United States District Court, W.D. Wisconsin
OPINION & ORDER
D. PETERSON District Judge.
petitioner Jimmy Donald Sullivan is a prisoner in the custody
of the Federal Bureau of Prisons (BOP) currently housed at
the Federal Correctional Institution in Oxford, Wisconsin
(FCI-Oxford). Sullivan has filed a petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2241, contending
that the BOP has miscalculated his sentence and refused to
give him credit for time served in federal custody before he
received his sentence.
petition is before the court for preliminary review, pursuant
to Rule 4 of the Rules Governing Section 2254 Cases. (Courts
may apply this rule to habeas petitions not brought pursuant
to § 2254, including § 2241 petitions. Rule 1(b),
Rules Governing Section 2254 Cases; see also 28
U.S.C. § 2243.) Under Rule 4, I will dismiss the
petition only if it plainly appears that Sullivan is not
entitled to relief. As discussed below, Sullivan is not
entitled to the relief he seeks, so I will dismiss the
the following facts from Sullivan's petition. Dkt. 1.
August 3, 2012, the Salt Lake County Sheriff's Office
arrested Sullivan for violating his probation; Sullivan
received a state sentence for the violation. On December 19,
2012, Sullivan was removed from state custody to federal
custody (via a writ of habeas corpus ad prosequendum), to be
arraigned on federal charges. From December 19, 2012, to
August 8, 2014, Sullivan was detained-on the writ-at the
Weber County Correctional Facility “for his federal
offense.” Id. at 6. On August 8, 2014, the
United States District Court for the District of Utah
sentenced Sullivan to 72 months of imprisonment for
conspiracy to distribute oxycodone.
August 25, 2014, Sullivan returned to state custody. He
received credit towards his state sentence for the time he
served in federal custody and was granted parole. So then
Sullivan returned to federal custody to serve his federal
sentence. It was around then that Sullivan learned that he
would not receive credit towards his federal sentence for the
time he served at the Weber County Correctional Facility.
Sullivan filed a grievance and pursued administrative
remedies with the BOP but was denied relief.
January 26, 2016, Sullivan filed a motion to vacate, set
aside, or correct his federal sentence pursuant to 28 U.S.C.
§ 2255: he requested that the district court amend its
judgment to reflect its intention that Sullivan receive
credit for time served pending sentencing. The court granted
the petition and amended the judgment, explicitly stating
that Sullivan's prison term was “72 months, WITH
CREDIT FOR TIME SERVED IN FEDERAL CUSTODY.” Dkt. 1-1,
according to Sullivan, the BOP did not “honor”
that order or properly calculate Sullivan's credit. And
so Sullivan filed this petition.
courts cannot award or calculate credit for time served at
sentencing; the Attorney General, via the BOP, computes
credit and otherwise administers federal sentences.
United States v. Wilson, 503 U.S. 329, 334-35
(1992). But “[a] § 2241 petition allows [the
court] to adjudicate whether the BOP is correctly
administering federal sentences that . . . are being served
in this circuit.” Taylor v. Lariva, 638 F.
App'x 539, 541 (7th Cir. 2016); see also Romandine v.
United States, 206 F.3d 731, 736 (7th Cir. 2000)
(“Requests for sentence credit, or for recalculation of
time yet to serve, . . . must be presented to the Attorney
General (or her delegate, the Bureau of Prisons), and adverse
decisions may be reviewed by an action under 28 U.S.C. §
Sullivan identifies two potential paths to success (i.e.,
credit for the time he served at the Weber County
Correctional Facility between December 19, 2012, and August
25, 2014, towards his federal sentence): either the BOP must
count the time served towards his federal sentence because
the district court said so, or the BOP should retroactively
designate the Weber County Correctional Facility as a place
where Sullivan served a portion of his federal sentence. But
both paths are dead ends.
the BOP cannot double count time served. Sullivan concedes
that he received credit for the time he served at the Weber
County Correctional Facility towards his state
sentence and that “[t]he BOP did not give . . .
Sullivan credit for this time toward his federal sentence for
this amount of time because it was credited towards another
sentence.” Dkt. 1, at 7. 18 U.S.C. § 3585(b)
provides that “[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 . . . that has not been credited against
another sentence.” When it denied Sullivan
administrative relief, the BOP explained that “this
time was already applied towards your Utah state sentence. .
. . The time spent in custody while on federal writ from
December 19, 2012, through August 25, 2014, was applied to
your state sentence and cannot be applied to your federal
sentence.” Dkt. 1-1, at 12. So Sullivan is not entitled
to have the time credited towards his federal sentence,
despite the fact that this conclusion appears to be tension
with the district court's sentencing statement
(“with credit for time served in federal
custody”). As discussed, the BOP-not the sentencing
court-calculates credit. And § 3585 prohibits the BOP
from double counting time served.
Sullivan is not entitled to the retroactive designation he
seeks. “Under § 3621, the BOP may designate nunc
pro tunc a state prison that once housed an inmate as the
place of confinement for the inmate's federal sentence,
effectively allowing the state and federal sentences to run
concurrently. And the BOP has ‘wide discretion'
over that designation.” Taylor, 638 F.
App'x at 541 (citations omitted). The BOP did not abuse
its discretion in declining to make the designation because
the district court did not intend Sullivan's federal
sentence to run concurrent with his state sentence. Under 18
U.S.C. § 3584(a), “Multiple terms of imprisonment
imposed at different times run consecutively unless the court
orders that the terms are to run concurrently.”
Sullivan's state and federal sentences were imposed at
different times, and the district court did not order the
sentences to run concurrently. Recently, the district court
confirmed that “while the court did state that Mr.
Sullivan was to ‘receive credit for time served in
federal custody, ' there was no discussion of his state
sentence or the possibility of the state and federal sentence
running concurrently.” Sullivan v. United
States, No. 16-cv-61 (D. Utah filed Jan. 26, 2016), Dkt.
6, at 3. In fact, the court explicitly stated that “to
the extent that Mr. Sullivan suggests that the court
represented or intended his federal and state sentences to
run concurrently, he is mistaken.” Id. at 2.
Significantly, Sullivan asked the district court to recommend
that the BOP issue the retroactive designation, and the
district court declined to do so. And so the BOP did not