Ray, Rondell C. v. Bezy, Mark A. , 190 F. App'x 502 ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted August 2, 2006*
Decided August 2, 2006
Before
Hon. RICHARD D. CUDAHY, Circuit Judge
Hon. KENNETH F. RIPPLE, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 06-1529
RONDELL C. RAY, Appeal from the United States District
Petitioner-Appellant, Court for the Southern District of Indiana,
Terre Haute Division
v.
No. 2:05-CV-228-LJM-WTL
MARK A. BEZY,
Respondent-Appellee. Larry J. McKinney,
Chief Judge.
ORDER
Federal inmate Rondell Ray claims in this action under 28 U.S.C. § 2241 that
he is confined unlawfully because, he contends, the Bureau of Prisons lost
“jurisdiction” over him and could not regain custody after authorities in Wisconsin,
where Ray was serving a state sentence, released him prematurely to the BOP and
then took him back several weeks later after realizing their mistake. We affirm the
denial of Ray’s petition.
*
After an examination of the briefs and the record, we have concluded that
oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the
record. See Fed. R. App. P. 34(a)(2).
No. 06-1529 Page 2
Ray was serving a Wisconsin prison term in 1998 when federal authorities in
the Eastern District of Wisconsin charged him with a drug offense and took him
into custody pursuant to a writ of habeas corpus ad prosequendum. Ray pleaded
guilty to possession with intent to distribute more than five grams of cocaine base,
21 U.S.C. § 841(a)(1), and in January 1999 he was sentenced to 151 months in
prison. Twelve of those months were to be served concurrently with his Wisconsin
sentence. Within days of his sentencing Ray was returned to the custody of the
State of Wisconsin to resume service of his state sentence.
Almost a year later, on January 12, 2000, the Wisconsin Department of
Corrections erroneously released Ray into the custody of the BOP. Several weeks
later, after realizing that they had miscalculated the termination date of Ray’s state
sentence, Wisconsin authorities notified the BOP that his release was premature
and requested that he be returned to state custody to complete his state sentence.
The BOP complied and returned Ray to state custody on March 6, 2000. Wisconsin
credited the entire period from January 12 through March 6 against his state
sentence, and eventually paroled him on May 27, 2003. Once again he was turned
over to the BOP. Because one year of his federal sentence had run concurrently
with the state sentence, Ray had 139 months left to serve on his 151-month
sentence as of May 27, 2003. His projected release date falls in June 2013.
Ray filed his § 2241 petition in September 2005. Although he claimed
explicitly that the BOP had “relinquished jurisdiction by releasing petitioner to the
Wisconsin Department of Corrections,” the government and the district court
construed Ray’s pro se petition as arguing that the BOP was compelled to credit
against his federal sentence the time he erroneously spent in BOP custody from
January 12 through March 6, 2000. In denying Ray’s petition, the district court
noted that by statute the BOP is precluded from giving credit for periods of
confinement that already have been applied toward another sentence. See 18
U.S.C. § 3585(b) (providing that no period of incarceration can be credited against a
federal sentence if it already has “been credited against another sentence”); United
States v. Ross, 219 F.3d 592, 594 (7th Cir. 2000) (explaining operation of § 3585(b)).
Because it is undisputed that Wisconsin gave Ray full credit for the weeks in early
2000 when the state’s error resulted in his being housed in a BOP facility, the
district court concluded that Ray could not get credit towards his federal sentence
for the identical period of incarceration. To the extent that Ray meant to claim
entitlement to federal credit for that same period, we agree with the district court’s
analysis.
However, as we read both his petition and his brief on appeal, Ray principally
argues that the BOP lost “jurisdiction” over him for good when it sent him back to
Wisconsin authorities in March 2000. That contention is incorrect. As we
explained in Dunne v. Keohane, 14 F.3d 335, 336 (7th Cir. 1994), there is a common-
No. 06-1529 Page 3
law rule that prohibits the BOP from “delay[ing] the expiration of the sentence
either by postponing the commencement of the sentence or by releasing the prisoner
for a time and then reimprisoning him.” But this does not mean that the BOP
cannot temporarily relinquish custody to state authorities, and the prisoner cannot
complain unless the shuttling between jurisdictions “resulted in postponing the date
at which the prisoner’s last sentence would expire.” Dunne, 14 F.3d at 337; see Cox
v. United States, 551 F.2d 1096, 1098-99 (7th Cir. 1977).
And that did not happen in Ray’s case. A federal sentence that is run
partially concurrent with an unexpired state sentence effectively will not commence
until the state sentence has concluded, though credit will be given against the
federal term for the concurrent period. See 18 U.S.C. § 3585(a), (b); U.S. Dep’t of
Justice, BOP Program Statement No. 5880.28(3)(e)(1997) (providing that, if a
district court orders a federal sentence to run “concurrently with, the non-federal . .
. undischarged term of imprisonment, the prisoner shall be returned to the non-
federal jurisdiction until the prisoner is released (completes the undischarged term
of imprisonment) from the non-federal term”); Binford v. United States, 436 F.3d
1252, 1254-56 (10th Cir. 2006) (explaining that federal sentence commenced only
when petitioner had completed his state sentence and “was finally received into
federal custody for the purpose of serving his federal sentence”; federal sentence
had not commenced when, after conclusion of federal prosecution, petitioner spent
several weeks in BOP facility due to mistake of marshals service in delivering him
there instead of returning him to state on expired writ of habeas corpus ad
prosequendum). When Ray was delivered by mistake to the BOP in January 2000,
his Wisconsin sentence had not yet expired, and so neither did his federal sentence
finally commence. Ray, as a state prisoner, in effect spent several weeks in a BOP
facility as a “guest” of the federal government, see 18 U.S.C. § 5003; 28 C.F.R.
§ 0.95(g); Howe v. Smith, 452 U.S. 473, 482 (1981), but the state’s mistake did not
delay the end of Ray’s federal sentence, and thus he has no claim under § 2241.
See Dunne, 14 F.3d at 337.
AFFIRMED.