NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 13-3228

___________

ROBERT SMITH, 

 Appellant

v.

WARDEN FCI MCKEAN

____________________________________

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Civil Action No. 1-13-cv-00005)

District Judge: Honorable Sean J. McLaughlin

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

September 2, 2014

Before: JORDAN, COWEN and BARRY, Circuit Judges

(Filed: September 3, 2014)

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OPINION

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PER CURIAM

Federal prisoner Robert Smith appeals pro se from the order of the United States 

District Court for the Western District of Pennsylvania (“the District Court”) denying his 

habeas petition filed pursuant to 28 U.S.C. § 2241. For the reasons that follow, we will 

affirm.
2

I.

On December 8, 2007, local authorities in Syracuse, New York, arrested Smith for 

possession of a firearm, possession with intent to distribute cocaine base, and violation of 

his parole from a prior New York state offense. In light of Smith’s firearm- and drugrelated conduct, the United States, in March 2008, filed a criminal complaint against him 

in the United States District Court for the Northern District of New York (“the NDNY”). 

Because Smith was in state custody at the time, the NDNY issued a writ of habeas corpus 

ad prosequendum so that he could appear before that court to answer the federal charges 

against him. “A prisoner detained pursuant to a writ ad prosequendum is considered to 

remain in the primary custody of the first jurisdiction unless and until the first sovereign 

relinquishes jurisdiction over the person.” Ruggiano v. Reish, 307 F.3d 121, 125 n.1 (3d 

Cir. 2002), superseded on other grounds by U.S.S.G. § 5G1.3 cmt. n.3(E) (2003). The 

second sovereign — in this case, the United States — “is, therefore, considered simply to 

be ‘borrowing’ the prisoner from the [first] sovereign for the purposes of indicting, 

arraigning, trying, and sentencing him.” Id.

Smith ultimately pleaded guilty to the federal charges. On May 5, 2009, the 

NDNY sentenced him to 10 years’ imprisonment, to run concurrent with “any time you 

receive on your pending New York State Parole violation.” (Supplemental App. at 48.) 

He was then returned to the New York state authorities. Although the state charges for 

possession of a firearm and possession with intent to distribute cocaine base had already 

been dismissed, he still had to answer for his parole violation.
3

After a parole violation hearing, Smith’s parole was revoked, effective June 9, 

2009. He received a credit toward the balance of his state sentence for the time between 

his December 2007 arrest and the revocation of his parole. In December 2009, the State 

re-paroled him and he was released to the United States Marshals Service to continue

serving his federal sentence in a federal correctional facility (the Bureau of Prisons 

(“BOP”) determined that his federal sentence started to run on the date that it was 

imposed by the NDNY). Smith’s projected release date from federal custody is in 2018.

In 2011, Smith asked the BOP to credit his federal sentence for all of the time that 

he had spent in state custody after his December 2007 arrest. The BOP denied that 

request. Thereafter, Smith filed a pro se § 2241 habeas petition in the District Court, 

challenging the BOP’s denial.1 The United States Magistrate Judge who was assigned to 

the case recommended that the petition be denied on the merits. The District Court, over 

Smith’s objections, adopted that recommendation. This timely appeal followed.2

II.

We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.3 In reviewing 

a district court’s denial of a § 2241 petition, “[w]e exercise plenary review over the 

 

1 At that time, Smith was incarcerated at the Federal Correctional Institution at McKean 

(“FCI-McKean”), which is located within the Western District of Pennsylvania. 

Accordingly, the petition was properly filed in that district. See Rumsfeld v. Padilla, 542 

U.S. 426, 446-47 (2004).

2 Smith does not need a certificate of appealability to proceed with this appeal. See

United States v. Cepero, 224 F.3d 256, 264-65 (3d Cir. 2000) (en banc), abrogated on 

other grounds by Gonzalez v. Thaler, 132 S. Ct. 641 (2012).

3 During the pendency of this appeal, Smith was transferred from FCI McKean to a 
4

[d]istrict [c]ourt’s legal conclusions and apply a clearly erroneous standard to its findings 

of fact.” O’Donald v. Johns, 402 F.3d 172, 173 n.1 (3d Cir. 2005) (per curiam).

The governing statute in this case is 18 U.S.C. § 3585. Section (a) of that statute 

defines when a federal sentence commences, while section (b) explains the circumstances 

under which a federal prisoner may receive a credit toward his sentence based on his 

“prior custody.” That latter section states as follows:

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).

In this case, the BOP determined that Smith’s federal sentence commenced on the 

date that it was imposed — May 5, 2009. The District Court upheld that determination, 

and Smith does not challenge it here. The question that is before us is whether § 3585(b) 

allows a credit for the time between Smith’s arrest on December 8, 2007, and the start of 

his federal sentence on May 5, 2009. The District Court answered this question in the 

negative. The court explained that, because Smith’s state sentence had already been 

 

federal prison in New York. That transfer did not divest us of jurisdiction. See Barden v. 

Keohane, 921 F.2d 476, 477 n.1 (3d Cir. 1990).
5

credited for that period of time, that time could not be credited toward his federal 

sentence under § 3585(b). We agree with the District Court.4

Although not presented in Smith’s habeas petition, the United States’ opposition to 

the petition discussed two “exception[s]” to § 3585(b)’s rule prohibiting double credit. 

The first stems from Willis v. United States, 438 F.2d 923 (5th Cir. 1971) (per curiam), 

and the second stems from Kayfez v. Gasele, 993 F.2d 1288 (7th Cir. 1993). The District 

Court considered these two exceptions but concluded that neither applied here.

Prior to briefing, the Clerk of this Court directed the parties to address, in their 

respective merits briefs, two questions concerning Willis credit. Smith, however, failed 

to do so. In fact, his merits brief does not mention Willis or make any argument that 

could be liberally construed as claiming that Willis credit is applicable here. His brief 

also makes no mention of Kayfez credit. As a result, any arguments stemming from 

Willis or Kayfez have been waived. See Laborers’ Int’l Union of N. Am., AFL-CIO v. 

Foster Wheeler Corp., 26 F.3d 375, 398 (3d Cir. 1994) (stating that “[a]n issue is waived 

unless a party raises it in [his] opening brief”).

We have reviewed the arguments that Smith does raise in his brief and find them 

to be unavailing.5 Given that (1) the District Court correctly held that § 3585(b) did not 

 

4 The United States, while noting that the District Court’s reasoning “supplied an 

adequate basis to deny the [p]etition,” (Appellee’s Br. 13 n.6), appears to argue that the 

period of time in question would not fall under § 3585(b) even if that time had not been 

credited toward Smith’s state sentence. Because the resolution of that argument would 

not change the outcome here, we need not discuss it further. 

5 Smith appears to claim that our decision in Barden entitles him to the credit that he 
6

allow the credit sought here, and (2) Smith has waived any challenge to the District 

Court’s conclusion that he was not otherwise entitled to the credit, we will affirm the 

District Court’s judgment.

 

seeks. He is mistaken. In Barden, we held that the BOP has the discretion to decide 

whether the state prison housing an individual may be designated as a federal prison nunc 

pro tunc for purposes of satisfying his federal sentence. See Barden, 921 F.2d at 477-78. 

Here, the BOP did, in fact, designate the state prison as a federal prison, for Smith’s 

federal sentence began to run on May 5, 2009, even though he was not released from 

state prison until December 2009. But that designation has no bearing on whether Smith 

is entitled to a credit for the time that he spent in state custody before his federal sentence 

started. As stated above, that determination turns on an application of § 3585(b). To the 

extent that Smith makes a separate argument based on section 5G1.3 of the United States 

Sentencing Guidelines, that claim is not properly before us. See Tri-M Group, LLC v. 

Sharp, 638 F.3d 406, 416 (3d Cir. 2011) (“It is axiomatic that arguments asserted for the 

first time on appeal are deemed to be waived and consequently are not susceptible to 

review in this Court absent exceptional circumstances.”) (internal quotation marks 

omitted).