Thomas v. Whalen

Decision Date01 May 1992
Docket NumberNo. 91-7710,91-7710
Citation962 F.2d 358
PartiesLewis THOMAS, Petitioner-Appellee, v. Patrick WHALEN, Respondent-Appellant.
CourtU.S. Court of Appeals — Fourth Circuit

Carolyn A. Sabol, Regional Counsel, Bureau of Prisons, Annapolis Junction, Md., argued (Richard Cullen, U.S. Atty., Dennis E. Szybala, Asst. U.S. Atty., Alexandria, Va., on brief), for respondent-appellant.

Michael S. Lieberman, DiMuro, Ginsberg & Lieberman, P.C., Alexandria, Va., argued (Bernard J. DiMuro, Elizabeth K. Lynch, on brief), for petitioner-appellee.

Before HALL and LUTTIG, Circuit Judges, and BLATT, Senior United States District Judge for the District of South Carolina, sitting by designation.


LUTTIG, Circuit Judge:

Appellant, warden of the federal penitentiary in Petersburg, Virginia, challenges a district court order granting appellee's petition for a writ of habeas corpus. The district court granted the writ based upon its determination that appellee was entitled to fifteen years of credit against his federal sentences for time served in state confinement on unrelated state offenses. We conclude, pursuant to 18 U.S.C. § 3568, that appellee's federal sentences did not commence until he was received at the federal penitentiary for service of those sentences and that appellee was not entitled to receive credit against his federal sentences for the time he served in state confinement. We therefore reverse the district court's order granting appellee's writ of habeas corpus.


Petitioner-appellee Lewis Thomas was arrested on March 31, 1970, on federal bank robbery charges and released on bond the same day. See J.A. at 52, 94, 99. While free on federal bond, he was arrested by Pennsylvania law enforcement officials on unrelated state charges, taken into state custody, and held in Holmsburg County Jail after initial confinement at the Philadelphia Detention Center. See id. at 52, 95, 99, 100. Federal officials subsequently filed a detainer with Pennsylvania state authorities to secure Thomas' presence in federal district court for his trial on the federal bank robbery charges. Thomas was convicted of bank robbery in November 1970. Following his conviction, he was returned to state authorities.

Thomas was removed to federal court on April 23, 1971, for sentencing. He was sentenced by the district court to twenty years' imprisonment, see id. at 47, and again returned to state authorities.

In September 1971, Thomas was again taken to federal court for trial on charges of savings & loan association robbery. Following a two-day trial, Thomas was convicted also of this federal offense and then returned to state authorities. On October 19, 1971, the federal district court sentenced Thomas to twenty-five years' imprisonment. See id. at 48. The judgment and commitment order directed this sentence to run concurrently with the previously imposed federal sentence for bank robbery. The order made no reference to any state sentence. See id. Thomas remained in state prison following this sentencing.

On November 13, 1971, Thomas was convicted on the unrelated state charges for which he had been arrested on October 17 1970: operating a motor vehicle without the owner's consent, carrying an unlicensed firearm, playfully and wantonly pointing a firearm, assault and battery, aggravated assault and battery, and assault and battery with intent to murder. See id. at 12-35, 99-100. On January 23, 1972, a Pennsylvania court sentenced Thomas to serve thirteen to twenty-six years at Graterford State Penitentiary for these state-law offenses. See id. at 8, 100. The court determined that Thomas had been in continuous state custody since October 18, 1970, and therefore ordered that the state sentence be computed from that date. See id. at 32. The state court made no reference to Thomas' federal sentences. See id. at 12-35.

Thomas remained in state custody until his release on September 24, 1986. Upon his release, Thomas was taken into custody by the United States Marshal so that he could begin service of his federal sentences. See id. at 11, 101. The Federal Bureau of Prisons calculated his federal sentence from this date, on the authority of 18 U.S.C. § 3568. See J.A. at 50. So calculated, Thomas' sentence would expire on September 23, 2011. See id.

Thomas sought to credit his time in state custody against his federal sentences. After exhausting administrative remedies, he petitioned the United States District Court for the Eastern District of Virginia for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. The district court granted the writ on the reasoning of United States v. Croft, 450 F.2d 1094 (6th Cir.1971). 1 See discussion infra. The district court ordered that Thomas be credited with fifteen years toward his federal sentences for his time served in state prison for his state offenses. Thomas v. Whalen, Civ. Action No. 91-0174-AM (E.D.Va. Aug. 19, 1991). With this credit, Thomas was entitled to immediate release.

The district court granted respondent Whalen's motion to stay judgment nunc pro tunc pending consideration of his motion to alter or amend judgment, see J.A. at 107, but it later held that it lacked jurisdiction to rule on that motion. The court did, however, stay its order granting Thomas a writ of habeas corpus pending appeal. See id. at 108. This appeal followed.


Title 18, section 3568 of the United States Code directs that the sentence of a person convicted of a federal offense "shall commence to run from the date on which such person is received at the penitentiary, reformatory, or jail for service of such sentence" and that "[n]o sentence shall prescribe any other method of computing the term." 2 Under the unambiguous terms of section 3568, Thomas' concurrent federal sentences for bank and savings & loan association robbery commenced on September 24, 1986, the date on which he was received at the Federal Correctional Institution to begin service of those sentences. Thomas does not argue that the statute can be read otherwise. See Appellee's Br. at 15, 21.

Nor does Thomas argue that he was in federal custody while in state prison as a result of the federal detainer, and therefore entitled to credit by virtue of the requirement in the second sentence of section 3568 that the Attorney General credit a federal prisoner for "days spent in custody in connection with the offense or acts for which [his] sentence was imposed." A detainer neither effects a transfer of a prisoner from state to federal custody nor transforms state custody into federal custody by operation of law. "Unlike a writ of habeas corpus ad prosequendum issued by a federal district court.... a detainer merely puts the officials of the institution in which the prisoner is incarcerated on notice that the prisoner is wanted in another jurisdiction for trial upon his release from prison." United States v. Mauro, 436 U.S. 340, 358, 98 S.Ct. 1834, 1845, 56 L.Ed.2d 329 (1978) (footnote omitted); accord United States v. Bamman, 737 F.2d 413, 415 (4th Cir.1984), cert. denied, 469 U.S. 1110, 105 S.Ct. 789, 83 L.Ed.2d 783 (1985); see also H.R.Rep. No. 1018, S.Rep. No. 1356, 91st Cong., 2d Sess. 3 (1970) ("A detainer is a notification filed with the institution in which a prisoner is serving a sentence advising that he is wanted to face pending criminal charges in another jurisdiction."), reprinted in 1970 U.S.Code Cong. & Admin.News 4864, 4865. 3

Thomas instead rests his argument that he is entitled to credit for time served in state prison exclusively on the decision in United States v. Croft, 450 F.2d 1094 (6th Cir.1971). In Croft, the Sixth Circuit held that where a federal court orders a prisoner's immediate commitment to federal prison, the prisoner's federal sentence commences for purposes of section 3568 upon issuance of that order, even if the prisoner is not then delivered to federal prison. The sequence of events in Croft was indeed similar to the sequence of events in this case. There, the prisoner was arrested by federal authorities for a federal offense and freed on bond. While out on bond, he was arrested on an unrelated state charge and taken into state custody. The prisoner appeared in federal court pursuant to a writ of habeas corpus ad prosequendum, and was convicted and sentenced for the federal offense. After sentencing, the court ordered that the United States Marshal immediately deliver the prisoner to federal prison. The prisoner instead was returned to state custody. Thereafter, the prisoner was convicted for his state offense, and the state court imposed a sentence to run concurrently with his federal sentence. Upon the conclusion of the state proceedings, the United States Marshal again did not deliver the prisoner to the federal penitentiary pursuant to the district court's earlier order. Instead, a sheriff delivered the prisoner to the state penitentiary.

The Sixth Circuit held that Croft was "entitled to credit on his federal sentence for the time he was held in the county jail after the federal court's order of commitment." Id. at 1099. 4 It reasoned that Croft's federal sentence began to run "from the date of the order of commitment to the Marshal" and that "the failure of the Marshal to execute" the prisoner's federal commitment order "at the time of its issuance, or after the [prisoner] had subsequently been sentenced on state charges" did not postpone the beginning of the sentence. Id. at 1098; accord Kiendra v. Hadden, 763 F.2d 69, 73 (2d Cir.1985); Gillman v. Saxby, 392 F.Supp. 1070, 1072 (D.Haw.1975). The Sixth Circuit subsequently limited Croft to the circumstance in which a state court orders its sentence to run concurrently with a federal sentence. See Vaughn v. United States, 548 F.2d 631, 633 (6th Cir.1977); see also Youngsworth v. United States Parole Comm'n, 728 F.Supp. 384, 389 (W.D.N.C.1990); cf. Kiendra, 763 F.2d at 73 (applying Croft where a state court intended its...

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