Opinion
CV-23-1369-PHX-DGC (JFM)
01-26-2024
Toheed Ahmed, Petitioner v. United States Bureau of Prisons, et al., Respondents.
REPORT & RECOMMENDATION ON PETITION FOR WRIT OF HABEAS CORPUS
JAMES F. METCALF, UNITED STATES MAGISTRATE JUDGE
I. MATTER UNDER CONSIDERATION
Petitioner has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 (Doc. 1) challenging the execution of his sentence, i.e. the calculation of his term of imprisonment. Respondents argue (Doc. 9) Petitioner has not exhausted his administrative remedies, and his sentence has been properly calculated.
The Petitioner's Petition is now ripe for consideration. Accordingly, the undersigned makes the following proposed findings of fact, report, and recommendation pursuant to Rule 8(b), Rules Governing Section 2254 Cases, Rule 72(b), Federal Rules of Civil Procedure, 28 U.S.C. § 636(b) and Rule 72.2(a)(2), Local Rules of Civil Procedure.
II. RELEVANT FACTUAL & PROCEDURAL BACKGROUND
A. FACTUAL BACKGROUND
1. Prior Utah Sentences
On July 20, 2009, Petitioner was sentenced in Utah case 091901302 to 1 to 15 years prison for theft, and a suspended 365 days of jail for failure to stop. (The 1-15 year sentence was concurrent to a sentence in another Utah case, 091900254.) (Exh. A-2, Present. Invest. at “11.”) (Exhibits to the Answer (Doc. 9) are referenced herein as “Exh. __,” and attachments to the Exhibits by exhibit letter and attachment number as “Exh__.__.”)
On August 10, 2009, Petitioner was sentenced in Utah case 091904184 to a consecutive five years prison for aggravated assault. (Exh. A-2, Present. Invest. at “11”-“12”.)
On January 9, 2014, Petitioner was sentenced in Utah case 141901199 to concurrent 1 to 15 years prison on a drug charge. (Exh. A-2, Present. Invest. at “12.”)
Utah Parole - On April 16, 2013 Petitioner was placed on parole on the sentences in Utah cases 091901302 (theft) and 091904184 (assault). On July 7, 2015, Petitioner was placed on parole in Utah case 141901199 (drugs). (Exh. A-2, Present. Invest. at “11” - “12.”)
Federal Prosecution - Petitioner was arrested by Utah authorities on August 26, 2015 on drug charges (the same conduct for which he was eventually prosecuted in the instant federal case in the District of Utah, Case 16-cr-00021-001-JNP.)
As discussed hereinafter, Petitions to revoke Petitioner's Utah probation were filed based on the charges, and Petitioner was continued in Utah state custody.
On January 19, 2016, Petitioner was indicted in the District of Utah case. However, Petitioner remained in the custody of Utah authorities except for the period February 4, 2016 to May 13, 2016 (a period of 100 days), when he was released to the custody of the U.S. Marshals Service (USMS) on a federal writ of habeas corpus ad prosequendum in connection with District of Utah case.
Following Petitioner's return to the custody of Utah state authorities, a federal detainer was placed on Petitioner on May 18, 2016, requesting he be held for the federal prosecution. (Petition, Exhibits, Detainer, Doc. 1 at 19-20.)
Eventually, Petitioner entered into a plea agreement with the following stipulation:
b. Stipulated Sentence. Pursuant to Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure, the sentence imposed by the Court will be one-hundred and twenty (120) months' imprisonment, followed by five years of supervised release, and this sentence will run concurrent with any additional prison sentence yet-to-be-imposed
by the Utah State Parole Board in State of Utah v. Toheed Ahmed, Case No. 14901199 and State of Utah v. Toheed Ahmed, Case No. 091904184. I agree this is a reasonable sentence.(Petition, Exhibit, Doc. 1 at 34.)
An attorney Hamilton requested that the concurrent provision extend to the third Utah case, number 091901302. (Petition, Exhibits, RT at 23-25, Doc. 1 at 27-29.) The judge in the District of Utah reasoned:
So after considering all of the facts and circumstances and the sentencing factors that I must consider under 18 USC Section 3553, I will accept the provisions of the stipulated plea agreement between Mr. Ahmed and the United States and I will impose that sentence of 120 months.
So with that being said, it is the judgment of the court that the defendant, Mr. Toheed Ahmed, be placed in the custody of the Federal Bureau of Prisons for a period of 120 months. That sentence of 120 months is to run concurrent with any sentences imposed in connection with Utah State cases 091901302, case number 091904184, and case number 141901199.(Petition, Exhibits, RT at 31-32, Doc. 1 at 23-24.)
Accordingly, Petitioner was sentenced in the federal case on June 1, 2018 to 120 months in prison “to run concurrent with any sentence entered in Utah state cases 091901302, 091904184 and 141901199.” (Exh. A-4, Doc. 9-1 at 17.)
No explanation has been provided or appears in the record before this Court for the differences between the Plea Agreement and the Sentence, i.e. the additional reference to Case 091901302, and the elimination of the reference to sentences “yet-to-be-imposed.”
2. Utah Parole Revocation and Reinstatement
On July 2, 2018, Petitioner's parole was revoked in the three Utah cases. (Exh. A-5a, Utah Parole Records.) His parole was reinstated on August 14, 2018. (Exh. A-5a, Utah Parole Records.) At Petitioner's request, the period February 4, 2016 to May 13, 2016 (when he was in federal custody) was directed to be excluded from credit towards his state sentences. (Id. at Special Attention Review; Petition, Exhibits, Email, Doc. 1 at 31.)
Respondents assert that Petitioner was given credit by Utah authorities against his Utah sentences for all time he spent in Utah custody (exclusive of his hiatus in the custody of the USMS). To support this contention, Respondents cite the McEvoy Declaration, Exhibit A at ¶¶ 12, 15-16. It is Paragraph 15 of that Declaration that addressed the credit on the Utah sentences, relying on Exhibit A-5 at 1-2 (Doc. 9-1 at 24-25). But nothing in the records referenced by McEvoy reflects the credit given to Petitioner by Utah authorities on his Utah sentence, only the determination that (at Petitioner's request), no credit would be given for the hiatus with the USMS. (Exh. A-5 at 2.)
Nonetheless, Utah Code Ann. § 76-3-202 establishes a system where an original prison sentence is served either in custody, or on parole. That statute provides “Any time an individual spends in confinement awaiting a hearing before the Board of Pardons and Parole or a decision by the board concerning revocation of parole constitutes service toward the total sentence.” Id. at § 76-3-202(6)(c)(i).
Conversely, after commission of a parole violation, time out of “confinement” is not credited. Utah Code Ann. § 76-3-202(6)(b). Arguably, even absent Petitioner's request and the Utah Board of Pardons' determination, Petitioner would not have been entitled to credit on his Utah sentence for the time spent in USMS custody in 2016. Cf. at § 76-3-202(8)(b) (“Time in confinement. in the custody of.. .the United States government for a conviction obtained in another jurisdiction tolls the expiration of the Utah sentence.”) (emphasis added). In any event, these sections refer to “confinement” rather than “custody.” Respondents' assertions that Petitioner remined in Utah state custody and was only “borrowed” by the USMS in 2016 are not incongruous with the Utah statute. In any event, Respondents concede Petitioner did not receive credit for that time in USMS custody.
3. Federal Custody
On August 28, 2018 Petitioner was taken into custody by the USMS to begin serving his federal sentence. (Exh. A-3, Detention Report at 2.) 24 days later, on September 21, 2018, Petitioner was committed to the custody of the Bureau of Prisons (BOP). (Exh. A-1, Inmate Data at 2.)
4. BOP Sentence Calculations
The BOP has calculated an earliest (“Good Conduct Time”) release date of October 10, 2026. (Exh. A-1, Inmate Data at 1.) This is based on a commencement date of June 1, 2018, pre-sentence jail credit for 100 days in USMS custody (2/4/16 to 5/13/16), and earned and projected good time credits of 499 days. (Id. at 3.)
Presumably Petitioner was deemed entitled to credit for the period from sentencing through his commitment with BOP based upon: (1) the concurrently served time on the Utah sentence; (2) the time after his re-release on parole when he was still held by Utah pursuant to a federal detainer; and (3) the time in USMS custody pending transport to the BOP. See 18 U.S.C. § 3585(a) (“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.”).
Indeed, 120 months from 6/1/18 would be 5/31/2028. 599 days before that date would be 10/10/26.
B. ADMINISTRATIVE PROCEEDINGS
BOP maintains an Administrative Remedy Program, which provides a tiered series of procedures, including: Request for Informal Resolution (“BP-8”), Administrative Remedy Request to the Warden (“BP-9”), Appeal to Regional Director (“BP-10”), and Appeal to the Director of National Inmate Appeals in the Office of the General Counsel (“BP-11”). See 28 C.F.R. § 542.10, et seq. (See also Eber Declaration, Exh. B at ¶ 4.)
On January 28, 2019, Petitioner filed a “BP-9” with the Warden seeking prior custody credit, which was denied on March 28, 2019. (Petition, Exhibits, Response, Doc. 1 at 26; Exh. B-1, Administrative Remedy at 2 (listing disposition date as 3/29/19).) On April 9, 2019, Petitioner appealed to the Regional Director, filing a “BP-10.” The Regional Director affirmed the Warden's decision on April 30, 2019. (Exh. B-1, Administrative Remedy at 2.)
On November 16, 2021, Petitioner filed a “BP-11” Appeal (Exh. B-2) with BOP's Central Office, challenging his sentence credits. The appeal asserted Petitioner had not received notice of the Regional Office ruling until October 17, 2021. (Exh. B-2.)
On November 30, 2021, that appeal was rejected based on Petitioner's failure to attach copies of records regarding grievances at the warden (BP-9) and regional office (BP-10) levels, and because it was untimely and no staff verification of the reason for the untimely appeal was provided. (Exh. B-3.)
On October 14, 2022 Petitioner filed a “Request to Staff” with the Warden requesting credit for the time served in Utah custody, and compassionate release due to COVID-19. (Petition, Exhibits, Inmate Request, Doc. 1 at 25.)
C. PRESENT FEDERAL HABEAS PROCEEDINGS
Petition - Petitioner, presently incarcerated in the Federal Correctional Institute in Phoenix, Arizona, commenced the current case by filing his Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 on July 14, 2023 (Doc. 1). Petitioner's Petition asserts his sentence credits have not been properly calculated, seeking a determination he is entitled to an additional 935 days for time served in the custody of state and federal authorities, pursuant to 18 U.S.C. § 3585(b). By Petitioner's reckoning, he should be eligible for release as early as March 19, 2024.
Petitioner argues he had diligently sought to exhaust his remedies, citing the March 28, 2019 denial of his grievance by the Warden, and a motion (presumably with the sentencing court) pursuant to 18 U.S.C. § 3582(c)(1)(A), and arguing additional administrative remedies are not available because futile.
Response - Respondents argue in their Response (Doc. 9) that the Petition should be dismissed because Petitioner did not properly exhaust his administrative remedies because he failed to correct the procedural deficiencies in his appeal to the Central Office on his 2019 grievance, and failed to seek any further review of his 2022 grievance. Respondents further argue that Petitioner's sentence has been properly calculated because, under 18 U.S.C. § 3585(b), his time prior to sentencing on June 1, 2018 cannot be counted because it was either credited towards his Utah convictions, or already credited by BOP (for Petitioner's 2016 hiatus in the custody of the USMS).
Reply - Petitioner's Reply (Doc. 12) argues he is entitled to credit for all time he spent in custody after his arrest based on the conduct leading to his federal conviction. He further argues that he was released to federal custody on August 14, 2018, and should have credit for the ensuing time, because he has not received other credit for time spent in custody since his 2015 arrest. Regarding exhaustion, Petitioner argues he has exhausted available administrative remedies because further appeals would “almost certainly” have been unsuccessful by application of BOP policies (“Program Statements”), and are therefore futile.
III. APPLICATION OF LAW TO FACTS
A. EXHAUSTION OF ADMINISTRATIVE REMEDIES
Exhaustion Ordinarily Required - Respondents urge dismissal for failure to exhaust administrative remedies. Such exhaustion is ordinarily prudentially required.
Respondents have not argued for a dismissal with prejudice based on a procedural default of administrative remedies, only a dismissal based on a failure to exhaust administrative remedies.
The requirement that federal prisoners exhaust administrative remedies before filing a habeas corpus petition was judicially created; it is not a statutory requirement. Because exhaustion is not required by statute, it is not jurisdictional.
Where exhaustion of administrative remedies is not jurisdictional, the district court must determine whether to excuse the faulty exhaustion and reach the merits, or require the petitioner to exhaust his administrative remedies before proceeding in court.Brown v. Rison, 895 F.2d 533, 535 (9th Cir. 1990) (citations omitted), overruled on other grounds by Reno v. Koray, 515 U.S. 50, 54-55 (1995).
This administrative exhaustion requirement gives an administrative agency an opportunity to correct its own mistakes and discourages disregard of the agency's procedures. It also promotes efficiency, by the speed and economy of administrative proceedings, the potential for settlement (or abandonment of meritless claims) at the administrative level, and the production of a record for consideration in subsequent judicial proceedings. Woodford v. Ngo, 548 U.S. 81, 89 (2006).
No Proper Exhaustion - Petitioner fails to show that he has properly exhausted his administrative remedies on his claim regarding his sentencing credits. Although the BOP's Central Office rejected Petitioner's appeal of his 2016 grievance was dismissed, they did not reject it on the merits and thus foreclose future grievances. Indeed, Petitioner was apparently able to file his October 14, 2022 grievance (“Inmate Request”) with the Warden. He offers nothing to show that he could not seek further review in that proceeding, or that he could not now institute an entirely new administrative proceeding.
Petitioner references a motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A). But that is a judicial remedy, not an administrative remedy. Moreover, Petitioner fails to explain how it exhausted his remedies on the limited claim raised herein.
Remedies Futile - Petitioner argues that the administrative remedies are effectively unavailable because further review would be futile, citing the arguments raised in his earlier administrative proceedings, BOP's program statements, and the arguments now raised by Respondents in arguing Petitioner's claims are without merit. Indeed, “exhaustion of administrative remedies is not required where exhaustion would have been futile.” Leorna v. U.S. Dep't of State, 105 F.3d 548, 552 (9th Cir. 1997).
Here, the decisions by the BOP to date are based on 18 U.S.C. § 3585(a), as embodied in BOP Program Statement 5880.28 (Exh. A-6) and a determination that Petitioner received credit on his Utah sentences for his time in state custody prior to his federal sentence. Indeed, as discussed hereinafter, Petitioner's claim has no merit under these circumstances.
Accordingly, the undersigned concludes that any further request for relief from the BOP is futile.
B. MERITS
Petitioner argues he is entitled to an additional 935 days of credit for all of the time following his arrest on the offense for which he was sentenced, i.e. from August 26, 2015 until his commitment on September 21, 2018 (a total of 1,122 days), excepting only the days between his parole revocation on July 2, 2018 and his reinstatement on August 14, 2018, a total of 44 days. (Reply, Doc. 12 at 3-4; Petition, Memorandum at 7, Doc. 1 at 16.)
Petitioner's claim is without merit for the following reasons.
First, Petitioner has already been given credit by BOP for all of the time after his June, 1, 2018 sentencing, including the 44 days between his parole revocation and re- release on parole by Utah authorities.
Second, neither BOP nor the sentencing court could grant Petitioner credit for time in detention prior to his federal sentencing. 18 U.S.C. § 3585(b)(1) does require a grant of credit towards a federal sentence for pre-sentence time in detention “as a result of the offense for which the sentence was imposed.” Respondents make no argument that Petitioner's state custody did not meet this qualification.
However, the statute goes on to limit such credit for time “that has not been credited against another sentence.” 18 U.S.C. § 3585(b). The Supreme Court has concluded that this statute not only limits the authority of the BOP in calculating presentence credits, but precludes the District Court from computing and including such credit in the sentence. United States v. Wilson, 503 U.S. 329, 333 (1992).
Third, as discussed hereinabove, in Section II(A)(2), Petitioner has been given credit on his Utah sentence for all of his pre-sentence time, with the exception of the 100 days in USMS custody in 2016 (for which he has been granted credit by BOP).
Petitioner points to 18 U.S.C. § 3585(b) and asserts he is entitled to credit for any time after he was “received in custody” (a phrase only in subsection (a) of 18 U.S.C. § 3585) arguing that this dates back to his arrest by Utah authorities in 2015. (Reply, Doc. 9 at 3.) But Petitioner reads out of context. The custody referred to in § 3585(a) is not any custody, but “custody awaiting transportation to...the official detention facility at which the sentence is to be served.” The Utah officials' custody was not for purpose of transporting Petitioner to the BOP, but for purposes of revoking his Utah parole. At most, such custody (“awaiting transportation”) commenced on August 14, 2018 when Petitioner was reinstated on parole and thus was being held by Utah authorities solely because of the federal detainer. But as noted, Petitioner had been given credit for all time from and after June 1, 2018.
Accordingly, Petitioner's claim is without merit and must be denied.
IV. CERTIFICATE OF APPEALABILITY
Rule 11(a), Rules Governing Section 2254 Cases, requires that in habeas cases the “district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant.” However, such certificates are required only in cases concerning detention arising “out of process issued by a State court”, or in a proceeding under 28 U.S.C. § 2255 attacking a federal criminal judgment or sentence. 28 U.S.C. § 2253(c)(1). Neither apply to Petitioner's § 2241 petition challenging the execution of his federal sentence. Accordingly, no recommendation is made on a certificate of appealability.
V. RECOMMENDATION
IT IS THEREFORE RECOMMENDED Petitioner's Petition for Writ of Habeas Corpus (Doc. 1) be DENIED.
VI. 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.
However, pursuant to Rule 72(b), Federal Rules of Civil Procedure , the parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See also Rule 8(b), Rules Governing Section 2254 Proceedings. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any findings or recommendations of the Magistrate Judge will be considered a waiver of a party's right to de novo consideration of the issues, see United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003)(en banc), and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the recommendation of the Magistrate Judge, Robbins v. Carey, 481 F.3d 1143, 1146-47 (9th Cir. 2007).
In addition, the parties are cautioned Local Civil Rule 7.2(e)(3) provides that “[u]nless otherwise permitted by the Court, an objection to a Report and Recommendation issued by a Magistrate Judge shall not exceed ten (10) pages.”