EDMUND F. BRENNAN, Magistrate Judge.
Petitioner is a federal prisoner proceeding without counsel on a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. He challenges the calculation of his sentence by the Federal Bureau of Prisons. Upon careful consideration of the record and the applicable law, it is recommended that the petition be denied.
Petitioner is currently serving a sentence of 120 months and another sentence of 48 hours after pleading guilty in the United States District Court for the Southern District of Georgia to possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1), and criminal trespassing, in violation of 18 U.S.C § 1382. ECF No. 16, Exh. 1, Attach. 5 and 7. Petitioner's current projected release date is April 1, 2015, via good conduct time. Id., Attach. 11.
Petitioner filed his federal habeas petition in this court on August 9, 2013. ECF No. 1. The court issued an order to show cause on October 15, 2013, ECF No. 13, and respondent filed an answer to the petition on January 15, 2014. ECF No. 16. Petitioner filed a traverse on February 24, 2013. ECF No. 23.
Relief by way of a writ of habeas corpus extends to a prisoner in custody under the authority of the United States who shows that his custody violates the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2241(c)(3). Federal district courts do not have the responsibility or the authority to determine the number of pre-sentence custody credits owing to a defendant at the time of sentencing. United States v. Wilson, 503 U.S. 329, 333-34 (1992). Upon arrival at a federal prison, however, the Attorney General, through the BOP, must administer a defendant's federal sentence, including calculation of the time left to be served. Id. at 335. If, after exhausting administrative review, a defendant disagrees with the BOP's calculations, he or she may seek judicial review by filing a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. See Harrison v. Ollison, 519 F.3d 952, 956 (9th Cir. 2008) (a federal prisoner challenging the manner, location, or conditions of the execution of a sentence must bring a petition for writ of habeas corpus under 28 U.S.C. § 2241); Hernandez v. Campbell, 204 F.3d 861, 864-65 (9th Cir. 2000) (same).
In a habeas challenge, the proper respondent is the warden of the facility where the prisoner is being held. Rumsfeld v. Padilla, 542 U.S. 426, 435 (2004). See also Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 494-95 (1973) (stating, in a habeas corpus action pursuant to 28 U.S.C. § 2241, "[t]he writ of habeas corpus does not act upon the prisoner who seeks relief, but upon the person who holds him in what is alleged to be unlawful custody.") Further, under 28 U.S.C. § 2241(d), a petition for a writ of habeas corpus must be brought in the district court where the petitioner is confined or in the district where he was convicted and sentenced.
Here, at all pertinent times, petitioner was incarcerated at the Federal Correctional Institution in Herlong, California ("Herlong"), which is located in the Eastern District of California. Petitioner has named Michael Babcock, the Warden of Herlong, as respondent. Accordingly, this action has been properly filed in this court.
On June 5, 2006, in the state of Georgia, petitioner was sentenced to concurrent five-year terms of imprisonment for possession of cocaine with intent to distribute and theft by receipt of stolen property, and to shorter concurrent terms for three lesser offenses. ECF No. 16, Exh. 1, Attach. 3. His state sentences began to run on January 12, 2006. Id. He was released on parole on December 4, 2007. Id. at 3.
On August 11, 2008, petitioner was indicted for criminal trespassing in case number CR 4:08-175 in the United States District Court for the Southern District of Georgia. Id., Exh. 1, at ¶ 3.
On March 4, 2009, petitioner was arrested by sheriff's deputies in Georgia for possession of a firearm by a felon, theft by receiving stolen property, and for violating his state parole. Id. at ¶ 4.
On March 18, 2009, the Georgia Department of Corrections ("GADOC") revoked petitioner's state parole, and returned him to the custody of the GADOC. Id. at ¶ 5.
On April 21, 2009, petitioner was sentenced in federal court, case number CR 4:08-175, to 48 hours incarceration, and was then returned to state custody. Id. ¶ 6. The judgment and commitment made no reference to whether the sentence was to run concurrent or consecutive to petitioner's state sentence. Id., Attach. 5.
On May 10, 2010, petitioner was indicted in case number CR 4:10-107 in the United States District Court for the Southern District of Georgia, for possession of a firearm by a convicted felon, and possession of a stolen firearm. Id., at ¶ 7.
On May 25, 2010, petitioner appeared in the Southern District of Georgia to answer to the new federal indictment in case number CR 4:10-107, and remained in temporary federal custody until he was sentenced on December 15, 2010. ECF 16, Exh. 1 at ¶ 8. After pleading guilty to count one of the indictment, petitioner was sentenced to 120 months incarceration. Id. at ¶ 9. The sentencing court further recommended that petitioner be given credit toward his federal sentence for all time served since March 4, 2009. Id., Attach. 7. After he was sentenced, petitioner was returned to state custody. Id. at ¶ 9.
On January 11, 2011, petitioner was released to federal custody to begin his respective two-day and 120-month sentences. Id. at ¶ 10.
On September 26, 2011, the Supervisory U.S. Probation Officer for the Southern District of Georgia, at the request of petitioner's sentencing judge, U.S. District Court Judge William T. Moore, sent a letter to the BOP explaining as follows:
Id. Attach. 12.
Accordingly, the BOP determined that the time from March 4, 2009 through March 18, 2009, had already been credited toward petitioner's state parole violation, therefore he was not entitled to double credit toward his federal sentence. Id. at ¶ 13. The BOP further determined that, because both federal sentencing courts were silent on the issue of consecutive or concurrent sentences at the time of sentencing, petitioner's federal sentences were required to run consecutive to the remaining sentence on his state parole violation. Id. at ¶ 14.
Petitioner argues that the BOP erroneously concluded that awarding him prior custody credit from the time of his arrest by state deputy sheriffs on March 4, 2009, through the time of his state parole revocation on March 18, 2009, amounted to impermissible double counting; and that under Willis v. United States, 438 F.2d 923, 924 (5th Cir. 1971), he is entitled to prior custody credit because he was being held by Georgia state officials without bond on a federal detainer. ECF No. 1 at 17-18.
Respondent counters that petitioner's sentence for his state parole violation had already been calculated to include all time spent in custody from January 12, 2006, through January 11, 2011. ECF No. 16 at 6. Therefore, under the plain language of 18 U.S.C. § 3585, the relief he seeks is not available because the time in question had already been credited toward the remaining sentence on his state parole violation. Id., Exh. 1 at ¶ 13.
Respondent also argues that petitioner is not entitled to credit under Willis, because his state and federal sentences were not specifically ordered to run concurrent, and would therefore run consecutive to each other. Id. at 8. In addition to the state and federal sentences running concurrent, Willis also requires that the state credit given to the inmate for a presentence period of incarceration must not have actually provided any benefit to him, because the inmate's full-term federal sentence will end later than the full-term state sentence. Id. at 7. In this case, petitioner did receive a benefit because the time from March 4, 2009 through March 18, 2009 was credited against his state parole violation before his federal sentence ever began. Id. at 8. Thus, BOP correctly determined that petitioner was not entitled to Willis credits. Id. Moreover, any ambiguity raised by Judge Moore's sentencing recommendation on the gun charge was clarified by his later instruction to the probation office to contact the BOP and inform them that he did not intend for petitioner to receive credit towards his federal sentence for time that was already credited toward another sentence. Id., Exh. 1, Attach. 12.
In his traverse petitioner first argues that the time spent from March 4, 2009 through March 18, 2009, should have been credited toward his federal sentence because his parole revocation was based on an arrest and investigation that was conducted jointly by federal and state authorities and, because federal law trumps state law, he was actually being held in federal custody during that time. ECF No. 23 at 2-4. Also, he again argues that he is entitled to Willis credits because, following his March 9, 2009 arrest, he was not allowed to make bond due to a federal detainer. Id. at 4.
The BOP has established an administrative remedy procedure through which an inmate can seek formal review of any complaint regarding any aspect of imprisonment. To bring a 28 U.S.C. § 2241 petition, a prisoner is ordinarily required to exhaust his administrative remedies. "It is only when a prisoner has exhausted his administrative remedies that he becomes entitled to litigate the matter in district court." Chua Han Mow v. United States, 730 F.2d 1308, 1313 (9th Cir. 1984), cert. denied, 470 U.S. 1031 (1985).
Petitioner raised his challenge to the calculation of his federal sentence on December 20, 2011, in a prison form entitled "Request for Administrative Remedy." ECF No. 16, Exh. 1, Attach. 15 at 81. The Warden denied petitioner's request in a response dated December 28, 2011, which explained as follows:
ECF No. 16, Exh. 1, Attach. 15 at 82.
On May 21, 2012, petitioner appealed the Warden's decision to the Regional Director of the Bureau of Prisons. Id., Attach. 16 at 94-95. On August 6, 2012, the Regional Director denied relief, stating as follows:
Id. at 93.
On August 20, 2012, petitioner appealed the preceding decision to the Office of the General Counsel for the Bureau of Prisons. Id. at 86. On December 11, 2012, the Central Office Administrative Remedy Section denied relief, reasoning as follows:
ECF No. 16, Exh. 1, Attach. 16 at 87-88.
Based on the foregoing, the undersigned concludes that petitioner has exhausted his administrative remedies.
Petitioner first argues that the BOP erroneously denied him prior custody credit from the time of his arrest by state deputy sheriffs on March 4, 2009, through the time of his state parole revocation on March 18, 2009. ECF No. 1 at 18. The statute governing credits and the calculation of a federal term of imprisonment provides as follows:
18 U.S.C. § 3585(b).
By enacting § 3585(b), "Congress made clear that a defendant could not receive a double credit for his detention time." United States v. Wilson, 503 U.S. 329, 337 (1992). Because petitioner already had this time credited toward his state sentence, ECF No. 16, Exh. 1, Attach. 16, the BOP properly determined that he is not allowed to also have this time credited toward his federal sentence. Furthermore, petitioner's argument, raised in his traverse, that he is entitled to credit toward his federal sentence because his arrest and incarceration were based on an investigation conducted jointly by federal and state authorities (therefore he was being held in federal custody), has no bearing on whether he is entitled to prior custody credit for the time in question, as it is undisputed that he was in custody not only on the federal detainer, but on state charges as well. ECF No. 16, Exh. 1 at ¶ 4.
Petitioner further argues that the Fifth Circuit's decision in Willis v. United States, 438 F.2d 923 (5th Cir. 1971) entitles him to credit on his federal sentence because from March 4, 2009 through March 18, 2009, he was being held without bond by state authorities due to the federal detainer. ECF No. 1 at 10-11. Fellow district courts have explained so-called "Willis" credits as follows:
McRae v. Rios, 2013 WL 1758770 at *5 (E.D. Cal. 2013) (internal citations and quotations omitted) (emphasis added.)
Thus, petitioner's reliance on Willis is misplaced. Willis requires that (1) his federal and state sentences run concurrent, and (2) that he did not actually benefit from the state credit given to him for his presentence period of incarceration. Willis, 438 F.2d at 925. Neither of petitioner's federal sentences were specifically ordered to run concurrent to his state sentence. ECF No. 16, Exh. 1, Attachs. 5, 7. Because neither judgment made reference to whether the sentence was to run concurrent or consecutive to petitioner's state sentence, the federal sentences imposed would run consecutively. 18 U.S.C. § 3584(a) ("[m]ultiple terms of imprisonment imposed at different times run consecutively unless the court orders that the terms are to run concurrently."); Taylor v. Sawyer, 283 F.3d 1143, 1148 (9th Cir. 2002) (affirming the district court's denial of a section 2241 petition where the Bureau of Prisons refused to treat prisoner's state and federal sentences as concurrent.) Moreover, petitioner did receive a benefit from the time he spent in custody from March 4, 2009 through March 18, 2009, as that time was credited toward his state sentence. ECF No. 16, Exh. 1, Attach. 2. For the foregoing reasons, petitioner is not entitled to Willis credits.
Petitioner also claims that he is entitled to a nunc pro tunc order directing the BOP to designate a state prison as the facility for service of his federal sentence. ECF No. 1 at 11-12. A nunc pro tunc designation would allow a sentence to commence as early as the date it was imposed, which would effectively mean that petitioner's federal sentence would run concurrently with his state sentence. ECF No. 16, Exh. 1, ¶ 17. Petitioner argues that such an order is necessary to give effect to Judge Moore's sentencing recommendation that he receive credit for all time that he has spent in custody since March 4, 2009. Id.
Bureau of Prisons guidelines regarding the designation of a state institution for service of a federal sentence provide as follows:
BOP Program Statement No. 5160.05 ¶¶ 3a, 7b, 8. ECF No. 16, Exh. 1, Attach. 13 at 65-66, 68.
At the time his federal sentences were imposed, petitioner was serving out the remainder of an earlier state court sentence following a parole revocation. ECF No. 16, Exh. 1 at ¶ 5. In its September, 2011 letter to the BOP's Designation and Computation Center, the Supervisory Probation Officer made it clear that Judge Moore, notwithstanding his sentencing recommendation, did not intend for petitioner to receive credit toward his federal sentence for time that had already been credited to the remaining sentence on his state parole revocation. In accordance with its own policy guidelines, the BOP correctly determined that a nunc pro tunc designation would not be consistent with the intent of the federal sentencing court, nor would it further the goals of the criminal justice system. Based on the foregoing, petitioner is not entitled to a nunc pro tunc designation.
Accordingly, IT IS HEREBY ORDERED that the Clerk shall randomly assign this case to a United States District Judge.
Further, IT IS HEREBY RECOMMENDED that petitioner's application for a writ of habeas corpus be denied.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within fourteen days after service of the objections. Failure to file objections within the specified time may waive the right to appeal the District Court's order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). In his objections petitioner may address whether a certificate of appealability should issue in the event he files an appeal of the judgment in this case. See Rule 11, Rules Governing Section 2254 Cases (the district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant).
