Opinion
23-cv-00326-CBM 04-cr-0186-CBM
07-12-2023
United States of America, Plaintiff, v. Jose Torres-Hurtado, Defendant.
ORDER RE: DEFENDANT'S PETITION FOR A WRIT OF HABEAS CORPUS UNDER 28 U.S.C. J 2241 AND MOTION UNDER 28 U.S.C. § 2255; AND GOVERNMENT'S MOTION TO DISMISS [520]
CONSUELO B. MARSHALL UNITED STATES DISTRICT JUDGE
The matters before the Court are Defendant Torres-Hurtado's (“Defendant's”) Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2241 (the “Petition”) and Motion Under 28 U.S.C. § 2255 (the “Motion”) (Dkt. No. 1), and the Government's Motion to Dismiss (Dkt. No. 14; United States v. Hernandez et al., Case No. 2:04-cr-00186-CBM (C.D. Cal.), Dkt. No. 520). Defendant filed an Opposition to the Government's Motion to Dismiss. (Dkt. No. 15; CR Dkt. No. 522.)
References hereinafter to the docket number refer to Case No. 23-cv-00326-CBM unless otherwise specified.
References to the docket in United States v. Hernandez et al., Case No. 2:04-cr-00186-CBM (C.D. Cal.) are hereinafter referred to as “CR Dkt.”
I. BACKGROUND
On December 14, 2005, Defendant was sentenced to 77 months in prison after pleading guilty to the charge of being an Illegal Alien Found in the United States Following Deportation (hereinafter, the “2005 sentence”). (United States v. Torres-Hurtado, Case No. 2:03-cr-00572-DDP (C.D. Cal.), Dkt. No. 59.) On August 13, 2007, Defendant pled guilty to Conspiracy to Distribute Cocaine in a separate criminal action before this Court. (CR Dkt. No. 301.) On December 24, 2008, Defendant was released from serving the remainder of his 2005 sentence for good conduct. (See Torres-Hurtado v. Deboo, Case No. 2:10-cv-00008-REM-JES (N.D. W.Va.), Dkt. No. 9, Ex. 1 (Declaration of J. Scott Farr of the Federal Bureau of Prisons ¶ 10).) Because Defendant had pled guilty to Conspiracy to Distribute Cocaine prior to his December 24, 2008 release, he remained in in the custody of the Bureau of Prisons (“BOP”) for 39 days until he was sentenced for his Conspiracy to Distribute Cocaine conviction. (United States v. Hernandez et al., Case No. 2:04-cr-00186-CBM (C.D. Cal.), Dkt. No. 376.) On February 2, 2009, Defendant was sentenced to 240 months for his Conspiracy to Distribute Cocaine conviction (“2009 sentence”) to be served “concurrently” with his prior 77-month term sentence (i.e., the 2005 sentence). (Id.) However, because Defendant had completed his 2005 sentence prior to the 2009 sentence imposed by this Court, there was no overlap for the two sentences to run concurrently.
Defendant was given credit for the 39 days he spent in custody after completing his 77-month sentence while waiting to be sentenced for his Conspiracy to Distribute Cocaine conviction. (See Torres-Hurtado v. Deboo, Case No. 2:10-cv-00008-REM-JES (N.D. W.Va.), Dkt. No. 9, Ex. 1.)
The sentencing judge appears to have been unaware Defendant had completed his 2005 sentence at the time the 240-month term sentence was imposed on February 2, 2009.
In 2010, Defendant filed his first habeas petition pursuant to 28 U.S.C. § 2241 in the Northern District of West Virginia wherein he argued the BOP failed “to credit concurrent sentence of 77 months with 240 months”-i.e., the BOP failed to apply credit for his 77-month term sentence to his 240-month term sentence. (Torres-Hurtado v. Deboo, Case No. 2:10-cv-00008-REM-JES (N.D. W.Va.), Dkt. No. 1 (hereinafter, the “first habeas petition”).) The district court denied Defendant's first habeas petition, finding “the BOP did not err in calculating the Petitioner's sentence” (id., Dkt. No. 18) because the time he spent in custody prior to his December 24, 2008 release was credited against the 77-month term of imprisonment (i.e., the 2005 sentence), reasoning “under 18 U.S.C. § 3585(b), prior custody credit cannot be awarded if the prisoner has received credit towards another sentence” (id., Dkt. No. 15).
18 U.S.C. § 3585(b) 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.
On February 4, 2014, Defendant filed a second habeas petition in the Eastern District of California again challenging the BOP's purported failure to follow this Court's sentencing order that the 2009 sentence and 2005 sentence shall run “concurrently,” and requesting that the district court “re-compute [his] federal sentences to reflect the concurrency Order of the Federal District Court Judge.” (Torres-Hurtado v. Gill, Case No. 1:14-cv-00145-JLT (E.D. Cal.), Dkt. No. 1 (the “second habeas petition”).) The district court granted the Government's motion to dismiss Defendant's second habeas petition as successive because Defendant had raised an “identical claim” in his first habeas petition, which was denied with prejudice on the merits. (Id., Dkt. No. 10.)
On July 28, 2016, Defendant filed a third habeas petition in the Eastern District of California based again on the BOP's alleged failure to comply with this Court's sentencing order that the 2005 sentence and 2009 sentence run “concurrently.” (Torres-Hurtado v. Zuniga, Case No. 1:16-cv-01354-LJO-JLT (E.D. Cal.), Dkt. No. 1 (the “third habeas petition”).) Specifically, Defendant alleged in his third habeas petition that “the BOP has failed to account for a concurrent sentencing ‘Order'” and “sought to have the District Court compel the Bureau of Prisons to re-compute his sentence, to reflect the concurrent sentence Order imposed by the district court, in the Central District of California.” (Id.) The district court granted the Government's motion to dismiss the third habeas petition as successive because it raised a claim “identical” to the claim raised in Defendant's first habeas petition which was denied with prejudice on the merits. (Id., Dkt. Nos. 19, 26.) On March 14, 2017, Defendant appealed the district court's denial of his third habeas petition. (Id., Dkt. No. 30.) The Ninth Circuit affirmed, finding Defendant's third habeas petition was barred by 28 U.S.C. § 2244(a) because it was successive and an abuse of the writ doctrine. Torres-Hurtado v. Zuniga, 707 Fed.Appx. 913, 913 (9th Cir. 2017).
On February 5, 2018, Defendant filed a Motion Requesting District Court to Clarify its Order Regarding Sentence Imposed (“Motion to Clarify”) in this Court, wherein he again challenged the BOP's calculation of his 2009 sentence and argued the BOP was not in compliance with this Court's 2009 sentencing order. (United States v. Hernandez et al., Case No. 2:04-cr-00186-CBM (C.D. Cal.), Dkt. No. 483.) This district court denied Defendant's Motion to Clarify, reasoning Defendant failed to identify any ambiguity in the Court's 2009 sentencing order and a motion to clarify was “not the proper vehicle for challenging the BOP's implementation of his sentence.” (Id., Dkt. No. 494.) This Court also noted “it appear[ed] neither counsel nor the sentencing judge was aware that Defendant's prior sentence had already been completed, since a new sentence cannot run concurrently with an already-completed sentence.” (Id., Dkt. No. 494 at 2 n.2.) Defendant appealed this Court's denial of his Motion to Clarify. (Id., Dkt. Nos. 494, 502.) On February 10, 2020, the Ninth Circuit affirmed, finding this Court had properly denied Defendant's Motion to Clarify because there was no ambiguity in the 2009 sentencing order, the district court lacked authority to modify Defendant's 2009 sentence, and Defendant was not entitled to any relief because his prior 77-month sentence expired prior to this district court's imposition of the 240-month sentence in 2009. United States v. Torres-Hurtado, 793 Fed.Appx. 588, 589 (9th Cir. 2020). The Ninth Circuit further noted: “Insofar as Torres-Hurtado challenged the BOP's execution of his sentence, the district court correctly observed that such a claim must be brought in a 28 U.S.C. § 2241 habeas petition in the Eastern District of California, where Torres-Hurtado is imprisoned.” Id.
At the time Defendant filed his Motion to Clarify he was serving his sentence at FCI Mendota, located in the Eastern District of California.
On January 9, 2023, Defendant filed the instant Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 and Motion Under 28 U.S.C. § 2255, wherein he contends the BOP has failed to correct a miscalculation of his 2009 sentence and refused to “obey” with this Court's 2009 sentencing order.
Defendant was an inmate at USP Lompoc at the time he filed the instant Petition. However, according to the BOP's website he is currently an inmate at FCI Victorville, which is located in the Central District of California. See Find an inmate, Federal Bureau of Prisons, http://bop.gov/inmateloc (last visited June 23, 2023).
II. STATEMENT OF THE LAW
“[P]etitions that challenge the manner, location, or conditions of a sentence's execution must be brought pursuant to § 2241 in the [prisoner's] custodial court.” Hernandez v. Campbell, 204 F.3d 861, 865 (9th Cir. 2000). A person in custody of a state with two or more Federal judicial districts may file a writ of habeas corpus in the district where he is in custody or sentenced him. 28 U.S.C. § 2241(d). A district judge is not required to entertain a habeas petition “if it appears that the legality of such detention has been determined by a judge or court of the United States on a prior application.” 28 U.S.C. § 2244(a). Thus, “[a] claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed.” 28 U.S.C. § 2244(b)(1). A district court lacks jurisdiction to hear a successive petition unless the Court of Appeals grants an application to file a successive petition. 28 U.S.C. § 2244(b)(3)(A) (“Before a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application.”).
This Court is located in the district where Defendant is currently in custody and where he was sentenced.
A prisoner may move to vacate, set aside, or correct his sentence on the grounds that the “sentence was imposed in violation of the Constitution or laws of the United States . . . or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a). “Motions to contest the legality of a sentence must be filed under § 2255 in the sentencing court.” Hernandez, 204 F.3d at 864-65. If the remedy for a § 2255 motion appears inadequate or ineffective to test the legality of an individual's detention, the prisoner may procced under a § 2241 petition. See 28 U.S.C. § 2255(e) (“An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that . . . [the sentencing] court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.”).
III. DISCUSSION
Defendant contends the BOP failed to correct a miscalculation in his 2009 sentence and has refused to obey this Court's sentencing order that his 2005 and 2009 sentences be run “concurrently,” rather than consecutively. (Petition at 7.) Defendant also challenges the “validity” of his conviction pursuant to 28 U.S.C. § 2255 based on the BOP's alleged “miscalculation” of his 2009 sentence by failing to “honor” this Court's sentencing order that his 2009 sentence and 2005 sentence shall run concurrently. (Id. at 4-5.) The Government contends the instant Petition is a § 2255 motion disguised as a § 2241 habeas petition that should be dismissed as successive. (Motion to Dismiss at 4.) Alternatively, the Government argues if the Petition is construed as a § 2255 motion, it is time-barred. (Id. at 5.) The Court therefore addresses whether the Petition is properly brought pursuant to 28 U.S.C. § 2241 and/or 28 U.S.C. § 2255. See Harrison v. Ollison, 519 F.3d 952, 955-56 (9th Cir. 2008) (motions that contest the legality of a sentence must be filed under § 2255 while challenges to the manner of a sentence's execution must be brought under § 2241).
A. Motion Under 28 U.S.C. § 2255
28 U.S.C. § 2255 allows a federal prisoner claiming that his sentence was imposed unconstitutionally or in violation of the law to “move the court which imposed the sentence to vacate, set aside or correct the sentence.” 28 U.S.C. § 2255(a). Here, Defendant's Petition challenges the “validity” of the 2009 sentence pursuant to 28 U.S.C. § 2255, and asserts a due process violation based on the BOP's alleged failure to correct his 2009 sentence to reflect a credit of 77 months from his 2005 sentence. Thus, the Petition may be construed as a § 2255 motion.
(1) Statute of Limitations
The Government argues Defendant's Motion under 28 U.S.C. § 2255 is time-barred. (Dkt. No. 14.) A one-year statute of limitations applies to § 2255 motions, which runs from “the date on which the judgment of conviction becomes final.” 28 U.S.C. § 2255(f). On February 9, 2009, this Court sentenced Defendant to a 240-month term. (CR Dkt. No. 376). The sentencing order became final on February 19, 2009 because Defendant did not appeal the sentencing order. See Fed. R. App. P. 4(b) (“Defendant's notice of appeal must be filed in the district court within 14 days after . . . the entry of the judgment or order being appealed.”). Defendant's Motion under 28 U.S.C. § 2255 was filed on January 9, 2023. (Dkt. No. 1.) Therefore, the Court denies Defendant's § 2255 Motion as time-barred under 28 U.S.C. § 2255(f)'s one-year statute of limitations.
(2) Savings Clause
Under the savings clause of § 2255, “a federal prisoner may file a habeas corpus petition pursuant to § 2241 to contest the legality of a sentence where his remedy under § 2255 ‘is inadequate or ineffective to test the legality of his detention.'” Hernandez, 204 F.3d at 865 (quoting 28 U.S.C. § 2255). The savings clause is considered an “escape hatch” to § 2255 because generally “restrictions on the availability of a § 2255 motion cannot be avoided through a petition under 28 U.S.C. § 2241.” Stephens v. Herrera, 464 F.3d 895, 897 (9th Cir. 2006). For the savings clause to apply, a prisoner must “(1) make a claim of actual innocence, and (2) has not had an ‘unobstructed procedural shot' at presenting that claim.” Id. at 898.
Here, Defendant contends a remedy under § 2255 is inadequate or ineffective because there was a “miscalculation” of his 2009 sentence by the BOP due to its failure to comply with the district court's sentencing order that his 2009 sentence and 2005 sentence run concurrently. (Petition at 5.) To the extent Defendant seeks to invoke the savings clause of § 2255, he does not claim actual innocence with respect to his underlying conviction, nor argue he was “obstructed procedurally” from timely filing a § 2255 motion. See Ivy v. Pontesso, 328 F.3d 1057, 1060 (9th Cir. 2003) (“[I]t is not enough that the petitioner is presently barred from raising his claim of innocence by motion under § 2255. He must have never had the opportunity to raise it by motion.”). Rather, Defendant only challenges the constitutionality of the BOP's alleged failure to correct his 2009 sentence to credit his previous 77-month term from his 2005 sentence to the 240-month term for his 2009 sentence he is currently serving. (Dkt. No. 1.) Therefore, Defendant fails to demonstrate § 2255's savings clause applies here. See Martin v. Birkholz, 2023 WL 1415579, at *4 (C.D. Cal. Jan. 30, 2023) (finding § 2255's savings clause was not properly invoked because the petitioner had not shown a basis for actual innocence nor demonstrated that he did not have an unobstructed procedural shot at presenting his claim); Drew v. Trate, 2023 WL 3896919, at *2-*3 (E.D. Cal. June 8, 2023) (finding the petitioner's failure to assert a claim of factual innocence and his unobstructed procedural opportunities to present his claims barred him from qualifying for the § 2255's savings clause).
* * *
Accordingly, the Court denies Defendant's Motion under 28 U.S.C. § 2255 and grants the Government's Motion to Dismiss Defendant's Motion under 28 U.S.C. § 2255.
B. Habeas Petition Pursuant to 28 U.S.C. § 2241
Defendant also challenges the execution of his 2009 sentence by the BOP. (Petition at 7.) Therefore, the Court may also construe Defendant's Petition as a habeas petition under 28 U.S.C. § 2241. See Hernandez, 204 F.3d at 864-65 (noting that challenges to the manner, location, or conditions of a sentence's execution must be brought as § 2241 petitions).
However, as discussed above, Defendant previously filed three habeas petitions each based on the BOP's purported failure to comply with this Court's sentencing order that the 2009 sentence run concurrently with Defendant's prior 2005 sentence. In the instant Petition, Defendant raises the same challenge to his 2009 sentence based on the BOP's purported failure to comply with this Court's sentencing order that the 2009 sentence and 2005 sentence run concurrently. Therefore, even if this Court construes the instant Petition as a § 2241 habeas petition, the Court dismisses the instant Petition as successive because the legality of Defendant's detention was previously determined by the Northern District of West Virginia in its denial of Defendant's first habeas petition and there is no evidence or indication that Defendant obtained authorization from the Ninth Circuit to file a successive § 2241 habeas petition. See 28 U.S.C. § 2244(a) (stating that no district judge is required to entertain a habeas petition “if it appears the legality of such detention has been determined by a judge or court of the United States on a prior application for a writ of habeas corpus”); 28 U.S.C. § 2244(b)(3) (“Before a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application.”); Burton v. Stewart, 549 U.S. 147, 152, 127 S.Ct. 793, 166 L.Ed.2d 628 (2007) (per curiam) (the failure to obtain authorization to file a second or successive petition is a jurisdictional bar to a second or successive petition).
Even if the Court considered the instant § 2241 Petition on the merits, Defendant fails to show he is entitled to relief. In his Opposition to the Government's Motion to Dismiss, Defendant argues the BOP must adhere to 18 U.S.C. § 3585(b) and correct his 2009 sentence calculation to credit him with the time spent in custody for his 2005 sentence. (Opp. at 3.) 18 U.S.C. § 3585(b) 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 . . . that has not been credited against another sentence.” The time Defendant spent in custody for his 2005 sentence prior to his December 24, 2008 release was previously credited against the 77-month term for his 2005 sentence, and therefore cannot be credited a second time to his 2009 sentence. As explained by the Northern District West Virginia district court in its order denying Defendant's first habeas petition:
[Torres-Hurtado] served 77 months for being an Illegal Alien Found in the United States After Deportation. [Torres-Hurtado] was released via Good Conduct Time Release on December 24, 2008. All of the time served prior to December 24, 2008 was applied to the 77-month sentence. Because [Torres-Hurtadolhad already plead guilty on August 13, 2007, to Conspiracy to Distribute Cocaine in a subsequent case, [Torres-Hurtado] remained in custody of the United States Marshals Service until sentencing on February 2 2009. Pursuant to § 3585(a), [Torres-Hurtado's] federal sentence of 240 months did not commence until February 2, 2009, the date it was pronounced. Under the plain language of the statute, [Torres-Hurtado] could not receive
credit for serving the sentence until February 2, 2009. [Torres-Hurtado] was, however, under § 3585(b), entitled to credit for time spent in detention Prior to the sentence pronouncement. Accordingly, the BOP credited [Torres-Hurtado] with time served from December 25, 2008, the date after his release for time on the illegal alien sentence, through February 1, 2009, the date prior to sentencing for conspiracy to distribute cocaine.(See Torres-Hurtado v. Deboo, Case No. 2:10-cv-00008-REM-JES (N.D. W.Va.), Dkt. No. 13.)
Furthermore, a new sentence cannot run concurrently with a prior term of imprisonment that has been completed. See United States v. Turnipseed, 159 F.3d 383, 387 (9th. Cir. 1998) (“If a defendant has been released . . . after having served the term imposed, no term of imprisonment remains with which the [new] sentence can ‘run concurrently.'”). Defendant was released from his 2005 sentence on December 24, 2008, prior to this Court's imposition of the 240-month term for his 2009 sentence on February 2, 2009. Therefore, no term of imprisonment remained with which the 2009 sentence could “run concurrently.” Id. See United States v. Torres-Hurtado, 793 Fed.Appx. at 589 (affirming this Court's order denying the Motion to Clarify upon finding, inter alia, that “the district court correctly concluded that . . . Torres-Hurtado was not entitled to any relief because his prior illegal reentry sentence had expired prior to imposition of the instant sentence.”).
This Court lacks authority to modify Defendant's 2009 sentence. See 18 U.S.C. § 3582(b)-(c) (subject to certain exceptions not relevant here, “[t]he court may not modify a term of imprisonment once it has been imposed); see also Dkt. No. 494 (“The Court lacks the authority to modify Defendant's sentence as he requests . . . even if the Court had the authority to modify Defendant's sentence, the Court would not have the authority to award Defendant the prior custody credit he seeks, since the responsibility for calculating and applying prior custody credit lies with the BOP, not with the sentencing Court.”); United States v. Torres-Hurtado, 793 Fed.Appx. at 589 (affirming this Court's order denying the Motion to Clarify upon finding, inter alia, that “the district court correctly concluded that . . . it lacked authority to modify Torres-Hurtado's sentence.”).
Therefore, the Court denies Defendant's habeas petition pursuant to 28 U.S.C. § 2241 and grants the Government's Motion to Dismiss Defendant's § 2241 Petition.
C. Certificate of Appealability
Defendant requests a certificate of appealability if the Court denies his Petition. (Opp. at 4.) To the extent Defendant's Petition is brought under § 2241, a certificate of appealability is not required. See Harrison, 519 F.3d at 958 (there is no requirement for federal prisoners who file legitimate § 2241 petitions to obtain a certificate of appealability). Therefore, the Court denies Defendant's request for a certificate of appealability as to his § 2241 Petition.
As to Defendant's Motion under § 2255, while a district court has the authority to issue a certificate of appealability for a § 2255 motion, a certificate of appealability may be issued “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Under the “substantial showing” requirement, the petitioner must show “reasonable jurists could debate whether . . . the petition should have been resolved in a different manner” or the issues presented are “adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (citation omitted). Here, Defendant fails to demonstrate “reasonable jurists could debate” that the Petition is successive and he failed to obtain authorization from the Ninth Circuit prior to filing a successive petition, and does not show there are issues “adequate to deserve encouragement to proceed further.” Id. Therefore, Defendant fails to make a substantial showing of the denial of a constitutional right as required for the issuance of a certificate of appealability for his Motion under § 2255.
See United States v. Asrar, 116 F.3d 1268, 1269-70 (9th Cir. 1997) (“[D]istrict courts possess the authority to issue certificates of appealability in § 2255”).
Accordingly, the Court denies Defendant's request for a certificate of appealability.
D. Any Relief To Which Defendant May Be Entitled
Defendant also requests that the Court consider granting him any relief to which he may be entitled. (Opp. at 4.) The Court finds Defendant is not entitled to relief under the circumstances because his 2005 sentence cannot run concurrently with or be credited to the 240-month term for his 2009 sentence. See United States v. Torres-Hurtado, 793 Fed.Appx. at 589 (“[T]he district court correctly concluded that . . . Torres-Hurtado was not entitled to any relief because his prior illegal reentry sentence had expired prior to imposition of the instant sentence.”).
IV. CONCLUSION
Accordingly, the Court:
(1) DENIES Defendant's Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2241 and Motion Under 28 U.S.C. § 2255;
(2) GRANTS the Government's Motion to Dismiss Defendant's Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2241 and Motion Under Pursuant to 28 U.S.C. § 2255; and
(3) DENIES Defendant's request for a certificate of appealability.
IT IS SO ORDERED.