a supervised release period during the plea colloquy. This falls significantly short of the Lucas standard.
In addition, formal or technical violations do not become constitutional if the defendant was given the opportunity to bring these issues before the court. Lucas, 963 F.2d 8 at 14-15. Miller and his counsel were given the opportunity to question the supervised release period mentioned in the presentence report during sentencing but failed to comment on it.
This silence must be taken as tacit acceptance or at least an acknowledgment of the supervised release portion of the sentence. For these reasons, the court denies petitioner's motion on this ground.
B. Credit Under Habeas Corpus Ad Prosequendum
Miller also asserts that this court should have credited him for time spent at the Missouri Federal Medical Center while in federal custody under a writ of habeas corpus ad prosequendum. He requests credit on his federal sentence for the two years during which he received surgical procedures at the federal facility awaiting prosecution. However, this request must be denied.
Generally a defendant transferred via a writ of habeas corpus ad prosequendum is under the temporary custody of the receiving state.
However, this is not always the case. For the purposes of Title 18, United States Code, Section 3585(b),
which is the applicable section governing the terms under which credit for prior custody shall be given, the receiving state gains no custody if the individual is produced pursuant to a writ of habeas corpus ad prosequendum. Flick v. Blevins, 887 F.2d 778, 781-82 (7th Cir. 1989), cert. denied, 495 U.S. 934, 109 L. Ed. 2d 508, 110 S. Ct. 2179 (1990). Rather, the defendant is deemed only to be "on loan" from the sending state. Crawford v. Jackson, 191 U.S. App. D.C. 170, 589 F.2d 693, 695 (D.C. Cir. 1978), cert. denied, 441 U.S. 934, 60 L. Ed. 2d 662, 99 S. Ct. 2056 (1979); Thomas v. Brewer, 923 F.2d 1361, 1367 (9th Cir. 1991).
Thus, although Miller was under federal control for two years at the Missouri Federal Medical Center, for the purposes of § 3585 he was not under federal custody. Thomas v. Whalen, 962 F.2d 358, 360-61 (4th Cir. 1992). Therefore, § 3585 is inapplicable to this petition and this court need not afford any credit. This is because under § 3585, a federal sentence does not commence "'. . . until the United States obtains custody enabling it and entitling it to enforce the sentence.'"
Crawford, 589 F.2d at 695 (quoting Application of Nelson, 434 F.2d 748, 750 (1970), vacated on other grounds, 402 U.S. 1006, 29 L. Ed. 2d 428, 91 S. Ct. 2193 (1971)).
For the reasons discussed, it is hereby ORDERED that the petitioner's motion is denied in its entirety and his petition dismissed.
Dated at Binghamton, New York
July 17, 1993
Thomas J. McAvoy
Chief U.S. District Judge