United States District Court, S.D. Georgia, Brunswick Division
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
JAMES E. GRAHAM, Magistrate Judge.
Petitioner Kewan Roberson ("Roberson"), who is currently incarcerated at the Federal Correctional Institution in Jesup, Georgia ("FCI Jesup"), filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Respondent filed a Response. For the reasons which follow, Roberson's petition should be DENIED.
STATEMENT OF THE CASE
Roberson was convicted in this Court on May 23, 2012, of possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1), and possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). The Honorable William T. Moore, Jr., sentenced Roberson to 49 months' imprisonment on each count, to be served concurrently with each other. (Doc. No. 9-1, pp. 10-11). Roberson has a projected release date of January 12, 2017, via good conduct time release. (Id. at p. 18). Roberson contends that the Bureau of Prisons ("BOP") has not awarded him with the appropriate amount of credit against his federal sentence. Roberson also contends that the BOP incorrectly denied his nunc pro tunc designation request, which would have allowed his federal and state sentences to run concurrently.
Respondent asserts that Roberson has received all of the credit against his federal sentence to which he is entitled. Respondent alleges that the BOP's determination that Roberson is not entitled to nunc pro tunc designation is entitled to deference.
DISCUSSION AND CITATION TO AUTHORITY
I. Sentence credit computation
Roberson contends that the BOP erred by failing to give him credit against his federal sentence from the time of his pre-trial detention through the date of his sentencing. Respondent asserts that Roberson has received credit against his state sentence, and the credit he seeks against his federal sentence cannot be given.
"Multiple terms of imprisonment imposed at different times run consecutively unless the court orders that the terms are to run concurrently." United States v. Ballard , 6 F.3d 1502, 1505 (11th Cir. 1993): see also 18 U.S.C. § 3584(a). It is for a federal court to decide if an offender's federal sentence will run concurrently or consecutively to any state sentence the offender may face. See United States v. Andrews , 330 F.3d 1305, 1307 n.1 (11th Cir. 2003). Additionally, "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. The prisoner will be returned to state custody at the completion of the federal proceedings or the federal sentence if the federal government wishes to execute it immediately.'" Powell v. Jordan, 159 F.App'x 97, 99-100 (11th Cir. 2005) (quoting Causey v. Civiletti , 621 F.2d 691, 693 (5th Cir.1980)). "A writ of habeas corpus ad prosequendum is only a loan of the prisoner to another jurisdiction for criminal proceedings in the receiving jurisdiction." Civiletti , 621 F.2d at 693.
It is the duty of the United States Attorney General, acting through the BOP, to determine the amount of credit due for the time served by the defendant prior to sentencing. United States v. Alexander , 609 F.3d 1250, 1259 (11th Cir. 2010). Section 3585 of Title 18 of the United States Code provides:
(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 of 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
(2) as a result of any other charge for which the defendant was arrested after the commission of the offense for ...