Opinion
3:21-cv-00692-MK
12-09-2021
CHARLES W. PENRY, Petitioner, v. D. HENDRIX, Warden, Respondent.
FINDINGS AND RECOMMENDATION
MUSTAFA T. KASUBHAI United States Magistrate Judge.
Petitioner, an inmate at the Federal Correctional Institution in Sheridan, Oregon (FCI Sheridan) seeks federal habeas relief pursuant to 28 U.S.C. § 2241. Petitioner alleges that the Bureau of Prisons (BOP) failed to give him sufficient credit for time served in state custody and earned good conduct and seeks his release from custody. Petitioner is not entitled to habeas relief and the Petition should be denied.
BACKGROUND
On February 1, 2019, petitioner completed a 150-month term of imprisonment and began serving a 240-month term of supervised release imposed by the United States District Court in the District of Wyoming in Case. No. 08-CR-67-J. Hassler Decl. ¶ 5 & Att. 1. Between February 1, 2019 and May 9, 2019, petitioner claims that he was placed at the Casper Reentry Center in Casper, Wyoming, pursuant to order of the court.
On September 10, 2019, petitioner was arrested in Colorado on a charge of Obstructing a Peace Officer. Id. ¶ 6 & Atts. 2-3. Petitioner eventually pled guilty to the offense, and on January 3, 2019, he was sentenced to ninety days' incarceration with credit for time served. Id. ¶ 7 & Att. 3. Petitioner completed service of his ninety-day sentence as of December 8, 2019, and on January 7, 2020, he was released to the custody of the U.S. Marshals Service. Id. ¶ 8 & Atts. 4-5.
On January 30, 2020, petitioner waived indictment on a federal charge of Failure to Register as a Sex Offender. Hassler Decl. ¶ 9 & Att. 6. Petitioner was sentenced to a nineteen-month term of imprisonment for that offense and a consecutive ten-month sentence for violating the terms of his supervised release Case. No. 08-CR-67-J. Id. ¶¶ 9-10 & Atts. 7-8.
Petitioner's projected release date is December 29, 2021, which includes fifty-two days of credit for time served in state custody between December 9, 2019 and January 29, 2020 and 130 days of good conduct time. Id. ¶¶ 11, 14 & Att. 9 at 3-4.
DISCUSSION
Petitioner contends that BOP failed to award him ninety-eight days of credit for time spent at the Casper Reentry Center, 142 days of credit for time served from September 10, 2019 to January 30, 2020, and nine days of credit for associated good conduct time. Pet. at 3, 8. If awarded proper credit, petitioner contends he would have been released in May of 2021.
Respondent argues that the Petition should be denied because petitioner did not file an Administrative Remedy Request with the Warden or an appeal of a decision by the Warden and has not exhausted his administrative remedies. See Hassler Decl. ¶ 4 & Att. 10.
“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). To complete the BOP administrative appeal process, an inmate must file an Administrative Remedy Request with the Warden within twenty days of the issue or incident after attempting informal resolution at the institution. 28 C.F.R. §§ 542.13-.14. The inmate may file an appeal with the Regional Director within twenty days of the Warden's response, and the inmate may file a second and final appeal with the General Counsel in Washington, D.C. within thirty days of the Regional Director's response. Id. § 542.15. The exhaustion requirement is not jurisdictional, and it may be waived if pursuing administrative remedies would be futile. Ward, 678 F.3d at 1045.
Petitioner claims that he filed informal resolution and administrative remedy requests and received no response to those requests or his subsequent appeal. See Pet. at 3-5 & Att. A-2, A-3.Petitioner maintains that filing a final appeal would have been futile under the circumstances. Even if futility excuses petitioner from the exhaustion requirement, he fails to show entitlement to habeas relief.
Respondent maintains that BOP did not receive petitioner's administrative remedy request or initial appeal. Hassler Decl. ¶ 4.
Petitioner contends he should have received credit toward his federal sentence for time spent in state custody between September 10, 2019 and January 30, 2020. However, BOP has credited petitioner's federal sentence with time served in state custody between December 9, 2019 and January 30, 2020. Hassler Decl. ¶ 13 & Att. 9 at 3-4. Further, the time served in state custody from September 10, 2019 to December 8, 2019 was credited toward petitioner's ninety-day state sentence, and his federal sentence cannot be credited with time that was credited against his state sentence. Id. ¶¶ 12-13 & Atts. 3-4; see 18 U.S.C. § 3585(b) (authorizing credit “for any time [a defendant] has spent in official detention prior to the date the sentence commences” that “has not been credited against another sentence”).
Petitioner nonetheless contends that BOP may credit his federal sentence for the time served from September 10, 2019 to December 8, 2019 under a recognized exception to the prohibition against “double crediting.” Pet'r Mem. at 7. Petitioner is mistaken. A federal defendant may be eligible to receive credit for time credited against a state sentence only if a concurrent federal sentence is imposed. See BOP Program Statement 5880.28 (available at https://www.bop.gov/policy/progstat/5880028.pdf). Petitioner did not receive a concurrent federal sentence; his state sentence was completed before he was sentenced on the new federal charge and supervised release violation. Accordingly, petitioner is not entitled to additional credit for time served that was credited against his state sentence. United States v. Wilson, 503 U.S. 329, 334 (1992).
Petitioner also argues that he should receive credit for time spent at the Casper Reentry Center. See Pet'r Mem. at 4-6. However, the time petitioner allegedly spent at the reentry center - February 1, 2019 through May 9, 2019 - arose from petitioner's previous conviction rather than the federal charge for which he is currently incarcerated.
Finally, petitioner's claim to additional good conduct time rests on his alleged entitlement to additional credit for time served. For the reasons explained above, petitioner fails to show that he is entitled to additional credit for time served and he is not entitled to additional good conduct credit.
CONCLUSION
Petitioner is not entitled to federal habeas relief and his Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (ECF No. 2) should be DENIED.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Federal Rule of Appellate Procedure 4(a)(1) should not be filed until entry of the district court's judgment or appealable order. The parties may file specific written objections within fourteen (14) days from the date of service of a copy of this recommendation. If an objection is filed, any response to the objection is due within fourteen (14) days from the date of the objection. See Fed. R. Civ. P. 72. The parties are advised that the failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).