Francois v. USA

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Daniel Francois
v. Civil No. 23-cv-182-PB
Warden, FCI Berlin
Report and Recommendation
Daniel Francois, who is proceeding pro se and is
incarcerated at the Federal Correctional Institution in Berlin,
New Hampshire, brings a petition pursuant to 28 U.S.C. § 2241,
challenging the amount of presentencing detention time that the
Bureau of Prisons (“BOP”) credited against his sentence. The
petition is referred for preliminary review. See 28 U.S.C. §
2243; Rule 4 of the Rules Governing Section 2254 Cases (Ҥ 2254
Rules”); LR 4.3(d)(4)(A); see also § 2254 Rules, Rule 1(b) (§
2254 Rules may apply to § 2241 petitions).
Preliminary Review Standard
Pursuant to § 2254 Rule 4, a federal judge must screen
§ 2241 petitions and, if “it plainly appears from the petition
and any attached exhibits that the petitioner is not entitled to
relief in the district court, the judge must dismiss the
petition.” See 28 U.S.C. § 2243; McFarland v. Scott, 512 U.S.
849, 856 (1994) (courts “are authorized to dismiss summarily any
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habeas petition that appears legally insufficient on its face”).
In conducting its § 2254 Rule 4 review, the court construes pro
se filings liberally. See Dutil v. Murphy, 550 F.3d 154, 158
(1st Cir. 2008).
Background
On June 29, 2017, Francois was taken into state custody for
parole violations in two state court cases in Connecticut. Doc.
no. 1-1, at 2. About two years later, on June 19, 2019, a
federal detainer was lodged against Francois relating to an
outstanding charge of unlawful possession of a firearm by a
convicted felon. Doc. 1, at 7; doc. no. 1-1, at 2, 4.
Francois was temporarily removed from state custody to
federal custody to address that charge on July 10, 2019, through
a Writ of Habeas Corpus Ad Prosequendum. Doc. no. 1-1, at 2.
Francois pleaded guilty to the charge of unlawfully possessing
firearms as a convicted felon. See United States v. Francois,
No. 20-3752-cr, U.S. App. LEXIS 33755, at *1, 2021 WL 5286657,
at *1 (2d Cir. Nov 15, 2021). He was sentenced on October 6,
2020 to serve sixty-five months in prison, to be followed by
three years of supervised release, and judgment was entered on
October 29, 2020. See United States v. Francois, No. 19-cr-164-
JBA (D. Conn. Oct. 29, 2020). An amended judgment was entered on
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November 10, 2020 to clarify that the federal sentence was to
run consecutively with Francois’s state sentence. Francois was
released from state custody and transferred to federal custody
on February 4, 2021. Doc. no. 1-1, at 2.
Francois asked the BOP to give him credit toward his
federal sentence for the time he spent in custody from June 19,
2019, when the federal detainer against him was lodged, until
October 6, 2020, when he was sentenced. That request was denied,
and he appealed the decision. Doc. 1-1, at 4.
On appeal, the Administrator of National Inmate Appeals
explained that Francois was in state custody serving his state
parole violation sentence from June 19, 2017, until the state
sentence was completed on February 4, 2021, when he was released
to federal custody to complete his federal sentence. Doc. 1-1,
at 2. Therefore, all of the time Francois spent in custody
between June 19, 2016 and February 4, 2021 was credited toward
Francois’s state sentence. Id. The Administrator affirmed the
calculation of Francois’s sentence under BOP Program Statement
5880.28. Id. at 3.
Discussion
In support of his § 2241 petition, Francois continues to
argue that he is entitled to credit toward his federal sentence
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for the time he was in custody serving his state sentence from
June 19, 2019, to October 6, 2020.1 He is mistaken.
A defendant is entitled to credit for time he spent in
official custody because of the charge on which he was later
convicted or because of “any other charge for which the
defendant was arrested after the commission of the offense for
which the sentence was imposed,” as long as that time “has not
been credited against another sentence.” 18 U.S.C. § 3585(b).
“When a prisoner is held in federal custody before sentencing on
a federal offense but that time is credited toward a state
sentence, he is not entitled to a reduction of his federal
sentence for that time.” Fortt v. Hazlewood, No. 20-cv-1082-JL,
2022 U.S. Dist. LEXIS 99582, at *4-*5, 2022 WL 1913921, at *2
(Apr. 19, 2022 D.N.H.) (citing cases), R&R approved, 2022 U.S.
Dist. LEXIS 99208, at *1, 2022 WL 1912846, at *1 (June 3, 2022
D.N.H.). Further, a writ of habeas corpus ad prosequendum for
1 A prisoner’s request for credit against his sentence based
on presentencing custody must be made to the Attorney General
through the BOP. See Rogers v. United States, 180 F.3d 349, 358
(1st Cir. 1999) (citing United States v. Wilson, 503 U.S. 329,
334 (1992)). “‘Once administrative remedies are exhausted
[through the BOP], . . . prisoners may then seek judicial review
of any jail-time credit determination by filing a habeas
petition under 18 U.S.C. § 2241.’” Darling v. Boncher, ___ F.
Supp. 3d ___, 2023 U.S. Dist. LEXIS 9168, at *3, 2023 WL 319861,
at *1 (D. Mass. Jan. 19, 2023) (quoting Rogers, 180 F.3d at
358). It appears that Francois exhausted his administrative
remedies.
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federal proceedings does not change a prisoner’s custody status.
United States v. Mills, 501 F.3d 9, 11 (1st Cir. 2007).
Francois does not dispute that he was serving his state
sentence in Connecticut, and received credit toward that state
sentence, at the time the federal detainer issued, when the writ
of habeas corpus ad prosequendum issued, and until his release
to federal custody in February 2021. Accordingly, Francois is
not entitled to a have that time credited toward his federal
sentence, or have his federal sentence otherwise reduced in
consideration of his time in state custody.2
Conclusion
For the foregoing reasons, the district court judge should
deny Francois’s § 2241 petition (doc. no. 1) and direct the
clerk’s office to enter judgment and close the case. Any
objections to this Report and Recommendation must be filed
within fourteen days of receipt of this notice. See Fed. R. Civ.
P. 72(b)(2). The fourteen-day period may be extended upon
motion. Only those issues raised in the objection to this Report
and Recommendation are subject to review in the district
2 The exceptions to the rule against double counting time in
custody, recognized in Willis v. United States, 438 F.2d 923
(5th Cir. 1971), and Kayfez v. Gasele, 993 F.2d 1288 (7th Cir.
1993), do not apply here.
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court. See Sch. Union No. 37 v. United Natl Ins. Co., 617 F.3d
554, 564 (1st Cir. 2010). Any issues not preserved by such
objection(s) are precluded on appeal. See id. Failure to file
any objections within the specified time waives the right to
appeal the district court's order. See Santos-Santos v. Torres-
Centeno, 842 F.3d 163, 168 (1st Cir. 2016).
SO ORDERED.
______________________________
Andrea K. Johnstone
United States Magistrate Judge
July 6, 2023
cc: Daniel Francois, pro se
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