ROBERT E. BLACKBURN, District Judge.
This matter is before me on the
Mr. Mogavero was arrested by Illinois state authorities on February 6, 2006, for an outstanding warrant. [# 18-1 at 2, 13]. He was released on bond on February 8, 2006. [Id. at 2, 8]. On March 7, 2006, Mr. Mogavero was arrested by Illinois police officers on state felony charges of retail theft. [Id. at 2, 10]. On May 18, 2006, he was sentenced in Illinois state district court to the following: (1) a 114-month prison term with 15 days credit for time served for robbery in Case No. 06-CF-1318-01; (2) a 9-year prison term with 74 days credit for time served for retail theft in Case No. 06-CF-539-1; and, (3) a 72-month prison term for forgery in Case No. 06-CF-606-1. [Id. at 2, 10-12]. The state court ordered the sentences to run concurrently. [Id.]. Mr. Mogavero was taken into custody of the Illinois Department of Corrections to serve his state sentences on May 22, 2006. [Id. at 3, 14].
Mr. Mogavero was released to the temporary custody of the United States Marshals Service on April 15, 2008, pursuant to a federal writ of habeas corpus ad prosequendum issued by the United States District Court for the Northern District of Illinois. [Id. at 3, 17].
On December 14, 2009, the federal district court sentenced Mr. Mogavero to a 99-month prison term for bank robbery. [Id. at 3, 19-20]. The federal sentence was ordered to run concurrently with the undischarged state terms of imprisonment in Case Nos. 06-CF-539-001, 06-CF-1318-01, and 06-CF-606-01. [Id. at 20]. On January 15, 2010, following the federal sentencing, Mr. Mogavero was returned to the custody of the Illinois Department of Corrections. [Id. at 3, 18].
On March 18, 2011, Mr. Mogavero was released on parole from his state sentences and was taken into federal custody to serve the remainder of his federal sentence. [Id. at 3, 14, 18, 31].
The Bureau of Prisons (BOP) completed a "Willis/Kayfez Calculation Worksheet" for Mr. Mogavero and determined that he was entitled to 75 days of non-federal presentence credit. [#18-1 at 28, 32]. Mr. Mogavero has a projected release date, via good conduct time, of February 3, 2017. [Id. at 30].
Mr. Mogavero initiated this action by filing, pro se, his 28 U.S.C. § 2241 Application on August 27, 2014. In a Preliminary Response to the Application, Respondent informed the Court that the affirmative defense of failure to exhaust administrative remedies would not be asserted in this action. The case was thereafter drawn to the undersigned.
In the Application, Mr. Mogavero claims that he has been denied federal custody credit for the period he was in custody serving his state court sentences because the federal district court ordered the federal sentence to run concurrently with the state sentences.
An action brought by a federal prisoner pursuant to 28 U.S.C. § 2241 is one that challenges the execution of a sentence "and the traditional function of the writ is to secure release from illegal custody." Preiser v. Rodriguez, 411 U.S. 475, 484 (1973); see also McIntosh v. United States Parole Comm'n, 115 F.3d 809, 811 (10th Cir.1997). A challenge to the calculation of a federal prison sentence is properly brought under 28 U.S.C. § 2241. See Bloomgren v. Belaski, 948 F.2d 688 (10th Cir.1991); see also United States v. Miller, 594 F.3d 1240, 1242 (10th Cir. 2010) (construing petitioner's request for nunc pro tunc designation of his state facility for service of federal sentence as a habeas corpus petition under 28 U.S.C. § 2241).
Mr. Mogavero is proceeding pro se. The court, therefore, "review[s] his pleadings and other papers liberally and hold[s] them to a less stringent standard than those drafted by attorneys." Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations omitted); see also Haines v. Kerner, 404 U.S. 519, 520-21 (1972). However, a pro se litigant's "conclusory allegations without supporting factual averments are insufficient to state a claim on which relief can be based." Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). A court may not assume that an applicant can prove facts that have not been alleged, or that a respondent has violated laws in ways that an applicant has not alleged. Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). Pro se status does not entitle Mr. Mogavero to an application of different rules. See Montoya v. Chao, 296 F.3d 952, 957 (10th Cir. 2002).
Computation of a federal prison sentence is governed by 18 U.S.C. § 3585. That statute provides:
18 U.S.C. § 3585. See also Binford v. United States, 436 F.3d 1252, 1254 (10th Cir.2006) (computation of a federal sentence requires consideration of two separate issues: (1) the commencement date of the federal sentence, and (2) the extent to which a defendant can receive credit for time spent in custody prior to commencement of his sentence). The Attorney General, through the BOP, is responsible for making the sentence calculation contemplated by § 3585. See United States v. Wilson, 503 U.S. 329, 334 (1992).
While § 3585 governs calculation of a sentence by the BOP, § 3584 gives the federal sentencing court the power to impose a sentence that runs concurrently to a state sentence. Section 3584 provides:
18 U.S.C. § 3584.
Thus, a federal district court has discretion under § 3584(a) to run a defendant's federal sentence either concurrently with or consecutively to the undischarged term of his state sentence. 18 U.S.C. § 3584(a); see e.g., United States v. Candelas, No. 10-5089, 411 F. App'x. 190, 194 (10th Cir. Feb. 9, 2011) (unpublished) (recognizing federal district court's discretion to impose federal sentence that runs consecutively or concurrently to an undischarged state sentence).
Mr. Mogavero claims that the BOP has calculated his federal sentence incorrectly. He contends that he is entitled to credit against his federal sentence beginning on March 7, 2006, when he was arrested and detained by state authorities on state charges, because his federal sentence was ordered to run concurrently with his state court sentences. [# 1 at 14, 30]. Alternatively, Mr. Mogavero asserts that he is entitled to credit against his federal sentence beginning on April 15, 2008, when he was taken into temporary federal custody pursuant to a writ of habeas corpus ad prosequendum. [Id. at 17, 21].
I must first determine when Mr. Mogavero's federal sentence commenced. As noted above, § 3585(a) states that 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." A federal sentence "cannot commence prior to the date it is pronounced, even if made concurrent with a sentence already being served." United States v. Flores, 616 F.2d 840, 841 (5th Cir.1980); DeMartino v. Thompson, No. 96-6322, 116 F.3d 1489 (10th Cir. July 1, 1997) (unpublished) (citing Flores).
Mr. Mogavero was sentenced by the federal district court on December 14, 2009. Although he was in the temporary custody of the United States Marshals service between April 15, 2008 and January 15, 2010, pursuant to a writ of habeas corpus ad prosequendum issued by the federal district court, he remained in the primary custody of the Illinois authorities, serving his state sentence. See Weekes v. Fleming, 301 F.3d 1175, 1180 (10th Cir. 2002) (recognizing that when two sovereigns may claim custody over a prisoner, "[t]he sovereign that first acquires custody of a defendant in a criminal case is entitled to custody until it has exhausted its remedy against the defendant."); see also Brown v. Perrill, 28 F.3d 1073, at 1073-1074 (10th Cir. 1994) (recognizing that when a state transfers a person in custody to the federal government pursuant to a writ of habeas corpus ad prosequendum, the federal detention is generally recognized as being temporary)(citing Hernandez v. United States Attorney General, 689 F.2d 915, 918-19 (10th Cir. 1982)). The time spent in federal detention under a writ of habeas corpus ad prosequendum is credited against the state sentence, but not against the federal sentence. See Binford, 436 F.3d at 1256; United States v. Welch, 928 F.2d 915, 916 n. 2 (10th Cir.1991); Hernandez v. U.S. Atty. General, 689 F.2d 915, 918-19 (10th Cir. 1982). Accordingly, Illinois did not relinquish its primary jurisdiction over Mr. Mogavero until he completed his state sentence on March 18, 2011. See Weekes, 301 F.3d at 1180.
I find that the BOP's determination that Mr. Mogavero's federal sentence commenced on December 14, 2009, is consistent with § 3585(a). Applicant's federal sentence commenced on the day it was imposed, because on that date he was still in the primary jurisdiction of the state of Illinois serving his state sentences. Moreover, his federal sentence could not start any earlier than the date on which it was imposed. See Flores, 616 F.2d at 841; DeMartino, 116 F.3d 1489; Zaring v. Davis, 12-cv-00944-CMA, 2012 WL 3590913, at *4 (D.Colo. Aug. 21, 2012) (unpublished). Accordingly, the BOP correctly designated nunc pro tunc the Illinois correctional facility for service of Mr. Mogavero's federal sentence from the date it was imposed, December 14, 2009, so as to achieve the intent of the federal sentencing court in imposing a sentence to run concurrently with the undischarged term of Applicant's state sentences.
Mr. Mogavero's primary contention is that the BOP has refused to credit against his federal sentence the time he spent in state custody prior to the commencement of his federal sentence on December 14, 2009. [# 1 at 14, 17, 21, 30].
Respondent maintains that an award of prior custody credit for the time period Applicant seeks is prohibited because it would constitute double credit contrary to the provisions of 18 U.S.C. § 3585(b). [# 18 at 5-8]. Respondent asserts that prior custody credit may only be granted for time spent in federal detention or other custody for which Applicant did not receive credit towards another sentence. [Id.].
Mr. Mogavero does not challenge Respondent's assertion that he received credit against his state sentence for the period May 18, 2006, the date he was sentenced in state court, through December 13, 2009, the day before his federal sentence was imposed.
Finally, I address Mr. Mogavero's claim that he is entitled to nunc pro tunc designation of his federal sentence to commence in March 2006, when he began serving his state court sentences. Applicant asserts that the nunc pro tunc designation is consistent with the federal sentencing court's order that his federal sentence run concurrently with his Illinois sentences.
The federal sentencing court, in imposing sentence on December 2009, ordered that the federal sentence was to run concurrently with the undischarged portion of the earlier-imposed state sentence. [# 1 at 8; #18-1 at 20]. See 18 U.S.C. § 3584(a) (providing that "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"). "Logically, [a federal sentence] cannot commence prior to the date it is pronounced, even if made concurrent with a sentence already being served." DeMartino, 116 F.3d 1489; see also Shelvy v. Whitfield, 718 F.2d 441, 444 (D.C.Cir.1983) ("[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."). Thus, the fact that Mr. Mogavero's federal sentence was ordered to run concurrently with his state sentence does not change the prohibition against double credit under § 3585(b).
Moreover, there is nothing in the federal judgment to indicate that the federal sentencing court intended to grant any adjustment for time served under the state sentence prior to commencement of the federal sentence on December 14, 2009. [# 18-1 at 19-24]. And, in any event, a sentencing court does not have authority to grant prior custody credit under § 3585(b). See Wilson, 503 U.S. at 333 (the authority to grant prior custody credit is vested with the Attorney General, acting through the BOP); see also Torres v. Brooks, No. 99-1321, 2000 WL 158963, at *2 (10th Cir. Feb. 15, 2000) (unpublished) (notwithstanding statement by federal sentencing judge that petitioner should receive credit for time spent in state custody prior to commencement of federal sentence, petitioner not entitled to credit for this period because § 3585(b) prohibits such double credit). Therefore, I find that the BOP correctly determined that Mr. Mogavero is not entitled to prior custody credit for the time he spent in official detention serving a state sentence prior to the imposition of his federal sentence where that same period has been credited against his state sentence.
This case is distinguishable from those in which the BOP designates an offender's state facility nunc pro tunc for service of his federal sentence, where the state court has ordered a state sentence to run concurrently with an existing federal sentence. See, e.g., Barden v. Keohane, 921 F.2d at 476, 477-478 (3rd Cir. 1990) (recognizing that the Bureau of Prisons has the statutory authority to designate nunc pro tunc a prisoner's state facility as the place of confinement for his federal sentence where: the petitioner asserts that the designation is necessary to carry out the intention of the state sentencing court that his state sentence be served concurrently with his existing federal sentence; and, the federal judgment is silent as to whether the federal sentence would run consecutively to or concurrent with any future state sentence.) In this case, the state sentence was imposed long before Applicant's federal sentence. See Miller, 594 F.3d at 1242 (distinguishing Barden, in part, on the basis that Mr. Miller was already serving his state sentence when he received his federal sentence). Mr. Mogavero does not cite any authority, nor is the Court aware of any, to hold that a federal sentence may be designated nunc pro tunc to commence before it is imposed by the federal district court. See Flores, 616 F.2d at 841.
Because Mr. Mogavero's federal sentence did not commence until December 14, 2009, he is not entitled to any credit toward his federal sentence for time spent in custody prior to that date (except for the prior custody credit afforded to him by the BOP under Willis). See Azure, 97 F. App'x at 244 (rejecting petitioner's argument that his federal and state sentences were not fully concurrent unless his federal sentence was deemed commenced from the date of the federal charge; instead, the concurrent sentence imposed by federal district court caused petitioner's state and federal sentences to run concurrently from the date of federal sentencing).
Based on the foregoing findings and conclusions, Mr. Mogavero's claim that the BOP has computed his federal sentence incorrectly lacks merit, and, thus, the Application will be denied.
Under 28 U.S.C. § 1915(a)(3), the court certifies that any appeal from this order would not be taken in good faith and therefore in forma pauperis status will be denied for the purpose of appeal.
1. That the
2. That this case is dismissed; and
3. That leave to proceed in forma pauperis on appeal is denied.
[# 18-1 at 4-5, 27-29]. As explained in the text above, the time Applicant spent in custody from May 18, 2006, through December 13, 2009, was not pre-sentence time but was in service of the state sentences after their imposition. See 18 U.S.C. § 3585(b).
