Opinion
CV 22-07867-SSS (E)
01-24-2023
MATHIAH LOUIS WIDDER, Petitioner, v. UNITED STATES OF AMERICA, ET AL., Respondent.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE
This Report and Recommendation is submitted to the Honorable Sunshine Suzanne Sykes, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.
PROCEEDINGS
Petitioner, a federal prisoner, filed a "Petition for a Writ of Habeas Corpus By a Person in Federal Custody (28 U.S.C, § 2241)" on October 27, 2022. The Petition challenges a sentence credit calculation by the United States Bureau of Prisons ("BOP"). Respondent filed an Answer on December 22, 2022. Petitioner filed a "Responce [sic] to Respondent's Answer, etc." on January 9, 2023.
BACKGROUND
On October 1, 2018, Petitioner was arrested in Texas for unlawful possession of a firearm by a prohibited person and possession of methamphetamine with intent to distribute (Answer, Declaration of Jon McEvoy ("McEvoy Deci.") [a BOP Management Analyst], ¶ 6).
On December 3, 2018, while in state custody, Petitioner was taken by the United States Marshals Service pursuant to a Writ of Habeas Corpus ad Prosequendum to face federal proceedings (Answer, Ex. B, p. 21; see Docket in USA v. Widder, United States District Court for the Southern District of Texas case number 2:18-cr-01404 ("USA v. Widder")).
"A federal writ of habeas corpus ad prosequendum secures the presence for trial of a criminal defendant who is held in a state's custody." Johnson v. Gill, 883 F,3d 756, 760, n.2 (9th Cir.) (citing United States v. Mauro, 436 U.S, 34Q, 35758 (1978), cert, denied, 139 S, Ct, 251 (2018)).
Respondent's exhibits do not contain sequential page numbers. The Court uses the ECF pagination.
The Court takes judicial notice of the dockets of, and the documents filed in, Petitioner's criminal and collateral proceedings mentioned herein, available on the PACER database at https://pacer.uscourts.gov. See Porter v. Ollison, 620 F,3d 952, 954-55 n.l (9th Cir. 2010) (federal court may take judicial notice of court proceedings).
On December 27, 2018, a federal indictment charged Petitioner with one count of possession of a firearm by a prohibited person and one count of possession of methamphetamine with intent to distribute (see USA v. Widder, Pkt- 10)- On January 31, 2019, Petitioner pled guilty to both counts (id., Pkt- 16) .
On April 10, 2019, the federal district court sentenced Petitioner to a 60 month prison term on each count (to run concurrently with each other), followed by four years of supervised release (Answer, Ex. C, pp. 24-25). The court did not then indicate whether the federal sentence ran consecutively or concurrently with respect to any state sentence (id.). Judgment in the federal case was entered on April 15, 2019 (id., p. 24).
On April 18, 2019, Petitioner was returned to Texas state authorities, and the federal judgment was lodged as a detainer (Answer, Ex. B, p. 21).
On May 1, 2019, a Texas state court sentenced Petitioner to 60 days of imprisonment on the state charges (Answer, Ex. P, pp. 32-33) . The state court calculated this sentence to have begun to run on October 1, 2018, and to have run continuously through November 29, 2018 (Answer, Ex. E). Because Petitioner thus had fulfilled his state sentence as of the day the sentence was imposed, Petitioner was discharged from state custody on the same day, i.e. May 1, 2019. On the following day, May 2, 2019, Petitioner was remanded to federal custody to commence service of his federal sentence (id.).
On September 30, 2022, BOP Chief of Sentencing Computations Kathy Williams ("BOP Williams") sent a letter to the federal district court requesting clarification regarding whether Petitioner's federal sentence ran consecutively or concurrently with respect to the state sentence (Answer, Ex. F, pp. 37-38). On October 17, 2022, the district court stated that" [s]ince the judgment isn't specific, pursuant to Free v. Miles, 333 F.3d 550, 553 (5th Cir. 2003), the sentences are presumed consecutive" (emphasis added) (Answer, Ex. F, p. 39) .
The BOP computed Petitioner's federal sentence as having commenced on May 2, 2019, the date the United States Marshals Service received exclusive custody of Petitioner (McEvoy Deci., ¶ 12(A); Answer, Ex. A, p. 18). The BOP credited Petitioner with 153 days for the time spent in custody between November 30, 2018 and May 1, 2019 (McEvoy Deci., ¶ 12(B); Answer, Ex. A., p. 18). The BOP did not credit Petitioner for any time spent in custody prior to November 30, 2018 (McEvoy Deci., ¶¶ 10, 13). Assuming Petitioner earns all available good conduct credit, his projected release date is April 15, 2023 (McEvoy Deci., ¶¶ 5(C), 12(C); Answer, Ex. A, p. 17).
As Respondent concedes, Petitioner has now exhausted his administrative remedies with respect to his claim of a credit calculation error (McEvoy Deci., ¶ 14, Answer, Ex. G)
PETITIONER'S CONTENTIONS
Petitioner contends that the BOP erroneously failed to credit his federal sentence with the 60 days Petitioner spent in custody from October 1, 2018 through November 29, 2018 (Petition, p. 3; Response, p. 2). Petitioner argues that he then was "federally sentenced, [he] was not convicted or sentenced on the state level, and the 60 days . . . were not credited towards any sentence" (emphasis in original) (Response, p. 2).Petitioner further contends that the federal district court should have applied section 5G1.3(b) of the Sentencing Guidelines to run Petitioner's federal sentence concurrently with his state sentence (Response, p. 4). Petitioner asks that this Court "correct" his release date to February 15, 2023 to cure these alleged errors (id.).
In the Response, Petitioner also seizes upon an apparent error in McEvoy's Declaration in which McEvoy states that Petitioner received "credit for July 1, 2015 through July 16, 2015" (Response, p. 3; McEvoy Deci., ¶ 13). Petitioner appears to argue that this supposed 16 days of credit entitled him to an earlier satisfaction of his 2018 state sentence (id.). Nothing in the record supports any argument that a supposed credit in 2015 relates in any manner to the subsequent sentencings at issue herein.
DISCUSSION
I. Petitioner Is Not Entitled to Credit Against his Federal Sentence for the Time Petitioner Spent in Custody from October 1, 2018 Through November 29, 2018.
The United States Attorney General, through the BOP, has the responsibility to calculate federal sentencing credits. See United States v. Wilson, 503 U.S. 329, 334 (1992). "Computing a federal sentence requires two separate determinations: first, when the sentence commences; and, second, to what extent the defendant in question may receive credit for any time already spent in custody." Qun v. Arviza, 2022 WL 902957, at *3 (E.D. Cal. Mar. 28, 2022) (citations and quotations omitted), adopted, 2022 WL 1631170 (E.D. Cal. May 23, 2022).
Under 18 U.S.C. section 3585(a) , a federal prison 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." "[A] federal sentence cannot be 'backdated' so as to commence before the district court imposed the federal sentence." Schleining v. Thomas, 642 F.3d 1242, 1247 (9th Cir. 2011), cert, denied, 566 U.S, 1003 (2012) (citation and footnote omitted). Here, the BOP computed Petitioner's federal sentence to commence on May 2, 2019, the date he was received into exclusive federal custody after the completion of his state sentence.
"In our American system of dual sovereignty, each sovereign -whether the Federal Government or a State - is responsible for the administration of its own criminal justice system." Setser v. United States, 566 U.S. 231, 241 (2012) (citation, quotations and brackets omitted). "As a general rule, the first sovereign to arrest a defendant has priority of jurisdiction for trial, sentencing and incarceration." Thomas v. Brewer, 923 F.2d 1361, 1365 (9th Cir. 1991) (citation omitted); see also Reynolds v. Thomas, 603 F.3d 1144, 1152 (9th Cir. 2010), cert, dism'd, 566 U.S. 917 (2012), abrogated on other grounds, Setser v. United States, 566 U.S. 231 (2012). Therefore, when state authorities arrested Petitioner prior to the filing of the federal charges, the state obtained primary jurisdiction over Petitioner. Id.; see also Reynolds v. Thomas, 603 F.3d at 1152 (fact that federal court issued writ of habeas corpus ad prosequendum to compel appearance in federal court of defendant held in state custody indicated that the state had primary jurisdiction over defendant). During the time that the state maintained primary jurisdiction, the federal court could not, and did not, order Petitioner into federal custody to commence serving the federal sentence. See Taylor v. Reno, 164 F.3d 440, 444 (9th Cir. 1998), cert, denied, 527 U.S. 1027 (1999).
The writ of habeas corpus ad prosequendum transferring Petitioner into temporary federal custody did not transfer primary custody to federal authorities. See Taylor v. Reno, 164 F.3d at 445; Thomas v. Brewer, 923 F.2d at 1367; see also Lay v. Gill, 575 Fed.Appx. 816, 816 (9th Cir. 2014). Rather, Petitioner was merely "on loan" to federal authorities from the state, which retained primary jurisdiction. Thomas v. Brewer, 923 F.2d at 1367 (citations and quotations omitted); see also BOP Program Statement 5880.28, p. 1-20B ("The federal court merely 'borrows' the prisoner under the provisions of the writ for secondary custody."). Accordingly, the state maintained primary jurisdiction over Petitioner from the date of arrest until after the state court sentencing.
Under 18 U.S.C. section 3585(b), a federal defendant must be given credit "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; . . . that has not been credited against another sentence" (emphasis added); Schleining v. Thomas, 642 F.3d at 1245 n.2 (quoting 18 U-S-C- § 3585(b)). Thus, a defendant cannot obtain "double credit" for time spent in service of both a state sentence and a federal sentence. See United States v. Wilson, 503 U.S, at 337; see also Mont v. United States, 139 S.Ct. 1826, 1834 (2019) ("Congress denies defendants credit for time served if the detention time has already 'been credited against another sentence.'") (citing 18 U-S-C- § 3585(b)); Sutton v. Johnson, 708 Fed.Appx. 360, 361 (9th Cir. 2017) (same); United States v. VonWillie, 59 F.3d 922, 930-31 (9th Cir. 1995) (where time spent in federal custody pursuant to federal writ was credited toward defendant's state sentence, defendant not entitled to credit for that time against consecutive federal sentence).
Petitioner received credit on his state sentence for the time he spent in custody from October 1, 2018 through November 29, 2018. Petitioner is not entitled to receive "double credit" for the same time against his federal sentence. See United States v. Wilson, 503 U.S, at 337; see also Qun v. Arviza, 2022 WL 902957, at *3 ("Since Petitioner has received full credit against his state sentence for all the time spent in federal custody pursuant to the writ of habeas corpus, he is not entitled to any additional credit, which would in effect be double credits against his federal sentence for the same period of time."); Yale v. Lake, 2019 WL 2866605, at *4 (E.D. Cal. Jul. 3, 2019) (same); McRae v. Rios, 2013 WL 1758770, at *5 (E.D. Cal. Apr. 24, 2013 (same).
In sum, Petitioner's claim that the BOP incorrectly calculated his sentence lacks merit.
II. Petitioner Is Not Entitled to Pursue by Habeas Corpus any Claim That the Federal Sentencing Court Should Have Applied Sentencing Guideline Section 5Gl,3(b),
A federal prisoner who contends that his or her conviction or sentence is subject to collateral attack "may move the court which imposed the sentence to vacate, set aside or correct the sentence." 28 U.S.C. § 2255. A prisoner generally may not substitute a habeas petition under 28 U.S.C. section 2241 for a section 2255 motion. See 28 U.S.C. § 2255; see also Stephens v. Herrera, 464 F.3d 895, 897-99 (9th Cir. 2006), cert, denied, 549 U.S- 1313 (2007); Hernandez v. Campbell, 204 F.3d 861, 864 (9th Cir. 2 000) .
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 applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such 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.28 U.S.C. § 2255(e); see Stephens v. Herrera, 464 F.3d at 897-99; Hernandez v. Campbell, 204 F.3d at 864.
Petitioner argues that the federal district court should have applied section 5G1.3(b) of the Sentencing Guidelines to run Petitioner's federal sentence concurrently with his state sentence (Response, p. 4). This claim constitutes an attack on the imposition of Petitioner's sentence (as distinguished from an attack on the execution of the sentence). Such a claim may be brought only through a section 2255 motion directed to the sentencing court. See id.; see also United States v. Drake, 49 F.3d 1438, 1440 (9th Cir. 1995) (prisoner's invocation of section 5G1.3(b) of the Sentencing Guidelines in an effort to reduce the prisoner's federal sentence raises "a question for the sentencing court"). Petitioner evidently has not yet presented this claim in a section 2255 motion filed in the sentencing court (Petition, pp. 4-5).
Petitioner previously did apply for section 2255 relief on other grounds. On September 18, 2020, Petitioner filed in the district court a "Motion for 28 U.S.C. § 2255(a) Relief etc." (Petition, pp. 4-5; USA v. Widder, Pkt. 33). Therein, Petitioner sought to challenge his sentence pursuant to Rehaif v. United States, 11 139 S.Ct. 2191 (2019) (id., Pkt- 33, 38)- Petitioner also then argued that he is actually innocent of the crimes of conviction (id.). On March 8, 2021, the district court denied the motion as untimely (id., Pkt- 38)
"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 section 2255 is 'inadequate or ineffective to test the legality of his detention.'" Hernandez v. Campbell, 204 F.3d at 864-65; see also Stephens v. Herrera, 464 F.3d at 897. This "savings clause" exception to section 2255 exclusivity is a "narrow" exception. Ivy v. Pontesso, 328 F.3d 1057, 1059-60 (9th Cir.), cert, denied, 540 U.S. 1051 (2003); United States v. Pirro, 104 F.3d 297, 299 (9th Cir. 1997). "The general rule in this circuit is that the ban on unauthorized second or successive petitions does not per se make § 2255 inadequate or ineffective." Stephens v. Herrera, 464 F.3d at 898 (citations, quotations and brackets omitted). Mere lack of success in the sentencing court also does not render the section 2255 remedy "inadequate or ineffective." Boyden v. United States, 463 F.2d 229, 230 (9th Cir. 1972), cert. denied, 410 U.S. 912 (1973); see Tripati v. Henman, 843 F.2d 1160, 1163 (9th Cir.), cert, denied, 488 U.S. 982 (1988) ("the district court's previous denial of relief on the merits is not alone sufficient to show that the section 2255 remedy is inadequate"). If the rule were otherwise, every disappointed prisoner/movant incarcerated in a district different from the sentencing district could pursue a repetitive section 2241 petition in the district of incarceration. Petitioner bears the burden of proving the inadequacy or ineffectiveness of the section 2255 remedy. See Redfield v. United States, 315 F.2d 76, 83 (9th Cir. 1963); Gasaway v. Jusino, 2021 WL 3042275, at *3 (C.D. Cal. June 1, 2021), adopted, 2021 WL 3037391 (C.D. Cal. July 16, 2021). As discussed below, Petitioner has failed to carry this burden.
A federal prisoner may file a section 2241 petition under the savings clause only if the prisoner "(1) makes a claim of actual innocence, and (2) has not had an unobstructed procedural shot at presenting that claim." Marrero v. Ives, 682 F.3d 1190, 1192 (9th Cir. 2012), cert, denied, 568 U.S. 1173 (2013) (citation and internal quotations omitted); see also Pavulak v. Blanckensee, 14 F.4th 895, 897 (9th Cir. 2021), cert, denied, 142 S.Ct. 1188 (2022).
Here, Petitioner previously had an "unobstructed procedural shot" at presenting his sentencing guidelines claim by 2255 motion, and neither the limitations bar nor the "second or successive" bar now renders the 2255 remedy "inadequate or ineffective." See Ivy v. Pontesso, 328 F.3d at 1060 ("it is not enough that the petitioner is presently barred from raising his claim ... by motion under § 2255. He must never have had the opportunity to raise it by motion"); see also Sanchez v. Matevousian, 677 Fed.Appx. 451 (9th Cir. 2017), cert. denied, 138 S- Ct- 716 (2018) ("Sanchez cannot establish that he has not had an 'unobstructed procedural shot' at presenting his claim, because he could have filed a timely section 2255 motion in the sentencing court"); Garcia-Guia v. Jusin, 2020 WL 6370167, at *5 (C.D. Cal. Sept. 10, 2020), adopted, 2020 WL 6363891 (C.D. Cal. Oct. 26, 2020) ("the fact that the district court denied Petitioner's § 2255 motion on timeliness grounds does not mean that § 2255 is an inadequate or ineffective remedy."); James v. Warden, 2020 WL 710158, at *1 (C.D. Cal. Jan. 14, 2020) ("just because [movant's] § 2255 motion was denied as untimely does not mean that he lacked an 'unobstructed procedural shot' to pursue his claim") (citation omitted).
RECOMMENDATION
For all of the foregoing reasons, IT IS RECOMMENDED that the Court issue an Order: (1) accepting and adopting this Report and Recommendation; and (2) directing that Judgment be entered denying and dismissing the Petition with prejudice.
NOTICE
Reports and Recommendations are not appealable to the Court of Appeals, but may be subject to the right of any party to file objections as provided in the Local Rules Governing the Duties of Magistrate Judges and review by the District Judge whose initials appear in the docket number. No notice of appeal pursuant to the Federal Rules of Appellate Procedure should be filed until entry of the judgment of the District Court.