ROSALYN M. CHAPMAN, United States District Judge
IT IS ADJUDGED that the Petition for Writ of Habeas Corpus is denied and the action is dismissed with prejudice.
MEMORANDUM DECISION AND ORDER
On April 17, 2001, petitioner Richard Gonzales, a federal prisoner proceeding pro se who is incarcerated at the Federal Correctional Center in Victorville, California, filed a habeas corpus petition claiming he was improperly denied "[c]redit for time in jail prior to sentencing or pending appeal. . . ." Petition at 5. On June 19, 2001, the respondent filed a return to the habeas corpus petition, with the supporting declarations of Alan Ray and Michael D. Frazier and exhibits, and on October 5, 2001, respondent filed a supplemental submission. The petitioner did not file a traverse. The parties have consented to proceed before Magistrate Judge Rosalyn M. Chapman pursuant to 28 U.S.C. § 636 (c).
Respondent does not contest the propriety of petitioner's habeas petition under 28 U.S.C. § 2241, Return at 3:21-26, and admits petitioner has exhausted his administrative remedies. Return at 4:1-20.
BACKGROUND
On July 20, 1999, in the District Court for the County of Socorro, New Mexico, petitioner Richard Gonzales was sentenced in case nos. CR 97-138 and CR 99-84 to 18 months custody on one count of possession of a controlled substance, three counts each of battery on a police officer, and one count of driving under the influence, all counts to run consecutively, for a total term of 7 1/2 years, provided six years were suspended and followed by one year of parole and five years of supervised probation, upon certain terms and conditions. Supplemental Submission ("Supp. Subm."), Declaration of Marcia Abeyta ("Abeyta Decl."), ¶ 2, Exh. 1.
On October 20, 1999, while petitioner was in the custody of the State of New Mexico, an indictment was filed against him in the United States District Court for the District of New Mexico charging him with one count of conspiracy to distribute more than 5 grams of cocaine base in violation of 21 U.S.C. § 841 (a)(1) and (b)(1)(B) (count 1) and two counts of possession with intent to distribute more than 5 grams of cocaine base in violation of 21 U.S.C. § 841 (a)(1) and (b)(1)(B) and aiding and abetting in violation of 18 U.S.C. § 2 (counts 2 and 3). Declaration of Alan Ray ("Ray Decl."), ¶ 3, Exh. 2 at 18, 20. On November 8, 1999, petitioner was transferred from the custody of the State of New Mexico to federal custody under a writ of habeas corpus ad prosequendum. Id., ¶ 5, Exh. 2 at 18, 20. Thereafter, petitioner pleaded guilty to count 1, and on June 14, 2000, he was sentenced to 130 months in federal prison. Id., ¶ 3, Exh. 3.
Petitioner was returned to the custody of the State of New Mexico on June 22, 2000. Id., ¶ 5. On July 28, 2000, the New Mexico Adult Parole Board paroled petitioner, releasing him to the United States Marshals Service based on a federal detainer against petitioner. Id., ¶ 5, Exh. 4. The State of New Mexico gave petitioner credit on his sentence for the time period from November 8, 1999, to July 28, 2000. Abeyta Decl., ¶ 3, Exh. 2.
DISCUSSION
The authority to compute a federal prisoner's sentence is delegated to the Attorney General, who exercises it through the Bureau of Prisons ("BOP"). United States v. Wilson, 503 U.S. 329, 334-35, 112 S.Ct. 1351, 1354-55, 117 L.Ed.2d 593 (1992); Allen v. Crabtree, 153 F.3d 1030, 1033 (9th Cir. 1998), cert. denied, 525 U.S. 1091 (1999). "Computing a federal sentence requires two separate determinations: first, when the sentence commences; and, second, to what extent the defendant in question may receive credit for any time already spent in custody." United States v. Smith, 812 F. Supp. 368, 370 (E.D. N.Y. 1993); Jimenez v. Warden. FDIC, Fort Devens, Mass., 147 F. Supp.2d 24, 27 (D. Mass. 2001); Chambers v. Holland, 920 F. Supp. 618, 621 (M.D. Pa. 1996), affirmed by, 100 F.3d 946 (3rd Cir. 1996) (Table).
A federal sentence "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). Here, petitioner was delivered into federal custody on July 28, 2000, pursuant to a federal detainer; there is no dispute that petitioner is entitled to credit against his federal sentence since that date, and he has been given such credit. Supp. Subm., Declaration of Alan Ray ("Ray Decl. II"), ¶ 3, Exh. 1. However, petitioner contends he is also entitled to credit against his federal sentence for the time he spent in federal custody from November 8, 1999, to July 28, 2000. Petitioner is mistaken.
The production of a defendant in state custody to federal court pursuant to a writ of habeas corpus ad prosequendum does not constitute the commencement of a sentence under federal law. Taylor v. Reno, 164 F.3d 440, 444-45 (9th Cir. 1998), cert. denied, 527 U.S. 1027 (1999); Thomas v. Brewer, 923 F.2d 1361, 1366-67 (9th Cir. 1991) Rather, the state retains primary jurisdiction over the prisoner, and federal custody commences only when the state authorities relinquish the prisoner upon satisfaction of the state term. Taylor, 164 F.3d at 445; Thomas, 923 F.2d at 1366-67. As the Ninth Circuit has held:
As a general rule, [primary jurisdiction means that] the first sovereign to arrest a defendant has priority of jurisdiction for trial, sentencing, and incarceration. Thomas, 923 F.2d at 1365 (9th Cir. 1991); United States v. Warren, 610 F.2d 680, 684-85 (9th Cir. 1980); See also Taylor, 164 F.3d at 444 n. 1 ("The term `primary jurisdiction' in this context refers to the determination of priority of custody and service of sentence between state and federal sovereigns. A lack of `primary jurisdiction' does not mean that a sovereign does not have jurisdiction over a defendant. It simply means that the sovereign lacks priority of jurisdiction for purposes of trial, sentencing and incarceration." (citations omitted))
When an accused [in state custody] is transferred [to federal custody] pursuant to a writ of habeas corpus ad prosequendum he is considered to be "on loan" to the federal authorities so that the sending state's jurisdiction over the accused continues uninterruptedly.
Thomas, 923 F.2d at 1367 (quoting Crawford v. Jackson, 589 F.2d 693, 695 (D.C. Cir. 1978), cert. denied, 441 U.S. 934 (1979)). Thus, petitioner is not entitled to credit against his federal sentence for the time he spent in federal custody pursuant to the writ of habeas corpus ad prosequendum. 18 U.S.C. § 3585 (a).
Nor is petitioner entitled to credit under 18 U.S.C. § 3585 (b), which provides that "[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; [par;] that has not been credited against another sentence." Here, petitioner received an 18-month state prison sentence on July 20, 1999, and he remained in custody under that sentence until he was paroled on July 28, 2000. Since petitioner received credit against his state sentence for the time spent in federal custody pursuant to the writ of habeas corpus ad prosequendum, he is not entitled to credit against his federal sentence for the same period of time. 18 U.S.C. § 3585 (b); see also United States v. Wilson, 503 U.S. 329, 337, 112 S.Ct. 1351, 1355-56, 117 L.Ed.2d 593 (1992) ("Congress made clear [in 18 U.S.C. § 3585 (b)] that a defendant could not receive a double credit for his detention time."); Boniface v. Carlson, 856 F.2d 1434, 1436 (9th Cir. 1988) (per curiam) (applying the precursor to 18 U.S.C. § 3585, and concluding that "[s]ince the State of Florida gave [petitioner] credit on his state sentence for the period of time he was denied release [from state custody], he is not entitled to credit against his federal sentence for the same period of time"); Rios v. Wiley, 201 F.3d 257, 274-75 (3d Cir. 2000) ("[T]he general rule prohibiting double credit articulated in section 3585(b) applies equally to situations where, as here, the prisoner was in federal control pursuant to a writ of habeas corpus ad prosequendum during the time period for which a pre-sentence credit is sought."); United States v. LaBeille-Soto, 163 F.3d 93, 99 (2d Cir. 1998) ("[A] defendant has no right to credit on his federal sentence for time that has been credited against his prior state sentence.")
ORDER
IT IS ORDERED that Judgment be entered denying the petition for writ of habeas corpus and dismissing the action with prejudice.