IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

UNITED STATES OF AMERICA )

)

vs. ) CRIMINAL NO. 10-00026-KD

) CRIMINAL NO. 10-00032-KD

TODD J. GATES, )

)

Defendant. )

ORDER

This action is before the Court on Defendant Todd J. Gates’ second motion for jail credit 

(doc. 130). 1 Gates seeks credit for time spent in custody May 20, 2009 through March 2, 2011, 

when he was sentenced in this Court. Upon consideration, and for the reasons set forth herein, the 

motion is DISMISSED for lack of jurisdiction. 

Although the information before the Court indicates that Gates is in the custody of the 

Alabama Department of Corrections, the Federal Bureau of Prisons may have calculated his federal 

sentence and he may have begun to serve. According to the BOP’s Program Statement 5880.28, 

Sentence Computation Manual, 

[a] prisoner who is in non-federal custody at the time of sentencing may begin 

service of the federal sentence prior to arriving at the designated federal facility if the 

non-federal facility is designated in accordance with the Program Statement on 

Designation of State Institution for Service of a Federal Sentence and 18 U.S.C. § 

3621 (Imprisonment of a convicted person). This type of designation is ordinarily 

made only upon the recommendation of the sentencing court.

 1 Gates’ first “Motion for Mandatory Owed Jail Credit” was denied for lack of jurisdiction (docs. 

111, 113). Gates alleged that the credit did not appear on his “time sheet status report” but did not 

state the source of the report. Since Gates was in ADOC custody, the Court interpreted his motion 

as one for a court order directing the ADOC to modify his “time sheet status report” to reflect the 

credit. The Court found that it did not have authority or jurisdiction over Gates’ state sentence or 

the ADOC’s calculation of credit against that sentence. Gates did not respond to the order, and 

therefore, did not explain whether the ADOC or the BOP generated the “time sheet status report.” 

Since Gates has filed another motion requesting the same relief, the Court construes this motion as 

directed to the computation of his federal sentence. 

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PS 5880.28, Chapter I, § 3(c) Prior Custody Time Credit. 

As to whether Gates was in “non-federal custody at the time of sentencing”, the docket 

indicates that he was brought into federal custody upon a writ of habeas corpus ad prosequendum 

(docs. 10, 13, 40).2 Because Gates was “borrowed” by the United States, the State of Alabama 

retained primary custody3 through his sentencing. Also, the Court imposed Gates’ federal sentence 

to “run concurrently with the state sentence in 09-2580” and stated “that the state facility be 

designated for service of both his federal and state sentence.” (Doc. 96)

4

 

The Court assumes, for purpose of this motion, that the BOP has calculated his sentence. If 

the BOP has done so, the relief he requests is controlled by application of 18 U.S.C. § 3585(b). As 

to “credit for prior custody”, in relevant part, the statute states that “[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; . . . that has not been credited against another sentence.” 18 U.S.C.§ 3585(b). However, 

 2

 The Petition states that Gates “will be retained in federal custody from initial appearance through 

final disposition of federal charges, and then will be returned to the custody of the detaining facility 

to resume the sentence currently being served.” (Doc. 10) The order granting the Petition states that 

the “custodian of the detaining facility and the United States Marshal ... are ordered to produce” 

[Gates] and that he will return “to said custodian upon the conclusion of said proceedings.” (Doc. 

13)

3 See Causey v. Civilette, 621 F.2d 691, 693 (5th Cir.1980) (“[t]he law is clear in this Circuit that, if 

a defendant is in state custody and he is turned over to federal officials for federal prosecution, the 

state government's loss of jurisdiction is only temporary ... A writ of habeas corpus ad 

prosequendum is only a ‘loan’ of the prisoner to another jurisdiction for criminal proceedings in the 

receiving jurisdiction.”) (Decisions by the former Fifth Circuit decided by September 30, 1981, are 

binding precedent in the Eleventh Circuit. Bonner v. City of Pritchard, Ala., 661 F.2d 1206 (11th 

Cir. 1981)); Porter v. English, 2014 WL 1269654 (N.D. Fla. 2014) (finding that when “Petitioner 

was taken into federal custody on the writ of habeas corpus ad prosequendum, the State of 

Kentucky retained primary jurisdiction over him, because he was only ‘borrowed’ by the federal 

Government.”). 

4 Gates’ federal sentence of 157 months has been reduced to 138 months after application of 

Amendment 782 to the United States Sentencing Guidelines, which reduced his sentence as to 

Counts 1 in Criminal Action 10-00026-KD (S.D. Ala. 2010) and Criminal Action 10-00032-KD 

(S.D. Ala. 2010), from 97 months to 78 months. Gates remains subject to a mandatory 60 months 

consecutive sentence as to Count 6 in 10-00026-KD, for a term of 138 months. 

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“[a]uthority to calculate credit for time served under section 3585(b) is vested in the Attorney 

General, not the sentencing court.” United States v. Alexander, 609 F.3d 1250, 1259 (11th Cir. 

2010) (citing United States v. Wilson, 503 U.S. 329, 334, 112 S. Ct. 1351, 1355 (1992)); United 

States v. Anderson, 517 Fed. Appx. 772, 775 (11th Cir. 2013) (“The Attorney General, through the 

BOP, is authorized under § 3585(b) to compute sentence-credit awards after sentencing.”). Also, a 

“federal prisoner dissatisfied with computation of his sentence, must pursue the administrative 

remedy available through the federal prison system before seeking judicial review of his sentence.” 

United States v. Williams, 425 F.3d 987, 990 (11th Cir. 2005) (quoting United States v. Flanagan, 

868 F.2d 1544, 1546 (11th Cir. 1989)). To seek judicial review, a claim for credit for time served is 

brought under 28 U.S.C. § 2241. United States v. Martin, 362 Fed Appx. 69, 70 (11th Cir. 2010) 

(“A claim for credit for time served is brought under 28 U.S.C. § 2241 after the exhaustion of 

administrative remedies.”)

Assuming for purposes of this motion, that the BOP calculated Gates’ federal sentence and 

failed to properly apply a jail credit, nothing before the Court indicates that Gates has exhausted his 

administrative remedies. Moreover, even if Gates has exhausted his administrative remedies, to the 

extent his motion could be construed as a petition for judicial review pursuant to 18 U.S.C. § 2241, 

the petition “may be brought only in the district court for the district in which the inmate is 

incarcerated.” Vance v. United States, 476 Fed. Appx. 234 (11th Cir. 2012) (citing Fernandez v. 

United States, 941 F.2d 1488, 1495 (11th Cir. 1991)). Since an ADOC Inmate Search shows that 

Gates is incarcerated in Elmore County, Alabama (as did his most recent letter to the Court), the 

Middle District of Alabama is the district court of the district in which he is incarcerated. 

Therefore, this Court lacks jurisdiction to consider Gates’ motion. 

The Clerk of the Court is DIRECTED to mail a copy of this order to Gates. 

DONE and ORDERED this the 29th day of February 2016.

/s/ Kristi K. DuBose

KRISTI K. DuBOSE

UNITED STATES DISTRICT JUDGE

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