Opinion
CV-21-00230-TUC-RM
11-08-2022
Daniel Martinez, Petitioner, v. Catricia Howard, Respondent.
WO
ORDER
HONORABLE ROSEMARY MARQUEZ UNITED STATES DISTRICT JUDGE
On September 16, 2022, Magistrate Judge Lynnette C. Kimmins issued a Report and Recommendation (“R&R”) recommending that this Court deny Petitioner Daniel Martinez's Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. The R&R concludes that there is no basis for habeas relief because the Bureau of Prisons (“BOP”) correctly calculated Petitioner's sentence. (Doc. 24.) The R&R further recommends this Court deny Petitioner's Motion for a Preliminary Injunction (Doc. 20) because that Motion seeks the same relief as the Petition. Petitioner filed a timely Objection (Doc. 25), but Respondent Howard did not file a Response, and the time for doing so has passed. See Fed.R.Civ.P. 72(b)(2).
I. Standard of Review
A district judge “may accept, reject, or modify, in whole or in part,” a magistrate judge's proposed findings and recommendations. 28 U.S.C. § 636(b)(1); see also Fed.R.Civ.P. 72(b)(3). “The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to.” Fed.R.Civ.P. 72(b)(3); see also 28 U.S.C. § 636(b)(1) (district judge must “make a de novo determination of those portions” of a magistrate judge's “report or specified proposed findings or recommendations to which objection is made”). The advisory committee's notes to Rule 72(b) of the Federal Rules of Civil Procedure state that, “[w]hen no timely objection is filed, the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation” of a magistrate judge. Fed.R.Civ.P. 72(b) advisory committee's note to 1983 addition. See also Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999) (“If no objection or only partial objection is made, the district court judge reviews those unobjected portions for clear error.”); Prior v. Ryan, CV 10-225-TUC-RCC, 2012 WL 1344286, at *1 (D. Ariz. Apr. 18, 2012) (reviewing for clear error unobjected-to portions of Report and Recommendation).
II. Petition for Writ of Habeas Corpus
A. Background
On June 6, 2012, Petitioner was charged with two counts of distribution of methamphetamine in the United States District Court for the Central District of California. (Doc. 12-2, at 5-6.) On April 3, 2013, the Los Angeles Superior Court sentenced Petitioner to a three-year term of incarceration, for Possession of Firearm with Prior Violent Offense and Prohibited Ownership of Ammunition, in case number LB NA094656. (Doc. 12-1 at 3). On April 2, 2014, Petitioner was temporarily transferred from the California Department of Corrections to federal custody pursuant to a writ of habeas corpus ad prosequendum. (Doc. 12-2 at 8.) The district court ordered him detained until disposition of the federal case. (Id. at 17.) This occurred on March 19, 2015, when the district court sentenced Petitioner to 120 months in prison "to run concurrently to any undischarged prison term imposed in Los Angeles County Superior Court, Long Beach, Docket No. NA094656.” (Id. at 19). On April 7, 2015, Petitioner began serving his federal sentence at the California Department of Corrections. (Doc. 12-1 at 4 ¶10; Doc. 12-2 at 11.) On August 3, 2015, Petitioner completed his state sentence and was transferred to the BOP to continue serving his federal sentence. (Id. at 11-12.) Petitioner's projected statutory release date is February 3, 2024. (Id. at 33.)
On June 1, 2021, Petitioner filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. (Doc. 1.) Petitioner's sole claim alleges that BOP should have awarded him time served from April 2, 2013, when he was sentenced in California state court, until March 19, 2015, when he was sentenced in federal court. (Id. at 4.) Petitioner seeks this relief because the federal court ordered the federal sentence to run concurrent to the state sentence. (Id.; see also Doc. 12-2 at 19.)
The R&R recommends this Court deny the Petition and finds Petitioner's sentence was correctly calculated based on 18 U.S.C. § 3585. (Doc. 24.) Specifically, pursuant to 18 U.S.C. § 3585(b), Petitioner could not receive federal credit from April 3, 2013, the day Petitioner was sentenced in state court, to March 19, 2015, the date the federal court imposed its sentence, because Petitioner was receiving credit for his state sentence during that time. (Id. at 4.) Additionally, Petitioner was not entitled to time served from April 2, 2014, the day Petitioner was in federal custody, to March 19, 2015, the day of his federal sentencing, because the transfer did not interfere with state custody. (Id.) The R&R notes BOP correctly credited to the federal sentence the 57 days spent in custody on October 6, 2012, and February 6, 2013 to April 2, 2013, because Petitioner did not receive state credit for this time. (Doc. 24 at 4). The R&R concludes BOP correctly calculated the sentence and therefore finds no basis for habeas relief. (Id.)
The R&R incorrectly lists the date the federal sentence was imposed as March 29, 2015.
See Thomas v. Brewer, 923 F.2d 1361, 1367 (9th Cir. 1991).
On September 29, 2022, Petitioner timely filed an objection to the R&R. (Doc. 25.) Petitioner argues the R&R applied the incorrect legal standard and that the Petition was governed by 18 U.S.C. § 3584(a) and not § 3585(b). (Id. at ¶¶ 1-2.) Under this legal theory, Petitioner claims he should have received credit towards his federal sentence for the time served pursuant to his state sentence beginning on April 3, 2013. (Id.) Additionally, Petitioner cites Reynolds v. Thomas, 603 F.3d 1144 (9th Cir. 2010) as support for his objection. (Id. at ¶ 3.) In Reynolds, the Ninth Circuit stated that “a federal court cannot order a sentence to be served concurrently with a sentence, including a state sentence, that has not yet been imposed.” 603 F.3d at 1149. Petitioner therefore argues that because his state sentence was already imposed, and his federal sentence ran concurrent to his state sentence, he should have received time served towards his federal sentence beginning April 2, 2013. (Doc. 25 at ¶ 4.) Petitioner requests that the Court sustain his objections to the R&R's failure to consider 18 U.S.C. § 3584(a) or Reynolds. (Id. at ¶ 5.)
B. Applicable Law
“A sentence to a term of imprisonment 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); see also Schleining v. Thomas, 642 F.3d 1242, 1244 (9th Cir. 2011) (“[A] federal sentence cannot commence until a prisoner is sentenced in federal district court.”) “When an accused is transferred pursuant to a writ of habeas corpus ad prosequendum he is considered to be ‘on loan' to the federal authorities so that the sending state's jurisdiction over the accused continues uninterruptedly.” Thomas v. Brewer, 923 F.2d 1361, 1367 (9th Cir. 1991) (citation omitted).
“Multiple terms of imprisonment imposed at different times run consecutively unless the court orders that the terms are to run concurrently.” 18 U.S.C. § 3584(a). Credit for prior custody shall be given “toward the service of a term of imprisonment for any time [a defendant] has spent in official detention prior to the date the sentence commences.” Id. § 3585(b). However, this credit cannot be “credited against another source.” Id. Concurrent sentencing only applies prospectively, and the court may not “backdate a federal sentence to make it concurrent with a prior term of state imprisonment; it can make a federal sentence concurrent only with a state sentence from the date of imposition forward.” Schleining, 642 F.3d at 1248 n.8.
18 U.S.C. § 3584 was held unconstitutional on other grounds in United States v. Hill, 187 F.Supp.3d 959, 968 (N.D. Ill. 2016). Here, the court simply held that § 3584 does not deprive the court of the discretion to issue federal sentences below the statutory minimum so long as the federal sentence combined with the state sentence equals or exceeds the statutory minimum.
C. Analysis
Petitioner largely bases his objection to the R&R on the third sentence of 18 U.S.C. § 3584(a): “Multiple terms of imprisonment imposed at different times run consecutively unless the court orders that the terms are to run concurrently.” Here, the federal court ordered Petitioner's terms to run concurrently. But Petitioner misidentifies the dispositive issue in his case. The dispositive issue contested by Petitioner is whether credit for time served should be applied to his federal sentence. See 18 U.S.C. § 3585(b). Because Petitioner received credit for his state sentence from April 3, 2013 through March 18, 2015, he cannot also receive credit for his federal sentence during this timeframe. His federal sentence commenced once he was sentenced in federal court on March 19, 2015. See Schleining, 642 F.3d at 1244. Starting on this date, his two terms began to run concurrently until August 3, 2015, when his state sentence was completed, and he was transferred to the BOP. From there, Petitioner was required to serve the rest of his 120-month federal sentence minus the 57 days of credit he received from his time in state custody on October 6, 2012 and from February 6, 2013 to April 2, 2013. Thus, his term expires January 20, 2025, and with 352 days of credit for good conduct, his projected release date is February 3, 2024. (See Doc. 12-2 at 33.) There was no error in the calculation of Petitioner's federal sentence.
Petitioner was also unable to receive federal sentencing credit from April 2, 2014 to March 19, 2015 when he was transferred to federal custody pursuant to a writ of habeas corpus ad prosequendum because he was not yet sentenced in federal court and because he was receiving credit for his state sentence during this time. Schleining, 642 F.3d at 1248 n.8; Thomas, 923 F.2d at 1367.
Petitioner also objects to the R&R because it fails to address Reynolds v. Thomas, 603 F.3d 1144 (9th Cir. 2010). This case is no longer good law and has been overruled or abrogated by a plethora of subsequent Ninth Circuit Court of Appeals cases. Petitioner cites this case in support of his argument, also based on his interpretation of 18 U.S.C. § 3584(a), that the federal judge meant for the two sentences to run concurrently and not consecutively. However, the R&R never stated that the two sentences were meant to run consecutively, and only found that the two sentences would run concurrently from the time Petitioner received his federal sentence until he finished serving his state sentence. Nothing in the language of Reynolds or § 3584(a) is contrary to the law relied upon by the BOP in calculating the correct sentence, or by the R&R. Thus, upon its independent de novo review, the Court finds Petitioner's sentence was correctly calculated and will affirm the R&R, deny the Petition, and overrule the Objection.
III. Motion for Preliminary Injunction
Petitioner also filed a Motion for Preliminary Injunction. (Doc. 20.) The R&R briefly addresses the Motion for Preliminary Injunction and recommends the Motion for Preliminary Injunction be denied because it seeks the same relief as requested in the Petition. (Doc. 24 at 5.) Petitioner does not object to the R&R's recommendation regarding the Motion for Preliminary Injunction. Therefore, this Court reviews the R&R's findings on the Motion for Preliminary Injunction for clear error. “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Nat. Res. Def Council, Inc., 555 U.S. 7, 20 (2008). Because the Petition will be denied, Petitioner has failed to show he is likely to succeed on the merits such that injunctive relief would be warranted. Therefore, the Court finds no clear error in this portion of the R&R and the Motion for Preliminary Injunction will be denied. .... .... .... .... .... .... .... .... .... .... ....
IT IS ORDERED that the Report and Recommendation (Doc. 24) is accepted and adopted in full. Petitioner's Objection (Doc. 25) is overruled.
IT IS FURTHER ORDERED that the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 (Doc. 1) is denied.
IT IS FURTHER ORDERED that the Motion for Preliminary Injunction (Doc. 20) is denied. The Clerk of Court is directed to enter judgment accordingly and close this case.