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IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Robert Elie Villanueva, 

Petitioner, 

v. 

JT Shartle, 

Respondent. 

No. CV-15-00494-TUC-RCC (BPV)

REPORT & RECOMMENDATION 

 Pending before the Court is Petitioner’s Petition for Writ of Habeas Corpus filed 

pursuant to 28 U.S.C. ' 2241 (Doc. 1). Respondent has filed a Return and Answer (Doc. 

13) and Petitioner has filed a Traverse (Doc. 14). Pursuant to the Rules of Practice of this 

Court, this matter was referred to the undersigned Magistrate Judge for a Report and 

Recommendation. For the following reasons, the Magistrate Judge recommends that the 

District Court deny the Petition. 

I. BACKGROUND

Petitioner is an inmate currently incarcerated at the United States Penitentiary in 

Tucson, Arizona. (Petition at 1; see also Memorandum of Points and Authorities in 

Support of Petition for Writ of Habeas Corpus (“Petitioner’s Memorandum”) (Doc. 1-2)). 

Petitioner is serving a 33–month sentence of imprisonment followed by fifteen years of 

supervised release for conviction in the Middle District of North Carolina (“North 

Carolina district court”) of failure to register as a sex offender in violation of 18 U.S.C. 

§2250. (Answer at 5 & Exh. A, Att. 11). Respondent contends that Petitioner’s projected 

release date is December 22, 2016 via good conduct time. (Answer at 2 (citing Answer, 

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Exh. A, Att. 1)). 

 Petitioner asserts that the Bureau of Prisons (“BOP”) has miscalculated his 

sentence, resulting in his imprisonment beyond his actual release date. (Petition at 4). 

Respondent argues that Petitioner failed to exhaust administrative remedies in part and 

that Petition is without merit because Petitioner’s sentence has been properly calculated. 

II. DISCUSSION

A. JURISDICTION

 “Federal courts are always ‘under an independent obligation to examine their own 

jurisdiction,’... and a federal court may not entertain an action over which it has no 

jurisdiction.” Hernandez v. Campbell, 204 F.3d 861, 865 (9th Cir.2000) (quoting 

FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231 (1990), overruled in part on other 

grounds by City of Littleton, Colo. v. Z.J. Gifts D–4, L.L.C., 541 U.S. 774 (2004)). 

Generally, an action to contest the legality of a sentence must be filed pursuant to 28 

U.S.C. § 2255; whereas, an action to challenge the execution of a sentence must be filed 

pursuant to 28 U.S.C. § 2241. Hernandez, 204 F.3d at 864. Petitioner’s claim that the 

BOP has miscalculated his sentence is properly raised pursuant to §2241. See id. 

Further, because Petitioner is incarcerated at the United States Penitentiary in Tucson, 

Arizona, this Court has jurisdiction over this matter. Francis v. Rison, 894 F.2d 353 (9th 

Cir. 1990). 

 B. EXHAUSTION

Petitioner’s briefs are not a model of clarity. He advances several calculations that 

he contends should be applied in his case. One set of calculations is based on his 

contention that he is entitled to credit dating back to a July 12, 2013 offense date, or at 

least to January 11, 2014 when he contends his state custody ended. (See Petitioner’s 

Memorandum). He also argues that he should receive prior custody credit, and/or 

“Willis” time, for the period from June 22, 2014 to August 1, 2015. (Petition at 4; 

Traverse at 2; see also Petitioner’s Memorandum, Exhs. F, G). 

 Federal prisoners are generally required to exhaust available administrative 

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remedies before filing a habeas corpus petition pursuant to 28 U.S.C. § 2241. See Tucker 

v. Carlson, 925 F.2d 330, 332 (9th Cir.1991); Martinez v. Roberts, 804 F.2d 570, 571 

(9th Cir. 1986). The failure to satisfy the exhaustion requirement applicable to section 

2241 proceedings is not jurisdictional. Brown v. Rison, 895 F.2d 533, 535 (9th Cir. 1990) 

overruled on other grounds by Reno v. Koray, 515 U.S. 50, 54–55 (1995). Thus, where a 

federal prisoner fails to properly exhaust administrative remedies prior to filing a ' 2241 

petition, “the district court must determine whether to excuse the faulty exhaustion and 

reach the merits, or require the petitioner to exhaust his administrative remedies before 

proceeding in court.” Id. The district court may exercise its discretion to excuse the 

exhaustion requirement if the administrative remedy is inadequate, ineffective, or if 

attempting to exhaust would be futile or cause irreparable injury. Fraley v. United States 

Bureau of Prisons, 1 F.3d 924, 925 (9th Cir. 1993); United Farm Workers of America v. 

Arizona Agr. Emp't. Relations Bd., 669 F.2d 1249, 1253 (9th Cir. 1983). When 

determining if the exhaustion requirement should be excused, the court should consider 

whether: (1) agency expertise makes agency consideration necessary to generate a proper 

record and reach a proper decision; (2) relaxation of the requirement would encourage the 

deliberate bypass of the administrative scheme; and (3) administrative review is likely to 

allow the agency to correct is own mistakes and to preclude the need for judicial review. 

Noreiga–Lopez v. Ashcroft, 335 F.3d 874, 880–81 (9th Cir. 2003) (citing Montes v. 

Thornburgh, 919 F.2d 531, 537 (9th Cir. 1990)); see also Ruviwat v. Smith, 701 F.2d 844, 

845 (9th Cir. 1983) (recognizing that requiring exhaustion of administrative remedies 

“will aid judicial review by allowing the appropriate development of a factual record in 

an expert forum; conserve the court's time because of the possibility that the relief 

applied for may be granted at the administrative level; and allow the administrative 

agency an opportunity to correct errors occurring in the course of administrative 

proceedings.”).

 The BOP has established an Administrative Remedy Program which requires the 

prisoner to proceed through a four-tier review process comprised of: (1) an informal 

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resolution process with institutional staff, see 28 C.F.R. § 542.13; (2) a formal written 

Administrative Remedy Request to the warden, see 28 C.F.R. § 542.14; (3) an appeal to 

the BOP Regional Director, see 28 C.F.R. § 542.15; and (4) an appeal to the BOP 

General Counsel, see id. (“Appeal to the General Counsel is the final administrative 

appeal.”). Additionally, formal administrative remedy requests regarding initial decisions 

that did not originate with the Warden, or his/her staff, may be initially filed with the 

Bureau office which made the original decision, and appealed directly to the General 

Counsel. 28 C.F.R. § 542.14(d)(5). The regulation is clear that “[t]he purpose of the 

Administrative Remedy Program is to allow an inmate to seek formal review of an issue 

relating to any aspect of his/her own confinement.” 28 C.F.R. § 542.10(a). 

 Respondent argues that Petitioner failed to exhaust administrative remedies prior 

to filing the instant Petition because, during the administrative remedy process, Petitioner 

“only presented his claim that he should be given credit from June 22, 2014, forward—

not his current claim that he should be given 491 days [sic] credit—to the Warden and 

Regional.” (Answer at 6 (citing Petitioner’s Memorandum at 21-26)). Elsewhere in the 

Answer, Respondent mentions that after Petitioner’s requests for administrative remedies 

seeking credit for time beginning June 22, 2014 were denied at the institutional and 

Regional Office levels, his Central Office appeal was rejected because he failed to 

provide a copy of the Regional Appeal and, although he was given leave to resubmit his 

appeal within fifteen days of the rejection, he did not do so. (Answer at 3 (citing Answer, 

Att. A at ¶10)). However, Respondent specifically seeks dismissal of the Petition only on 

the ground that Petitioner did not exhaust his claims seeking credit from a date prior to 

June 22, 2014. (See Answer at 6-7). With regard to that claim, Respondent also points 

out that Petitioner’s proffered calculation is mistaken because Petitioner failed to take 

into account that his full-term expiration date was adjusted to reflect time while he was 

on fugitive status prior to commencing his term of conditional release. (Id. at 3-4 (citing 

Answer, Exh. A, Att. 4)). 

 Petitioner initially argued in his opening Memorandum that the Court should not 

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require exhaustion because doing so would delay matters beyond his release date should 

he prevail. (Petitioner’s Memorandum at 6-8). Petitioner also asserted, and Respondents 

have not disputed, that in October 2015, he “presented the situation to Ms. Lora Molinar, 

the supervisor of the inmate systems records office, and she advised Petitioner the 

determination as reflected on [the September 17, 2015 Sentence Monitoring Computation 

Data form attached as exhibit L to Petitioner’s Memorandum] . . . was the final decision 

of the Designation and Sentence Computation Center in Grand Pra[i]rie, Texas, leaving 

no other alternative but to proceed with this. . .” action. (Id. at 7-8). With regard to his 

claim seeking credit from January 11, 2014 or before, Petitioner also stated that under his 

present timeline, there is no time to exhaust administrative remedies. (Id). 

 However, in his Traverse, Petitioner stated that: “The issue before this honorable 

Court now is one of prior custody jail credit. Specifically, between the dates of June 22, 

2014 and August the 1st, 2014 totaling 40 days not including any applicable Good 

Conduct time (‘GCT’), that [P]etitioner is entitled to as ‘Willis Time Credits.’” (Traverse 

at 2). Thus, Petitioner appears to have abandoned his claims with regard to calculations 

based on the January 2014 and July 2013 dates.1

 

 What is left then is Petitioner’s claim that he is entitled to credit for the period 

from June 22, 2014 through August 1, 2014. With regard to this claim, Petitioner 

contends that “he did in fact resubmit his appeal. Petitioner presented his appeal to 

correctional officer K. Lagro to be mailed. Petitioner can only assume [sic] left the 

facility as intended.” (Traverse at 4). Respondent has not specifically argued that this 

claim should be dismissed for failure to exhaust. See e.g. Soules v. McClintock, 2014 WL 

4425786, *3 (D.Ariz. Sept. 9, 2014) (Respondent waived argument that Petitioner did not 

 

1

 Even if Petitioner had not withdrawn these claims, the record is clear that he 

failed to exhaust them, and Petitioner concedes as much. (See Petitioner’s Memorandum 

at 6-8). Additionally, Petitioner has failed to rebut Respondent’s argument and supporting evidence that adjustment for time on fugitive status supported a different termination date for his state sentence and that he was not entitled to prior custody credit under 18 U.S.C. §3585(b). Therefore, even if the Court were to address Petitioner’s 

unexhausted claims relying on the July 2013 and January 2014 dates, they are without merit. 

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exhaust administrative remedies). Nor has Respondent sought leave to dispute 

Petitioner’s claim that he did re-submit the appeal. Further, Respondent has not disputed 

Petitioner’s assertion that there would be insufficient time to exhaust administrative 

remedies without effectively mooting this action. As discussed infra, Respondent has 

submitted pertinent records and argument to support his position that Petitioner’s claim is 

meritless. Upon review of Respondent’s Answer, there is no possibility that the relief 

applied for may be granted at the administrative level. Under the instant circumstances, 

the Court will review the merits of Petitioner's claim that he should receive prior custody 

credit for the period from June 22, 2014 to August 1, 2014. See Fraley, 1 F.3d at 925. See 

also Parsons v. Sanders, 2010 WL 5676523, *1 (D. Ariz. Dec. 20, 2010) (court need not 

address exhaustion where claim is without merit); cf. Cassett v. Stewart, 406 F.3d 614, 

(9th Cir. 2005) (in the context of a habeas petition filed pursuant to 28 U.S.C. § 2254, the 

court may deny the petition on the merits without reaching the exhaustion question 

“when it is perfectly clear that the applicant does not raise even a colorable federal 

claim.”) (citing 28 U.S.C. § 2254(b)(2); Granberry v. Greer, 481 U.S. 129, 135 (1987)). 

C. PETITIONER’S CLAIM

 1. INTRODUCTION

 Petitioner’s case involves the interplay of a sentence imposed by the state of 

Minnesota in 2006 with his federal sentence imposed by the North Carolina district court 

in 2014. 

 On April 13, 2006, Petitioner was sentenced in Minnesota state court to a 48-

month term of imprisonment and a 10-year term of conditional release based upon his 

conviction of third degree criminal sexual conduct and attempted third degree criminal 

sexual conduct. (Answer at 3 (citing Answer, Exh. A, Att. 3)). Petitioner received 181 

days of jail credit. (Id.).2

 

 

2

 Respondent explains, and Petitioner does not dispute, that Petitioner’s full term 

date was April 12, 2010. (Answer at 3). “Absent the 181 days jail credit, Petitioner would have been released to supervised release (not conditional release) on December 12, 

2008. (Under Minnesota law, inmates are required to serve the balance of their full term 

on supervised release. Minn. Stat. [§] 244.05).” (Answer at 3 (citing Answer, Exh. A, 

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 In light of the 181 days of jail credit, Petitioner was initially released on June 14, 

2008. (Answer at 3 (citing Answer, Exh. A, Att. 4)). “Had Petitioner complied with the 

terms of his supervised release, the 181 days of jail credit would have been subtracted 

from his April 12, 2010, full term date, and he would have started conditional release on 

October 13, 2009.” (Id.). However, Petitioner absconded from supervision several times. 

His expiration date was adjusted for 108 days for his March 12, 2009 to June 28 2009 

violation, and 6 days for his January 8, 2010 to January 14, 2010 violation. (Id. at 3-4 

(citing Answer, Exh. A, Att. 4)). His adjusted expiration date was February 4, 2010. (Id.

at 4 (citing Answer, Exh. A, Att. 4)). Petitioner then began serving his ten-year 

conditional supervision sentence on February 5, 2010. (Id.). 

 While serving his conditional release time, Petitioner was on fugitive status from 

November 21, 2012 to July 12, 2013. (Id. (citing Answer, Exh. A, Att. 4)). The 

Minnesota Department of Corrections (“MNDOC”) credited Petitioner with the 353 days 

he spent on successful supervision during the base term and docked the 233 days he spent 

on fugitive status. (Id.). After his July 12, 2013 arrest, Petitioner was incarcerated by the 

MNDOC. (See Traverse, Exh. C; Petitioner’s Memorandum, Exh. G). On August 12, 

2013, the MNDOC Hearings and Release Unit revoked Petitioner’s release and assigned 

365 days, stating in pertinent part that: “Re-release is also contingent upon an agentapproved plan.”3

 (Traverse, Exh. C). 

 On September 19, 2014, while imprisoned in Minnesota, Petitioner successfully 

moved the Minnesota state court to reduce his ten-year conditional release term to a fiveyear conditional release term. (Answer at 4; see also Answer, Exh. A, Atts. 5-6 

(modification was in order because the wrong version of the sentencing statute had been 

 Att. 4 )). 

3

 Petitioner submits a Minnesota statute which provides, in pertinent part, that: “If the offender fails to meet any condition of release, the commissioner may revoke the offender’s conditional release and order that the offender serve the remaining portion of the conditional release term in prison. The commissioner shall not dismiss the offender 

from supervision before the conditional release term expires.” (Petitioner’s Memorandum, Exh. A (Minn. Stat. §609.109 subd. 7(b) (2004)). 

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applied to Petitioner’s state case)). The state court order modifying Petitioner’s 

conditional release term to five years was filed on October 16, 2014. (Answer, Exh. A, 

Att. 6). 

 As to Petitioner’s federal sentence, Petitioner was indicted on August 26, 2013, in 

the North Carolina district court on charges of failure to register and update registration 

as a sex offender in violation of 18 U.S.C. § 2250. (Answer, Exh. A, Att. 7). On August 

28, 2013, the North Carolina district court issued an arrest warrant for Petitioner.4

 

(Answer, Exh. A, Att. 8). On November 6, 2013, the North Carolina district court issued 

a federal Writ of Habeas Corpus Ad Prosequendum to borrow Petitioner from state 

custody to be prosecuted on the pending federal charges. (Answer at 5 (citing Answer, 

Exh. A, Att. 9); see also Petitioner’s Memorandum, Exh. G (“On November 6, 2013, 

while in primary custody of the . . . MNDOC . . ., you were released to the United States 

Marshals (USM) via writ of habeas corpus ad prosequendum.”)). On August 1, 2014, 

Petitioner was sentenced on the federal charges to a 33-month term of imprisonment and 

fifteen years of supervision for failure to register as a sex offender. (Id.; see also Answer, 

Exh. A, Att. 11). Petitioner was “returned to the custody of MNDOC authorities to 

complete [his] state sentence.” (Petitioner’s Memorandum, Exh. G). 

 On October 17, 2016, the day after the state court modified Petitioner’s 

conditional release term to five years, “the MNDOC determined that Petitioner’s five 

year conditional release term expired on October 7, 2014, and Petitioner transferred into 

primary federal custody.” (Answer at 5 (citing Answer, Exh. A, Att. 4)). 

 On August 25, 2015, the North Carolina district court amended its judgment to 

reflect that Petitioner’s 33-month term of imprisonment “shall run concurrently with any 

undischarged sentence the defendant is presently serving effective August 1, 2014, Nunc 

Pro Tunc.” (Answer, Exh. A, Att. 12 at 2). Petitioner is currently serving that term. 

 Respondent does not dispute that in a September 17, 2015 sentence computation, 

 

4

 The Indictment reflects that Petitioner violated 18 U.S.C. § 2250 “[f]rom on or 

about June 12, 2013, continuing up to and including on or about July 12, 2013, the exact 

dates to the Grand Jurors unknown. . . .” (Answer, Exh. A, Att. 7). 

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the BOP credited Petitioner with 31 days of jail credit from his arrest on July 12, 2013 to 

August 11, 2013. (Answer at 5 n. 2). Respondent asserts that the calculation was 

erroneous “because the BOP was not aware that the MNDOC had credited [Petitioner] 

with that time. . . . Since . . . the MNDOC did credit Petitioner with that time, the BOP 

has recalculated his sentence computation to remove that credit.” (Id. (citing Answer, 

Att. A ¶8)). 

 2. ANALYSIS

 At issue is whether Petitioner is entitled to prior custody credit against his federal 

sentence for the period from June 22, 2014 to August 1, 2014. 

 “After a district court sentences a federal offender, the Attorney General, through 

the BOP, has the responsibility for administering the sentence.” United States v. Wilson, 

503 U.S. 329, 335 (1992) (citing 18 U.S.C. § 3621(a)); see also Allen v. Crabtree, 153 

F.3d 1030, 1033 (9th Cir. 1998). The statute governing calculation of a term of 

imprisonment provides that a federal sentence commences on the date the defendant is 

received in custody to begin service of his sentence. 18 U.S.C. § 3585(a). Section 3585 

also provides for credit for prior custody 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). Section 3585(b) does not authorize a district court to compute the 

credit at sentencing. Wilson, 503 U.S. at 334–35; United States v. Lualemaga, 280 F.3d 

1260, 1265 (9th Cir. 2002). Instead, the Attorney General, acting through the BOP, has 

the responsibility to compute the credit allowed by section 3585(b). Wilson, 503 U.S. at 

334–35 (“Because the offender has a right to certain jail-time credit under § 3585(b), and 

because the district court cannot determine the amount of the credit at sentencing, the 

Attorney General has no choice but to make the determination as an administrative matter 

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when imprisoning the defendant.”); see also United States v. Pardue, 363 F.3d 695, 699 

(8th Cir. 2004) (calculation of pre-sentence credit to be accorded a defendant on sentence 

for violating supervised release is for the BOP, not the district court, and once 

administrative remedies have been exhausted defendant may seek judicial review of the 

BOP's calculation); United States v. McGee, 60 F.3d 1266, 1273. (7th Cir. 1995) (same). 

The BOP has “developed detailed procedures and guidelines for determining the credit 

available to prisoners.” Wilson, 503 U.S. at 335; see also Mezheritsky v. Duncan, 2010 

WL 3834657, *4 (D. Ariz. May 25, 2010) (acknowledging same); Cruz v. Sanders, 2008 

WL 5101021, *1 (C.D. Cal. Dec. 2, 2008) (“The BOP’s guidelines for computation of 

sentences are set forth in Program Statement 5880.28, which expressly incorporates the 

provisions of 18 U.S.C. § 3585(b).”); (Answer, Exh. A, ¶¶4-5 (citing Program Statement 

5880.28)). 

 Under federal law, 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.” 18 

U.S.C. § 3585(a). In cases like Petitioner’s, where state and federal sentences are 

involved, courts consider whether the state or federal government had “primary 

jurisdiction” over the defendant when he is “received” by the Attorney General for 

service of his sentence. See e.g. Taylor v. Reno, 164 F.3d 440, 444 (9th Cir. 1998). 

Primary jurisdiction determines the priority of custody and service of sentence as 

between state and federal sovereigns. Id. at n.1 (“A lack of ‘primary jurisdiction’ does 

not mean that a sovereign does not have jurisdiction over a defendant. It simply means 

that the sovereign lacks priority of jurisdiction for purposes of trial, sentencing and 

incarceration.” (citation omitted)). “As a general rule, the first sovereign to arrest a 

defendant has priority of jurisdiction for trial, sentencing and incarceration.” Thomas v. 

Brewer, 923 F.3d 1361, 1365 (9th Cir. 1991) (citation omitted). Moreover, a transfer 

pursuant to a writ of habeas corpus ad prosequendum does not relinquish primary 

jurisdiction. Id. at 1366-67. Therefore, when Petitioner was transferred from the 

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Minnesota prison to North Carolina for federal proceedings pursuant to a writ of habeas 

corpus ad prosequendum, he was “considered to be ‘on loan’ to the federal authorities so 

that the sending state’s jurisdiction over [him] . . . continues uninterruptedly.” Id. at 

1367 (internal quotation marks and citation omitted). 

 Petitioner argues that time from June 22, 2014 to August 1, 2014 should be 

credited against his federal sentence as prior custody credit. Respondent counters that 

§3585 prohibits awarding credit against Petitioner’s federal sentence for that time 

because the same time was already credited against Petitioner’s state sentence. 

 To support his position, Petitioner cites a document captioned: MNDOC Prison 

Obligations indicating a “Max Confinement Milestone” and “Termination Milestone” of 

“6/22/14”. (Traverse, Exh. A). The document also reflects that Petitioner’s next 

reclassification date is scheduled for January 1, 2015. (Id.). Petitioner also asserts that his 

“[c]onditional [r]elease term was an administrative probationary term which was 

punishable by up to the expiration date of the conditional release term. In this case, 

[P]etitioner was serving only a 365-day probation violation term which began to be 

counted from the date of arrest[,] July 12, 2013. . . . Petitioner’s Revocation term ended 

on June 22, 2014.” (Traverse at 5-6 (citing Traverse, Exhs. A, C)). No explanation of 

the MNDOC Prison Obligation form or terms used therein is provided. The portion of 

the MNDOC Hearing Decision submitted by Petitioner indicates revocation of release, 

assignment of 365 days penalty, and a release expiration date of October 15, 2019.5

 

(Traverse, Exh. C). The Hearing Decision also states that any conviction of discipline 

violations while incarcerated may extend the projected release date and that “[r]e-release 

is also contingent upon an agent-approved plan.” (Id.). Additionally, the Minnesota 

statute cited by Petitioner provides that upon failure to meet “any condition of conditional 

release, the commissioner may revoke the offender’s conditional release and order that 

 

5

 The Revocation Hearing Decision was issued before the state court modified 

Petitioner’s term of conditional release from ten to five years. After Petitioner’s term of conditional release was modified, MNDOC determined that his term concluded on 

October 7, 2014. (Answer at 4). 

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the offender serve the remaining portion of the conditional release term in prison. The 

commissioner shall not dismiss the offender from supervision before the conditional 

release term expires.” (Petitioner’s Memorandum, Exh. A (Minn. Stat. §609.109 subd. 

7(b) (2004)). There is simply no basis on which to conclude from the documents cited by 

Petitioner, or the record as a whole, that Petitioner’s state sentence concluded on June 22, 

2014. Instead, the record reflects that the state of Minnesota credited all of the time 

Petitioner spent in custody and successful supervision between April 13, 2006 and 

October 7, 2014 against his state sentence. (Answer at 4, 10 (citing Answer, Exh. A, att. 

4 at 1-3); see also Answer, Exh. A at ¶¶7, 8). Consequently, § 3585(b) prohibits 

crediting the time at issues here as prior custody credit against the federal sentence 

because the time has already been credited against the Minnesota sentence. See Wilson,

503 U.S. at 337 (“Congress made clear [in §3585(b)] that a defendant could not receive 

double credit for his detention time.”)). Because Petitioner has received full credit 

against his state sentence for the period at issue, he is not entitled to prior custody against 

his federal sentence for that same period to of time. 18 U.S.C. § 3585(b); see also 

Wilson, 503 U.S. at 337; Boniface v. Carlson, 856 F.2d 1434, 1436 (9th Cir. 1988) 

(applying precursor to §3585 and reaching same result). 

 Nor does Petitioner’s reference to “Willis” time alter the analysis. Although § 

3585(b) does not provide for any exceptions, “BOP policy is to award presentence 

custody credits already credited to a concurrent state sentence in two narrow 

circumstances where the BOP has determined that the credits will be of ‘no benefit’ to 

the federal prisoner. These credits are called Willis and Kayfez credits and are based on 

judicially-created exceptions to § 3585(b) set forth in Kayfez v. Gasele, 993 F.2d 1288 

(7th Cir. 1993), and Willis v. United States, 438 F.2d 923 (5th Cir. 1971).” Gravel v. Fox,

2014 WL 4676497, **7-8 (E.D. Cal. 2014) 8 (discussing Willis and Kayfez in detail and 

noting that both decisions were not controlling and that the Seventh Circuit subsequently 

limited Kayfez in an unpublished decision); see also Kayfez, 993 F.2d 1288 (crediting 

time against federal sentence where, “there was no longer a state sentence which credited 

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prior official detention[]” when petitioner was received into federal custody); Willis, 438 

F.2d 923 (considering whether the defendant had spent time in state custody only because 

he was subject to a federal detainer); but see Elwell v. Fisher, 716 F.3d 477, 485 (8th Cir. 

2013) (noting that Willis and cases like it were “based on the prior and now-repealed 

Code section—§ 3568—that permitted the ‘double crediting’ of pre-trial detention time 

for state and federal purposes[]”, but Congress has since “repealed § 3568 and 

incorporated it into § 3585(b) with the addition of an express prohibition on double 

crediting.”). BOP awards prior custody credit “for any time spent in non-federal 

presentence custody that begins on or after the date of the federal offense up to the date 

that the first sentence begins to run, federal or non-federal.” (Answer, Att. A, ¶9); see 

also Gravel, 2014 WL 4676497 at **7-8. In Petitioner’s case, the Minnesota state 

sentence commenced prior to the federal offense and imposition of the federal sentence. 

Petitioner received credit for the time at issue against his prior state sentence and there is 

no support in the record for concluding that Minnesota denied Petitioner release based on 

the federal detainer lodged against him. 

 Petitioner is also mistaken to the extent that he contends that his federal sentence 

should commence on his July 12, 2013 arrest date in order to be fully concurrent with his 

state sentence. The earliest date a federal sentence can commence is the date of its 

imposition. See Schleining v. Thomas, 642 F.3d 1242, 1248 (9th Cir. 2011) 

(“[defendant's] first and second sentences ‘could not be concurrent in the sense of having 

the same starting date because a federal sentence cannot commence prior to the date it is 

pronounced, even if made concurrent with a sentence already being served.’” (quoting 

United States v. Flores, 616 F.2d 840, 841 (5th Cir.1980)). Thus, “a federal sentence 

made concurrent with a sentence already being served does not operate in a ‘fully 

concurrent’ manner. Rather, the second sentence runs together with the remainder of the 

one then being served.” Shevly v. Whitfield, 718 F.2d 441, 444 (D.C.Cir. 1983) (emphasis 

in original) (footnote omitted) (citing Flores, 616 F.2d at 841; Wilson v. Henderson, 468 

F.2d at 584 (5th Cir.1972)). 

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 In August 2015, the North Carolina district court amended its judgment to indicate 

that the 33-month term of imprisonment was to “run concurrently with any undischarged 

sentence the [Petitioner] is presently serving effective August 1, 2014, Nunc Pro Tunc.” 

(Answer, Exh. A, Att. 12 (emphasis added)). In light of the federal court’s amended 

judgment, BOP has properly computed Petitioner’s sentence based on a 33-month term of 

imprisonment commencing on August 1, 2014. Because, as discussed supra, Petitioner is 

not entitled to prior custody credit under §3585(b), his Petition is without merit. 

III. RECOMMENDATION

For the foregoing reasons, the Magistrate Judge recommends that the District 

Court, after its independent review, enter an order denying Petitioner’s Petition for Writ 

of Habeas Corpus (Doc. 1). 

 Pursuant to 28 U.S.C. §636(b) and Rule 72(b)(2) of the Federal Rules of Civil 

Procedure and LRCiv 7.2(e), Rules of Practice of the U.S. District Court for the District 

of Arizona, any party may serve and file written objections within FOURTEEN (14) DAYS

after being served with a copy of this Report and Recommendation. A party may respond 

to another party’s objections within FOURTEEN (14) DAYS after being served with a copy. 

Fed.R.Civ.P. 72(b)(2). No replies to objections shall be filed unless leave is granted from 

the District Court to do so. If objections are filed, the parties should use the following 

case number: CV 15-494-TUC-RCC. 

 Failure to file timely objections to any factual or legal determination of the 

Magistrate Judge may be deemed a waiver of the party’s right to review. 

 Dated this 1st day of November, 2016. 

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