United States District Court, E.D. North Carolina, Western Division
C. DEVER III CHIEF UNITED STATES DISTRICT JUDGE
26, 2017, Magistrate Judge Numbers issued a Memorandum and
Recommendation ("M&R") and recommended that the
court grant respondent's motion to dismiss [D.E. 10] and
dismiss Timothy Alexander's ("Alexander") 28
U.S.C. § 2241 petition. See[D.E. 17]. On August 31,
2017, Alexander filed objections to the M&R [D.E. 20].
Federal Magistrates Act requires a district court to make a
de novo determination of those portions of the magistrate
judge's report or specified proposed findings or
recommendations to which objection is made." Diamond
v. Colonial Life & Accident Ins. Co.. 416 F.3d 310,
315 (4th Cir. 2005) (emphasis, alteration, and quotation
omitted); see 28 U.S.C. § 636(b). Absent a timely
objection, "a district court need not conduct a de novo
review, but instead must only satisfy itself that there is no
clear error on the face of the record in order to accept the
recommendation." Diamond. 416 F .3d at 315
those portions of the M&R to which Alexander did not
object, the court has reviewed the M&R and the record.
There is no clear error on the face of the record.
Accordingly, the court adopts the conclusions in the M&R
to which there was no objection.
Alexander's obj ections, Alexander contends that the
Federal Bureau of Prisons ("BOP") failed to give
him proper credit towards his February 2012 federal sentence
for time he spent in state custody beginning in December
2009. Pet. [D.E. 1] 2, 6. The M&R recommended dismissing
Alexander's claim because his time in state custody was
credited to another sentence. See M&R at 3-8.
has authority to award credit towards a sentence of
incarceration for time spent in prior custody as follows:
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
(1) as a result of the offense for which the sentence was
(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.
18 U.S.C. § 3585 (emphasis added). "Congress made
clear in § 3585(b) that a defendant could not receive
a double credit for bis detention time." Williams
v. United States. No. 5:10-HC-2006-D, 2011 WL 4828885,
at *3 (E.D. N.C. Oct. 11, 2011) (unpublished) (alteration
omitted); see United States v. Wilson. 503 U.S.
329, 337 (1992).
term of federal 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." 18 U.S.C. §
3585(a). A "federal sentence does not commence until
the Attorney General receives the defendant into [his]
custody for service of that sentence." United
States v. Evans. 159F.3d908, 912(4thCir. 1998)
(quotation omitted). "As between the state and federal
sovereigns, primary jurisdiction over a person is generally
determined by which one first obtains custody of, or
arrests, the person." United States v. Cole.
416 F.3d 894, 897 (8th Cir. 2005); see Evans. 159
F.3d at 912. A "writ of habeas corpus ad prosequendum,
issued to bring a prisoner to his own trial, works as a
mere loan of the prisoner to federal authorities and does
not effectuate a change in custodian for purposes of the
federal statute" United States v. Poole. 531
F.3d 263, 271 (4th Cir. 2008) (alterations omitted)
(quotation omitted). "Principles of comity require
that when the writ of habeas corpus ad prosequendum is
satisfied, the receiving sovereign return the prisoner to
the sending sovereign." Evans. 159 F.3d at
from the Anson County, North Carolina Sheriffs Office
arrested Alexander in March 2008 on various drug and
gun-related charges. Pet'r.Ex. [D.E.
l-2]2;Resp't.Ex. [D.E. 12] 2-3. On December 17, 2009,
Alexander was convicted and received a state sentence of
29-3 5 months in prison. See Pet'r. Ex. [D.E.
1-2] 2, 32; Resp't. Ex. [D.E. 12] 3. Thus, Alexander
was in the primary legal custody of the state of North
Carolina beginning on December 17, 2009.
March 2011, while Alexander was serving his state sentence,
a federal grand jury in the District of South Carolina
indicted Alexander for engaging in a drug conspiracy.
United States v. Alexander. No. 4:11-CR-416-TLR-1
(D.S.C Mar. 22, 2011), [D.E. 3]. On April 28, 2011, in
connection with the federal case, the United States
Marshals Service took Alexander into temporary custody
pursuant to a writ of habeas corpus ad prosequendum.
Alexander. No. 4:11 -CR-416-TLR-1, [D.E. 20]. On
February 7, 2012, after Alexander pleaded guilty, a United
States District Judge sentenced him to 180 months in
prison. Alexander, No. 4:11-CR-416-TLR-1, [D.E. 620].
Although the sentencing court ordered Alexander's
federal sentence to run concurrently with his state
sentence, the sentencing court allowed the BOP to determine
whether Alexander should receive credit towards his federal
sentence for time he spent in state custody. See Pet'r
Ex. [D.E. 1-2] 29-30. The United States Court of Appeals
for the Fourth Circuit affirmed Alexander's conviction
and sentence. See United States v. Alexander. 479
Fed.Appx. 499 (4th Cir. 2012) (per curiam) (unpublished).
The BOP took physical custody of Alexander in January 2013,
after he completed his state sentence. Resp't. Ex.
[D.E. 12] 5. The BOP determined that Alexander began
serving his 180-month sentence on February 7, 2012.
Id. Alexander's projected release date is
February 11, 2025. Id.
M&R concluded that "Alexander already received
credit for the time he served in state custody from
December 2009 until February 2012 in connection with his
state sentence." M&R at 4-5. Because this time has
already been credited against another sentence, Alexander
is not entitled to any credit towards his sentence for this
period from December 17, 2009, through February 7, 2012.
Id. at 5; see Rash v. Stansberrv. No.
3:10CV836-HEH, 2011 WL 2982216, at *4 (E.D. Va. July 22,
2011) (unpublished), affd, 460 F.App'x 201 (4th Cir.
2011) (per curiam) (unpublished). This court agrees and
overrules Alexander's objections.
to the extent Alexander bases his argument upon the
application United States Sentencing Guideline §
5G1.3(b), Alexander must pursue such a claim under 28
U.S.C. § 2255-not 28 U.S.C. § 2241. See
Restituvo-Garcia v. Coklev. No. CV 5:16-07323,
2017 WL 764867, at *5 (S.D. W.Va. Jan. 31, 2017)
(unpublished), report and recommendation adopted,
No. 5:16-CV-07323, 2017 WL 758951 (S.D. W.Va. Feb. 27,
2017) (unpublished); James v. Ziegler. 2013 WL
6000905, at *4 (S.D. W.Va. Nov. 12, 2013) (unpublished).
The court, however, declines to convert this action into a
section 2255 petition. Despite Alexander's occasional
references to the sentencing judge's alleged errors
under section§ 5G1.3, Alexander's petition
challenges the BOP's calculation of his sentence rather
than the sentencing court's imposition of that
sentence. See Lawson v. Cruz. No. CV
4:15-CV-01004-JMC, 2015 WL 5882863, at *5 (D.S.C. Oct. 2,
2015) (unpublished); Humphrey v. Cruz. No. CIV.A.
8:14-718-BHH, 2015 WL 1218648, at *2 (D.S.C. Mar. 17, 2015)
(unpublished), affd. 605 F.App'x 228 (4th Cir.
2015) (per curiam) (unpublished); James. 2013 WL
6000905, at *4.
Alexander's objections [D.E. 20] are OVERRULED, and the
court adopts the conclusions in the M&R [D.E. 17].
Respondent's motion to dismiss [D.E. 10] is GRANTED,
Alexander's petition is DISMISSED, and the court DENIES a
certificate of appealability. See 28 U.S.C. § 2253(c);
Miller-El v. Cockrell.537 U.S. 322, 336-38 ...