Moye v. Rios

• Decision Date: 27 March 2015
• Docket Number: Case No. 1:11-cv-02131-AWI-SKO-HC
• Court: U.S. District Court — Eastern District of California
• Parties: PATRICK MOYE, Petitioner, v. H. A. RIOS, Jr., Respondent.

PATRICK MOYE, Petitioner, v. H. A. RIOS, Jr., Respondent.

Case No. 1:11-cv-02131-AWI-SKO-HC

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

March 27, 2015

FINDINGS AND RECOMMENDATIONS TO DENY THE PETITION FOR WRIT OF HABEAS CORPUS (DOC. 1) AND TO ENTER JUDGMENT FOR RESPONDENT

FINDINGS AND RECOMMENDATIONS TO DELINE TO ISSUE A CERTIFICATE OF APPEALABILITY

OBJECTIONS DEADLINE: THIRTY (30) DAYS

Petitioner is a federal prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. The matter has been referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 through 304. Pending before the Court is the petition, which was filed on December 27, 2011. Respondent filed an answer on May 7, 2012. Petitioner filed a traverse on June 28, 2012. On August 9, 2012, Respondent filed a supplement to the answer; Petitioner filed a supplemental traverse on October 1, 2012.

I. Jurisdiction

Because the petition was filed after April 24, 1996, theeffective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the AEDPA applies to the petition. Lindh v. Murphy, 521 U.S. 320, 327 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997).

Petitioner contends the Federal Bureau of Prisons (BOP) improperly calculated his sentence and release date because the BOP failed to give him credit on his federal sentence for time spent in state custody serving a state sentence imposed after the federal sentence. The state court indicated an intent that the state sentence be served concurrently with the previously imposed federal sentence, but did not transfer Petitioner to primary federal jurisdiction.

A claim challenging the manner, location, or conditions of a sentence's execution must be brought under § 2241. Hernandez v. Campbell, 204 F.3d 861, 864 (9th Cir. 2000). A challenge to the manner in which a sentence is executed must be brought in a habeas petition pursuant to 28 U.S.C. § 2241. Tucker v. Carlson, 925 F.2d 330, 331 (9th Cir. 1991) (concerning whether the parole commission had improperly failed to credit the prisoner's federal sentence with time served in state custody). Thus, this Court has jurisdiction over Petitioner's claim concerning the execution of his sentence.

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 v. United States, 610 F.2d 672, 677 (9th Cir. 1990). Petitioner has named as Respondent the warden of his institution of confinement, who is within this district.

The Court concludes it has jurisdiction over the subject matter of the petition as well as jurisdiction over the person of the Respondent.

Respondent also concedes that Petitioner has named a proper respondent, venue is proper in this district, and Petitioner has exhausted administrative remedies. (Ans., doc. 16, 2-3.)

II. Factual Summary

The following undisputed factual summary is taken from the documentation filed by Respondent. (See pet., doc. 1, 7-8.)

Petitioner was arrested on January 12, 2004, by Texas state authorities for assault on a public officer that occurred in the course of an attempt to arrest Petitioner for parole violations. When arrested, it was discovered that Petitioner possessed a firearm. (Doc. 19-1 at 2, 7; doc. 16-1 at 3, 13.)

On February 10, 2004, Petitioner was temporarily transferred from state custody to federal custody on a writ of habeas corpus ad prosequendum to stand trial for a federal charge of being a felon in possession of a firearm. (Doc. 16-1 at 6, 10.) Petitioner later entered a plea of guilty to the federal charge. Petitioner was sentenced in the United States District Court for the Western District of Texas to a term of 71 months in prison on the federal offense. (Doc. 16-1 at 6, 11, 13-18.) The federal judgment was silent as to whether the sentence imposed should run consecutively or concurrently to any other sentence. (Id. at 13-18.) That issue was also not addressed by the court at the sentencing hearing. (Doc. 19-1, 2-3.)

On July 1, 2004, after his federal sentencing, Petitioner was returned to the custody of state authorities to stand trial on thestate charges. (Doc. 16-1 at 7, 10; doc. 19-1 at 3.) On August 20, 2004, Petitioner was sentenced in Travis County Criminal District Court to a seven-year term of state confinement for aggravated assault on a public servant. (Doc. 16-1 at 7, 20-21.) The state sentencing court ordered the state sentence to run concurrently with the prior federal sentence. Id. However, the state did not relinquish primary custody of Petitioner to allow both sentences to be served concurrently.

Petitioner served his state sentence and was released from state custody on January 11, 2011. Petitioner was then turned over to federal authorities to begin serving his 71-month term of imprisonment for the federal conviction of being a felon in possession of a firearm. (Doc. 16-1 at 7, 23-24.) Petitioner thus began receiving credit against his federal sentence on January 11, 2011, when he was turned over to federal authorities. (Doc. 16-1 at 7.)

Petitioner moved the federal sentencing court to amend its judgment to reflect that the federal sentence should run concurrently with his state sentence. The court denied the application to amend the judgment because it had not intended for the sentences to run concurrently at the time it imposed the sentence. (Doc. 19-1, 2-3.)

The BOP also evaluated Petitioner's case to determine whether he might have been eligible for the BOP to designate nunc pro tunc the state institution of confinement as a detention facility for partial service of his federal sentence. (Doc. 17, 3; doc. 18, 12.) The factors considered included the nature of Petitioner's offense (felon in possession of a firearm) and the absence of arecommendation from the sentencing court as well as Petitioner's prior convictions of possession of marijuana, unauthorized use of a motor vehicle, possession of a controlled substance, assault on a police officer, failure to provide identification, and evading arrest. (Doc. 17, 3.) Based on the factors outlined in 18 U.S.C. § 3621(b), it was determined that a retroactive designation was not appropriate. Id.

Based on the BOP's computation of his sentence, Petitioner is currently scheduled to satisfy his federal sentence, via good conduct time release, on March 7, 2016. (Doc. 16-1, 2-4.)

III. Computation of Sentence

Petitioner challenges the BOP's failure to give him credit on his federal sentence for time spent in state custody. Petitioner argues that the BOP overlooked compelling circumstances that entitled him to a nunc pro tunc designation of the state facility as the institution to serve his federal sentence. (Doc. 1, at 3, 31.) In the traverse, Petitioner alleged for the first time that he suffered a violation of due process and equal protection. (Trav., doc. 18; supp. trav., doc. 21, 1.) However, the court exercises its discretion not to consider entirely new claims in the traverse. See, Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th Cir. 1994), cert. den., 514 U.S. 1026 (1995); Landis v. North American Co., 299 U.S. 248, 254-255 (1936); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992).

Multiple terms of state and federal imprisonment run consecutively absent a court order that the sentences runconcurrently. 18 U.S.C. § 3584(a).¹ A federal court may exercise its discretion to order a federal sentence to run either concurrently with or consecutively to an anticipated state sentence. Setser v. United States, - U.S. -, 132 S.Ct. 1463, 1473 (2012). Here, the federal sentencing court did not order or intend that Petitioner's federal sentence run concurrently with the state sentence. Indeed, when Petitioner requested that the federal sentencing court amend the judgment to provide for concurrent service, the sentencing court reiterated it did not intend that the sentence run concurrently. Thus, there is no basis for a suggestion that the sentencing court would find that extraordinary circumstances warranted a concurrent sentence. There is no indication that the BOP has proceeded in a manner contrary to the authority of the sentencing court.

The BOP properly proceeded pursuant to federal law when it initially computed the time credit to be given to Petitioner. With respect to credit for time served and the commencement of terms, 18 U.S.C. § 3585 provides as follows:

(a) Commencement of sentence.--A sentence to a term of imprisonment commences on the date the defendant is received in custody awaiting transportation to, or arrives voluntarily to commence service of sentence at, the official detention facility at which the sentence is to be served.

(b) Credit for prior custody.-- A defendant shall be given credit toward the service of a term of imprisonment for any time he has spent in official detention prior to the date the sentence commences—

(1) as a result of the offense for which the sentence was imposed; or

(2) as a result of any other charge for which the defendant was arrested after the commission of the offense for which the sentence was imposed;

that has not been credited against another sentence.

18 U.S.C. § 3585. Section 3585 does not authorize a district court to compute pre-sentence credit at the time of sentencing; the Attorney General, acting through the BOP, has the duty to compute the credit allowed by § 3585(b). United States v. Wilson, 503 U.S. 329, 337 (1992).

The fact that Petitioner was prosecuted and sentenced in federal court before the state court sentence was imposed does not require that the time served on the state sentence in a state institution be credited to the federal sentence. Generally, the sovereign that first arrests an individual acquires priority of jurisdiction for purposes of trial, sentencing, and incarceration. United States v. Warren, 610 F.2d 680, 684-85 (9th Cir. 1980) (citing ...