Lay v. Gill, Case No.: 1:12-cv-01250-JLT

Decision Date30 November 2012
Docket NumberCase No.: 1:12-cv-01250-JLT
PartiesSCOTTIE B. LAY, Petitioner, v. GILL, Warden, Respondent.
CourtU.S. District Court — Eastern District of California





APPEAR (Doc. 12)





Petitioner is a federal prisoner proceeding in propria persona with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241.


The instant petition was filed on July 31, 2012. (Doc. 1). On August 14, 2012, the Court ordered Respondent to file a response. (Doc. 5). On October 16, 2012, Respondent filed the instant motion to dismiss, or alternatively, the answer to the petition. (Doc. 16). Petitioner has not filed a response. However, on September 21, 2012, Petitioner filed a motion to appear, in which he asks for an order to the Bureau of Prisons permitting him to be present in this Court during proceedings onthis case. (Doc. 12). Both parties have filed their written consent to the jurisdiction of the Magistrate Judge for all purposes. (Docs. 4 & 18).


Writ of habeas corpus relief extends to a person in custody under the authority of the United States. See 28 U.S.C. § 2241. While a federal prisoner who wishes to challenge the validity or constitutionality of his 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 that sentence's execution must bring a petition for writ of habeas corpus under 28 U.S.C. § 2241. See, e.g., Capaldi v. Pontesso, 135 F.3d 1122, 1123 (6th Cir. 1998); Kingsley v. Bureau of Prisons, 937 F.2d 26, 30 n.5 (2nd Cir. 1991); United States v. Jalili, 925 F.2d 889, 893-94 (6th Cir. 1991); Brown v. United States, 610 F.2d 672, 677 (9th Cir. 1990). To receive relief under 28 U.S.C. § 2241 a petitioner in federal custody must show that his sentence is being executed in an illegal, but not necessarily unconstitutional, manner. See, e.g., Clark v. Floyd, 80 F.3d 371, 372, 374 (9th Cir. 1995) (contending time spent in state custody should be credited toward federal custody); Jalili, 925 F.2d at 893-94 (asserting petitioner should be housed at a community treatment center); Barden v. Keohane, 921 F.2d 476, 479 (3rd Cir. 1990) (arguing Bureau of Prisons erred in determining whether petitioner could receive credit for time spent in state custody); Brown, 610 F.2d at 677 (challenging content of inaccurate pre-sentence report used to deny parol). A petitioner filing a petition for writ of habeas corpus under 28 U.S.C. § 2241 must file the petition in the judicial district of the petitioner's custodian. Brown, 610 F.2d at 677.

Here, to the extent that Petitioner alleges he is being unlawfully denied credit against his federal sentence, Petitioner is challenging the execution of his sentence rather than its imposition, and his petition is proper under 28 U.S.C. § 2241. However, to the extent that Petitioner is challenging the sentence itself or the execution of the plea agreement on which the sentence was based, the Court lacks habeas corpus jurisdiction since such challenges must be raised in a petition pursuant to 28 U.S.C. § 2255. In addition, Petitioner was incarcerated at FCI Mendota at the time of filing of the petition. FCI Mendota lies within the Eastern District of California, Fresno Division, so this Court is authorized to proceed.

A. Procedural Grounds for Motion to Dismiss

As mentioned, Respondent has filed a Motion to Dismiss the petition to the extent that Petitioner's claim "implicates the imposition of the sentence including any claim for specific performance of the plea agreement or alleged violation of the plea agreement." (Doc. 16, p. 7). Alternatively, Respondent contends that the Bureau of Prisons ("BOP") properly calculated Petitioner's credits. (Id.). Thus stated, Respondent's basis for Respondent's motion to dismiss is lack of habeas corpus jurisdiction to address a challenge to the imposition of sentence, which must be brought pursuant to 28 U.S.C. § 2255, not in a habeas corpus proceeding.

Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a petition if it "plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court . . . ." Rule 4 of the Rules Governing Section 2254 Cases.

The Ninth Circuit has allowed Respondent's to file a Motion to Dismiss in lieu of an Answer if the motion attacks the pleadings for failing to exhaust state remedies or being in violation of the state's procedural rules. See, e.g., O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990) (using Rule 4 to evaluate motion to dismiss petition for failure to exhaust state remedies); White v. Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (using Rule 4 as procedural grounds to review motion to dismiss for state procedural default); Hillery v. Pulley, 533 F.Supp. 1189, 1194 & n.12 (E.D. Cal. 1982) (same). Thus, a Respondent can file a Motion to Dismiss after the court orders a response, and the Court should use Rule 4 standards to review the motion. See Hillery, 533 F. Supp. at 1194 & n. 12.

In this case, Respondent's Motion to Dismiss is based on Respondent's contention that the Court lacks habeas jurisdiction over the claims raised in the petition. This contention is similar procedurally to a claim of lack of exhaustion. Accordingly, the Court will review Respondent's Motion to Dismiss pursuant to its authority under Rule 4. O'Bremski, 915 F.2d at 420.

B. Factual Background.

On September 16, 1998, Petitioner was a passenger in a motor vehicle and was arrested by police in Nashville, Tennessee after a traffic stop led to discovery of firearms around the passenger'sseat where Petitioner had been sitting. (Doc. 16, Declaration of J.R. Johnson ("Johnson Dec."), p. 3) . Petitioner was on parole at the time from a nine year sentence imposed for a 1996 state conviction for second degree burglary and aggravated assault. (Id.). This arrest resulted in Petitioner's parole being revoked on October 22, 1998. (Id.). Thus, on that date, he began serving the remainder of his sentence for the 1996 conviction, which amounted to six years, nine months, and 27 days. (Id.). On March 10, 1999, Petitioner was indicted on the charge of convicted felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g) and 924(a). (Id.).

An arrest warrant was issued and an order to produce Petitioner was issued to state authorities on April 2, 1999, and April 13, 1999, to "borrow" Petitioner for the purpose of being arraigned on the federal charges. (Id.). On April 26, 1999, Petitioner was temporarily released to the U.S. Marshals Service pursuant to the federal writ and the arrest warrant was executed. (Id., at p. 4) . On December 8, 1999, Petitioner was sentenced in the United States District Court for the Middle District of Tennessee to serve 188 months in prison for being a felon in possession of a firearm with an enhancement of at least fifteen years for violation of 18 U.S.C. § 924. (Id.). This federal sentence was ordered to run concurrently with Petitioner's state sentence resulting from the parole revocation. (Id.). Petitioner was released by the State of Tennessee Department of Corrections on July 13, 2005 to the custody of Respondent to serve whatever remained on his federal sentence. (Id.). The BOP has computed Petitioner's 188-month federal sentence as commencing on the date it was imposed, December 8, 1999. (Id.).

The BOP then considered whether Petitioner was entitled to receive credit for any of the time he spent in state custody after the federal date of offense but before his federal sentence commenced under 18 U.S.C. § 3585(b). (Id., pp. 4-5). The BOP concluded that all official detention between September 16, 1998 and December 7, 1999 was credited toward completion of the state sentence and therefore was not creditable toward the federal sentence. (Id., p. 5). Petitioner is presently projected to be released on October 16, 2014, assuming Petitioner earns all possible good time credits available to be earned. (Id., p. 2).

On October 21, 2011, Petitioner filed a Request to Correct Sentence in the U.S. District Court for the Middle District of Tennessee. (Id., p. 5). In that filing, Petitioner contended that hewas in federal custody from September 16, 1998 until December 8, 1999, and that the trial judge had granted him credit for time served and ran that federal sentence concurrently with his state sentence. Ultimately, the district court concluded it lacked jurisdiction and that any computation of the federal sentence was entirely within the purview of the BOP, but then noted as follows:

The defendant is informed that this court sentenced him, on December 8, 1999, to serve a term of 188 months in the Bureau of Prisons, which sentence was to run concurrently with the state sentence he was presently serving. His parole was revoked, as a result of the federal charges, on October 22, 1998 in the Wilson County, Tennessee Criminal Case No. 12314, and the state sentence was put into effect. He was not arrested on the federal offense until April 26, 1999, and the Bureau of Prisons should have given him credit on the federal sentence from at least April 26, 1999 until the date of sentencing, December 8, 1999.

(Id., p. 6). (Emphasis supplied.)

C. The Court Lacks Jurisdiction Over Any Challenge To Petitioner's Sentence Itself.

In his petition, Petitioner contends that

"my plea agreement was sentence to run concurrent with state time from the day I was arrested April 1999 not the day sentence was imposed 12-08-99. [Sic] I would not plead guilty otherwise. I wrote the judge in my case, Trauger. She and the United States Attorney agreed

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