United States District Court, D. Colorado
ORDER DENYING APPLICATION FOR WRIT OF HABEAS
BROOKE JACKSON, JUDGE
matter is before the Court on the Application for a Writ of
Habeas Corpus Pursuant to 28 U.S.C. § 2241 (ECF No. 1)
(the “Application”) filed pro se by
Applicant, Najeeb Rahman. Mr. Rahman challenges the
computation of his sentence, contending the Federal Bureau of
Prisons (“BOP”) is ignoring the sentencing
court's order that the sentence run concurrently with a
prior sentence. On February 14, 2019, Respondent was ordered
to show cause why the Application should not be granted. On
March 7, 2019, Respondent filed a Response to Application for
Writ of Habeas Corpus (ECF No. 13). On March 25, 2019, Mr.
Rahman filed a “Reply to Respondent['s] Response
for Writ of Habeas Corpus” (ECF No. 14). After
reviewing the pertinent portions of the record in this case,
the Court FINDS and CONCLUDES that the Application should be
denied and the case dismissed with prejudice.
October 9, 2014, Mr. Rahman was arrested for violating the
conditions of his supervised release in case number
08-cr-00126-RLH-PAL in the United States District Court for
the District of Nevada. (See ECF No. 13-3.) He was
released the following day. On March 13, 2015, he was
arrested again. (See ECF No. 13-4.) On June 22,
2015, he was sentenced in District of Nevada case number
08-cr-00126-RLH-PAL-1 to 16 months in prison for violating
the conditions of his supervised release. (See ECF
No. 13-5.) Mr. Rahman was given prior custody credit for the
period from October 9, 2014, through October 10, 2014, and
for the period from March 13, 2015, through June 21, 2015.
(See ECF No. 13-2 at pp.4-5.) He completed the
16-month sentence on May 9, 2016. (See Id. at p.5;
ECF No. 13-6.) However, he was not released. Instead, he
remained in federal custody in connection with a second
District of Nevada case, case number 15-cr-00178-LDG-GWF-1.
April 18, 2017, Mr. Rahman was sentenced in case number
15-cr-00178-LDG-GWF-1 to a total term of 96 months in prison
following a guilty plea to conspiracy to commit wire fraud.
(See ECF No. 13-7.) The sentencing court ordered the
96-month sentence to run concurrently with the prior sentence
in case number 08-cr-00126-RLH-PAL-1. (See Id. at
p.2.) The BOP has determined the 96-month sentence commenced
on April 18, 2017, and has given Mr. Rahman prior custody
credit for the period from May 10, 2016, through April 17,
2017. (See ECF No. 13-2 at pp.2-3.) His projected
release date is April 29, 2023. (See id.)
Rahman contends in this action that his 96-month sentence in
case number 15-cr-00178-LDG-GWF-1 must either commence on
March 13, 2015, when he was arrested the second time for
violating the conditions of his supervised release, or that
he is entitled to prior custody credit for his 96-month
sentence beginning on March 13, 2015, in order to comply with
the sentencing court's order that the 96-month sentence
run concurrently with the prior 16-month sentence in case
number 08-cr-00126-RLH-PAL-1. Mr. Rahman alternatively asks
the Court in his reply to advise the sentencing court to
correct the alleged sentencing error and resentence him to 80
months in prison, which would make the 96-month sentence
fully concurrent with the prior 16-month sentence.
Court must construe the Application and other papers filed by
Mr. Rahman liberally because he is not represented by an
attorney. See Haines v. Kerner, 404 U.S. 519, 520-21
(1972) (per curiam); Hall v. Bellmon, 935 F.2d 1106,
1110 (10th Cir. 1991). However, the Court should
not be an advocate for a pro se litigant. See
Hall, 935 F.2d at 1110.
application for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2241 “is an attack by a person in custody upon
the legality of that custody, and . . . the traditional
function of the writ is to secure release from illegal
custody.” Preiser v. Rodriguez, 411 U.S. 475,
484 (1973); see also McIntosh v. U.S. Parole
Comm'n, 115 F.3d 809, 811 (10th Cir.
1997). Habeas corpus relief is warranted only if Mr. Rahman
“is in custody in violation of the Constitution or laws
or treaties of the United States.” 28 U.S.C. §
computation of a federal sentence requires consideration of
two separate issues.” Binford v. United
States, 436 F.3d 1252, 1254 (10th Cir. 2006).
The first issue involves the date a federal sentence
commences. See Id. “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.” 18
U.S.C. § 3585(a). The second issue involves credit for
prior custody. See Binford, 436 F.3d at 1254.
Pursuant to 18 U.S.C. § 3585(b), credit for prior
custody is awarded for any time a defendant “spent in
official detention prior to the date his federal
sentence commences if the detention resulted from the same
offense of conviction or from another charge for which the
defendant was arrested after commission of the offense of
conviction and if that time has not been credited
against another sentence.” Weekes v. Fleming,
301 F.3d 1175, 1178 (10th Cir. 2002).
Attorney General, through the BOP, is responsible for making
the sentence calculations contemplated by § 3585.
See United States v. Wilson, 503 U.S. 329, 334
(1992). The Attorney General's decision may be reviewed
in a habeas corpus action pursuant to 28 U.S.C. § 2241.
Commencement of Mr. Rahman's 96-Month Sentence
to § 3585(a), a federal sentence does not commence until
a prisoner is actually received into federal custody to serve
the sentence. See Binford, 436 F.3d at 1255. Thus,
logic dictates that a federal sentence cannot commence before
the sentence is imposed, even if the sentence is ordered to
run concurrently with a sentence already being served.
See DeMartino v. Thompson, No. 96-6322, 1997 WL
362260 at *2 (10th Cir. July 1, 1997) (citing
United States v. Flores, 616 F.2d 840, 841
(5th Cir. 1980)); see also Short v.
Revell, 152 Fed.Appx. 542, 544 (7th Cir.
2005) (“A federal sentence cannot commence before it is
imposed.”). Consistent ...