DEE C. GRIFFIN, Petitioner,
CLAUDE MAYE, Warden, USP-Leavenworth, Respondent.
MEMORANDUM AND ORDER
RICHARD D. ROGERS, District Judge.
This pro se petition for writ of habeas corpus was filed pursuant to 28 U.S.C. § 2241 by an inmate of the United States Penitentiary, Leavenworth, Kansas. Petitioner challenges the U.S. Bureau of Prisons (BOP) denial of his request for a nunc pro tunc designation that would have allowed him to receive credit against the federal sentence he is currently serving for time previously spent serving an Indiana state sentence. He believes he is entitled to such credit because the state judge ordered that his Indiana sentence be served concurrent with his previously-imposed federal sentence. The court finds that petitioner fails to state a claim for relief under § 2241. He is given time to show good cause why this action should not be dismissed for failure to state a claim.
The statutory fee for filing a habeas corpus petition is $5.00. Petitioner has neither paid the fee nor submitted a motion to proceed in forma pauperis. This action may not proceed until the filing fee is satisfied in one of these two ways. Local court rule requires that a motion to proceed in forma pauperis be submitted upon court-approved forms and that a certified statement of the current balance in the inmate's prison account be provided. D. Kan. Rule 9.1(g). If petitioner fails to satisfy the filing fee within the time allotted, this action may be dismissed without prejudice and without further notice.
FACTUAL BACKGROUND AND CLAIMS
Having screened all materials filed and having reviewed the federal criminal case file,  the court tentatively finds the following factual background. In April 2009, Mr. Griffin was stopped by police officers in Indiana for a traffic violation. Griffin (Doc. 23) (Sentencing Memorandum) (12/29/09). He was arrested by local authorities at that time and taken into state custody. He was charged with five state offenses including two handgun violations. The state charges were amended and the handgun charges were dropped by the State. However, federal authorities charged Mr. Griffin with felon in possession of a firearm arising from this incident. A federal warrant was issued on June 12, 2009. On July 21, 2009, the federal court issued a writ of habeas corpus ad prosequendum directed to the Sheriff, St. Joseph County Jail, South Bend, Indiana, so that he could be produced by U.S. Marshals for his initial appearance in federal court scheduled for July 23, 2009. Mr. Griffin was arrested on the federal warrant on July 23, 2009. On November 3, 2009, he was found guilty in federal court upon his plea of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Id. At sentencing, the federal court found that Mr. Griffin was released from prison to parole authorities in August 2008; "he was on parole at the time of this crime"; "there is currently a hold on him for a parole violation"; and "his current projected release date for his state parole violation is September 2010." The court also found that this was Mr. Griffin's eighth felony conviction, and that "all told, Mr. Griffin has had about eighty prior state court cases for various infractions, misdemeanors and felonies." He was sentenced to federal prison for 46 months to be followed by a 3-year supervised release term. Petitioner acknowledges and the record in his federal case shows that the federal court's judgment was silent as to whether the federal term was to run concurrent or consecutive to Mr. Griffin's impending state sentence. Griffin (Doc 25) Judgment (Dec. 29, 2009). He was "remanded to the custody of the USM/SB" on December 29, 2009, and taken by writ of habeas corpus ad prosequendum back to the county jail in Indiana.
In January 2010, Mr. Griffin moved the Indiana state court to accept his plea to two of the state counts: Operating a Motor Vehicle After a Lifetime Suspension of Driving Privileges and Operating a Motor Vehicle with Eight-Hundredths (.08) or More Grams of Alcohol in the Breath. Id. Petitioner exhibits a portion of the docket sheet from his state criminal case. It indicates that the state court judge took the motion under advisement and set sentencing for February 4, 2010. When Griffin appeared for this sentencing, the state judge "decline(d) to proceed to sentencing until it is determined when the Defendant was indicted and arrested in federal case" and continued sentencing for 20 days. Following this hearing, the state judge phoned the federal judge's office and was informed that Mr. Griffin had been indicted and was arrested on the federal warrant on July 23, 2009. The exhibited docket provides: "Court therefore finds that the sentence in 09FC87 may be concurrent with the federal sentence." It further provides that "[t]his court requested that the federal authorities not remove the Defendant from the St. Joseph County Jail until after the sentencing set for 2/24/10." Id. at 10. The docket also reveals that on February 24, 2010, the state judge found that Mr. Griffin "had 312 days class one credit through 2/23/10, " had a federal detainer, and "had never been released on this case." Petitioner's Memorandum in Support (Doc. 2) at 11. The state court accepted Griffin's plea on this date and sentenced him to sixty days on the alcohol count, which was satisfied by pre-sentence credit, and to five years incarceration on the driving suspension count "which begins today." The judge ruled that "[t]his sentence is concurrent with the federal sentence imposed in 3:09CR69-1." He then remanded the defendant "to the Sheriff for transfer to the Department of Correction but request(ed) the Sheriff to notify federal authorities, " and added that "[i]f the federal authorities exercise their detainer, the Defendant's custody is transferred to the federal marshal." The U.S. Marshal did not pick up Mr. Griffin, and he was transported to the Indiana DOC.
Mr. Griffin asks the court to find that his state and federal sentences were concurrent, and to order the BOP to issue a nunc pro tunc designation to credit his federal sentence with the time he served in state custody prior to the BOP taking physical custody from Indiana. He alleges that he exhausted his administrative remedies, and that during this process the BOP considered and denied his request for nunc pro tunc designation.
RELEVANT LEGAL AUTHORITY
28 U.S.C. § 2241(c)(3) pertinently provides: "The writ of habeas corpus shall not extend to a prisoner unless... he is in custody in violation of the Constitution or laws or treaties of the United States...." Calculation of a federal prison sentence is governed by federal statutes. 18 U.S.C. § 3585 provides as follows:
(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.
(b)Credit for prior custody.-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 ...