Opinion
CV 22-01889-PHX-JAT (ASB)
08-29-2023
Saul Valdivia, Petitioner, v. United States of America, et al., Respondents.
REPORT AND RECOMMENDATION
Honorable Alison S. Bachus, United States Magistrate Judge
TO THE HONORABLE JAMES A. TEILBORG, SENIOR UNITED STATES DISTRICT JUDGE:
Pending before the Court is Petitioner Saul Valdivia's pro se Amended Petition Under 28 U.S.C. § 2241 for a Writ of Habeas Corpus by a Person in Federal Custody (Doc. 6). Petitioner is in the custody of the Federal Bureau of Prisons. In an Order (Doc. 8) filed on January 13, 2023, the Court reviewed the Amended Petition and directed Respondent to file an Answer. Respondent timely filed an Answer to the Amended Petition for Writ of Habeas Corpus, including a sealed attachment after obtaining leave of court. (Docs. 13, 17.) For the reasons that follow, the undersigned recommends the Amended Petition for Writ of Habeas Corpus be dismissed.
I. BACKGROUND
Petitioner filed the habeas petition in this action on October 25, 2022 in the Western District of Texas. (Doc. 1.) The Western District of Texas ordered the matter transferred to the District of Arizona. (Doc. 2.) This Court ordered Petitioner to file an amended petition. (Doc. 5.) Petitioner complied with the Order and Respondent filed an Answer. (Docs. 8, 13, and 17, respectively.)
Petitioner is serving a sentence of 60 months' imprisonment for a conviction in the United States District Court for the Western District of Texas for Use of Facility of Interstate Commerce in Aid of Racketeering Enterprises, in violation of 18 U.S.C. § 1952. (Doc. 13-1, Att. 9.) At the time he filed his Petition (and Amended Petition), Petitioner was incarcerated at Federal Correctional Institution-Phoenix (“FCI-Phoenix”), located in Phoenix, Arizona, in the District of Arizona. Respondent Heisner is the warden of FCI-Phoenix. Petitioner remains in the custody of the Federal Bureau of Prisons. However, a recent docket entry shows Petitioner's mail has been returned as undeliverable (Doc. 20), and the Federal Bureau of Prisons' website shows Petitioner is now housed at the Federal Correctional Institution in Pekin, Illinois, in the Central District of Illinois. See Federal BOP, Find an inmate, https://www.bop.gov/mobile/findinmate/index.jsp#inmateresults (last visited August 28, 2023).
In his Amended Petition, Petitioner argues that Respondent improperly calculated his federal sentence by failing to award him prior jail time credit under 28 U.S.C. § 3585(b). He further asserts he followed the administrative remedy procedure for the Federal Bureau of Prisons, but he did not receive a written response at any stage of that procedure. In opposition, Respondent contends Petitioner is not eligible for prior jail time credit because he received credit for the time in his state sentence and the federal sentencing judge did not order Petitioner's federal and state sentences to run concurrently. Respondent also avers Petitioner failed to exhaust his administrative remedies.
II. DISCUSSION
A. Jurisdiction and Venue
Writ of habeas corpus relief extends a person in federal custody if the federal prisoner can demonstrate he “is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3). Petitioner challenges the execution of his sentence. Thus, his challenge is proper under 28 U.S.C. § 2241. Tucker v. Carlson, 925 F.3d 330, 331 (9th Cir. 1990) (challenges to the execution of a sentence are “maintainable only in a petition for habeas corpus filed pursuant to 28 U.S.C. § 2241”); see also United States v. Giddings, 740 F.2d 770, 772 (9th Cir. 1984) (holding that a petitioner may challenge the execution of a sentence by bringing a petition under 28 U.S.C. § 2241). When he filed his Petition, Petitioner was confined in this District; thus, this Court properly has jurisdiction. See Brown v. United States, 610 F.2d 672, 677 (9th Cir. 1990) (§ 2241 petition must be brought in the district of confinement). This Court may continue to exercise jurisdiction, notwithstanding Petitioner's transfer outside of this District. See Johnson v. Gill, 883 F.3d 756, 761 (9th Cir. 2018); see also Francis v. Rison, 894 F.2d 353, 354 (9th Cir. 1990) (“‘[Jurisdiction attaches on the initial filing for habeas corpus relief, and it is not destroyed by a transfer of the petitioner and the accompanying custodial change.'” (quoting Santillanes v. U.S. Parole Comm'n, 754 F.2d 887, 888 (10th Cir. 1985)).
Venue is proper in the district wherein a petitioner is in custody or the district wherein the state court that convicted and sentenced a petitioner is located. 28 U.S.C. § 2241(d). Petitioner filed the instant Amended Petition while incarcerated at FCI-Phoenix in the District of Arizona. (Doc. 6.) Venue is therefore proper in the District of Arizona.
B. Legal Standard
A federal prisoner may seek a writ of habeas corpus to challenge the manner of the execution of his sentence pursuant to 28 U.S.C. § 2241. Hernandez v. Campbell, 204 F.3d 861, 864 (9th Cir. 2000); Tucker, 925 F.2d at 331 (9th Cir. 1991). Before addressing the merits of a § 2241 petition, however, the Court must address exhaustion. Ward v. Chavez, 678 F.3d 1042, 1045 (9th Cir. 2012).
1. Exhaustion
A federal prisoner must exhaust his administrative remedies through the Bureau of Prisons before filing a § 2241 petition. Fraley v. U.S. Bureau of Prisons, 1 F.3d 924, 925 (9th Cir. 1993). “When a petitioner does not exhaust administrative remedies, a district court ordinarily should either dismiss the petition without prejudice or stay the proceedings until the petitioner has exhausted remedies, unless exhaustion is excused.” Leonardo v. Crawford, 646 F.3d 1157, 1160 (9th Cir. 2011) (internal citations omitted). A prisoner exhausts his administrative remedies by pursuing his claim in the Bureau of Prisons' four-tier process set forth at 28 C.F.R. §§ 542.10 et seq: first, the inmate must pursue the issue informally with institution staff (known as a BP-8); if unsuccessful at the first stage, the inmate must formally raise the issue with the warden (known as a BP-9); fir unsuccessful with the second step, the inmate must bring the issue to the attention of the Regional Director (known as a BP-10); and finally, if unsuccessful at the regional level, the inmate must appeal to the Bureau of Prisons' General Counsel in Washington, D.C. (known as a BP-11).
Here, Petitioner indicates in his Amended Petition that he pursued the informal and formal processes at the institution, regional, and national levels, but he received no written response. (Doc. 6 at 2-3, 18-21.) He further states that he was verbally informed by institutional staff that his remedy paperwork could not be located and that his request for relief had been denied. (Id.) For purposes of resolving the Petition, the Court assumes (without concluding) that Petitioner exhausted his administrative remedies.
2. Merits (Sentence Computation)
The Court turns to the merits of Petitioner's claim, which concerns his sentence computation. The Attorney General, acting through the Federal Bureau of Prisons, computes a federal inmate's sentence. Allen v. Crabtree, 153 F.3d 1030, 1033 (9th Cir. 1998) (citing United States v. Wilson, 503 U.S. 329, 332 (1992) and United States v. Clayton, 588 F.2d 1288, 1292 (9th Cir. 1979)). The statute governing calculation of a term of imprisonment is 18 U.S.C. § 3585, which provides:
(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.
Therefore, under 18 U.S.C. § 3585, a prisoner's federal sentence does not begin until “the federal government has both physical custody of the defendant and the primary jurisdiction necessary to enforce the federal sentence.” Johnson, 883 F.3d at 764. “[T]he first sovereign to arrest a defendant obtains primary jurisdiction over him as against other sovereigns.” Id. at 761 (citing Ponzi v. Fessenden, 258 U.S. 254, 259 (1922)). “It is well established that if a sovereign takes a defendant into its custody before another sovereign has done so, then the arresting sovereign establishes its primary jurisdiction and may give effect to its sentence before other sovereigns may do so. A sovereign's priority terminates when the sentence expires, charges are dismissed, or the prisoner is allowed to go free.” Id. at 765 (internal citations omitted). “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). Finally, “[p]ursuant to 18 U.S.C. § 3584(a), in the absence of an order to the contrary, a federal sentence is to run consecutively to a prior state sentence.” United States v. Chea, 231 F.3d 531, 535 (9th Cir. 2000).
C. Analysis
Petitioner argues he should be given credit for the time he served in federal custody from March 21, 2019 until May 12, 2021. (Doc. 6 at 4.) However, Petitioner's proffered timeline of events is incomplete, because it begins on the day he was taken into the physical custody of the federal government (March 21, 2019). (Id.) To correctly apply 18 U.S.C. § 3585 to the facts, the Court consider where Petitioner was when he was first taken into federal physical custody and determine primary jurisdiction.
When the federal government took physical custody of Petitioner on March 21, 2019, Petitioner was already serving time in Texas state custody on three, five-year concurrent sentences imposed by the Texas state courts. (Doc. 13-1, Attachments 4, 10.) His state sentences commenced in June 2017 and expired on June 23, 2022. (Doc. 13-1, Attachment 10.) Petitioner was taken into the physical custody of the federal government on a writ of habeas corpus ad prosequendum for his federal case in March 2019. (Doc. 131, Attachments 4, 5.) Petitioner continued to receive credit in the state system for the time he was in federal custody. (Doc. 13-1, Attachment 10) (showing state sentences of five years running from 2017 to 2022). On December 17, 2019, while on that writ from the state of Texas, Petitioner was sentenced to 60 months' imprisonment in the U.S. District Court for the Western District of Texas. (Doc. 13-1, Attachment 9.) Petitioner's Judgment in his federal case was silent as to whether his state and federal sentences would run concurrently or consecutively. (See id.)
The Court concludes Petitioner is not entitled to receive credit towards his federal sentence for the time he was in federal custody from March 2019 to May 2021. Texas retained primary jurisdiction over Petitioner from 2017 until his state sentences expired on June 23, 2022, including the time Petitioner spent in federal custody. See Johnson, 883 F.3d at 765; Taylor v. Reno, 164 F.3d 440, 445 (9th Cir. 1998). During the time he was in federal custody, Petitioner received credit towards his state sentences. (Doc. 13-1, Attachment 10.) It was not until Petitioner's state sentences expired on June 23, 2022, that Texas' primary jurisdiction ended and Petitioner's federal sentence began. 18 U.S.C. § 3585(a); Johnson, 883 F.3d at 764; Taylor, 164 F.3d at 445. The records provided by Respondent show that the Bureau of Prisons determined Petitioner's sentence began on June 23, 2022. (Doc. 13-1, Attachment 2.) The Court concludes that sentence computation date as calculated by the Bureau of Prisons is correct. Because the federal Judgment is silent on whether Petitioner's state and federal sentences were to run concurrently or consecutively (Doc. 13-1, Attachment 9), they run consecutively to one another. Chea, 231 F.3d at 535.
D. Conclusion
Based on the foregoing, the Court will recommend that the Amended Petition for Writ of Habeas Corpus (Doc. 6) be denied and dismissed.
A review of the docket shows Petitioner has not updated his address with the Court. To ensure Petitioner receives a copy of this Report and Recommendation, the Court will direct the Clerk of Court to mail a copy of this Report and Recommendation to Petitioner at his address according to the Bureau of Prisons.
RECOMMENDATION
IT IS RECOMMENDED that the Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 (Doc. 6) be DENIED and DISMISSED WITH PREJUDICE.
IT IS FURTHER RECOMMENDED that a Certificate of Appealability and leave to proceed in forma pauperis on appeal be DENIED because Petitioner has not shown jurists of reason would not find the procedural ruling debatable, and because Petitioner has not made a substantial showing of the denial of a constitutional right.
EFFECT OF RECOMMENDATION
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment. The parties shall have 14 days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(b) and 72. Thereafter, the parties have 14 days within which to file a response to the objections.
Failure to timely file objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the district court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to timely file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to appellate review of the findings of fact in an order of judgment entered pursuant to the Magistrate Judge's recommendation. See Fed.R.Civ.P. 72.
ORDER
IT IS ORDERED directing the Clerk of Court to mail a copy of this Report and Recommendation to Petitioner at: Saul Valdivia, Reg. No. 28951-480, FCI Pekin, Federal Correctional Institution, P.O. Box 5000, Pekin, IL 61555.