NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

 

:

CURTIS CONOVER, :

:

Petitioner, :

:

v. :

:

UNITED STATES OF AMERICA, :

et al., :

:

Respondents. :

 :

Civil No. 11-1614 (JBS)

 OPINION

APPEARANCES:

CURTIS CONOVER, Petitioner pro se

# 31462-160

F.C.I. Fort Dix

P.O. Box 2000

Fort Dix, New Jersey 08640

PAUL J. FISHMAN,

United States Attorney

By: IRENE E. DOWDY, AUSA

OFFICE OF THE UNITED STATES ATTORNEY

401 Market Street, 4 Floor, P.O. Box 2098 th

Camden, New Jersey 08101

Counsel for Respondents

SIMANDLE, Chief District Judge:

On March 23, 2011, Petitioner, Curtis Conover

(“Petitioner”), a federal prisoner confined at F.C.I. Fort Dix in

Fort Dix, New Jersey, filed this petition for a writ of habeas

corpus pursuant to 28 U.S.C. § 2241, challenging his sentence

computation by the Bureau of Prisons (“BOP”), and seeking fifteen

(15) months jail credit towards his federal sentence. The named

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respondent is the United States of America and Warden Donna

Zickefoose at F.C.I. Fort Dix (hereinafter, the “Government”).

The Government submitted a response to the petition with the

relevant record, and Petitioner filed a reply or traverse

thereto. This Court has thoroughly reviewed the written

submissions of the parties, and for the reasons stated below, the

Court will deny the petition. 

I. BACKGROUND

On January 14, 2009, Petitioner was sentenced in the United

States District Court for the Northern District of Ohio to 120

months imprisonment with a five-year term of supervised release 

on his federal conviction for possession with intent to

distribute cocaine base (crack), in violation of 21 U.S.C. § 841

(a)(1), (b)(1)(B), and possession with intent to distribute

cocaine base, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A). 

Petitioner’s projected release date from federal custody is

September 21, 2017, assuming he receives all good conduct time

(“GCT”) available to him under 18 U.S.C. § 3624(b). (See

Respondents’ Declaration of Tara Moran, Exhibit 1).

On September 15, 2005, Petitioner was arrested by state

authorities in Beaver County, Pennsylvania, on narcotics charges

involving heroin. He remained in state custody until October 11,

2005. (Respondents’ Declaration of Helen Ramsdell, Correctional

Programs Specialist, Bureau of Prisons (“BOP”) Designations and

2

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Sentence Computation Center (“DSCC”), ¶ 3). Thereafter, on June

27, 2006, Petitioner was arrested by the Newark Police Department

in Newark, New Jersey, and was released on bail that same day. 

(Ramsdell Decl., ¶ 9). 

On September 4, 2007, Petitioner was arrested again by

Beaver County, Pennsylvania authorities, for his failure to

appear on the state charges noted above. Petitioner remained in

state custody, and on September 12, 2007, he was sentenced to a

prison term of 16 to 32 months for his state offense of

possession with intent to deliver (heroin). (Ramsdell Decl., ¶

3).

While Petitioner was in state custody, on September 25,

2007, a three-count federal indictment was filed against him in

the United States District Court for the Northern District of

Ohio, on the crack cocaine charges noted above. (Declaration of

Respondents’ Counsel at Ex. 3, namely, the docket sheet at entry

no. 1, United States v. Curtis Conover, U.S.D.C., N.D. Ohio, Case

No. 4:07CR495). On October 2, 2007, the Northern District of

Ohio issued a writ of habeas corpus ad prosequendum to the Warden

at SCI Camp Hill, Camp Hill, Pennsylvania, where Petitioner was

then in custody. On October 15, 2007, the United States Marshals

Service (“USMS”) took temporary custody of Petitioner pursuant to

the writ. (Ramsdell Decl., ¶ 4).

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On May 2, 2008, Petitioner pled guilty to three counts of

his federal indictment in the Northern District of Ohio. (Resp.

Counsel Decl., Ex. 3 at entry no. 25). Petitioner was sentenced

on January 14, 2009, before the Honorable Kathleen M. O’Malley,

U.S.D.J. in the United States District Court for the Northern

District of Ohio, Eastern Division.

At the June 14, 2009 sentencing hearing, Judge O’Malley

addressed several matters and arguments raised by Petitioner’s

counsel in the sentencing memorandum. First, the court sustained

Petitioner’s objection to a proposed two-point increase in the

base offense level for a firearm found at Petitioner’s alleged

residence. (Ramsdell Decl., Ex. 7, June 14, 2009 Sentencing

Transcript at P7:L22-13:2). The court then rejected Petitioner’s

request for a sentence below the statutory mandatory minimum on a

theory of “sentence entrapment” as to the quantity of cocaine

that could be properly charged to Petitioner. (Id., 17:5-22:19).

Next, the sentencing court addressed Petitioner’s request

for a two-day credit for every day served at the Northeast

Correctional Center pending disposition of his federal charges

because of the harsh conditions of confinement. Petitioner’s

counsel had conceded that a downward variance under the United

States Sentencing Guidelines (“USSG”) § 5K2.0, based on the

alleged conditions in jail and Petitioner’s participation in a

drug treatment program, would not be available when a statutory

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mandatory minimum sentence was required. (Id., 16:10-17). The

court also stated that, in other cases, it had concluded that

there was no basis for “super credit” for time housed in the

Northeast Correctional Center. (Id., 29:13-16). Consequently,

as a separate argument, Petitioner’s counsel asked that

Petitioner be given credit back to the date of his arrest on the

Pennsylvania state court charge, and to include all the time

Petitioner had spent at the Northeast Correctional Center. (Id.,

23:9-24:16; 26:8-13).

Petitioner’s counsel confirmed that the Pennsylvania state

court felony conviction was for possession of heroin (not

cocaine) with intent to deliver. He also confirmed that the

actual date of the federal offense for which Petitioner was being

sentenced was March 23, 2006, before Petitioner’s arrest and

sentencing on the Pennsylvania state offense. (Id., 24:19-

25:25). The sentencing court then clarified Petitioner’s

counsel’s arguments as requesting: (1) that the court run the tobe-imposed federal sentence on the federal offenses involving

cocaine concurrent with the previously-imposed state sentence for

unrelated heroin offenses); and (2) that the court give credit

against the to-be-imposed federal sentence for the time that

Petitioner had been held at the Northeast Correctional Center on

the federal writ of habeas corpus ad prosequendum. (Id., 26:2-

27:25; 29:11-31:5).

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In ruling on the sentencing requests, the court colloquy

follows:

THE COURT: Okay. Mr. Lonardo, given the length of these

sentences, I don’t have a theoretical problem with saying

the Defendant should be given credit for having been in

federal custody, but I don’t think I can say that.

In other words, he was here on a writ. He hasn’t been

technically in federal custody. He has been offered over to

the federal government for purposes of prosecution of this

case. ...

...

THE COURT: ... So that the Defendant isn’t technically in

federal custody. Even now he is here on a writ. Having

said that, I will make this concurrent with the state

sentence, and the Bureau of Prisons can figure that out.

MR. LONARDO: Thank you, Judge.

THE COURT: So at a minimum, whatever time he has left on the

state sentence will be counted against this sentence.

MR. LONARDO: Thank you, Judge.

THE COURT: And it may be that the Bureau of Prisons will

believe that it is appropriate to give him additional credit

for that, and they would have the authority and discretion

that I don’t have to do that.

MR. LONARDO: I understand.

THE COURT: So I will simply say that he should get credit

for time served in federal custody, and let the Bureau of

Prisons figure out what that is to the extent it has

existed, and I will say that the two sentences should run

concurrent.

And again, I will let the Federal Bureau of Prisons

determine what that means. But it is clear that he will

receive some benefit from those conclusions.

(Id., 31:15-32:23).

Accordingly, the court imposed the following sentence:

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... So pursuant to the Sentencing Reform Act of 1984 to 18

U.S.C. § 3553(a) and to the statutory mandatory minimum that

is applicable in this case, the Defendant is hereby

committed to the custody of the Bureau of Prisons to be

imprisoned for a term of 120 months.

The Defendant will receive credit for time served in federal

custody, and I will leave it up to the Federal Bureau of

Prisons to calculate that credit. The Defendant - the Court

will also run this sentence concurrent with the current

sentence that he is serving in Pennsylvania.

(Id., 34:5-15). 

The Judgment and Commitment Order states that the 120 month

federal term of imprisonment is to “run concurrent with sentence

imposed in State case #2343-2005, Beaver County Court of Common

Pleas, Beaver, PA.” The Judgement and Commitment Order also

states that the sentencing court made the following

recommendations to the BOP: “The defendant shall be designated

for placement at FCI Fort Dix, NJ. The defendant shall receive

credit for time served in Federal custody.” (Ramsdell Decl., ¶ 5

and Ex. 3 - Judgment and Commitment Order at pg. 2).

On February 17, 2009, the USMS returned Petitioner to

Pennsylvania state authorities. (Ramsdell Decl., ¶ 6). On

January 13, 2010, the Pennsylvania Board of Probation and Parole

released Petitioner pursuant to his federal detainer. (Ramsdell

Decl., ¶ 7, Ex. 4). On March 16, 2010, Petitioner was committed

to the custody of the BOP. 

Immediately after he was sentenced in federal court on

January 14, 2009, on January 21, Petitioner appealed his federal

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sentence. (Resp. Counsel Decl., Ex. 3, docket entry no. 38). On

September 29, 2010, the United States Court of Appeals for the

Sixth Circuit affirmed the judgment of conviction and sentence. 

(Id., docket entry nos. 54 and 55, dated September 29, 2010 and

October 27, 2010, respectively). In addition, Petitioner filed a

post-sentencing motion in the District Court for “Retroactive

Application of Sentencing Guidelines to Crack Cocaine Offense,”

which was denied on August 10, 2010. (Id., docket entry nos. 49

and 52, dated February 27, 2010 and August 10, 2010,

respectively).

The Government states that the BOP staff at the Designation

and Sentence Computation Center (“DSCC”) has reviewed this habeas

petition and Petitioner’s sentence computation has been audited

and corrected. (Ramsdell Decl., ¶¶ 1, 2 and 9). Because the

sentencing court had directed that Petitioner’s federal sentence

run concurrent with his earlier-imposed state sentence, the DSCC

made a nunc pro tunc designation of the state prison facility

where Petitioner had been serving his state sentence, as the

place of service for his federal sentence. Accordingly, the DSCC

had computed Petitioner’s federal sentence as commencing on the

date it was imposed, January 14, 2009. (Ramsdell Decl., ¶ 8 and

Exs. 5 and 6).

Next, the DSCC granted a total of nine (9) days presentence

custody credit to be applied to Petitioner’s federal sentence as

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follows: (1) a one-day credit for the June 27, 2006 date that

Petitioner was arrested by the Newark Police and released on

bail; and (2) eight (8) days credit for the period from September

4, 2007 (the date of Petitioner’s arrest by state authorities)

through September 11, 2007 (the date before commencement of

Petitioner’s state sentence), pursuant to Willis v. United

States, 449 F.2d 923 (5 Cir. 1971). The DSCC further th

determined that all of the remaining time that Petitioner spent

in official custody, after the date of his federal offense (March

23, 2006) and before his federal sentence was imposed (January

14, 2009), had been credited to Petitioner’s state sentence, and

therefore, it cannot be credited against Petitioner’s federal

sentence because it would be “double credit”, which is prohibited

under 18 U.S.C. § 3585(b). (Ramsdell Decl., ¶¶ 8, 9 and Ex. 6).

Petitioner exhausted his administrative remedies, pursuant

to the BOP’s Administrative Remedy Program, 28 C.F.R. § 542.10 et

seq., with respect to his request for an additional 15-month 

prior custody credit for the period from October 15, 2007 through

January 13, 2009. (Moran Decl., ¶¶ 3, 4 and Ex. 2). 

II. CLAIMS PRESENTED

Petitioner seeks credit for the time period between October

15, 2007 through January 14, 2009, for a total of 15 months prior

custody credit. He claims that the sentencing judge had intended

that this credit be applied to Petitioner’s federal sentence. 

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He also argues that this 15-month credit can be accomplished by

the BOP making a nunc pro tunc designation of the state

institution for service of his federal sentence. Petitioner

further refers to the USSG § 5G1.3 as a basis for this award of

prior custody credit. He also cites to United States v. Dorsey,

166 F.3d 558 (3d Cir. 1999), which held that the district court

has authority to grant sentencing credit against a federal

sentence for the period of time that defendant spent in state

custody on a state sentence prior to sentencing by the federal

district court. 

III. ANALYSIS

The Court recognizes that a pro se pleading is held to less

stringent standards than more formal pleadings drafted by

attorneys. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v.

Kerner, 404 U.S. 519, 520 (1972). Thus, a pro se habeas petition

is construed liberally and with a measure of tolerance. See

Royce v. Hahn, 151 F.3d 116, 118 (3d Cir. 1998); Lewis v.

Attorney General, 878 F.2d 714, 721-22 (3d Cir. 1989). Because

Petitioner is proceeding pro se in his application for habeas

relief, the Court will accord his petition the liberal

construction intended for pro se litigants.

A. Jurisdiction

Section 2241 of Title 28 of the United States Code provides

in relevant part:

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(c) The writ of habeas corpus shall not

extend to a prisoner unless– . . . He is in

custody in violation of the Constitution or

laws or treaties of the United States.

28 U.S.C. § 2241(a), (c)(3). 

“Section 2241 is the only statute that confers habeas

jurisdiction to hear the petition of a federal prisoner who is

challenging not the validity but the execution of his sentence.” 

Coady v. Vaughn, 251 F.3d 480, 485-486 (3d Cir. 2001). A

petition for a writ of habeas corpus under 28 U.S.C. § 2241 in

the district where the prisoner is confined provides a remedy

“where petitioner challenges the effects of events ‘subsequent’

to his sentence.” Gomori v. Arnold, 533 F.2d 871, 874 (3d Cir.

1976)(challenging erroneous computation of release date). See

also Soyka v. Alldredge, 481 F.2d 303 (3d Cir. 1973)(where

petitioner alleged a claim for credit for time served prior to

federal sentencing).

Accordingly, this Court has subject matter jurisdiction

under § 2241 to consider this matter since Petitioner does not

challenge the imposition of the sentence, but instead challenges

the execution of the sentence based on the BOP’s alleged error in

not giving him credit against his federal sentence for the full

time served in state custody, and because he was confined in New

Jersey at the time he filed his petition. See Vega v. United

States, 493 F.3d 310, 313 (3d Cir. 2007)(challenge to BOP’s

failure to give credit for time served prior to federal

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sentencing is cognizable under § 2241); See Barden v. Keohane,

921 F.2d 476, 478-79 (3d Cir. 1991)(challenge to BOP’s refusal to

decide whether to designate state prison as a place of federal

confinement); 2 James S. Liebman & Randy Hertz, Federal Habeas

Corpus Practice and Procedure § 41.2b (3rd ed. 1998).

B. Computation of Federal Sentence

The Attorney General is responsible for computing federal

sentences for all offenses committed on or after November 1,

1987, see 18 U.S.C. § 3585; United States v. Wilson, 503 U.S. 329

(1992), and has delegated that authority to the Director of the

Bureau of Prisons under 28 C.F.R. § 0.96 (1992). See United

States v. Brann, 990 F.2d 98, 103-04 (3d Cir. 1993).

Computation of a federal sentence is governed by 18 U.S.C.

§ 3585, and is comprised of a two-step determination: first, the

date on which the federal sentence commences and, second, the

extent to which credit may be awarded for time spent in custody

prior to commencement of the sentence (“prior custody credit”).

(a) Commencement of sentence.--A sentence to a

term of imprisonment 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.

(b) Credit for prior custody.--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

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(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(a), (b).

There are three ways that an inmate can accrue federal jail

credit: (1) credit for time spent in custody while actually

serving a federal sentence; (2) credit for prior custody under 18

U.S.C. § 3585(b) that has not been credited toward another

sentence; and (3) credit for time spent in non-federal presentence custody during which the inmate is denied bail because

of a federal detainer, commonly referred to as “Willis” credit. 

See Willis v. United States, 438 F.2d 923 (5 Cir. 1971). th

Section 3585(b) allows an inmate to use time served in

custody prior to the imposition of a sentence towards the

completion of that sentence when the custody was “(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.” 

This last clause provides that prior time spent in custody cannot

be credited toward a federal sentence if it was used to satisfy a

non-federal sentence. The Supreme Court has made clear that

inmates are not allowed to “double count” credit. See United

States v. Wilson, 503 U.S. 329 (1992).

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While § 3585(b) governs calculation of a sentence by the

BOP, § 3584 gives the federal sentencing court the power to

impose a sentence that runs concurrent to a state sentence. 

Section 3584 provides:

(a) Imposition of concurrent or consecutive term. - If

multiple terms of imprisonment are imposed on a defendant at

the same time, or if a term of imprisonment is imposed on a

defendant who is already subject to an undischarged term of

imprisonment, the terms may run concurrently or

consecutively, except that the terms may not run

consecutively for an attempt and for another offense that

was the sole objective of the attempt. Multiple terms of

imprisonment imposed at the same time run concurrently

unless the court orders or the statute mandates that the

terms are to run consecutively. Multiple terms of

imprisonment imposed at different times run consecutively

unless the court orders that the terms are to run

concurrently.

(b) Factors to be considered in imposing concurrent or

consecutive terms. - The court, in determining whether the

terms imposed are to be ordered to run concurrently or

consecutively, shall consider, as to each offense for which

a term of imprisonment is being imposed, the factors set

forth in section 3553(a).

(c) Treatment of multiple sentence as an aggregate. -

Multiple terms of imprisonment ordered to run consecutively

or concurrently shall be treated for administrative purposes

as a single, aggregate term of imprisonment.

18 U.S.C. § 3584; see also Ruggiano v. Reish, 307 F.3d 121, 132

(3d Cir. 2002)(sentencing court has authority under 18 U.S.C. 

§ 3584 and United States Sentencing Guidelines § 5G1.3(c) to

order a federal sentence to be fully and retroactively concurrent

to a state sentence the defendant was already serving).

C. Commencement of Petitioner’s Federal Sentence

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As noted above, Title 18 of the United States Code, Section

3585(a) states:

A sentence to a term of imprisonment 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.

Here, this Court finds that Petitioner’s federal sentence

commenced on the date it was imposed, January 14, 2009. 

Petitioner argues that he was in federal custody on October 15,

2007, when he was transported by the USMS to a correctional

center in the Northern District of Ohio pursuant to a writ of

habeas corpus ad prosequendum that had been issued by the United

States District Court for the Northern District of Ohio to answer

the federal charges against Petitioner. However, at that time

Petitioner was actually in the custody of state authorities,

serving his state sentence. 

Generally, the sovereign which first arrests an individual

acquires primary jurisdiction for purposes of trial, sentencing,

and incarceration. The arresting sovereign retains primary

jurisdiction unless it relinquishes it by (1) releasing the

prisoner on bail; (2) dismissing the charges; (3) releasing the

prisoner on parole; or (4) the expiration of the sentence. 

United States v. Cole, 416 F.3d 894, 897 (8 Cir. 2005); th

Chambers v. Holland, 920 F. Supp. 618, 622 (M.D.Pa.), aff’d, 100

F.3d 946 (3d Cir. 1996). A sovereign does not relinquish

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authority by producing a state prisoner for sentencing in a

federal court via a writ of habeas corpus ad prosequendum. See

Cole, 416 F.3d at 896-897; Thomas v. Brewer, 923 F.2d 1361, 1365

(9 Cir. 1991); Chambers, 920 F. Supp. at 622. th

In this case, Petitioner appears to contend that the federal

government had assumed primary jurisdiction over him while he was

detained pursuant to the writ of habeas corpus ad prosequendum

during his federal criminal proceedings, and therefore, the

relevant time period between October 15, 2009 through January 14,

2009 should count towards service of his federal sentence. He

makes this argument because the sentencing judge had ordered

Petitioner’s federal sentence to run concurrently with the nonfederal sentence he was serving at the time of his federal

sentencing. However, this Court observes from the pertinent

sentencing transcript that the sentencing judge did expressly

find that Petitioner was not in federal custody while he was

detained in a state facility on a writ of habeas corpus ad

prosequendum. (June 14, 2009 Sentencing Transcript at 31:15-

32:3, Ramsdell Decl. at Ex. 7).

Thus, because the sentencing court expressly stated that

Petitioner’s sentence was to run concurrently with his state

sentence, the BOP correctly designated, nunc pro tunc, the nonfederal correctional facility for service of Petitioner’s federal

sentence from the date it was imposed, on January 14, 2009, so as

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to achieve the intent of the sentencing court and allow the

federal sentence to commence accordingly. Accordingly, this

Court finds that the BOP’s determination as to the commencement

of Petitioner’s federal sentence is consistent with § 3585(a). 

Petitioner’s federal sentence commenced on the day it was

imposed, as he was on that date still in the primary jurisdiction

of the Commonwealth of Pennsylvania serving his state sentence

and his federal sentence could not start any earlier than the

date on which it was imposed. See Shelvy v. Whitfield, 718 F.2d

441, 444 (D.C. Cir. 1983); United States v. Flores, 616 F.2d 840,

841 (5 Cir. 1980). th

Consequently, even though Petitioner was borrowed from the

Pennsylvania authorities by federal authorities pursuant to a

writ of habeas corpus ad prosequendum on October 15, 2007,

Pennsylvania did not relinquish its primary jurisdiction over

Petitioner until he completed his non-federal sentence on or

about March 16, 2010, see Rios v. Wiley, 201 F.3d 257, 274-76 (3d

Cir. 2000), and therefore, the BOP correctly determined the 1

commencement of Petitioner’s federal sentence.

D. Prior Custody Credit

 Rios was superseded by statute on unrelated grounds to 1

the extent that the court applied a version of the United States

Sentencing Guidelines § 5G1.3 prior to its amendment, effective

November 1, 1995. See United States v. Saintville, 218 F.3d 246,

247 (3d Cir. 2000).

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Nevertheless, Petitioner’s basic argument seeks the

imposition of a “retroactively concurrent” sentence that would

award him credit for the time he served his state sentence before

the federal sentence was actually imposed. In other words,

Petitioner’s request for prior custody credit from October 15,

2007 to January 14, 2009, would appear to be based on a claim

that the sentencing court intended to make his federal sentence

“retroactively concurrent” with his state sentence pursuant to 

Ruggiano v. Reish, 307 F.3d 121 (3d Cir. 2002).

In contrast, the Government contends that an award of prior

custody credit for the time period of October 15, 2007 through

January 14, 2009 is prohibited because it would constitute double

credit contrary to the provisions of 18 U.S.C. § 3585(b). See

this Opinion at pp. 12-14, supra. Prior custody credit may only

be granted in this case for the time Petitioner spent in federal

detention or other custody for which he did not receive credit

towards another sentence. The Government points out that the

time between October 15, 2007 through January 14, 2009, while he

was in federal detention under a writ of habeas corpus ad

prosequendum, was credited towards Petitioner’s Pennsylvania

state sentence. Therefore, the Government contends that

Petitioner is not entitled to credit his federal sentence with

time already credited against his state sentence. See Wilson,

503 U.S. at 337; Rios v. Wiley, 210 F.3d at 274. The BOP did

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award Petitioner a total of nine days pre-federal sentence

custody credit for the time he spent in custody before the

commencement of his state sentence that had not been credited to

his Pennsylvania state sentence, pursuant to Willis, supra, 449

F.3d 923.

Because Petitioner appears to be arguing that the sentencing

court imposed a retroactively concurrent sentence similar to that

discussed in Ruggiano, this Court looks to Ruggiano for

instruction on this issue. In Ruggiano, the United States Court

of Appeals for the Third Circuit held that in imposing a

sentence, a district court may grant an adjustment for time

served on a preexisting sentence pursuant to U.S.S.G. §

5G1.3(c). Under Ruggiano, a sentencing court may exercise this 2

option to grant an adjustment under § 5G1.3(c) by making the

federal sentence concurrent with the state sentence for the full

period of the preexisting sentence (retroactively concurrent) or

 A federal court’s authority to order that terms of 2

imprisonment imposed at different times shall run concurrently is

limited to cases in which the federal term of imprisonment is

imposed on a defendant who is already subject to an undischarged

term of imprisonment. 18 U.S.C. § 3584(a). Under U.S.S.G.

§ 5G1.3(c), the court may impose a sentence “to run concurrently,

partially concurrently, or consecutively to the prior

undischarged term of imprisonment to achieve a reasonable

punishment for the instant offense.” U.S.S.G. § 5G1.3(c). 

Further, under U.S.S.G. §5G1.3(b), a concurrent sentence is

mandatory and shall be imposed to run concurrently to an

undischarged sentence when “the undischarged term of imprisonment

resulted from offense(s) that have been fully taken into account

in the determination of the offense level for the instant

offense.” U.S.S.G. § 5G1.3(b).

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only concurrent for the remainder of the preexisting sentence

from the date when the federal sentence was imposed. In other

words, U.S.S.G. § 5G1.3(c) allows a federal court to award a

concurrent sentence in a manner that would require the BOP to

give credit for the time petitioner spent in federal detention

even though that time already was credited toward service of his

non-federal sentence.

Of relevance in Ruggiano, the sentencing judge stated “that

he thought it appropriate to go ahead and recommend that

[Ruggiano’s sentence] be served concurrently and that he receive

credit for the amount of time that he served there.” Id., 307

F.3d at 124. “Then, in his written judgment, [the sentencing

judge] recited that Ruggiano’s sentence was to ‘run concurrent

with State sentence. Defendant to receive credit for time

served.’” Id. The Third Circuit found that this language

conveyed an intent of the sentencing judge to grant an adjustment

by making the federal sentence retroactively concurrent for the

entire period of the state sentence pursuant to § 5G1.3(c).

The Third Circuit explained that the sentencing court’s

authority under § 5G1.3(c) to “adjust” a sentence is distinct

from the BOP’s authority under 18 U.S.C. § 3585(b) to “credit” a

sentence, even though the benefit to the defendant may be the

same. See Ruggiano, 307 F.3d at 131–33. Specifically, the

“adjustment” that the sentencing court exclusively can award

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under § 5G1.3(c) is a sentence reduction designed to account for

time spent in custody on a prior conviction. But a 2003

amendment to the 5G1.3 Application Notes provided that subsection

(c) does not authorize an adjustment for time served on a prior

undischarged term of imprisonment, and that a sentencing court

may consider a downward departure in extraordinary cases. See 3

U.S.S.G. Manual § 5G1.3 app. Note 3(E); Escribano v. Shultz, 330

Fed. Appx. 21, 23 fn. 6 (3d Cir. May 21, 2009).

To determine what type of “adjustment” the sentencing court

intended to apply, “the appropriate starting point is to

ascertain the meaning that we should ascribe to the sentencing

court’s directives.” Rios v. Wiley, supra, 201 F.3d at 264. 

When the oral pronouncement of sentence and written sentence are

 In Ruggiano, the United States Court of Appeals for the 3

Third Circuit held that in imposing a sentence, a federal

district court may grant an “adjustment” for time served on a

pre-existing sentence pursuant to U.S.S.G. § 5G1.3(c). Notably,

the application note 3(E) to § 5G1.3 (U.S. Sentencing Guidelines

Manual § 5G1.3 cmt. N. 3(E)(2003)) appears to be in conflict with

the holding in Ruggiano. The note provides that, “subsection (c)

does not authorize an adjustment of the sentence for the instant

offense for a period of imprisonment already served on an

undischarged term of imprisonment.” Although credit may be given

in extraordinary circumstances for time served on a pre-existing

sentence, the credit is properly deemed a downward departure and

not an adjustment. Notwithstanding this note, Ruggiano remains

the controlling precedent. While the Third Circuit has addressed

the effect of note 3(E) on the Ruggiano holding, and has found

that the note abrogated Ruggiano, it has not done so in a

“precedential” opinion. See United States v. Destio, 153 Fed.

Appx. 888, 893-94 (3d Cir. 2005).

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in conflict, the oral sentence prevails. See United States v.

Chasmer, 952 F.2d 50, 52 (3d Cir. 1991). However, when there is

no conflict, “but rather only ambiguity in either or both

[sentence pronouncements], we have recognized that the

controlling oral sentence ‘often [consists of] spontaneous

remarks’ that are ‘addressed primarily to the case at hand and

are unlikely to be a perfect or complete statement of the

surrounding law.’” Ruggiano, 307 F.3d at 133 (quoting Rios, 201

F.3d at 268). Importantly, “in interpreting the oral statement,

we have recognized that the context in which this statement is

made is essential.” Id. at 134.

Hence, for the purposes of addressing Petitioner’s

challenges, this Court would have to first examine the oral

statements made by Judge O’Malley during Petitioner’s sentencing

and, if the Court detects: (a) no conflict between Judge

O’Malley’s oral statements and the judgment of conviction

rendered by her; but (b) an ambiguity in either one of these

pronouncements, then this Court would have to examine the context

of Judge O’Malley’s oral statements to determine what prompted

the Judge’s oral comments and what was the Judge’s intent when

she sentenced Petitioner. Consequently, although the written

text employed by Judge in the judgment of conviction is

important, it is not decisive.

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In the present case, the Judgment and Commitment Order

issued by the federal sentencing court shows that the court

imposed a term of 120 months of imprisonment that was to “run

concurrent with sentence imposed in State case #2343-2005, Beaver

County Court of Common Pleas, Beaver, PA” and that the “defendant

shall be designated for placement at FCI Fort Dix, NJ,” and that

the “defendant shall receive credit for time served in Federal

custody.” (Ramsdell Decl., Ex. 3 - Judgment and Commitment Order

at pg. 2). This language differs slightly, but significantly,

from that employed by the sentencing court in Ruggiano, which did

not expressly refer to time served in federal custody.

Consequently, it is strongly indicative from the use of the words

“federal custody” that Judge O’Malley intended to allow

Petitioner credit only for that time he actually served in

federal custody. There is no indication that time spent in state

custody serving a state sentence prior to imposition of his

federal sentence should be credited. 

Because the imposition of a concurrent sentence normally

means that the sentence being imposed is to run concurrently with

the undischarged portion of the earlier-imposed sentence, it is

unlikely that a sentencing court would deviate from the norm and

impose a retroactively concurrent sentence without any

discussion. See 18 U.S.C. § 3584; Ruggiano, 307 F.3d at 133. (3d

Cir. 2002). For this reason, the Court will examine the

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sentencing transcript and the discussion that took place

concerning the imposition of the federal sentence concurrent with

the then-undischarged state sentence.

A review of the sentencing transcript shows that Judge

O’Malley spent considerable time discussing the extent to which

any credit may be awarded Petitioner before his federal sentence

was imposed. The sentencing transcript shows that the Judge

O’Malley intended to have Petitioner’s federal sentence run

concurrent with his state sentence. But Judge O’Malley was

equally clear in stating that it would be the BOP’s discretion to

determine any additional credit to which Petitioner may be

entitled. Specifically, the court stated:

THE COURT: ... So that the Defendant isn’t technically in

federal custody. Even now he is here on a writ. Having

said that, I will make this concurrent with the state

sentence, and the Bureau of Prisons can figure that out.

...

THE COURT: So at a minimum, whatever time he has left on the

state sentence will be counted against this sentence.

...

THE COURT: And it may be that the Bureau of Prisons will

believe that it is appropriate to give him additional credit

for that, and they would have the authority and discretion

that I don’t have to do that.

...

THE COURT: So I will simply say that he should get credit

for time served in federal custody, and let the Bureau of

Prisons figure out what that is to the extent it has

existed, and I will say that the two sentences should run

concurrent.

And agin, I will let the Federal Bureau of Prisons determine

what that means. But it is clear that he will receive some

benefit from those conclusions.

(Sentencing Transcript 31:15-32:23). 

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Thus, from this language employed by Judge O’Malley, it is

clear that the sentencing court did not intend to award

Petitioner any additional credit that was not permissible under

federal statute, and that it was the responsibility of the BOP to

make the determination as to what amount of prior custody credit

Petitioner may have been entitled to receive. No where in the

sentencing proceeding does the sentencing court expressly or

impliedly grant Petitioner “fifteen (15) months of jail credit

time which represents the time from his arrest (October 15, 2007)

to his sentencing (January 14, 2009).” (Petition at pg. 4).

Moreover, while the sentencing judge need not cite

applicable statutory or sentencing guidelines when imposing the

sentence, see Ruggiano, 129 F.3d at 134, in this case, there is

simply no expression of intent by Judge O’Malley at the

sentencing hearing to suggest that she intended to impose a

retroactively concurrent sentence as that found in Ruggiano. 

Judge O’Malley simply stated that some credit should be given,

but the court did not expressly state that the sentence should be

made retroactively concurrent. Rather, as discussed above, the

court expressly stated several times that the BOP would determine

any prior custody credit that Petitioner might be entitled. 

Further, Judge O’Malley did not mention the application of

U.S.S.G. § 5G1.3(c) during the sentencing hearing. There is no

indication of any kind in the transcript provided that the

sentencing court intended to credit petitioner for time served on

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his non-federal sentence that was credited to his non-federal

sentence, which would be contrary to 18 U.S.C. § 3585(b). The

court plainly acknowledged that the time Petitioner spent in

detention at the Northeast Correctional Center was pursuant to a

writ of habeas corpus ad prosequendum, which is not deemed

federal custody to the extent that that time spent there actually

was credited to his state sentence. The sentencing court also

noted that the state sentence was imposed for a conviction on

charges unrelated to the federal offense, and thus his federal

crack cocaine charges did not include any component related to

his unrelated state heroin charges for which he was serving his

state sentence. 

Nevertheless, Petitioner relies substantially on United

States v. Dorsey, 166 F.3d 558 (3d Cir. 1999) in support of his

claim for the 15 month jail time credit. In Dorsey, the United

States Court of Appeals for the Third Circuit held that, under

certain provisions of the U.S. Sentencing Guidelines, namely,

U.S.S.G. § 5G1.3 cmt. 2, a sentencing court did have the power to

shorten a guidelines sentence to take account on time served by

the defendant as a result of a conviction in a state court in

certain circumstances. 166 F.3d at 562. The Third Circuit 4

noted that if the sentencing court decides to impose a sentence

less than the guideline range to give “credit” for that portion

 To the same end, in Ruggiano, the Third Circuit ruled 4

that the BOP must honor a sentencing court’s determination

pursuant to U.S.S.G. 5G1.3 cmt. N. 2 even if the determination

was in the form of a recommendation. Ruggiano, 307 F.3d at 133. 

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of a state sentence which was served before the imposition of the

federal sentence, the Court should impose the lesser sentence and

then “... should note on the sentencing order what it has done so

that the adjustment is not confused with a departure from the

guideline range but rather recognized as a ‘credit[]’ under §

5G1.3(b) for time served ‘that will not be credited to the

federal sentence under 18 U.S.C. § 3585(b).’” 166 F.3d at 560.

This Court finds that Dorsey actually supports the BOP’s

decision in this case denying credit for the time Petitioner had

already served on his state sentence before his federal sentence

was imposed. Indeed, in Dorsey, the Third Circuit specifically

stated that “[t]his represents a period of imprisonment that

would not have been credited to the federal sentence by the BOP,

as the BOP’s later decision confirmed, because it represented a

time that the appellant was already serving on his state

sentence.” Dorsey, 166 F.3d at 560 (emphasis in original).

Thus, for the reasons as discussed above, it is plain that

Judge O’Malley did not intend to impose a retroactively

concurrent sentence, but rather, expressly stated that any credit

to be given Petitioner with respect to the 15 month period at

issue for time spent in federal custody before the imposition of

his federal sentence was to be determined by the BOP, consistent

with the BOP’s authorized discretion under 18 U.S.C. § 3585(b).

Finally, to the extent that Petitioner may be arguing that

he is entitled to credit pursuant to § 5G1.3(b), such a claim

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presumes an error by the sentencing court that must be brought

before the sentencing court via a motion under 28 U.S.C. § 2255. 

This Court lacks jurisdiction to grant Petitioner his requested

credit under § 5G1.3(b). Indeed, if Petitioner is suggesting

that the sentencing court erred in not awarding him the soughtfor credit under § 5G1.3(b), his claim initially should have been

raised on direct appeal. Petitioner did not raise this challenge

on direct appeal, and only recently, has filed a motion before 5

the sentencing court to amend the judgment. (See January 11,

2012 Motion to Amend Judgment, Docket entry no. 56 in United

States v. Conover, Case No. 4:07-CR-0495-BYP-1, United States

District Court for the Northern District of Ohio (Youngstown)).

 On direct appeal, it appears that Petitioner only argued 5

that the district court erred in denying his request to impose a

sentence below the statutory mandatory minimum based on a claim

of sentencing entrapment. The Sixth Circuit rejected this

argument and found that Petitioner had entered a valid guilty. 

The Sixth Circuit also found that there was no arguable basis on

which to challenge Petitioner’s sentence, stating:

After United States v. Booker, 543 U.S. 220 (2005), we

generally review sentences for “reasonableness.” See Gall

v. United States, 552 U.S. 38, 51 (2007). In this case,

however, a challenge to the reasonableness of Conover’s

sentence is foreclosed because the district court imposed

the minimum sentence mandated by statute. See United States

v. Franklin, 499 F.3d 578, 584-86 (6 Cir. 2007)(noting th

that the sentencing court lacks discretion to disregard a

mandatory minimum sentence). The exclusive means by which a

district court may sentence a defendant below a statutory

mandatory minimum are set forth in 18 U.S.C. §§ 3553(e) and

3553(f), see United States v. McIntosh, 484 F.3d 832, 835

(6 Cir. 2007), and neither applies here. th

(See September 29, 2010 Order, United States Court of Appeals for

the Sixth Circuit, No. 09-3130, Docket entry no. 54 in United

States v. Conover, Case No. 4:07-CR-0495-BYP-1, United States

District Court for the Northern District of Ohio (Youngstown)).

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Therefore, this Court determines that the sentencing judge

in this case intended that the federal sentence run concurrently

with the state sentence commencing on the effective date of the

federal sentence, namely January 14, 2009, which was the date on

which the federal sentence was imposed. The Court finds no

evidence that the sentencing judge intended to grant any

adjustment for time served under the state sentence prior to

January 14, 2009, unless it was determined by the BOP that any of

that time was in fact spent in federal custody and could be

credited under § 3585(b). Accordingly, the writ of habeas corpus

will be denied.

CONCLUSION

Based on the foregoing, the instant petition for a writ of

habeas corpus pursuant to 28 U.S.C. § 2241 is hereby denied. An

appropriate Order accompanies this Opinion.

 s/ Jerome B. Simandle 

JEROME B. SIMANDLE, Chief Judge

United States District Court

Dated: February 23, 2012

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