UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JOSE AGUILAR,

Petitioner - Appellant,

v.

T.C. PETERSON, Warden,

Respondent - Appellee.

No. 04-6376

(W.D. Oklahoma)

(D.Ct. No. 04-CV-489-L)

ORDER AND JUDGMENT*

Before KELLY, O'BRIEN, and TYMKOVICH, Circuit Judges.

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist 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.

Jose Aguilar, a federal inmate appearing pro se,1 appeals from an order dismissing his petition for writ of habeas corpus brought pursuant to 28 U.S.C. § 2241. Exercising jurisdiction under 28 U.S.C. § 1291,2 we AFFIRM.

Aguilar was arrested for possession of marijuana in Texas on November 9, 1995, while he was out on bail for unrelated pending federal charges in Georgia. That same day, Aguilar was turned over to federal authorities for prosecution in the United States District Court for the Northern District of Georgia. On July 16, 1996, Aguilar pled guilty to the federal charges and was sentenced to ninety-eight months imprisonment.3 On August 19, 1996, Aguilar was returned to Fort Bend, Texas, for prosecution by the State of Texas for his arrest on November 9, 1995. On January 10, 1997, Aguilar was convicted on the state charge, sentenced to six years imprisonment, and sent to a Texas state prison to serve his state sentence. On September 1, 1998, Aguilar was paroled on his Texas sentence and released to the custody of the United States to begin serving his federal sentence. Aguilar was given credit toward his state sentence for time served between November 9, 1995, and January 10, 1997.

On appeal, Aguilar asserts he is entitled to credit toward his federal sentence for time served in Texas state prison from January 10, 1997, to September 1, 1998, under 18 U.S.C. § 3585,4 and the Federal Bureau of Prisons' (BOP) Program Statement. We disagree.

It is well settled that when a state surrenders a prisoner to the Federal government for the purpose of trial on a Federal charge and upon conviction and sentence in the Federal court, the Federal authorities surrender custody of the prisoner back to the state authorities for trial or imprisonment, without the prisoner having been received at a Federal penal institution for service of his Federal sentence, the Federal sentence does not begin to run until such time as the prisoner is returned to Federal custody and received at the Federal penal institution for service of his Federal sentence.

Hayward v. Looney, 246 F.2d 56, 58 (10th Cir. 1957) (emphasis added). In this case, Aguilar was not returned to federal custody to begin serving his federal sentence until September 1, 1998. Thus, his federal sentence did not begin to run until that date and the BOP appropriately denied Aguilar credit for the time he served in Texas state prison on his state court conviction.

The BOP's Program Statement5 is consistent with this approach:

If the prisoner is serving no other federal sentence at the time the sentence is imposed, and is in exclusive federal custody (not under the jurisdiction of a federal writ of habeas corpus ad prosequendum) at the time of sentencing on the basis of the conviction for which the sentence is imposed, the sentence commences on the date of imposition, even if a state sentence is running along concurrently.

U.S. Dept. of Justice, Bureau of Prisons Program Statement No. 5880.28(b) (emphasis added). Aguilar was not in exclusive federal custody at the time of his federal sentencing.6 Thus, under the BOP's Program Statement, Aguilar's federal sentence did not commence on the date of its imposition, but on September 1, 1998, the date he was surrendered to serve his federal sentence.

We AFFIRM. Aguilar's petition to proceed in forma pauperis on appeal is DENIED. The district court certified this case as not taken in good faith. Aguilar shall remit the full amount of the filing fee to the clerk of the district court within twenty (20) days of this order.

Entered by the Court:

Terrence L. O'Brien

United States Circuit Judge