                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-21-2006

Boston v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-5397




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                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                ______________

                                      No. 05-5397
                                    ______________

                                  ROBERT BOSTON,

                                                  Appellant


                                             v.

                 ATTORNEY GENERAL OF THE UNITED STATES;
                         Warden JAMES SHERMAN
                             ______________

                    On Appeal From the United States District Court
                       For the Western District of Pennsylvania
                              (D.C. Civ. No. 04-cv-00051E)
                    District Judge: Honorable Sean J. McLaughlin
                                    ______________

                      Submitted Under Third Circuit LAR 34.1(a)
                                  October 18, 2006

                    Before: Rendell, Ambro and Roth, Circuit Judges

                              (Filed: December 21, 2006)

                                    ______________

                                       OPINION
                                    ______________

PER CURIAM

      Robert Boston appeals from the denial of his § 2241 petition by the United States

District Court for the Western District of Pennsylvania. We will vacate that order and
remand for proceedings consistent with this opinion.

                                             I.

       Boston was arrested by Wisconsin state officials on February 2, 1999; no state

charges were filed as a result. Instead, on February 5, 1999, federal charges were filed

against Boston, for firearms possession violations pursuant to 18 U.S.C. §§ 922(g)(1) and

924(e)(1). Boston was ordered detained by a federal magistrate judge on February 22,

1999, and he continued to be held by the State of Wisconsin through the federal criminal

proceedings. On April 23, 1999, Boston pled guilty to the federal charges; his sentence

was not immediately imposed.

       The same weapons possession served as the basis for the revocation of parole by

Wisconsin authorities on May 5, 1999. Boston began serving his state sentence

immediately.

       On November 3, 1999, Boston was sentenced on his federal conviction to 162

months in prison (later reduced to 145 months), to be served consecutive to the state

sentence. On November 24, 1999, Boston was designated for assignment to a federal

facility, FPC/FCI Oxford, and he arrived there several days later. Shortly after Boston’s

arrival, FCI Oxford staff concluded that Boston should have been under the primary

jurisdiction of the State of Wisconsin and returned him to state custody. Boston remained

in a Wisconsin facility until April 1, 2003, when he was paroled to a federal detainer.

       The entire time period that Boston spent in custody – February 2, 1999 through

April 1, 2003 – was credited against his Wisconsin state sentence. The Bureau of Prisons

                                             2
computed Boston’s federal sentence as commencing on April 1, 2003.

       Boston filed a habeas petition pursuant to 28 U.S.C. § 2241, in the Western

District of Pennsylvania, contending that he should be awarded credit against his federal

sentence for all the time he spent in federal custody prior to April 1, 2003. The

Magistrate Judge recommended that Boston receive federal credit for the time from

November 24, 1999, when he was designated to FCI Oxford, to April 1, 2003. The

District Court disagreed and dismissed Boston’s § 2241 petition. Boston now appeals.

                                             II.

       This Court has jurisdiction under 28 U.S.C. § 1291. We exercise plenary review

over the District Court’s legal decisions, and apply a clearly erroneous standard to the

court’s factual findings. Wilson v. Beard, 426 F.3d 653, 659 (3d Cir. 2005). We can

affirm the District Court’s order on any ground supported by the record. See Tourscher v.

McCullough, 184 F.3d 236, 240 (3d Cir. 1999).

       In order to determine whether Boston is entitled to any federal credit for his time

in custody, we must first determine the commencement date of his federal sentence. 18

U.S.C. § 3585(a) provides:

              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.

Id. Both the Magistrate Judge and the District Court concluded that Boston’s federal

sentence commenced on November 24, 1999, the day he was designated for assignment


                                              3
to FCI Oxford. We agree.1 The record is clear that Boston was designated on that date

and subsequently transferred to the federal facility, where he remained for several days.

See Weekes v. Fleming, 301 F.3d 1175, 1177, 1179 (10th Cir. 2002). Contra Binford v.

United States, 436 F.3d 1252, 1253 (10th Cir. 2006) (sentence did not commence where

prisoner in temporary federal custody pursuant to writ of habeas corpus ad

prosequendam). In support of its contention that the federal sentence did not commence

until April 2003, the government presents several reasons why Boston should not receive

“double credit” for the time period between November 1999 and April 2003. However,

such arguments do not speak to the straightforward determination, under 18 U.S.C. §

3585(a), of the commencement of the federal sentence.

       Next, we must necessarily evaluate how long the federal sentence ran. Within a

few days after Boston’s arrival, federal officials realized their mistake and arranged to

have Boston transferred back to a Wisconsin state facility. Boston contends that under

the common law “continuous service rule,” his federal sentence should have continued to

run, regardless of his return to state custody. The rule provides that “unless interrupted

by fault of the prisoner . . . a prison sentence runs continuously from the date on which

the defendant surrenders to begin serving it.” Weekes, 301 F.3d at 1180 (citing Dunne v.

  1
    In its brief, the government contends that the District Court’s explicit statement, “we
conclude that the federal sentence[] commenced on November 24, 1999”, is a
typographical error. Boston v. Ashcroft, No. Civ. A. 04-51-ERIE, 2005 WL 3278001, at
*2 (W.D. Pa. Dec. 2, 2005). We see no reason to conclude that the District Court did not
intend the statement. Despite the government’s contentions, it does not follow from
finding November 24, 1999, to be the correct commencement date that Boston is entitled
to federal credit for all of the time served afterward.

                                              4
Keohane, 14 F.3d 335, 336 (7th Cir. 1994)). On this basis, the Magistrate Judge

recommended that Boston’s petition be granted.

       However, courts have not followed this rule without exception.2 As the District

Court noted, the danger that the rule protects against is that the government might abuse

its coercive power to imprison a person and artificially extend the duration of the sentence

by continuously releasing and then re-incarcerating the prisoner. See Free v. Miles, 333

F.3d 550, 554 (5th Cir. 2003) (per curiam); see also Dunne, 14 F.3d at 336 (government

is not permitted to delay expiration of sentence by postponing commencement of sentence

or by releasing prisoner for a time and then reimprisoning him). Where a prisoner’s total

time of incarceration in both federal and state prison will not be increased as a result of

his mistakenly serving a portion of the federal sentence before completing his state

sentence, the central concern of the rule is not invoked. Several courts have concluded

that, where the danger animating the rule is not present, the common law rule need not be

inflexibly applied. See Free, 333 F.3d at 554-55 (refusing to grant federal credit to

prisoner for time spent in state custody after serving six months of federal sentence

because “[prisoner] is serving the correct total time of his consecutive state and federal

sentences”); Cox v. United States, 551 F.2d 1096, 1099 (7th Cir. 1977) (not awarding

federal credit for time in state custody after commencement of consecutive federal

sentence because prisoner “was no more deprived of his ultimate expectation of freedom

  2
    This is consistent with the status of a common law rule. See Dunne v. Keohane, 14
F.3d 335, 336 (7th Cir. 1994) (continuous service rule “is only a rule of interpretation . . .
laden with considerations of policy” and “not a constitutional command”).

                                              5
by interruption of his federal sentence than if he had been turned over to [state]

authorities immediately after [federal] sentence was imposed to complete the service of

his state sentence”). But see Weekes, 301 F.3d at 1180 (presuming rule’s applicability

without evaluation).

       Here, the federal sentencing court specified that Boston’s federal sentence was to

run consecutively to the state sentence. Accordingly, if Boston does not receive federal

credit for the period of time he spent in state custody after serving briefly in federal

custody, there is no danger that he will serve more than the correct total time of his state

and federal sentences. Boston’s claim that, without the federal crediting, his sentence will

be increased because the state intended for his state sentence to run concurrently with his

federal sentence is unavailing. Even assuming that the state’s eventual decision to credit

the brief amount of time Boston spent in a federal facility is properly interpreted as

evidence of the state’s intent to impose a concurrent sentence, Boston would not be

entitled to have his sentences run concurrently. See, e.g., Barden v. Keohane, 921 F.2d

476, 480-84 (3d Cir. 1990) (state sentencing judges have authority to direct that a state

sentence be concurrent with a federal sentence, but lack authority to direct that a federal

sentence run concurrent with a state sentence); Taylor v. Sawyer, 284 F.3d 1143, 1150

(9th Cir. 2002) (concurrent sentences imposed by state judges are nothing more than

recommendations to federal officials).

       Having established that we need not conclude that, due to the common law rule,

Boston’s federal sentence necessarily ran throughout the entire time he was in state

                                               6
custody (beginning in December 1999), we must now determine how long it did run. The

government would have us conclude that it did not run at all, pursuant to the statutory

provision which allows a prisoner to be given credit toward his federal sentence only for

time he has spent in official detention that has not been credited against another

sentence. See 18 U.S.C. § 3585(b) (emphasis added). Since Boston received credit on

his state sentence from his arrest on February 2, 1999, through his re-parole to the federal

detainer on April 1, 2003, the government urges that the statute does not allow for double

credit. However, § 3585(b) applies only to time “prior to the date the sentence

commences.” Id. As we have already concluded that Boston’s federal sentence

commenced on November 24, 1999, § 3585(b) prevents Boston from receiving federal

credit only for the time from his initial arrest until that point. The District Court used its

conclusion not to apply the continuous service rule to explain why it determined Boston

was not entitled to any federal credit. However, this conclusion rests uneasily with the

District Court’s correct finding that Boston’s federal sentence commenced on November

24, 1999. According to the District Court’s analysis, Boston’s federal sentence began,

but never ran. Put another way, in the District Court’s view, Boston does not receive

federal credit for any of the time he served (1) in federal prison, (2) immediately

following his assignment to and transfer to a federal facility.

       This awkward result is not dictated by a decision not to apply the common law

rule. Nor are we aware of any authority indicating that the sentencing judge’s intention

that Boston’s federal sentence be served consecutively to his state sentence dictates that

                                               7
the federal sentence time that Boston served at a federal facility should be erased when

state authorities later award state credit for that time. We conclude, then, that Boston

should receive credit against his federal sentence for the time he served in federal custody

until the time of his transfer back into state custody. Cf. Free, 333 F.3d at 555 (prisoner

entitled to federal credit for the six months served in error at federal facility before being

correctly returned to serve at state facility).

         Because it is clear that the Bureau of Prisons has not credited this time to Boston’s

federal sentence,3 Boston’s § 2241 petition should be granted for the purpose of giving

him federal credit for the time period from November 24, 1999, to the time of his transfer

back into state custody. Because the date on which Boston returned to state custody is

not clear from the record, we will remand for determination on this matter. Boston’s

claims of entitlement to federal credit for other time periods were correctly rejected by the

District Court.

         Accordingly, we will vacate the District Court’s order and will remand this matter

for proceedings consistent with this opinion.




  3
      See Appellee’s Brief at 9.

                                                  8
