United States District Court, S.D. Georgia, Waycross Division
ORDER AND MAGISTRATE JUDGE'S REPORT AND
STAN BAKER, UNITED STATES MAGISTRATE JUDGE
Oscar Osvaldo Espinoza-Garcia
(“Espinoza-Garcia”), who was previously housed at
D. Ray James Correctional Facility in Folkston, Georgia,
filed a Petition for Writ of Habeas Corpus pursuant to 28
U.S.C. § 2241. (Doc. 1.) Respondent filed a Response.
(Doc. 9.) Espinoza-Garcia filed a Reply, and several other
pleadings. (Docs. 10, 14, 18, 19, 20, 21.) For the reasons
which follow, I RECOMMEND that the Court
DENY Espinoza-Garcia's Petition for Writ
of Habeas Corpus, filed pursuant to 28 U.S.C. § 2241,
(doc. 1), CLOSE this case, and
DENY Espinoza-Garcia leave to proceed in
was convicted in the Northern District of Alabama of illegal
entry after deportation in violation of 8 U.S.C. §
1326(a). (Doc. 9-2, pp. 6-7.) The Northern District of
Alabama sentenced Espinoza-Garcia to 60 months'
imprisonment. Id. He has a projected release date of
July 13, 2018, via good conduct time release. (Doc. 9-1, p.
Petition, Espinoza-Garcia contends that the Bureau of Prisons
(“BOP”) has miscalculated his sentence. (Doc. 1.)
Specifically, he contends that the BOP has not awarded him
the appropriate amount of jail credit toward the service of
his federal sentence. Additionally, he alleges the BOP
wrongly denied his request to designate his State of Alabama
facility for the service of his federal sentence, which would
have allowed his federal and State sentences to run
contends Espinoza-Garcia has received all of the credit
against his federal sentence to which he is entitled. (Doc.
9, p. 3.) Respondent takes the position that 18 U.S.C. §
3585(b) and BOP Program Statement 5880.28, Sentence
Computation Manual (CCA of 1984), prohibit the application of
the requested jail credit Petitioner seeks because the time
at issue was already applied toward the service of a state
sentence. Respondent also maintains that the BOP properly
computed Petitioner's federal sentence to run consecutive
to his state sentence and that the BOP properly reviewed and
properly denied, in the exercise of its discretion,
Petitioner's request for a nunc pro tunc
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). 18 U.S.C. § 3585, which pertains
to “credit for prior custody, ” is controlling
for making credit determinations for sentences imposed under
the Sentencing Reform Act of 1984. This statute provides:
(a) Commencement of sentence. B 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. B 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
(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 (emphasis added). In determining the
proper credit, a two-part analysis is helpful. First, it must
be determined when the sentence commenced. A sentence
“‘cannot begin prior to the date it is
pronounced, even if made concurrent with a sentence already
being served.'” Coloma v. Holder, 445 F.3d
1282, 1284 (11th Cir. 2006) (quoting United States v.
Flores, 616 F.2d 840, 841 (5th Cir. 1980)).
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.
following facts regarding Espinoza-Garcia's criminal
history make the computation of his sentence less