Petition for Writ of Certiorari — Siliaivaoese Fuimaona, Petitioner v. D. Hudson, Warden

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Appellate Case: 20-3255

Document: 010110511930

Date Filed: 04/23/2021

Page: 1

UNITED STATES COURT OF APPEALS

FILED

United States Court of Appeals

Tenth Circuit

FOR THE TENTH CIRCUIT

April 23, 2021

Christopher M. Wolpert

Clerk of Court

SILIAIVAOESE FUIMAONA,

Petitioner - Appellant,

v.

D. HUDSON, Warden, USP Leavenworth,

No. 20-3255

(D.C. No. 5:20-CV-03218-JWL)

(D. Kan.)

Respondent - Appellee.

ORDER AND JUDGMENT*

Before McHUGH, KELLY, and BRISCOE, Circuit Judges.**

Petitioner-Appellant Siliaivaoese Fuimaona, a federal inmate appearing pro se,

appeals from the district court’s judgment on his 28 U.S.C. § 2241 habeas petition,

which sought credit on his federal sentence for time served on a prior Missouri state

criminal sentence. See Fuimaona v. Hudson. No. 20-3218-JWL, 2020 WL 7186148

(D. Kan. Dec. 7, 2020).

* This order and judgment is not binding precedent, except under the doctrines

of law of the case, res judicata, and collateral estoppel. It may be cited, however, for

its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

** After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.

Appellate Case: 20-3255

Document: 010110511930

Date Filed: 04/23/2021

Page: 2

In July 2014, Mr. Fuimaona was sentenced in state court for possession of a

controlled substance, burglary, and theft/stealing. R. 51-54. On October 14, 2015,

Mr. Fuimaona was charged with conspiracy to distribute methamphetamine in federal

court. R. 56-63. On October 19, 2015, he was taken into federal custody on a writ

of habeas corpus ad prosequendum and was later returned to Missouri custody on

March 31, 2016. R. 65. Mr. Fuimaona was then transferred to federal custody on

December 19, 2016 and on January 18, 2017, he entered a guilty plea to Count 1 of

the federal indictment. R. 72. Mr. Fuimaona was returned to state custody on

February 7, 2017 until he was released on parole on March 27, 2017. R. 67, 70. He

was returned to federal custody on the same day. On May 25, 2017, petitioner was

sentenced to a federal term of 144 months, concurrent with his state sentence. R. 80.

The Federal Bureau of Prisons (BOP) awarded 65 days of federal credit for prior

custody from February 6, 2014, through February 12, 2014, and from March 28,

2017, through May 24, 2017. R. 81.

Mr. Fuimaona seeks additional credit for time served on his prior Missouri

state criminal sentence. However, a defendant can only be given credit toward a term

of imprisonment if such credit “has not been credited against another sentence.”

18 U.S.C. § 3585(b). A defendant cannot receive presentence credit on a federal

sentence for time that was already credited to a prior state sentence. See United

States v. Wilson. 503 U.S. 329, 334 (1992); Goodface v. U.S. Att’v Gen.. 802

F. App’x 397, 399 (10th Cir. 2020).

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Appellate Case: 20-3255

Document: 010110511930

Date Filed: 04/23/2021

Page: 3

Mr. Fuimaona’s federal sentence commenced on May 25, 2017, the date he was

sentenced and received into federal custody. See Binford v. United States. 436 F.3d

1252, 1255 (10th Cir. 2006). His prior custody by the state of Missouri was already

credited to his state court conviction. Therefore, the district court was correct that the

BOP properly calculated Mr. Fuimaona’s credit for prior custody.

Mr. Fuimaona also argues that he was entitled under U.S.S.G. § 5G1.3 to

credit on his federal sentence for the time he served in connection with his Missouri

state sentences. Aplt. Br. 4-10. That issue, we conclude, is not one that is properly

raised in a § 2241 habeas petition. Rather, that issue, which effectively challenges

the manner in which his federal sentence was calculated, can be considered only by

the sentencing court by way of a motion to correct sentence filed pursuant to

28 U.S.C. § 2255. i

We therefore AFFIRM the district court and GRANT the motion to proceed in

forma pauperis.

Entered for the Court

Paul J. Kelly, Jr.

Circuit Judge

i Further, the sentencing transcript indicates that the district court did impose

the federal sentence to run concurrently with the remainder of Mr. Fuimaona’s state

sentence in compliance with U.S.S.G. § 5G1.3. See Sentencing Transcript, United

States v. Fuimaona. No. 4:15-cr-00101-BCW-6, at 20 (ECF No. 333).

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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS

SILIAIVAOESE FUIMAONA,

Petitioner,

v.

CASE NO. 20-3218-JWL

D (FNU) HUDSON, WARDEN,

USP-Leavenworth,

Respondent.

MEMORANDUM AND ORDER

This matter is a petition for habeas corpus filed under 28 U.S.C.

§ 2241. Petitioner, a prisoner at the USP-Leavenworth, proceeds pro

se. He seeks credit on his federal sentence for time served on a prior

Missouri state criminal sentence. For the reasons set forth, the court

concludes petitioner's sentence was calculated properly and that he

is not entitled to relief.

Background

In July 2014, petitioner was sentenced to concurrent terms of five

years in the Circuit Court of Jackson County,

Missouri,

for the

offenses of possession of a controlled substance and burglary and

theft/stealing. He received credit for time served.

On October 14, 2015, an indictment in the United States District

Court for the Western District of Missouri charged petitioner with

conspiracy to distribute methamphetamine. On October 19, 2015, he was

taken into custody on a writ of habeas corpus ad prosequendum. He was

returned to Missouri custody on March 31, 2016.

Petitioner was transferred to federal custody on December 19,

2016. On January 18, 2017, he entered a guilty plea to Count 1 of the

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federal indictment. He was returned to state custody on February 7,

2017, and on March 27, 2017, he was released to parole. He was returned

to federal custody on the same day.

On May 25, 2017, petitioner was sentenced to a federal term of

144 months, concurrent with his state sentences.

The federal Bureau of Prisons (BOP) awarded 65 days of federal

jail credit from February 6, 2014, through February 12, 2014, and from

March 28, 2017, through May 24, 2017.

Standard of Review

A petition under 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."

McIntosh

v.

U.S

Parole

115

Comm'n,

F. 3d

809,

811

(10th

Cir.

1997) (quoting Preiser v. Rodriguez, 411 U.S. 475, 484 (1973) ) . This

remedy extends to challenges to the computation of an applicant's

sentence. See Atkins v. Garcia, 816 F. Supp. 2d 1108, 1110-13 (D. Colo.

2011). Relief under § 2241 is proper only if the petitioner "is in

custody in violation of the Constitution or laws or treaties of the

United States." 28 U.S.C. § 2241(c)(3).

Analysis

The

BOP

is

responsible

for

the

calculation

of

a

329,

335

(1992)("After a district court sentences a federal offender,

the

Attorney General,

for

prisoner's

sentence.

United States v.

through

the

BOP,

Wilson,

has

the

503' U.S.

federal

responsibility

administering the sentence.")(citing 18 U.S.C. § 3621(a)).

A federal prisoner's sentence begins on the day the prisoner

either is received in custody for transport or arrives voluntarily

at the designated correctional institution. 18 U.S.C. § 3585(a). See

i

Binford v.

United States,

436 F.3d 1252,

1255

(10th Cir.

2006) ("A

federal sentence does not commence until a prisoner is actually

received into federal custody for that purpose.").

Prior custody credit is determined under 18 U.S.C. § 3585(b),

which provides:

(b) Credit for prior custody. - 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 (1) as a result of the offense for which the sentence

was imposed; or

(2) as a result of any other charge for which the

defendant was arrested after the commission of the offense

for which the sentence was imposed;

that has not been credited against another sentence.

i

18 U.S.C. § 3585(b).

Therefore,

sentence,

it

if the BOP applies presentence credit to a state

cannot

apply

that

credit

to

a

concurrent

federal

i

sentence.

Petitioner's federal sentence commenced on May 25, 2017, the day

it was imposed. Because petitioner had been released from Missouri

state prison on March 27, 2017, the BOP gave him credit for the days

he was in federal custody. This period included seven days jail credit

from February 2014 that had not been credited elsewhere and the time

between his release from Missouri custody and the commencement of his

current federal sentence.

The United States Sentencing Guidelines provide that if another

term of imprisonment arose from an offense that is relevant conduct

to the present offense and conviction, the sentence for the present

offense shall be imposed as follows:

(1)

The court shall adjust the sentence for any period of

imprisonment already served on the undischarged term

of imprisonment if the court determines that such

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period of imprisonment will not be credited to the

federal sentence by the Bureau of Prisons; and

The sentence for the instant offense shall be imposed

to run concurrently to the remainder of the

undischarged term of imprisonment.

(2)

S'

U.S.S.G. § 5G1.3.

This

provision

does

not

allow

any

additional

credit

on

petitioner's federal term because at the time his federal sentence

was imposed, he had been released from prison on the Missouri state

sentence

and,

in

effect,

there

was

no

"undischarged

term

of

imprisonment". See Isles v. Chester, No. 08-3028-RDR, 2009 WL 1010553,

at *5 (D. Kan. Apr. 15, 2009) ("Concurrent sentences normally mean that

the sentence being imposed will run concurrently with the undischarged

portion

of

a

previously

Whitfield, 718 F.2d 441,

imposed

444

sentence.")

(D.C.Cir.1988)

"[A]

(citing Shelvy

v.

federal sentence

made concurrent with a sentence already being served does not operate

in a

'fully concurrent' manner.

Rather,

the second sentence runs

together with the remainder of the one then being served.")).

Finally, the BOP has a mechanism that allows a prisoner to request

the designation of a state institution for service of a concurrent

federal sentence. Under BOP Program Statement 5160.05, the BOP may

designate a state institution for concurrent service of a federal

sentence, and a prisoner also "may request a nunc pro tunc designation"

of the state institution as the place of confinement. However, because

petitioner was released from his state sentence before his federal

sentence was imposed, the BOP could not make such a designation.

Conclusion

i

For the reasons set forth, the Court concludes the BOP properly

calculated petitioner's sentence and he is not entitled to relief.

IT IS, THEREFORE, BY THE COURT ORDERED the petition is dismissed

and all relief is denied.

IT IS SO ORDERED.

DATED:

This 7th day of December, 2020, at Kansas City, Kansas.

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S/ John W. Lung-strum

JOHN W. LUNGSTRUM

U.S. Senior District Judge

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