Opinion
CV-23-00096-TUC-SHR-BGM
08-25-2023
Steven Andrew Whitt,[1]Petitioner, v. M. Gutierrez, Warden, Respondent.
REPORT AND RECOMMENDATION
HONORABLE BRUCE G. MACDONALD, UNITED STATES MAGISTRATE JUDGE
Currently pending before the Court Petitioner Steven Andrew Whitt's Petition Under 28 U.S.C. § 2241 for a Writ of Habeas Corpus by a Person in Federal Custody (“Petition”). (Doc. 1.) Respondent filed a Return and Answer to Petition Under 28 U.S.C. § 2241 for a Writ of Habeas Corpus (“Answer”) (Doc. 15), and Petitioner replied (Doc. 16). The Petition is ripe for adjudication. Pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure (“LRCiv”), this matter was referred to Magistrate Judge Macdonald for Report and Recommendation. (Doc. 2.) The Magistrate Judge recommends that the District Court deny the Petition (Doc. 1).
I. PETITION
Petitioner filed the Petition on February 27, 2023. (Doc. 1.) Petitioner asserts that the Federal Bureau of Prisons (“BOP”) failed to appropriately compute his sentence and seeks an order from the Court requiring the BOP to credit Petitioner “23 months jail credit” from January 16, 2014, through December 3, 2015. (Doc. 1 at 4, 9.)
The Court notes that the Petitioner failed to sign the Petition. (Doc. 1 at 9.) Pursuant to LRCiv 3.5(a) “[A] petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 . . . must be signed . . . .” “The Court may strike or dismiss petitions . . . which do not conform substantively or procedurally with Federal and local requirements for such actions.”
Petitioner asserts all administrative remedies have been exhausted. Id. at 4. Respondent does not contest exhaustion. Response (Doc. 15 at 2.)
II. BACKGROUND
Petitioner Steven Andrew Whitt currently is incarcerated at the United States Penitentiary (USP Tucson), in Tucson, Arizona, in service of a 180-month sentence. See Response (Doc. 15), Hodge Decl. (Exh. “A”) (Doc. 15-2 at 2, ¶ 2), SENTRY Public Info. Inmate Data (as of June 21, 2023) (Attach. “1”) (Doc. 15-2 at 8), Judgment and Commitment Order (Attach. “6”) (Doc. 15-2 at 29) at 30. Petitioner is projected to be released from custody on August 23, 2029. (Doc. 15-2 at 8.)
III. JURISDICTION
Petitioner is currently incarcerated at United States Penitentiary (“USP”) in Tucson, Arizona (“USP-Tucson”), and was at USP-Tucson at the time Petitioner filed the Petition. see Fed. Bureau of Prisons (“BOP”) Inmate Locator, https://www.bop.gov/inmateloc/ (last visited August 23, 2023). In light of Petitioner's incarceration at UPS-Tucson at the time of filing the Petition, this Court retains jurisdiction to consider the Petition. See Francis v. Rison, 894 F.2d 353 (9th Cir. 1990) (“jurisdiction attaches on the initial filing for habeas [r]elief, and it is not destroyed by [t]ransfer of the petitioner” and the “custodial change.”)
IV. PETITIONER'S CRIMINAL HISTORY
On January 23, 2014, Petitioner was arrested in Bradley County, Tennessee, for Theft Over $1,000 and Aggravated Burglary in Case No. 14-CR-149. Answer (Doc. 15), Hodge Decl. (Exh. “A”) at ¶ 6 (Doc. 15-1 at 3), Presentence Investigation Report (Redacted) (Attach. “2”) (Doc. 15-1 at 13-14); see also Response to Warden and AUSA Gary Restaino and Assistant Denise Ann Faulk to 28 U.S.C. § 2241 for Writ of Habeas Corpus (Petitioner's “Reply”) (Doc. 16 at 8, “Administrative Remedy No. 1118649-A2”). On June 24, 2014, a grand jury returned a one-count indictment charging Petitioner with possessing a firearm as a convicted felon in violation of 18 U.S.C. § 922(g)(1). After Petitioner pleaded guilty, the Court sentenced him to 180 months' imprisonment based on its finding that he qualified as an armed career criminal under 18 U.S.C. § 924(e). (See Doc. 51 in Case No. 1:14-cr-79.) Petitioner did not appeal his conviction. Whitt, 2020 WL 2736979 at *1. On January 30, 2014, Petitioner was released on bond from Case No. 14-CR-149 to Murray County, Georgia, for Burglary and Habitual Felon in Case No. 14-CR-257 and a parole violation in Case Nos. 01CR19893, 01CR19894, 01CR19895, 99CR19305, 99CR19334 and 99CR19332 . (Exh. A, Doc. 15-2 at 3, ¶ 7, Prior Custody Credit Memorandum (Attach. “3”) at 1 (Doc. 15-2 at 20.) As early as July 1, 2014, Petitioner's parole was revoked for these cases. Id., Attach. 2 at 4-7 (Doc. 15-2 at 15-18).
Pursuant to Federal Rules of Evidence, Rule 201, the Court takes judicial notice of Whitt v. United States, No. 1:14-CR-79, 2020 WL 2736979, at *1 (E.D. Tenn. May 26, 2020) (Petitioner's motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 (Doc. 1 in Case No. 1:20-cv-103; Doc. 64 in Case No. 1:14-cr-79), denied).
According to Attach. 2 the cases identified are 99CR19334, 99CR193333, 99CR19305, 01CR19895, 01CR19894, and 01CR19893. See Attach. 2 (Doc. 15-2 at 4-7.) It is not clear whether the discrepancy between 99CR193333 and 99CR19332, as set forth in the Hodge Decl. may be perhaps a typographical error. (Doc. 15-2 at 3, ¶ 7; cf. Attach. 2, Doc. 15-2 at 16) (Cf Doc. 15-2 at 36) (Cf. Doc. 15-2 at 38 wherein 99CR19332 appears, as well as 99CR19333).
On July 14, 2014, while Petitioner was in Georgia state custody, the United States Marshals Service (“USMS”) ‘borrowed' Petitioner pursuant to a federal Writ of Habeas Corpus ad Prosequendum for pending federal charges in Case No. 14-cr-00079-CLC-CHS (E.D. Tenn.). Id. at 3, ¶ 8, Federal Arrest Warrant (Attach. “4”) at 1 (Doc. 15-2 at 22); USMS Records (Redacted) (Attach. “5”) at 2 (Doc. 15-2 at 25).
On December 3, 2015, the Tennessee District Court sentenced Petitioner to a 180-month term of imprisonment. Id. at 3, ¶ 9; Judgment and Commitment Order (Attach. “6”) at 2 (Doc. 15-2 at 30). The court ordered the federal sentence to run partially concurrent in the amount of four years to his Georgia state sentence relative to his parole violation. Id., Attach. 6 (Doc. 15-2 at 30) (“This sentence is to run partially concurrent in the amount of 4 years to his state sentence (Georgia) relative to his present parole violation.”); see also Reply (Doc. 16 at 8.)
On February 5, 2016, the USMS returned Petitioner to Georgia to serve the remainder of his state sentence. Id. at 4, ¶ 10; (Doc. 15-2 at 25); see also Reply (Doc. 16 at 8).
The USMS placed a detainer on Petitioner with the Georgia Department of Corrections because of the federal judgment. Id. at 4, ¶ 11; Georgia State Records (Redacted) (Attach. “7”) at 6 (Doc. 15-2 at 41).
On October 16, 2019, Petitioner was discharged from his Georgia state sentence to the USMS's custody, pursuant to the lodged detainer, to continue service of his federal sentence. Id. at 4, ¶ 12; Attach. 5 (Doc. 15-2 at 25). Petitioner received credit toward his Georgia state sentence from January 23, 2014, through October 16, 2019. Id., Attach. 7 (Doc. 15-2 at 36-40).
V. BUREAU'S SENTENCE COMPUTATION
Because the federal judgment expressly ordered four years of the federal sentence to run concurrent with the Georgia state sentence, the Bureau calculated Petitioner's federal sentence to commence on May 20, 2016. Exh. A at 4, ¶ 13 (Doc. 15-1 at 4). This is because once a federal sentence commences, it continues to run until the inmate is no longer in official detention (i.e., intermittent sentences are not permitted). Id.; 18 U.S.C. § 3621(a) (“A person who has been sentenced to a term of imprisonment . . . shall be committed to the custody of the Bureau of Prisons until the expiration of the term imposed [.]”). Therefore, when a federal court orders a sentence to be served partially concurrent with and partially consecutive to another sentence, the commencement of the federal sentence must be calculated to ensure there is no interruption in the entire term of imprisonment imposed. That is the reason Petitioner's sentence commenced on May 20, 2016, to ensure the full term of imprisonment, factoring in good conduct time, would provide an uninterrupted sentence until it is projected to expire. Id.
Petitioner's sentence computation does not include any prior custody credit from January 14, 2014, through December 3, 2015, when Petitioner was partially subject to the federal writ, as this time was credited towards his Georgia state sentence. Id. (Doc. 15-2 at 4-5, ¶¶ 14-17).
VI. THE BUREAU CALCULATED PETITIONER'S SENTENCE CORRECTLY
The Court should not issue a writ of habeas corpus because the Bureau calculated Petitioner's sentence correctly. Specifically, consistent with controlling law, Petitioner's 180-month partially concurrent/partially consecutive federal sentence commenced on May 20, 2016, as explained above. Because Petitioner received credit toward his Georgia state sentence from January 23, 2014, when he was first arrested, through October 16, 2019, when he was released from Georgia custody, as explained above, he is not entitled to any prior custody credit for time spent in federal custody pursuant to the federal writ. Exh. A (Doc. 15-2 at 4-5, ¶¶ 14-17). As such, that time cannot be applied to his federal sentence under 18 U.S.C. § 3585(b). In short, Petitioner is not entitled to the relief he seeks, and the Court should deny the Petition and dismiss the case.
A. The Bureau is charged with calculating federal sentences
Federal law, specifically, 18 U.S.C. § 3585(a)-(b), dictates the date on which a federal sentence commences and controls whether time spent in custody-prior to the commencement date-may be applied to the sentence. The Attorney General, through the Bureau, is responsible for computing the amount of prior custody credit an inmate is to receive toward his federal sentence. United States v. Wilson, 503 U.S. 329, 333-35 (1992); see also 28 C.F.R. § 0.96 (authorizing the Bureau's Director to exercise any authority of the Attorney General relating to the commitment, control, or treatment of persons charged with or convicted of offenses against the United States). This computation cannot occur until after the defendant commences his federal sentence. Wilson, 503 U.S. at 333. Federal law provides that a federal sentence “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.” 18 U.S.C. § 3585(a).
Courts look to whether the state or federal government has “primary jurisdiction” over the offender to determine when an offender is “received” by the Attorney General for service of his sentence. Primary jurisdiction determines the priority of custody and service of sentence as between state and federal sovereigns. Taylor v. Reno, 164 F.3d 440, 444 n.1 (9th Cir. 1998).
The sovereign which first arrests the offender has primary jurisdiction over the offender unless that sovereign relinquishes jurisdiction to another by releasing him from its custody “by, e.g., bail release, dismissal of the state charges, parole release, or expiration of the sentence.” Chambers v. Holland, 920 F.Supp. 618, 622 (M.D. Pa.), aff'd, 100 F.3d 946 (3d Cir. 1996). A transfer pursuant to a writ of habeas corpus ad prosequendum does not relinquish primary jurisdiction. Thomas v. Brewer, 923 F.2d 1361, 1366-67 (9th Cir. 1991). See also United States v. Evans, 159 F.3d 908, 912 (4th Cir. 1998) (federal sentence does not begin to run when prisoner in state custody is produced for prosecution pursuant to a writ of habeas corpus ad prosequendum, as state retains primary jurisdiction over prisoner until prisoner satisfies state obligation).
B. Petitioner's federal sentence commenced on May 20, 2016
As noted above, ordinarily, a federal sentence “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.” 18 U.S.C. § 3585(a). However, under 18 U.S.C. § 3584(a), “if a term of imprisonment is imposed on a defendant who is already subject to an undischarged term of imprisonment, the terms may run concurrently or consecutively.”
Here, the Tennessee District Court imposed Petitioner's 180-month term of imprisonment on December 3, 2015. Ex. A (Doc. 15-2 at 3, ¶ 9). The judge expressly ordered that the federal term of imprisonment run partially concurrent - for four years -with the Georgia state sentence, with the remainder to run consecutive to that state sentence. Id. Because a federal sentence cannot be interrupted in its execution per 18 U.S.C. § 3621(a), the Bureau calculated the partially concurrent/partially consecutive federal sentence to commence on May 20, 2016. Id. at 3-4, ¶¶ 14-17.
C. Petitioner is not entitled to additional prior custody credit for time he spent in official detention prior to the commencement of his federal sentence
Petitioner may only receive credit for the time spent in official detention prior to the imposition of his federal sentence to the extent permissible under 18 U.S.C. § 3585(b). Although the Bureau cannot commence Petitioner's sentence any earlier than the date on which it was imposed, it retains the authority to compute and apply credit toward the federal sentence for time spent in official detention prior to the date on which the sentence commenced. See Wilson, 503 U.S. at 331-32. Title 18 U.S.C. § 3585(b) dictates when the Bureau may do so. Specifically, the 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.18 U.S.C. § 3585 (italics added). Thus, § 3585(b) permits the application of prior custody credits to a federal sentence but limits the award of such credit to instances when the prior custody was not credited against another sentence. See United States v. Labeille-Soto, 163 F.3d 93, 99 (2d Cir. 1998); United States v. Kramer, 12 F.3d 130, 132 (8th Cir. 1993). The Supreme Court observed that under 18 U.S.C. § 3585(b), “Congress made clear that a defendant could not receive double credit for his detention time.” Wilson, 503 U.S. at 337. Thus, any time Petitioner spent in official detention prior to May 20, 2016, may be applied to his sentence only if it has not been applied to any other sentence.
The Bureau cannot credit the time Petitioner spent in custody before May 20, 2016, against his federal sentence because the time has “been credited against another sentence.” 18 U.S.C. § 3585(b); Wilson, 503 U.S. at 337; Ransom v. Morton, 68 F.3d 481 (Table), 1995 WL 620935 at *1 (9th Cir. Oct. 19, 1995). At the time Petitioner was brought into federal custody pursuant to the writ of habeas corpus ad prosequendum, he was in primary Georgia state custody. Petitioner's Georgia state sentence concluded on October 16, 2019, when he was paroled from his state sentence, and he was received into exclusive/primary federal custody. Exh. A (Doc. 15-2 at 3-5, ¶¶ 8-9, 13-17.) Therefore, Petitioner's state sentence ran from January 23, 2014, when he was arrested by state officials, until his discharge from state custody on October 16, 2019. Id. This entire period was applied toward the satisfaction of Petitioner's state sentence. Id. Under a plain reading of § 3585(b) and Wilson, that time cannot be applied to Petitioner's federal sentence.
A federal sentence does not commence when a defendant is produced from state custody for federal prosecution, pursuant to a writ of habeas corpus ad prosequendum. See Thomas, 923 F.2d at 1367. Instead, the state prisoner is borrowed from state custody and the state's jurisdiction continues uninterrupted. Id. (citing Crawford v. Jackson, 589 F.2d 693, 695 (D.C. Cir. 1978)) (“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 of the accused continues uninterruptedly.”) See also Taylor, 164 F.3d at 444-45 (state retains “primary jurisdiction” over prisoner).
In short, the time that Petitioner seeks to have credited toward his federal sentence, from January 23, 2014, through December 3, 2015, was applied toward the satisfaction of his Georgia state sentence and therefore cannot be credited toward his federal sentence. Exh. A (Doc. 15-2 at 3-5, ¶¶ 8-9, 13-17); 18 U.S.C. § 3585(b); Wilson, 503 U.S. at 337. Petitioner is not entitled to any prior custody credit toward his federal sentence.
As explained above, Petitioner was not arrested by state officials until January 23, 2014, so he was not in any type of official detention/custody from January 16-22, 2014. Therefore, to the extent Petitioner claims he is entitled to prior custody credit from January 16-22, 2014, he cannot show that he was in official detention.
VII. CONCLUSION
The Bureau correctly determined the date on which Petitioner's federal sentence commenced and correctly calculated Petitioner's sentence.
VIII. RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b) and Rule 72(b)(2) of the Federal rules of Civil Procedure, any party may serve and file written objections within fourteen (14) days after being served with a copy of this Report and Recommendation. A party may respond to another party's objections within fourteen (14) days after being served with a copy. Fed.R.Civ.P. 72(b)(2). No replies shall be filed unless leave is granted from the District Court.
If objections are filed, the parties should use the following case number:
CV-23-00096-TUC-RM
Failure to file timely objections to any factual or legal determination of the Magistrate Judge may result in waiver of the right of review. The Clerk of the Court shall send a copy of this Report and Recommendation to all parties.