processing

of the federal charge. On May 5, 2006, after entry of a guilty plea, the federal court 1

imposed a sentence of 57 months in prison, to run concurrently with the state sentence. 

The BOP has run the federal sentence from its date of imposition (May 5, 2006).

On May 25, 2006, DeJesus was returned to state custody. He was then paroled

from the state sentence on September 8, 2006, and transferred to federal custody to
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complete serving the federal sentence. The record indicates that, with full good conduct

time credit, DeJesus’ projected date to complete the federal sentence is June 26, 2010, at

which time he will be released to the Bureau of Immigration and Customs Enforcement. 

DeJesus claims that the BOP erred in refusing his request to credit his federal

sentence for all the time that he served in state prison prior to imposition of the federal

sentence (i.e., July 17, 2003, through September 29, 2005). He argues that nunc pro tunc

designation of the state prison for service of the federal sentence is required to remedy

the additional time that he claims to have spent in state custody due to the purported

delay in bringing the federal prosecution for illegal reentry. Furthermore, he argues that

he would have been eligible for parole on the state sentence on November 15, 2005, but

that his ability to complete the requirements for parole were delayed when he was taken

into federal custody on the writ in September 2005.

Distinguishing Bardon v. Keohane, 921 F.2d 476 (3d Cir. 1990), and the other

cases relied upon by DeJesus, the Magistrate Judge found that the BOP did not err in

refusing to afford “double credit” for time that DeJesus served in state custody prior to

imposition of the federal sentence, as that time was credited to the state sentence. We

agree.

When, as here, a federal district court expressly states that its sentence is to run
 The judgment in DeJesus’ federal case imposed a term of imprisonment of “57 2

months to run concurrent with the state sentence the defendant is currently serving.” 

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concurrently with a state sentence, the BOP will deem the federal sentence to commence 2

on the date imposed, see 18 U.S.C. § 3585(a), and it will designate the state institution as

the place for service of the federal sentence. See 18 U.S.C. § 3621(b). The BOP

properly followed that course here and began DeJesus’ federal sentence on its date of

imposition, thereby allowing him to serve the state and federal sentences concurrently

from May 5, 2006, forward. But DeJesus was not entitled to credit for time served in

state custody prior to imposition of the federal sentence.

It is undisputed that all of DeJesus’ time served prior to imposition of the federal

sentence was credited to his state sentence. Under 18 U.S.C. § 3585(b), the BOP may

not grant prior custody credit for time credited to another sentence. See Rios v. Wiley,

201 F.3d 257, 274 (3d Cir. 2000). Because DeJesus received credit on his state sentence,

he cannot, as the Magistrate Judge fully explained, receive double credit.

DeJesus argues, nevertheless, that his situation is “exceptional” and warrants

double credit under Willis v. United States, 438 F.2d 923 (5th Cir. 1971), and Kayfez v.

Gasele, 993 F.2d 1288 (7th Cir. 1993). This Court has explained, however, that the

reasoning in the “Willis/Kayfez line of cases” does not permit federal credit for time

served “after the state sentence was imposed but before the federal sentence was

pronounced.” Rios, 201 F.3d at 273 n.13. DeJesus has not shown that his situation
presents any circumstance indicating that the BOP misapplied the controlling statutes in

refusing to award double credit. 

For these reasons, we will affirm the District Court’s judgment. 

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