Opinion
CV-21-00261-TUC-JGZ (MSA)
10-07-2022
Michael Cook, Petitioner, v. Catricia Howard, Respondent.
REPORT AND RECOMMENDATION
HONORABLE MARIA AGUILERA, MAGISTRATE JUDGE
Petitioner Michael Cook, a federal prisoner, contends that the Federal Bureau of Prisons (BOP) has erroneously calculated his sentence. He therefore seeks habeas relief under 28 U.S.C. § 2241. The Court will recommend that his request for relief be denied.
Background
On March 3, 1995, Petitioner was arrested by Texas state authorities on charges of unauthorized use of a motor vehicle and theft. (Doc. 13-2 at 2.) He was released on bond three days later. (Id. at 5.) On March 25, Petitioner was arrested by state authorities again, this time on a charge of aggravated assault with a deadly weapon. (Id. at 2, 5.) Petitioner was held in custody following his second arrest. (Id. at 5.)
At some point thereafter, Petitioner was charged in Texas federal court with conspiracy to commit carjacking, carjacking, aiding and abetting, and using a firearm during a crime of violence. (Id. at 10.) In May 1996, Petitioner was removed from state custody pursuant to a federal writ of habeas corpus ad testificandum. (Id. at 8.) Petitioner was removed again in August 1996, this time pursuant to a writ of habeas corpus ad prosequendum. (Id.) On both occasions, he was returned to state custody the same day. (Id.) Petitioner was removed for a third time, pursuant to another writ of habeas corpus ad prosequendum, on May 2, 1997. (Id.)
On May 15, Petitioner was found guilty of all federal charges. (Id. at 10.) On September 18, the federal court sentenced him to a 353-month term of imprisonment. (Id. at 10-11.) The court recommended that the sentence “be in addition” to any sentence imposed later by the state court. (Id. at 11.) On September 23, Petitioner was returned to state custody. (Id. at 8.)
In 1999, the state court sentenced Petitioner to a five-year term of imprisonment for aggravated assault. (Id. at 2, 5, 14.) Petitioner received credit toward his sentence for all time served since his second arrest on March 25, 1995. (Id. at 14.) Petitioner remained in state custody until completing his state sentence on March 24, 2000. (Id.) On that day, he was released to federal authorities and began serving his federal sentence. (Id. at 14, 17.) As calculated by the BOP, Petitioner is projected to complete his sentence in December 2026. (Id. at 18.)
The remaining charges were dismissed. (Doc. 13-2 at 2, 5.)
During his federal incarceration, Petitioner incurred another felony conviction for which he received a one-year consecutive term of imprisonment. (Doc. 13-2 at 22-23.) Thus, his projected release date is in December 2027. (Id. at 20.)
Discussion
Petitioner contends that the federal Government had primary jurisdiction over him during the pendency of his state-court cases, such that the time he spent in state custody must be credited towards his federal sentence. In response, the Government argues that Plaintiff's case must be dismissed based on his failure to exhaust his administrative remedies. The Government also argues that the petition lacks merit. As discussed below, the Court rejects the Government's exhaustion argument. The Court agrees, however, that the petition lacks merit.
I. Exhaustion.
“As a prudential matter, courts require that habeas petitioners exhaust all available judicial and administrative remedies before seeking relief under § 2241.” Ward v. Chavez, 678 F.3d 1042, 1045 (9th Cir. 2012) (citing Castro-Cortez v. INS, 239 F.3d 1037, 1047 (9th Cir. 2001), abrogated on other grounds by Fernandez-Vargas v. Gonzales, 548 U.S. 30 (2006)). To exhaust under the BOP's remedy program, an inmate must submit a written request for relief to the warden. 28 C.F.R. § 542.14(a). After the warden denies relief, the inmate must appeal to the regional director and then to the general counsel. Id. § 542.15(a). “Appeal to the General Counsel is the final administrative appeal.” Id.
The Government presents evidence showing that Petitioner submitted a written request to the warden, and that the warden issued a denial about five weeks later. (Doc. 13-2 at 46-48.) The Government also presents the declaration of a BOP employee, who asserts that Petitioner never appealed the warden's response to the regional director or the general counsel. (Doc. 13-1, ¶ 24.) This evidence establishes that Petitioner failed to exhaust his administrative remedies. See Woodfordv Ngo, 548 U.S. 81, 90 (2006) (stating that inmates must use “all steps that the agency holds out” (quoting Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002))).
The Court finds, however, that Petitioner's failure to exhaust should be waived. The exhaustion requirement can be waived if “further application for administrative remedies would be futile.” Fraley v. U.S. Bureau of Prisons, 1 F.3d 924, 925 (9th Cir. 1993) (per curiam). Futility is established when the initial denial is based on an official BOP policy. Id. (holding exhaustion was futile because “the Regional Director would almost certainly” have relied on “the same official Bureau of Prisons policy” as the warden); Ward, 678 F.3d at 1046 (same). In this case, the warden explained that Petitioner's five years in state custody could not be credited towards his federal sentence because, under 18 U.S.C. § 3585(b), it had already been credited towards his state sentence. (Doc. 13-2 at 47.) The warden also explained that the state retained primary jurisdiction over Petitioner when he was transferred to federal custody under writs of habeas corpus, such that Petitioner's federal sentence did not commence upon transfer. (Id.) This principle is incorporated into official BOP policy. (Id. at 28.) The regional director and the general counsel “would almost certainly” have denied relief based on the same statute and policy. Fraley, 1 F.3d at 925. Thus, any further appeal would be futile.
The Government contends that exhaustion is required under 42 U.S.C. § 1997e(a). If that were true, the requirement could not be waived. See Weinberger v. Salfi, 422 U.S. 749, 766 (1975) (explaining that a “statutorily specified jurisdictional prerequisite” of exhaustion “may not be dispensed with merely by a judicial conclusion of futility”). The statute requires exhaustion before a prisoner may file suit “with respect to prison conditions.” 42 U.S.C. § 1997e(a). Petitioner is challenging the calculation of his sentence, not the conditions of his confinement, so the statute is inapplicable. Furthermore, the law is clear that exhaustion in this context is a prudential requirement rather than a jurisdictional one. Castro-Cortez, 239 F.3d at 1047.
II. Merits.
The United States Attorney General, through the BOP, is responsible for calculating federal sentences of imprisonment. United States v. Wilson, 503 U.S. 329, 334-35 (1992). When calculating a sentence, the BOP must first determine when the sentence commenced. 18 U.S.C. § 3585(a). The BOP must then determine whether the defendant is entitled to credit for time spent in pretrial custody. Id. § 3585(b). In this case, the BOP determined that Petitioner's sentence commenced on March 24, 2000, and that Petitioner was entitled to four days-not five years-of credit. (Doc. 13-2 at 17.) Both determinations are correct.
A. Commencement of Sentence.
“A sentence to a term of imprisonment 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.” 18 U.S.C. § 3585(a). As used in the statute, the term “custody” means “that the federal government has both physical custody of the defendant and the primary jurisdiction necessary to enforce the federal sentence.” Johnson v. Gill, 883 F.3d 756, 764 (9th Cir. 2018). Here, Petitioner was not in the Government's physical custody “awaiting transportation to . . . the official detention facility” until March 24, 2000, when the state turned him over to federal authorities. (Doc. 13-2 at 14.)
That is also the day on which the Government obtained primary jurisdiction over Petitioner. “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). The state established primary jurisdiction over Petitioner when it arrested him in March 1995. The state's jurisdiction ended when Petitioner completed his state sentence and was turned over to federal authorities. See Johnson, 883 F.3d at 765 (stating that “[a] sovereign's priority terminates when the sentence expires”). The temporary transfers of Petitioner in 1996 and 1997 did not constitute a relinquishment of primary jurisdiction, since each of those transfers was pursuant to a writ of habeas corpus ad prosequendum or ad testificandum. See United States v. Brown, 875 F.3d 1235, 1239 (9th Cir. 2017) (stating that a defendant is “on loan” when he is transferred under a writ of habeas corpus ad prosequendum, such that “the sending state's jurisdiction over the accused continues uninterruptedly” (quoting Thomas, 923 F.2d at 1367)).
The cases do not address whether primary jurisdiction terminates when a prisoner is transferred under a writ of habeas corpus ad testificandum. The Court sees no reason to distinguish this type of writ from the writ of habeas corpus ad prosequendum. Under both, transfer is for a limited purpose and a limited time. See Jenny L. Devine, Sovereign v. Sovereign: Achieving Desired Sentencing Outcomes in Two Dueling Jurisdictions, 37-SPG Crim. Just. 11, 11 (2022) (“Writs of habeas corpus ad prosequendum and ad testificandum do not cause a relinquishment of custody. Writs of these sort just allow one sovereign to borrow a defendant from another sovereign for purposes of judicial economy.”).
Therefore, the BOP correctly determined that Petitioner's federal sentence began on March 24, 2000.
B. Sentencing Credit.
“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.” 18 U.S.C. § 3585(b). Here, Petitioner received credit for the four days he spent in state custody after his first arrest (March 3 through March 6, 1995), as that time had not been credited towards his state sentence. (Doc. 13-2 at 17.) Petitioner was not given credit for the five years he spent in state custody following his second arrest (March 25, 1995, through March 23, 2000) because that time was credited towards his state sentence. (Id. at 14.) Under the plain language of § 3585(b), this was correct.
Petitioner argues that he was in federal custody for two years before his transfer to the Texas Department of Criminal Justice (TDCJ). However, the record does not support this argument. A TDCJ officer confirmed that Petitioner was received directly from Bexar County, and an officer of that county confirmed that Petitioner was held in continuous custody following his second arrest on March 25, 1995. (Id. at 5, 14.) Next, Petitioner points out that the United States Court of Appeals for the Fifth Circuit “has long held that a federal sentence can be imposed to run concurrently] with a future state sentence.” Although true, see United States v. Hernandez, 234 F.3d 252, 256 (5th Cir. 2000) (per curiam), this proposition does nothing to advance Petitioner's claim. The Texas district court intended that Petitioner's federal sentence run consecutively to the later-imposed state sentence. (Doc. 13-2 at 11.)
It would not matter if the state court had run Petitioner's state sentence concurrently with his federal sentence. “[A] state judge's imposition of a concurrent sentence is nothing more than a recommendation to federal officials that federal officials are free to disregard.” Taylor v. Sawyer, 284 F.3d 1143, 1152 (9th Cir. 2002) (citing Del Guzzi v. United States, 980 F.2d 1269, 1272-73 (9th Cir. 1992) (per curiam) (Norris, J., concurring)), abrogated on other grounds by Setser v. United States, 566 U.S. 231 (2012).
Therefore, the BOP correctly determined that Petitioner is entitled to only four days of sentencing credit.
III. Miscellaneous Issues.
In his reply brief, Plaintiff raises two additional requests for relief. These were not properly presented, so they need not be considered. See Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th Cir. 1994) (“A Traverse is not the proper pleading to raise additional grounds for relief.”); Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007) (“The district court need not consider arguments raised for the first time in a reply brief.”). In any event, the Court cannot grant either request.
Petitioner argues that his federal sentence is unconstitutional under Jones v. United States, 526 U.S. 227 (1999). This type of claim must be presented to the sentencing court in a motion under 28 U.S.C. § 2255, unless the petitioner can show that that remedy is “inadequate or ineffective to test the legality of his detention.” Id. § 2255(e). The § 2255 remedy is inadequate when the petitioner “(1) makes a claim of actual innocence, and (2) has not had an unobstructed procedural shot at presenting that claim.” Allen v. Ives, 950 F.3d 1184, 1188 (9th Cir. 2020) (quoting Marrero v. Ives, 682 F.3d 1190, 1192 (9th Cir. 2012)). Petitioner does not argue that he meets these requirements, so he has not established that the Court has jurisdiction to hear his claim. See Hernandez v. Campbell, 204 F.3d 861, 865 (9th Cir. 2000) (per curiam) (stating that a non-sentencing custodial court has jurisdiction only if the § 2255 remedy is inadequate).
Petitioner also makes a vague request for a sentence reduction, presumably under 18 U.S.C. § 3582(c). This request must be presented to the sentencing court. United States v. Ono, 72 F.3d 101, 102 (9th Cir. 1995); United States v. Raia, 954 F.3d 594, 596 (3d Cir. 2020).
IT IS RECOMMENDED that Petitioner Michael Cook's petition for a writ of habeas corpus under 28 U.S.C. § 2241 (Doc. 1) be denied.
This recommendation is not immediately appealable to the United States Court of Appeals for the Ninth Circuit. The parties shall have fourteen days from the date of service of this recommendation to file specific written objections with the district court. The parties shall have fourteen days to file responses to any objections. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(2). No replies may be filed absent prior authorization by the district court. Failure to file timely objections may result in the acceptance of this recommendation by the district court without de novo review. United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).
The Clerk of Court is directed to terminate the referral of this matter. Filed objections should bear the following case number: CV-21-00261-TUC-JGZ.