United States District Court, W.D. Louisiana, Alexandria Division
D. DRELL JUDGE
REPORT AND RECOMMENDATION
H.L. Perez-Montes United States Magistrate Judge
the Court is a Petition for Writ of Habeas Corpus under 28
U.S.C. § 2241 filed by pro se Petitioner Juan
Rafael Torres-Carrillo (#69051-179)
(“Torres-Carrillo”). Torres-Carrillo is an inmate
in the custody of the United States Bureau of Prisons
(“BOP”), incarcerated at the Federal Correctional
Institution in Pollock, Louisiana. Torres-Carrillo challenges
the computation of his sentence by the BOP.
Torres-Carrillo has received all the sentencing credit to
which he is entitled, his § 2241 Petition (Doc. 1)
should be DENIED.
to the exhibits to his Petition, Torres-Carrillo was arrested
in Texas on June 29, 2017 for possession of less than 2, 000
pounds, but more than 50 pounds, of marijuana. (Doc. 1-2, p.
8). On August 22, 2017, Torres-Carrillo was transferred to
federal custody pursuant to a writ of habeas corpus ad
prosequendum. (Doc. 1-2, p. 8). Torres-Carrillo pleaded
guilty in federal court to reentry after deportation.
(7:17-cr-1223, S.D. TX., Doc. 25). He was sentenced to 60
months of imprisonment. (7:17-cr-1223, S.D. TX., Doc. 25).
the imposition of his federal sentence, Torres-Carrillo was
transferred back to state custody. (Doc. 1-2, p. 8).
Torres-Carrillo was convicted in state court and sentenced to
a two-year term of imprisonment. (Doc. 1-2, p. 8).
Torres-Carrillo was paroled to the custody of the United
States Marshals Service on July 2, 2018. (Doc. 1-2, p. 8).
Law and Analysis
authority to grant or deny credit for time served is
specifically reserved to the United States Attorney General,
who has delegated that responsibility to the BOP. See
U.S. v. Wilson, 503 U.S. 329 (1992). The district court
may review a challenge to the BOP's refusal to grant
credit or make such a designation in a § 2241 petition.
See Pierce v. Holder, 614 F.3d 158, 160 (5th Cir.
federal judgment is silent with respect to whether sentences
are to run concurrently or consecutively, the presumption is
that they will run consecutively unless the court
specifically orders that they run concurrently. See
18 U.S.C. § 3584(a); U.S. v. Jack, 566
Fed.Appx. 331, 332 (5th Cir. 2014); Free v. Miles,
333 F.3d 550, 553 (5th Cir. 2003). At the time of
Torres-Carrillo's sentencing, the federal court did not
order his federal sentence to run concurrently with the
future state sentence. Because the judgment was silent, the
sentences are presumed to run consecutively. After
Torres-Carrillo requested a nunc pro tunc designation from
the BOP, the sentencing court was contacted and confirmed its
intention that the federal sentence run consecutively to the
state sentence. (Doc. 1-2, p. 9).
alleges that the state judge ordered the state sentence to
run concurrently with the federal sentence. However, a state
court's determination that a state sentence should run
concurrently with a federal sentence is not binding on the
federal government. Leal v. Tombone, 341 F.3d 427,
27-30 (5th Cir. 2003). Therefore, Torres-Carrillo's
federal sentence runs consecutively to the state sentence.
federal prison sentence generally begins on the date the
defendant is received into custody. See 18 U.S.C.
§ 3585(a). Torres-Carrillo was in the primary custody of
the State of Texas due to his drug arrest. He was temporarily
transferred to federal authorities pursuant to a writ of
habeas corpus ad prosequendum. See Causey v.
Civiletti, 621 F.2d 691, 693 (5th Cir. 1980) (a writ of
habeas corpus ad prosequendum only constitutes a
“loan” of the prisoner to another jurisdiction).
Therefore, the BOP determined Torres-Carrillo's sentence
commenced on July 2, 2018, when he was paroled from the State
of Texas to federal authorities.
seeks federal credit for time spent in state custody prior to
the commencement of his federal sentence. However, a
defendant shall only 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, if it has
not been credited against another sentence. See 18
U.S.C. § 3585(b). Because the custodial time prior to
July 2, 2018 was credited toward the state sentence,
Torres-Carrillo cannot also receive that credit toward his
consecutive federal sentence.
on the documents provided by Torres-Carrillo, the BOP has
given “full and fair consideration” to his
request, which is all that the BOP is required to do.
SeeMcCarthy v. Doe, 146 F.3d 118, 122 (2d
Cir. 1998); see also Program Statement 5160.05
(stating that although the BOP must consider an inmate's
request for nunc pro tunc designation under
Barden v. Keohane, 921 F.2d 476, 483 (3d Cir. 1990),
there is no ...