                                                                        FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                   UNITED STATES COURT OF APPEALS                    May 25, 2011
                                                                 Elisabeth A. Shumaker
                                TENTH CIRCUIT                        Clerk of Court



 RICHARD F. WISE,

              Petitioner - Appellant,                    No. 10-3292
 v.                                           (D.C. No. 5:09-CV-03283-RDR)
                                                        (D. Kansas)
 CLAUDE CHESTER, Warden,
 USP–Leavenworth,

              Respondent - Appellee.


                           ORDER AND JUDGMENT *


Before KELLY, HARTZ, and HOLMES, Circuit Judges.


      Defendant Richard F. Wise, a federal prisoner, applied for a writ of habeas

corpus in the United States District Court for the District of Kansas. 1 See 28

U.S.C. § 2241. His application challenged the calculation by the Bureau of


      *
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

      1
        Because Defendant was imprisoned in U.S.P. Leavenworth when he filed
his application, jurisdiction was proper in the District of Kansas. See Howard v.
United States Bureau of Prisons, 487 F.3d 808, 811 (10th Cir. 2007).
Prisons (BOP) of the starting date of his sentence and the date that he would be

eligible for release. The district court found that the BOP’s calculation was

correct and denied the application. Defendant appeals; we have jurisdiction under

28 U.S.C. § 1291 and affirm.

I.    BACKGROUND

      On April 27, 2004, Defendant was indicted in Hamilton County, Ohio, and

a warrant was issued for his arrest. On May 5 a federal arrest warrant was issued

for him on unrelated charges. The Franklin County, Ohio, Sheriff arrested

Defendant on June 6. After he was arrested the United States Marshal for the

Southern District of Ohio issued a detainer to the Franklin County Sheriff stating

that there was a federal arrest warrant for Defendant and asking that the Marshal

be notified before he was released from custody. The State of Ohio prosecuted

Defendant first; he pleaded guilty to theft on September 27 and was sentenced to

18 months’ imprisonment. On November 2 the United States Marshal issued

another detainer to the state correctional institution where Defendant was

incarcerated.

      Defendant was indicted by a federal grand jury of the Southern District of

Ohio on March 29, 2005. A magistrate judge then issued a writ of habeas corpus

ad prosequendum directing that he be temporarily released from state custody so

that he could be prosecuted in federal court. He was turned over to federal

officers on April 12. On October 28 he pleaded guilty in federal court to bank

                                         -2-
robbery, see 18 U.S.C. § 2113(a); conspiracy to commit bank robbery, see id. §

371; and transporting a stolen motor vehicle in interstate commerce, see id. §

2313. On August 24, 2006, the district court sentenced him to concurrent

sentences of 84 months’ imprisonment on the bank-robbery conviction, 60

months’ imprisonment on the conspiracy conviction, and 84 months’

imprisonment on the transportation conviction. Defendant was not returned to

state custody, however, because his state sentence had expired during the federal-

court proceedings.

      In 2007 the BOP calculated that Defendant would complete his full term of

imprisonment on April 12, 2012. This calculation gave him credit for the 498

days during which he was in federal custody under the writ of habeas corpus ad

prosequendum, from April 12, 2005 until sentencing on August 24, 2006.

Defendant unsuccessfully challenged the calculation through BOP administrative

procedures, arguing that he should receive credit for all days since he had been

arrested in June 2004. While his administrative appeal was pending, the BOP

corrected its calculation of Defendant’s sentence, determining that he would not

complete his full term until November 23, 2012. The correction was to disallow

credit for time in federal custody on the writ of habeas corpus ad prosequendum

that the state had credited to his state sentence. Because the state credited him

with all his time in federal custody on the ad prosequendum writ until he




                                         -3-
completed serving his sentence on November 23, 2005, the BOP gave him credit

only for days of incarceration after that date.

II.   DISCUSSION

      We review de novo the dismissal of a § 2241 petition, although we accept

the district court’s factual findings unless clearly erroneous. See United States v.

Miller, 594 F.3d 1240, 1242 (10th Cir. 2010). The statute governing when a

defendant is given credit toward a federal sentence for time that he was

incarcerated before imposition of sentence is 18 U.S.C. § 3585(b), which states:

      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 which the sentence
      was imposed;
      that has not been credited against another sentence.

(emphasis added). Therefore, Defendant is entitled to credit for time that he was

in custody before commencement of his federal sentence only if that time was not

credited to his state sentence. See Weekes v. Fleming, 301 F.3d 1175, 1178 (10th

Cir. 2002).

      Defendant makes two arguments that the BOP’s calculation of his sentence

is incorrect. First, he argues that he should receive credit on his federal term of

imprisonment for every day between his arrest on June 6, 2004, and his date of

sentencing because he was arrested by the federal government and was therefore

                                          -4-
continually in federal custody (presumably serving his federal sentence) even

though much of that time was spent serving a state prison sentence for theft.

Second, he contends that his state sentence ended on April 12, 2005, not

November 23, and that he should receive credit for all the days between April 12

and his federal sentencing on August 24, 2006. We address each argument in

turn.

        A.    Arrest

        When Defendant was sentenced for his state theft conviction on September

27, 2004, the state granted him 125 days’ credit for the time that he had been in

custody between arrest and sentencing. Because he received credit on his state

sentence for this time, he ordinarily could not receive credit on his federal

sentence. See id. Defendant argues, however, that he was arrested by the federal

government on June 6 and that “he cannot be required to serve [his sentence] in

installments.” Id. at 1180 (internal quotation marks omitted). Accordingly, in his

view, he is entitled to credit for all the time between his arrest and the imposition

of his federal sentence.

        But even if we accept Defendant’s legal theory, his claim is based on the

false factual premise that he was arrested by federal officers on June 6, 2004.

True, a federal warrant had been issued for his arrest the previous month. It is

also true that an investigation report shows that he was interviewed by an FBI

agent while in custody on June 8; and Defendant alleges that he was provided a

                                         -5-
copy of the federal detainer at that time. In addition, Defendant correctly states

that he was not transferred into the custody of Hamilton County until June 9 and

that a Hamilton County Court docket sheet reflects that he was arrested that day.

      Nevertheless, the federal district court found that Defendant “was arrested

by state authorities and placed in state custody.” R. at 170. That finding has

ample support in the record. A Franklin County document indicates that

Defendant was arrested on June 6, 2006, in response to a hold request from

Hamilton County. The federal detainers are not evidence that Defendant was in

federal custody. On the contrary, that the United States Marshal issued detainers

on Defendant both before and after the state sentenced him and that the United

States obtained temporary custody of him through a writ of habeas corpus ad

prosequendum show that the United States acted as though Ohio had custody of

Defendant and that it had agreed to that custody. See Weekes, 301 F.3d at 1181

(use of ad prosequendum writ and detainers indicate that sovereign did not have

custody); Hernandez v. U.S. Att’y Gen., 689 F.2d 915, 919 (10th Cir. 1982) (“The

law of comity is such that the two sovereigns may decide between themselves

which shall have custody of a convicted prisoner.”). Defendant’s interview by a

federal agent while in a county jail hardly made him a federal prisoner; and the

Hamilton County record, which shows when Defendant came into its custody,

does not imply that he had previously been in federal, rather than Franklin




                                         -6-
County, custody. The district court’s finding was not clearly erroneous and is

therefore binding on this court.

      B.     Termination of State Sentence

      As previously noted, Defendant was sentenced by the state court on

September 27, 2004, to 18 months’ incarceration, less 125 days’ credit for

presentence custody. That sentence would have expired on November 23, 2005.

Nevertheless, Defendant argued in federal district court that his state sentence

terminated on April 12, 2005. He noted (1) that the initial presentence report

(PSR) for his federal convictions had said that his state sentence ended on April

12 and (2) that the BOP also had at first agreed with him. Defendant’s

explanation for the April termination date was that his 18-month sentence had

been corrected to a 12-month sentence because the value of the stolen item

justified only a 12-month sentence. “In order to correct the error by the Court,”

he stated, “[Defendant] was credit[ed] with his jail time credit of four months,

and required to only serve 8 months, which accounts for the expiration of his

sentence on April 12, 2005,” the date that he was transferred to federal custody

through a writ of habeas corpus ad prosequendum. R. at 28–29.

      The district court, however, found no evidence beyond the Defendant’s

assertions that his state sentence was modified after his conviction or that it

expired on April 12, 2005. The record contains only a single state document, an

Ohio Department of Rehabilitation and Correction sentence computation, that sets

                                         -7-
out Defendant’s date of release from the state sentence, and it states that his

sentence was expected to expire on November 23, 2005. The state-court docket

does not indicate that the court ever modified his sentence; on the contrary, it

shows that the court denied Defendant’s motions to modify the sentence and to

compel modification of the sentence. And Defendant admits that the BOP

contacted Ohio officials by telephone and was informed that the sentence had not

expired until November 23.

       Although April 12, 2005, was the date that the United States obtained

custody of Defendant through a writ of habeas corpus ad prosequendum, the use

of the writ does not show that state custody ended on that day. See Binford v.

United States, 436 F.3d 1252, 1255–56 (10th Cir. 2006) (use of ad prosequendum

writ by federal government does not establish beginning of federal custody).

Rather, it indicates that the United States was acknowledging that the state still

had custody over him. See Weekes, 301 F.3d at 1181.

       Thus, the district court did not clearly err in finding that Defendant’s state

sentence expired on November 23, 2005, and that the April 12 date in the PSR

was erroneous.

III.   CONCLUSION

       We AFFIRM the judgment of the district court.

                                        ENTERED FOR THE COURT

                                        Harris L Hartz
                                        Circuit Judge

                                          -8-
