Honorable Lynnette C. Kimmins, United States Magistrate Judge

REPORT AND RECOMMENDATION

Honorable Lynnette C. Kimmins, United States Magistrate Judge

Petitioner Roman Luna, incarcerated at the United States Penitentiary in Tucson, Arizona, has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. Pursuant to the Rules of Practice of this Court, this matter was referred to Magistrate Judge Kimmins for Report and Recommendation. LRCiv 72.2(a)(2). Before this Court are the Petition and Notice of Exhibit (Docs. 1, 9) and Respondent's Answer (Doc. 11); Petitioner did not file a reply. Petitioner also filed a Motion for Preliminary Injunction, which Respondent opposed. (Docs. 14, 15.) The Magistrate Judge recommends the District Court, after its independent review of the record, deny the Petition and the Motion for Preliminary Injunction.

FACTUAL AND PROCEDURAL BACKGROUND

On December 5, 2013, Luna was arrested in Texas for two violations of state law, possession of marijuana and evading arrest with a motor vehicle. (Doc. 11, Ex. A, Attach. 2.) He was temporarily transferred to federal custody on January 16, 2014, pursuant to a writ of habeas corpus ad prosequendum. (Id., Attach. 3.) On May 28, 2014, Luna was sentenced to 105 months of imprisonment by the United States District Court for the Western District of Texas, for possession of a firearm by a convicted felon. (Id., Attachs. 3, 4.) Luna was returned to state custody on June 13, 2014. (Id., Attach. 3.) Luna entered a plea agreement, in which the State of Texas recommended a five-year sentence for the evading arrest charge, to run concurrent to his state sentence for marijuana possession and his federal sentence for possession of a firearm. (Doc. 1 at 12.) On June 24 of that year, he was sentenced to concurrent prison terms in Texas Case Nos. 72, 683 and 72, 693, the longest of which was five years; the judgment did not mention the federal sentence. (Doc. 11, Ex. A, Attach. 2.) Texas gave Luna credit for time served from the date of his arrest, December 5, 2013, to June 24, 2014, the date of his state sentencing. (Id.) When he was discharged from his state sentence, on December 5, 2018, he was transferred to the Bureau of Prisons (BOP) to begin serving his 105-month federal sentence. (Id., Attach. 1 at 3, Attach. 2 at 4.) In 2015, Luna filed a motion with the federal sentencing court asking what the relationship was between his state and federal sentences. (Id., Attachs. 7, 8.) The federal judge stated that the sentences should run consecutively. (Id.) BOP projects his good conduct release date to be June 16, 2026. (Id., Attach. 1.)

EXHAUSTION

Respondent asserts Luna failed to exhaust his administrative remedies prior to filing the Petition. In response, Luna contends that exhaustion would have been futile.

Typically, the Court requires an inmate to exhaust all available administrative remedies before it agrees to reach the merits of a 28 U.S.C. § 2241 claim. Martinez v. Roberts, 804 F.2d 570, 571 (9th Cir. 1986). The administrative exhaustion requirement protects an administrative agency's authority by promoting respect for the agency's procedures and by affording it the opportunity to correct its own mistakes before being hailed into court. Woodford v. Ngo, 548 U.S. 81, 89 (2006). The requirement also promotes efficiency by advocating a process that is quicker and more economical than resolution in federal court. Id. Finally, should the matter ultimately reach the court, the exhaustion requirement facilitates the “preparation of a useful record.” Jones v. Bock, 549 U.S. 199, 219 (2007). However, exhaustion of administrative remedies is not a jurisdictional requirement of a §2241 claim. Ward v. Chavez, 678 F.3d 1042, 1045 (9th Cir. 2012). The Court can waive the exhaustion requirement if exhausting administrative remedies would be futile, inadequate, void, or would cause irreparable injury. Laing v. Ashcroft, 370 F.3d 994, 1000 (9th Cir. 2004).

Luna does not contend he properly exhausted his administrative remedies for this claim. Rather, he argues exhaustion would be futile because he requested review directly from the Designation and Sentence Computation Center (DSCC), and his Petition requests immediate release. The fact that Luna was seeking a rapid remedy did not excuse him from engaging in the administrative process, which is typically quicker than litigation. See Carter v. Adler, No. 1-08-CV-01255-OWW-JMD-HC, 2009 WL 3379145, at *3 (E.D. Cal. Oct. 16, 2009) (rejecting futility argument based on the short amount of time remaining on the petitioner's sentence); Blankenship v. Meeks, No. CV 11-00443-DAE-KSC, 2011 WL 4527408, at *3 (D. Haw. Sept. 28, 2011) (finding exhaustion is not excused based on the time that process takes to complete).

Luna asserts that his request for recalculation of his sentence was forwarded directly to the DSCC. He received a rejection, informing him that he could engage in the administrative remedy process if he was not satisfied. (Doc. 9.) If there was error in the calculation of Luna's sentence, it could have been corrected by way of the administrative process; therefore, exhaustion was not futile. See United States v. Montana-Equihua, No. 20-CR-3528-DMS-1, 2021 WL 5087135, at *1 (S.D. Cal. Nov. 2, 2021) (citing United States v. Peters, 470 F.3d 907, 909 (9th Cir. 2006); United States v. Checchini, 967 F.2d 348, 350 (9th Cir. 1992) (requiring exhaustion of administrative remedies before seeking review of time-served credits)); cf. Sun v. Ashcroft, 370 F.3d 932, 943 (9th Cir. 2004) (finding administrative remedy highly unlikely when BOP has a set policy that contradicts the relief sought). Luna's claim "[i]nvolves the BOP's special expertise in calculating and administering sentences"; therefore, proper exhaustion is particularly relevant to Luna's claim. Henderson v. McGrew, No. CV 12-03858-PSG-VBK, 2012 WL 5188043, at *3-4 (Sept. 13, 2012) (citing McCarthy v. Madigan, 503 U.S. 140, 145 (1992), superseded by statute on other grounds as stated in Booth v. Churner, 532 U.S. 731, 732 (2001); United States v. Wilson, 503 U.S. 329, 335 (1992)), report and recommendation adopted, 2012 WL 5188039 (C.D. Cal. Oct. 16, 2012). Because Luna did not exhaust the BOP administrative remedy procedure prior to filing the Petition, it is subject to dismissal. However, for the sake of thoroughness in the Report and Recommendation process, the Court also addresses the claim on the merits.

MERITS

Luna alleges one claim, that BOP should have given him credit for the five years of time he served on his Texas-state-court sentence. Specifically, Luna argues that his federal sentence was intended to be concurrent with his state sentence. When the judge presiding over Luna's federal criminal case imposed the sentence, he did not specify if the sentence was intended to be consecutive or concurrent with his state sentence. Therefore, the federal sentence is deemed by statute to be consecutive to the state sentence. 18 U.S.C.A. § 3584(a) ("Multiple terms of imprisonment imposed at different times run consecutively unless the court orders that the terms are to run concurrently."). When Luna contacted the federal sentencing judge, in the year after he was sentenced, the judge confirmed his intention for the sentences to be served consecutively.

Luna's argument to the contrary is premised on the plea agreement he entered in state court, in which the prosecution recommended the state and federal sentences to run concurrently. (Doc. 1 at 4, 12.) The State recommended concurrent sentences in the plea agreement, but the state court did not make a finding that the state and federal sentences should be concurrent. Even if the Court presumes the state judge intended all three sentences to be concurrent, "concurrent sentences imposed by state judges are nothing more than recommendations to federal officials." Taylor v. Sawyer, 284 F.3d 1143, 1150 (9th Cir. 2002) (quoting Del Guzzi v. United States, 980 F.2d 1269, 1272-73 (9th Cir. 1992) (Norris, J. concurring) ("The BOP was under no obligation to follow the allegedly expressed wishes of the state court")), abrogated on other grounds by Setser v. United States, 566 U.S. 231, 244-45 (2012). In Luna's case, the federal judge chose not to impose a concurrent sentence.

The Attorney General, through BOP, is responsible for administering inmate sentences and computation of credit pursuant to § 3585(b). See Wilson, 503 U.S. at 337. By statute, a federal sentence commences on "the date the defendant is received in custody awaiting transportation to . . . the official detention facility at which the sentence is to be served." 18 U.S.C. § 3585(a). After concluding the sentences were to run consecutively, BOP calculated Luna as beginning his sentence on December 5, 2018, the day he was transferred to federal custody upon conclusion of his state sentence.

The Court next evaluates whether Luna was entitled to any credit for the time he spent in state custody. Luna seeks credit for the entire five-year period in which he was in state custody. The governing statute provides:

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.

Because the BOP correctly calculated Luna's sentence, he is not entitled to credit for any additional time and there is no basis for habeas relief.

RECOMMENDATION

The Magistrate Judge recommends that the District Court, after its independent review of the record, enter an order DENYING the Petition because the claim was not exhausted and is without merit. The Magistrate Judge further recommends that the District Court deny Petitioner's Motion for a Preliminary Injunction (Doc. 14), as it seeks the same relief that Petitioner requested in the Petition.

Pursuant to Federal Rule of Civil Procedure 72(b)(2), any party may serve and file written objections within fourteen days of being served with a copy of the Report and Recommendation. A party may respond to the other party's objections within fourteen days. No reply brief shall be filed on objections unless leave is granted by the District Court. If objections are not timely filed, they may be deemed waived. If objections are filed, the parties should use the following case number: CV 21-326-TUC-RM.