UNITED STATES DISTRICT COURT 

DISTRICT OF OREGON 

JERRY LEE DONOVAN, 

Petitioner, 

v. 

MARION FEATHER, 

Respondent. 

COFFIN, Magistrate Judge. 

3:15-cv-00504-TC 

FINDINGS AND 

RECOMMENDATION 

Petitioner, a federal inmate serving a 110 month sentence 

at FCI Sheridan, filed a petition under 28 U.S.C. § 2241 

challenging his sentence computation. Specifically, petitioner 

alleges that the Federal Bureau of Prisons (BOP) failed to 

afford him sentencing credit for time served in state custody 

from February 13, 2008 until December 29 2008. Petitioner 

alleges that he is entitled to this credit under 18 U.S.C 

1 - FINDINGS AND RECOMMENDATION 

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§3621 (b)' which allows the BOP to designate a state 

correctional facility as the place to serve a federal 

sentence. Petition (#1), p. 3. 

Respondent contends that the petition should be denied 

because petitioner does not qualify for nunc pro tune 

designation, and his time served in state custody was already 

credited toward the service of his state sentence. Answer 

(#9), p. 2. 

A detailed Timeline of Sentencing Computation Events is 

set forth in Respondent's Answer (#9) at p. 3-4. In summary, 

the Summary reflects that while being held in Alaska state 

custody on state drug charges, petitioner was on multiple 

occasions transferred to federal custody for criminal 

proceedings pursuant to a federal writ ad prosequendum. 

On December 29, 2008, petitioner was sentenced on federal 

drug and gun charges to a 110 month term of imprisonment. The 

federal judgment was silent as to whether the sentence was to 

run consecutively or concurrently to any other sentence. 

On May 1, 2009, the State of Alaska imposed an 18 month 

term of imprisonment for parole revocation and ordered 9 

months to run concurrent and 9 months to run consecutive to 

petitioner's yet-to-be served federal sentence. 

2009, sentence equated to time served. 

The May 1, 

On June 10, 2009, state officials transported petitioner 

2 - FINDINGS AND RECOMMENDATION 

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into exclusive federal custody, and his federal sentence 

commenced on that date. The BOP credited Petitioner's federal 

sentence for time spent in custody From December 8, 2004 -

December 20, 2004; and from April 7 - June 10, 2009. 

Petitioner now seeks additional sentencing credit for the 

time he spent in primary state custody between February 13, 

2008 (the date he was first borrowed via writ ad pros for 

federal criminal proceedings) through December 29, 2008 (the 

date of his federal sentence) 

A federal sentence begins on the date a defendant is 

"received into custody awaiting transportation to, or arrives 

voluntarily to commence service of sentence at, the official 

facility at which the sentence is to be served." 18 U.S.C. 

3585 (a). An inmate is entitled to sentence credit for the 

time spent in custody between the date of the offense and the 

date the sentence begins "as a result of the offense for which 

the sentence is imposed" or for any time spent in federal 

custody after the commission of the offense "that has not been 

credited against another sentence." Id. at § 3585 (b). 

Petitioner's request for sentencing credit was considered 

by the BOP as a request toa a "nunc pro tune" designation of 

the state ins ti tut ion as the location for service of his 

federal sentence pursuant to Barden v. Keohane, 921 F.2d 476, 

478 (3rd Cir. 1990). Bordreaux Declaration (#10) at 5, Att. 

3 - FINDINGS AND RECOMMENDATION 

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13. 1 

When a federal inmate has spent time serving a state 

sentence on a separate offense after federal sentencing, the 

BOP has discretion to retroactively designate the state 

institution as the location for service of the federal 

sentence, effectively granting federal sentencing credit for 

the time spent in state custody. Barden, 921 F.2d at 478. 

Such designation is not mandatory, but the BOP must at least 

consider whether it is appropriate if requested by the inmate. 

In making the determination, the BOP examines the policy 

considerations set forth in 18 U.S.C. § 3621 (b). As long as 

the BOP makes its determination based on these factors, the 

determination must be upheld. Barden, 921 F.2d at 478. 

In petitioner's case the applicable factors were: (1) the 

nature and circumstances of the offense; (2) the history and 

characteristics of the prisoner; and (3) any statement by the 

court that imposed the sentence as to its purpose or type of 

facility in which it is to be served. Bordreaux Declaration 

(#10) at 15, Att. 11. (citing 18 U.S.C. §3621 (b); see also 

BOP Program Statement 5160.05). 

In this case, the record reflects that the BOP denied 

petitioner's request for nunc pro tune designation based on 

1

A nunc pro tune designation is a mechanism whereby the BOP 

may commence a sentence as early as the date of imposition, even 

though the inmate was not in federal custody. 

4 - FINDINGS AND RECOMMENDATION 

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the nature of his offenses, his extensive criminal history, 

and the federal sentencing court's silence as to whether the 

sentence was to be concurrent or consecutive to petitioner's 

state sentence. Bordreaux Declaration (#10) at 5-6, Att 13-14. 

Thus, the BOP properly acted within its discretion in 

evaluating the relevant factors and denying petitioner's 

request and the BOP's determination in this regard shoulod be 

upheld. 

Petitioner also argues that he is entitled to sentencing 

credit pursuant to Kayfez v. Gasele, 993 F.2d 1288 (7:h Cir. 

1993), and Willis v. United States, 438 F.2d 923 (Sh Cir. 

1971). Under Kayfez and Willis, a petitioner sentenced 

concurrently to state and federal sentences may be entitled to 

"double count" time spent in state custody towards both 

sentences when the absence of the credit would leave the 

petitioner in completion of one concurrent sentence but still 

incarcerated on the other, thus receiving no tangible benefit 

from the credit. 

To qualify for the Kayfez/Willis credit, the inmate "must 

be serving a concurrent federal sentence and the inmate must 

not actually benefit from a credit to his state sentence. 

Grave l v . Fox , 2 0 14 WL 4 6 7 6 4 9 7 , at * 8 ( E . D . Cal. 2 0 14 ) . 

Kayfez/Willis credits do not apply to consecutively sentenced 

inmates who receive sentencing credits on their state 

5 - FINDINGS AND RECOMMENDATION 

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sentences because the inmate attains the benefit of a shorter 

overall term of incarceration. 

In this case, petitioner is not eligible for 

Kayfez/Willis credits because his federal sentence is not 

concurrent to his state sentence, and because he received a 

benefit from applying his prior custody credit to his state 

sentence. 2 

Because the state's concurrency order was not binding, 

and petitioner's federal sentence did not specify whether it 

was to be concurrent or consecutive to his forthcoming state 

sentence, the sentence is deemed consecutive. See, 18 U.S.C. 

§ 3584 (a). 

Based on all of the foregoing, petitioner's Petition (#1) 

should be denied. Petitioner's Motion to Expedite (#12) 

should be denied as moot. The Clerk of the Court should be 

directed to enter a judgment dismissing this proceeding. 

This recommendation is not an order that is immediately 

2

Although the state sentenced petitioner to 18-months 

incarceration, of which 9 months was to be served concurrent to the 

unserved federal sentence, a state cannot order that an inmate 

serve a federal term of incarceration at a state facility or 

transform an unserved fedderal sentence into a sentence concurrent 

with forthcoming state incarceration. Taylor v. Sawyer, 284 F.3d 

1143, 1150 (9th Cir. 2002). (holding that such a state intrusion 

onto a federal sentence is not binding on the BOP' s sentence 

calculation and that "concurrent sentences imposed by state 

sentencing judges are nothing more than recommendations to federal 

officials. Those officials remain free to turn those concurrent 

sentences into consecutive sentences .... " Id. 

6 - FINDINGS AND RECOMMENDATION 

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appealable to the Ninth Circuit Court of Appeals. Any notice 

of appeal pursuant to Rule 4(a) (1), Federal Rules of Appellate 

Procedure, should not be filed until entry of the district 

court's judgment or appealable order. The parties shall have 

fourteen (14) days from the date of service of a copy of this 

recommendation within which to file specific written 

objections with the court. Thereafter, the parties have 

fourteen ( 14) days within which to file a response to the 

objections. Failure to timely file objections to any factual 

determinations of the Magistrate Judge will be considered a 

waiver of a party's right to de novo consideration of the 

factual issues and will constitute a waiver of a party's right 

to appellate review of the findings of fact in an order or 

judgment entered pursuant to the Magistrate Judge's 

recommendation. 

Certificate of Appea1abi1ity 

Shou1dpetitioner appea1, a certificate 0£ appea1abi1ity 

shou1d be denied as petitioner has not made a substantia1 

showing 0£ the denia1 0£ a constitutiona1 right. See, 28 

U.S.C. § 2253(c) (2). 

--r--

D ATE D this ~ day of May, 

Thomas 

United 

7 - FINDINGS AND RECOMMENDATION 

s Magistrate Judge 

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