JOHN F. MOULDS, Magistrate Judge.
Petitioner is a federal prisoner proceeding pro se with an application for writ of habeas corpus pursuant to 28 U.S.C. § 2241.
The instant petition does not challenge petitioner's conviction or sentence. Rather, petitioner contends that the Bureau of Prisons ("BOP") is executing petitioner's sentence in a way that violates federal law because the BOP refuses to give petitioner credit for time served on state charges.
On May 18, 2005, petitioner was arrested by the Savannah-Chatham Metropolitan Police in the State of Georgia for an outstanding arrest warrant from the State of New Jersey. Johnson Decl., ¶ 3. During the course of being arrested, petitioner attempted to escape, which led to the filing of a charge of Obstruction of an Officer in a Georgia state court.
On June 16, 2005, petitioner was arrested again by Georgia law enforcement and charged with three counts of burglary. Johnson Decl., ¶ 4.
On September 15, 2006, a Grand Jury sitting in the Georgia federal court returned a one-count indictment charging petitioner with possession of ammunition by a felon in violation of 18 U.S.C. § 922(g)(1) in case number 4:06-cr-0304-BAE.
On September 21, 2006, the Georgia federal court issued a Writ of Habeas Corpus Ad Prosequendum ("WHCAP") seeking petitioner's presence at an October 4, 2006 arraignment/initial appearance. Doc. No. 19-4 at 1. Pursuant to the WHCAP, petitioner was released to the custody of the United States Marshal Service ("USMS") on October 4, 2006. Doc. No. 5.
On January 4, 2007, petitioner entered a guilty plea to the Amended Indictment in the federal court, and on April 3, 2007 petitioner was sentenced to 92 months imprisonment and remanded to the custody of the USMS. Doc. Nos. 19-4, 19-5 and 19-6.
Following his return to the custody of the USMS, petitioner was transferred back to Chatham County, Georgia officials. Doc. No. 19-5. The Georgia federal court's Judgment and Commitment Order was lodged by the USMS as a detainer against petitioner. Johnson Decl., ¶ 8.
On May 3, 2007, petitioner pled guilty to three counts of burglary in the Superior Court of Chatham County Georgia in case number CR05-2107-FR. Doc. No. 19-7. He was subsequently sentenced to seven years on each count.
On March 29, 2010, petitioner was paroled from the custody of the State of Georgia to the USMS detainer for service of the sentence imposed by the Georgia federal court. Doc. Nos. 19-8 and 19-9. His sentence was calculated to commence on that date.
On July 28, 2010, petitioner initiated the administrative remedies process with the BOP by submitting a request for a nunc pro tunc designation.
On August 30, 2010, petitioner filed a "Motion for Court's Recommendation to BOP in Support of BOP's Nunc Pro Tunc Designation under 18 U.S.C. § 3621(b)" in the Georgia federal court. Doc. No. 19-11. Therein, petitioner sought a recommendation from his federal sentencing judge to the BOP that petitioner's federal sentence should run concurrently with his state sentence.
On January 20, 2011, petitioner exhausted the administrative remedies process when the BOP denied petitioner's application for a nunc pro tunc designation based on the second, third and fourth factors of 18 U.S.C. § 3621(b). Doc. No. 19-13. Specifically, the BOP determined that the nunc pro tunc designation was unavailable in light of "the nature and circumstances of petitioner's underlying offense" (possession of ammunition by a convicted felon); "the history and characteristics of the prisoner" (his guilty plea in state court to three charges of burglary); and "any statements by the court that imposed the sentence" (the federal court's August 31, 2010 denial of petitioner's request for a recommendation to the BOP).
Petitioner filed the instant action on Marc 29, 2011. Respondent filed a motion to dismiss and response on December 2, 2011.
Under 28 U.S.C. § 2241, habeas corpus relief is available to a federal prisoner in custody under the authority of the United States if he can show he is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(1) & (3). While a federal prisoner challenging the validity or constitutionality of a conviction must bring a petition for writ of habeas corpus under 28 U.S.C. § 2255, a petitioner challenging the manner, location, or conditions of the execution of that sentence is required to bring a petition for writ of habeas corpus under 28 U.S.C. § 2241.
In this case, petitioner is incarcerated at FCI Herlong, which is in the Eastern District of California. Michael Babcock, the Warden of Herlong, is named as respondent. Accordingly, this action has been properly filed in this court.
Petitioner seeks prior custody credit pursuant to
Respondent argues that the petition should be denied on the ground that federal law prohibits the credit that petitioner seeks. Respondent also argues that, to the extent the petition can be construed as a challenge to the BOP's determination that petitioner is not entitled to a nunc pro tunc designation, the petition should be dismissed because this court lacks subject matter jurisdiction.
Generally, "[c]omputing 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."
A federal sentence commences "on the date the defendant is received in custody... to commence service of sentence at the official detention facility at which the sentence is to be served." 18 U.S.C. § 3585(a). In this case, the BOP deemed petitioner's federal sentence to have commenced on March 29, 2010, the date on which he was turned over to federal custody to begin serving his federal sentence.
Insofar as petitioner alleges that his federal sentence commenced when he was sentenced in the federal court, he is mistaken. The production of a defendant in state custody to a federal court pursuant to a writ of habeas corpus ad prosequendum does not constitute the commencement of a sentence under federal law.
Whether petitioner is entitled to any credit for his state sentence is determined by 18 U.S.C. § 3585(b), which provides as follows:
18 U.S.C. § 3585(b).
Here, petitioner was not entitled to credit for time served on his state sentence because, first, it was not a term served "as a result of the offense for which the [federal] sentence was imposed," § 3585(b)(1), and because, second, petitioner already received credit for that time on his state sentence, § 3585(b)(2). To give petitioner credit of his prior custody on both his state sentence and his federal sentence violates the plain language of § 3585(b) and is barred by
Recognizing the unavailability of prior custody credit pursuant to 18 U.S.C. § 3585(b), petitioner seeks relief through
Pursuant to
Here, it is undisputed that petitioner was sentenced at different times for the state and federal offenses. Thus, pursuant to § 3584(a), the sentences are to run consecutively unless the federal court ordered otherwise. In this case, the federal sentence was imposed first, and the federal court expressed no position as to whether the sentence was to run concurrently or consecutively to any later-imposed state sentence. "[I]n the absence of an order to the contrary, a federal sentence is to run consecutively to a prior state sentence."
Next, to the extent petitioner relies on the state court judge's express statements that the state sentence was to run concurrently with the federal sentence, the BOP was entitled to refuse to honor the state court's recommendation.
On appeal, the court rejected Del Guzzi's claims. 980 F.2d at 1270. The court noted that though the state sentencing judge clearly intended his state sentence to not extend the amount of time he spent in custody and urged that he should be transported to federal custody for this purpose, the state judge had no authority to order it.
Based on the foregoing, the undersigned finds that relief under
The only relief available to petitioner for prior custody credit remained at the discretion of the BOP through 18 U.S.C. § 3621(b). "On its face, [18 U.S.C.] 3621(b) gives the BOP only the administrative responsibility to identify the facility in which a federal prisoner will serve out the sentence imposed by the district court."
18 U.S.C. § 3621(b).
At petitioner's request, the BOP reviewed petitioner's eligibility for a retroactive designation and ultimately determined that such a designation would not be appropriate under the second, third and fourth factors. Assuming then that petitioner's § 2241 petition could be read to argue that the BOP should have granted petitioner's request for a retroactive designation to a state facility pursuant to 18 U.S.C. § 3621(b), such that his federal sentence would have run concurrently to his state sentence from the date his federal sentence was imposed, petitioner's claim is foreclosed by the plain language of 18 U.S.C. § 3625 and the Ninth Circuit's decision in
Respondent is correct in noting that this court lacks jurisdiction to review the BOP's decision denying petitioner's request for a retroactive designation under 18 U.S.C. § 3621(b). In
Pursuant to
Pursuant to Rule 11 of the Rules Governing Section 2254 Cases in the United States District Courts, "[t]he district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant." Rule 11, 28 U.S.C. foll. § 2254. A certificate of appealability may issue under 28 U.S.C. § 2253 "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). The court must either issue a certificate of appealability indicating which issues satisfy the required showing or must state the reasons why such a certificate should not issue. Fed. R. App. P. 22(b).
Where, as here, the petition should be dismissed on procedural grounds, a certificate of appealability "should issue if the prisoner can show: (1) `that jurists of reason would find it debatable whether the district court was correct in its procedural ruling'; and (2) `that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right.'"
This court finds that petitioner has failed to satisfy either requirement for issuance of a certificate of appealability in this case. Accordingly, the undersigned will decline to issue a certificate of appealability.
For the foregoing reasons, IT IS HEREBY ORDERED that:
1. Respondent's motion to dismiss is granted;
2. Petitioner's writ of habeas corpus is denied; and
3. The court declines to issue a certificate of appealability.