Upshaw v. Copenhaver

• Decision Date: 29 December 2014
• Docket Number: Case No. 1:13-cv-00748 MJS (HC)
• Parties: ROBERT L. UPSHAW, Petitioner, v. PAUL COPENHAVER, Warden, Respondent.
• Court: U.S. District Court — Eastern District of California

ROBERT L. UPSHAW, Petitioner, v. PAUL COPENHAVER, Warden, Respondent.

Case No. 1:13-cv-00748 MJS (HC)

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

December 29, 2014

ORDER REGARDING PETITION FOR WRIT OF HABEAS CORPUS

Petitioner is a federal prisoner proceeding pro se with a petition for writ of habeas corpus under 28 U.S.C. § 2241. Both parties have consented to Magistrate Judge jurisdiction under 28 U.S.C. § 636(c). (ECF Nos. 6, 8.)

Petitioner claims entitlement to a credit against his federal sentence for time served while in the custody of the State of Florida for drug convictions. (See Pet. at 3, ECF No. 1.) Specifically, Petitioner argues that the district court judge should have adjusted his sentence by 510 days under United States Sentencing Commission Guideline § 5G1.3(b). Petitioner has sought relief regarding his sentencing calculation at least five separate times since his federal conviction in 1994.

I. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND

The Government set forth the facts relating to Petitioner's relevant state and federal criminal prosecutions. Petitioner has not challenged the factual accuracy of thesummary. The Court adopts the facts set forth by the government:

State Cases

In 1987, Petitioner was sentenced in Florida under sentences in four state cases related to the possession, delivery, and possession with intent to sell cocaine in the Circuit Court of Hillsborough County. See Letter from Michelle Locke, Florida Department of Corrections (Answer, Ex. 1). On January 29, 1987, Petitioner was sentenced in the Circuit Court of Hillsborough County to thirty (30) months for possession of cocaine (count 2) and ten (10) years of probation for count 2 in Case No. 86-9870. Id. On the same day, he was also sentenced to concurrent terms of five (5) years of probation in two other cases in the Circuit Court of Hillsborough County: 86-9890 (two counts) (possession of cocaine with intent to sell and possession of a controlled substance) and 86-0311 (possession of cocaine). Id. Subsequently, on April 13, 1987, Petitioner was sentenced in the Circuit Court of Hillsborough County to concurrent five (5) year terms, less credit for time served prior to sentencing, to run concurrently with his 30-month term he received in Case No. 86-9870, in Case No. 86-16079. Id.

Petitioner completed the 30-month sentence imposed in Case No. 86-9870 on May 29, 1988, but remained in custody to complete his 5-year concurrent sentences imposed in Case No. 86-16079. Id. He was released from state custody on July 29, 1990. Id. Although released from custody, he remained on probation pursuant to the terms of all probation imposed in Case Nos. 86-9870 (count 1 only), 86-9890, and 86-10311. Id.

Months after his release, Petitioner was again charged with possession of a controlled substance, this time in Lee County Florida in Case No. 90-2692. Id. In addition, Petitioner violated the terms of his probation in the three Hillsborough County cases. On March 26, 1993, Petitioner was sentenced in the Circuit Court of Hillsborough County in Case Nos. 86-9870, 86-9890, and 86-10311 to a term of two years six months for the probation violation, each to be served concurrently with each other. Id. On June 21, 1993, Petitioner was sentenced in the Circuit Court of Lee County to a term of 30 months, less credit for time served, and to be served concurrently with any active sentence in Hillsborough County in Case No. 90-2692. Id.

While serving his state sentences, Petitioner appeared in federal court twice pursuant to a writ of habeas corpus ad prosequendum. Petitioner was released from state custody to the United States Marshal's Service ("USM") to make a federal court appearance on September 9, 1993. (Letter of Michelle Locke, Answer, Ex. 1.) He was returned to state custody on April 26, 1994. Id. He was again released to USM custody on May 13, 1994 and was returned to state custody on July 15, 1994. Id. Petitioner received credit towards his state sentence for those time periods that he was temporarily in USM custody. Id.

After various awards of credit on each of the four state sentences he was serving, Petitioner was released from state custody to USM custody pursuant to a federal detainer on September 30, 1994. Id. Petitioner completed service of his state prison sentences on October 1, 1994 while he was in federal custody. Id.

Federal Case, Appeals, and Post-Conviction Motions

The docket for the Middle District of Florida, Fort Myers Division reflects that Petitioner was found guilty to count one of the indictment which charged him with a violation of 21 U.S.C. § 846 and 841(a)(1) (Conspiracy to possess with intent to distribute crack cocaine and powder cocaine). See Middle District of Florida, Case No. 2:93-cr-102, Doc. 509; (Answer, Ex. 2). On April 13, 1994, the Court sentenced Petitioner to 360 months, with a five year term of supervised release and a $100.00 assessment. Id.

Since 1994, Petitioner has filed multiple appeals and motions to vacate or modify his sentence with the district court. After an August 31, 2001 appellate decision, Petitioner filed his first post-conviction motion under 28 U.S.C. § 2255 with the sentencing district court on August 9, 2002. See M.D. Fla. Case No. 2:93-cr-102, Docs. 831, 835 (Answer, Ex. 2.). In the petition, he claimed ineffective assistance of counsel, among other things. Id. at Doc. 881. After extensive briefing by both Petitioner and the United States, including a motion by Petitioner for a judicial determination of waiver of attorney-client privilege, and a December 2, 2003 evidentiary hearing, the district court denied the § 2255 petition on February 17, 2004. Id. at Doc. 975. Petitioner appealed that order. That appeal was denied. Id. at Doc. 983.

On November 4, 2005, Petitioner moved to modify his sentence pursuant to United States Sentencing Guideline § 1B1.10 ("USSG") and Amendment 668 to the USSG. Fla. Docs. 1013-14. The district court denied those motions. (Answer, Ex. 2.). M.D. Fl., Case No. 2:93-cr-102, Doc. 1015. In 2008, Petitioner moved to reduce his sentence by requesting a retroactive application of the USSG with respect to crack cocaine offenses. Id. at Doc. 1025. Petitioner was appointed an attorney for this motion. Thereafter, that attorney's motion to withdraw was granted, and Petitioner was appointed another attorney from the Criminal Justice Act panel to represent him. After extensive briefing on the motion, Petitioner's motion to reduce his sentence was denied on April 27, 2009. Id. at Doc. 1112. Petitioner appealed that order. The district court's order denying his motion was affirmed by the appellate court. Id. at Doc. 1125.

In 2011, Petitioner filed a new motion to reduce his sentence based on a retroactive application of the USSG related to crack sentencing. Id. at Doc. 1140. The district court again appointed counsel to represent Petitioner and ordered extensive briefing on the motion. On March 6, 2012, the district court denied Petitioner's motion to reduce his sentence. Id. at Doc. 1151. Petitioner appealed that order. The appellate court affirmed the district court's order denying his motion on September 12, 2012. Id. at Doc. 1184.

On March 14, 2012, Petitioner filed a motion for miscellaneous relief with the district court. Id. at Doc. 1152. In that letter, Petitioner wrote to the judge as follows, in pertinent part:

I am writing about time I serve in Lee County Jail on this case . . . that the BOP did not credit to my sentence, date arrested 9-16-93, BOP started my sentence 10-20-94. Sir would you credit me for time spent in Jail. Thank you!

Letter Dated March 11, 2011 (Answer, Ex. 3). The district court construed this motion for miscellaneous relief as a motion for credit for time served. (Answer, Ex. 2; M.D.Fl. Doc. 1154.) In denying the motion, the district court advised petitioner the court has no power to give defendant for time served, since that is under the authority of the BOP. Id. The motion was denied without prejudice to filing a petition pursuant to 28 U.S.C. § 2241 in the district of incarceration. Id.

(Answer at 2-4.)

Petitioner filed a writ of habeas corpus under 28 U.S.C. § 2241 on May 20, 2013. (Pet., ECF No. 1.) On May 28, 2013, the Court ordered Respondent to submit an answer to the Petition. (Order, ECF No. 3.) Respondent filed an answer on October 28, 2013. (Answer, ECF No. 14.) Petitioner filed no traverse. The matter stands ready for adjudication.

II. JURISDICTION

A. Jurisdiction Over the Person

Title 28 U.S.C. § 2241(a) provides that writs of habeas corpus may be granted by the district courts "within their respective jurisdictions." A writ of habeas corpus operates not upon the prisoner, but upon the prisoner's custodian. Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 494-495 (1973). A petitioner filing a petition for writ of habeas corpus under § 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). The warden of the penitentiary where a prisoner is confined constitutes the custodian who must be named in the petition, and the petition must be filed in the district of confinement. Id.; Rumsfeld v. Padilla, 542 U.S. 426, 446-47 (2004). It is sufficient if the custodian is in the territorial jurisdiction of the court when the petition is filed; transfer of the petitioner thereafter does not defeat personal jurisdiction that has once been properly established. Ahrens v. Clark, 335 U.S. 188, 193, 68 S. Ct. 1443, 92 L. Ed. 1898 (1948); Francis v. Rison, 894 F.2d 353, 354 (9th Cir. 1990). A failure to name and serve the custodian deprives the Court of personal jurisdiction. Johnson v. Reilly, 349 F.3d 1149, 1153 (9th Cir. 2003).

At the time of filing the petition, Petitioner was incarnated at the United States Penitentiary, Atwater. Petitioner was later transferred to Federal Correctional InstitutionTalladega. United States...