The opinion of the court was delivered by: Michael M. Mihm United States District Judge
Before the Court is Petitioner Michael Moore's ("Moore") Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. For the reasons set forth below, Moore's Petition for Writ of Habeas Corpus [#2] is DENIED.
On April 14, 2003, Moore was sentenced in the Circuit Court of Vermilion County, Illinois, to one year of conditional discharge for Driving After Suspension ("'02 case"). Moore was arrested by Vermilion County authorities and was charged, on April 22, 2003, with possession of a controlled substance and possession of a controlled substance with intent to deliver in violation of Illinois law ("'03 case"). On May 30, 2003, following the execution of a search warrant by Vermilion Metropolitan Enforcement Group agents at Moore's residence, where they found quantities of cocaine base, state authorities arrested Moore and he was released five hours later. On September 5, 2003, Moore was again arrested by state authorities, and his bond was revoked in the '02 and '03 cases. On March 18, 2004, Moore was sentenced to 364 days for a supervised release violation in the '02 case, with 195 days of prior-custody credit.*fn1
On August 12, 2004, Moore was temporarily released from state custody pursuant to a federal writ to the U.S. Marshals for sentencing on the federal offense of possession of crack with intent to distribute. The U.S. District Court for the Central District of Illinois sentenced him to 140 months of imprisonment for Possession of Five Grams or More of Cocaine Base with Intent to Distribute. The Judgment was silent as to its relationship to any other sentence imposed against Moore. That same day, Moore was returned to state custody and placed in the Vermilion County jail. Four days later, on August 16, 2004, Moore was sentenced to 4 years confinement for Possession of a Controlled Substance by the Circuit Court of Vermilion County as a result of his April 18, 2003, offense. The Vermilion County Court ordered that the 4-year sentence run concurrently with Moore's federal sentence.
On February 16, 2006, Moore was released from the Vermilion County jail on parole and taken into federal custody pursuant to a federal detainer. The Bureau of Prisons ("BOP") calculated his sentence based on a 140-month term beginning on February 16, 2006, giving him one day of prior-custody credit for his state arrest on May 30, 2003.*fn2 On October 9, 2008, the U.S. District Court reduced Moore's sentence to 120 months as a result of a subsequent lowering of the guideline sentencing range. The reduction meant Moore's projected release date would be November 24, 2014.
Moore requested credit toward his federal sentence for the time he spent in state custody pursuant to Barden v. Keohane. 921 F.2d 476, 483 (3d Cir. 1990) (prisoner entitled to have his application considered by the BOP for nunc pro tunc designation of the state facility as a place of confinement for purposes of his federal sentence). As a result of his request, the BOP wrote to the U.S. District Judge that imposed the sentence, asking whether the Court intended Moore's state and federal sentences to run concurrently. The District Judge replied that he would deny Moore credit towards his federal sentence for the time spent in state custody based upon 18 U.S.C. § 3585(b), and the Seventh Circuit's holding in Romandine v. United States of America. 206 F.3d 731, 737-38 (7th Cir. 2000) (federal judge "cannot make his sentence concurrent to nonexistent sentences that some other tribunal may or may not impose"). The BOP then reviewed the factors in 18 U.S.C. § 3621(b) and concluded that concurrent designation was not appropriate in Moore's case.
Moore has now filed this Petition challenging the BOP's refusal to credit him the 18 months he spent in state confinement between the dates of his federal sentencing and release into BOP custody. This Order follows.
A petition seeking habeas corpus relief is appropriate under 28 U.S.C. § 2241 when a defendant is challenging the fact or duration of his confinement. Preiser v. Rodriguez, 411 U.S. 475, 490, 93 S.Ct. 1827 (1973); Waletzki v. Keohane, 13 F.3d 1079, 1080 (7th Cir. 1994). The writ of habeas corpus may be granted where the defendant is in custody in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2241(c)(3).
Moore contends that when the state sentenced him on August 16, 2004, to 4 years confinement to run concurrently with his federal sentence, the state relinquished its primary jurisdiction, giving the BOP primary custody over him. He concludes that his federal sentence commenced on August 12, 2004, the BOP left him in state custody between that date and February 16, 2006, and so he must be credited toward his federal sentence for every day he served in state custody after August 12, 2004 (18 months). Respondent correctly notes that one issue that must be examined is the date on which Moore's federal sentence commenced.
18 U.S.C. § 3585(a) states:
(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. "Unless there is a statutory provision, or a provision in the judgment as entered, that the service shall begin at a specified time, service begins when the prisoner is delivered into the custody of the officer at the prison where the sentence is to be served." Hynes v. United States, 35 F.2d 734, 735 (7th Cir. 1929); Thomas v. Whalen, 962 F.2d 358, 364 (4th Cir. 1992) (prisoner's federal sentence commenced on the date he was received at the penitentiary for service of his federal sentences); see also Roche v. Sizer, 675 F.2d 507, 510 (2d Cir. 1982) (where state had primary jurisdiction ...