United States District Court, S.D. Illinois
MEMORANDUM and ORDER
CLIFFORD J. PROUD, Magistrate Judge.
Petitioner James Tilson filed a Petition for Writ of Habeas Corpus pursuant 28 U.S.C. §2241, challenging the calculation of his sentence. Tilson contends that he should be given credit on his federal sentence for time he spent in federal custody prior to the imposition of sentence, despite the fact that he was given credit for that time on a state sentence.
The relevant facts are straightforward. As recounted by Tilson in his petition, he was released from the Tennessee Department of Corrections on parole in November, 2001. On August 18, 2002, he was arrested and charged by the State of Tennessee with theft and illegal possession of a firearm. He was also charged in the Eastern District of Tennessee with being a felon in possession of a firearm. His state parole was revoked on September 20, 2002. The new state charges were dismissed,
He pleaded guilty to the federal charge of felon in possession of a firearm and, on June 26, 2003, he was sentenced to 180 months imprisonment. He was also sentenced to 24 months imprisonment for violation of his supervised release in another case in the same District. His two federal sentences were to run concurrent with each other and with his state sentence for violation of his state parole.
Tilson was re-paroled by the State of Tennessee on December 10, 2006. He was then transferred from the Tennessee Department of Corrections to the BOP to serve the rest of his federal sentence.
A federal prisoner may challenge the duration, i.e., the calculation, of his sentence in a petition under 28 U.S.C. §2241. Waletzki v. Keohane, 13 F.3d 1079, 1080 (7th Cir. 1994), citing Preiser v. Rodriguez, 93 S.Ct. 1827 (1973).
The BOP's sentence calculation sheet reveals that petitioner's federal sentences began to run on the date he was sentenced, June 26, 2003. See, Doc. 8, Ex. A, p. 3. Tilson filed a request for administrative remedy in June, 2011, claiming that his federal sentence should have begun to run on August 18, 2002, the date of his arrest. In reply, the BOP pointed out his federal sentence could not begin to run before it was imposed, and that he could not be given credit for the period before sentence was imposed because that time had been credited to his state parole violator sentence. Doc. 8, Ex. B.
A federal sentence cannot begin to run until it is imposed. U.S. v. Walker, 98 F.3d 944, 945-946 (7th Cir. 1996). So, the fact that his federal sentences were to run concurrently with his state sentence does not, as he claims, require the BOP to calculate his federal sentence from the date of arrest. Further, Tilson's petition is doomed by 18 U.S.C. §3585(b), which provides that credit on a federal sentence can only be given for pretrial detention time "that has not been credited against another sentence." See, U.S. v. Ross , 219 F.3d 592, 594 (7th Cir. 2000).
Tilson ignores the fact that he received credit on his state parole violator sentence for the period from his arrest on August 18, 2002, to the date he was sentenced, June 26, 2003. The Seventh Circuit has repeatedly held that §3585(b) means what it says: time that is credited to a state sentence cannot also be credited to a federal sentence. U.S. v. Aslan, 644 F.3d 526, 532 (7th Cir. 2011); Grigsby v. Bledsoe, 223 Fed.Appx. 486, 488-489 (7th >Cir. 2007), and cases cited therein; Short v. Revell, 152 Fed.Appx. 542, 544 (7th Cir. 2005); Easley v. Stepp, 5 Fed.Appx. 541, 542 (7th Cir. 2001).
In his reply, Tilson cites U.S. v. Smith, 318 F.Supp.2d 875 (C.D. Cal. 2004). In that case, however, there was "no allegation or evidence presented that the 18 months at issue have been credited against another sentence." Smith, 318 F.Supp.2d at 878. Therefore, Smith is not relevant. In any event, it is a district court case from another district. It is "not authoritative even within the rendering district." Van Straaten v. Shell Oil Products Co. LLC, 678 F.3d 486, 490 7th Cir. 2012).
Tilson also suggests that the sentencing judge intended to give him credit on his federal sentence for all of the time since August 18, 2002, the date of his arrest. However, it has long been clear that a sentencing judge does not have the authority to award credit for time served; such authority is vested in the Attorney General, acting through the BOP:
After a district court sentences a federal offender, the Attorney General, through the BOP, has the responsibility for administering the sentence. See 18 U.S.C. § 3621(a) ("A person who has been sentenced to a term of imprisonment... shall be committed to the custody of the Bureau of Prisons until the expiration of the term imposed"). To fulfill this duty, the BOP must know how much of the sentence the offender has left to serve. Because the offender has a right to certain jail-time credit under § 3585(b), and because the district court cannot determine the amount of the ...