Luna v. Howard ( 2022 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Roman L Luna, No. CV-21-00326-TUC-RM 10 Petitioner, ORDER 11 v. 12 Catricia Howard, 13 Respondent. 14 15 On September 19, 2022, Magistrate Judge Lynnette C. Kimmins issued a Report 16 and Recommendation (“R&R”) recommending that this Court deny Petitioner Roman L 17 Luna’s Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. The R&R 18 concludes that because Petitioner did not exhaust the Bureau of Prisons (“BOP”) 19 administrative remedy procedure prior to filing the Petition, the Petition is subject to 20 dismissal. (Doc. 16.) The R&R further finds that the Petition should be denied on the merits 21 because the BOP correctly calculated Petitioner’s sentence. (Id.) The R&R recommends 22 this Court deny Petitioner’s Motion for a Preliminary Injunction (Doc. 14), which seeks 23 the same relief as the Petition. On October 20, 2022, Petitioner filed an untimely Objection 24 to the R&R. (Doc. 17.) See Fed. R. Civ. P. 72(b)(2). 25 I. Standard of Review 26 A district judge “may accept, reject, or modify, in whole or in part,” a magistrate 27 judge’s proposed findings and recommendations. 28 U.S.C. § 636(b)(1); see also Fed. R. 28 Civ. P. 72(b)(3). “The district judge must determine de novo any part of the magistrate 1 judge’s disposition that has been properly objected to.” Fed. R. Civ. P. 72(b)(3); see also 2 28 U.S.C. § 636(b)(1) (district judge must “make a de novo determination of those 3 portions” of a magistrate judge’s “report or specified proposed findings or 4 recommendations to which objection is made”). The advisory committee’s notes to Rule 5 72(b) of the Federal Rules of Civil Procedure state that, “[w]hen no timely objection is 6 filed, the court need only satisfy itself that there is no clear error on the face of the record 7 in order to accept the recommendation” of a magistrate judge. Fed. R. Civ. P. 72(b) 8 advisory committee’s note to 1983 addition. See also Johnson v. Zema Sys. Corp., 170 F.3d 9 734, 739 (7th Cir. 1999) (“If no objection or only partial objection is made, the district 10 court judge reviews those unobjected portions for clear error.”); Prior v. Ryan, CV 10-225- 11 TUC-RCC, 2012 WL 1344286, at *1 (D. Ariz. Apr. 18, 2012) (reviewing for clear error 12 unobjected-to portions of Report and Recommendation). 13 II. Petition for Writ of Habeas Corpus 14 A. Background 15 On December 5, 2013, Petitioner was arrested in Texas on state charges of 16 possession of marijuana and evading arrest with a motor vehicle. (Doc. 11-3 at 6-8.) On 17 January 16, 2014, while in state custody, Petitioner was separately charged in the Western 18 District of Texas of possession of a weapon by a convicted felon. (Id. at 11-12.) Petitioner 19 was in state custody from the time of his arrest until January 16, 2014, when he was 20 temporarily transferred to federal custody pursuant to a writ of habeas corpus ad 21 prosequendum. (Id.) On March 20, 2014, Petitioner pled guilty to the federal charge and 22 on May 28, 2014, he was sentenced to 105 months of imprisonment in the Western District 23 of Texas. (Id.) On June 24, 2014, Petitioner entered a plea agreement for his state charges 24 in which the State of Texas recommended a five-year sentence for the evading arrest charge 25 to run concurrent with both the 18-month state marijuana possession sentence and the 105- 26 month federal sentence. (Doc. 1 at 12.) Petitioner received credit for the state sentence from 27 the date of arrest through the date of sentencing on the state charge. (Doc. 11-3 at 6-8.) In 28 2015, Petitioner’s federal sentencing judge determined that Petitioner’s state and federal 1 sentences were to run consecutively. (Id. at 43-50.) On December 5, 2018, Petitioner was 2 discharged from his state sentence, and transferred to the Bureau of Prisons (“BOP”) to 3 begin serving his federal sentence. (Id. at 4.) Petitioner’s projected release date is June 16, 4 2026. (Id. at 2). 5 On August 16, 2021, Petitioner filed a Petition for Writ of Habeas Corpus pursuant 6 to 28 U.S.C. § 2241. (Doc. 1.) The Petition challenges the July 22, 2021 sentence 7 calculation by the BOP Designation and Sentence Computation Center (“DSCC”) 8 confirming the 105-month federal sentence and June 16, 2026 projected release date. (Id. 9 at 10.) On August 12, 2021, the DSCC rejected Petitioner’s request for recalculation of his 10 sentence and informed him of his right to utilize the administrative remedy process if 11 unsatisfied with the decision. (Id.; Doc. 9.) Petitioner admits that he did not exhaust his 12 administrative remedies because he believed doing so would be futile. (Doc. 1 at 3.) 13 Instead, Petitioner filed the Petition with this Court. (Id.) The Petition alleges that the BOP 14 miscalculated Petitioner’s prison term because the five-year state sentence was intended to 15 run concurrently with the 105-month federal sentence. (Id. at 4.) Therefore, Petitioner 16 argues that his five years in state custody should be credited to his federal sentence and he 17 should be released immediately. (Id.) 18 The R&R finds that, while a court may waive the exhaustion requirement if futile, 19 the remedy Petitioner sought would have been resolved more quickly through the 20 administrative appeals process than through litigation and therefore exhaustion was not 21 futile. (Id. at 3.) Further, upon considering the merits of the Petition, the R&R recommends 22 denial because Petitioner’s sentence was not miscalculated. (Id. at 4.) Specifically, the 23 R&R finds that the sentence was correctly calculated because (1) the federal sentence was 24 to run consecutively to, not concurrently with, the state sentence; (2) Petitioner received 25 credit for the entire time he was in state custody; and (3) he began serving his federal 26 sentence upon his transfer to federal custody on December 5, 2018. (Id. at 4-6.) 27 On October 20, 2022, Petitioner filed an untimely objection to the R&R. (Doc. 17.) 28 See Fed. R. Civ. P. 72(b)(2). Petitioner argues that the R&R: (1) failed to consider the 1 amended BOP Administrative Remedy Program rules which permit an inmate to file a 2 Request for Administrative Remedy with the DSCC on matters related to sentencing 3 computation; (2) failed to consider the effect of primary jurisdiction on the sentencing 4 computation under 18 U.S.C. § 3585; and (3) failed to comment on Petitioner’s request for 5 appointment of counsel. (Id.) 6 B. Exhaustion 7 “Federal prisoners are required to exhaust their federal administrative remedies 8 prior to bringing a petition for a writ of habeas corpus in federal court.” Martinez v. 9 Roberts, 804 F.2d 570, 571 (9th Cir. 1986). The exhaustion requirement protects the 10 administrative agency’s authority by allowing the agency to correct its own mistakes before 11 being hailed into federal court. Woodford v. Ngo, 548 U.S. 81, 89 (2006). The exhaustion 12 requirement also promotes efficiency by resolving claims much more quickly and in a more 13 economically efficient manner than proceeding to federal litigation. Id. However, a court 14 may waive the exhaustion requirement “where administrative remedies are inadequate or 15 not efficacious, pursuit of administrative remedies would be a futile gesture, irreparable 16 injury will result, or the administrative proceedings would be void.” Laing v. Ashcroft, 370 17 F.3d 994, 1000 (9th Cir. 2004) (citing S.E.C. v. G.C. George Sec., Inc., 637 F.2d 685, 688 18 (9th Cir.1981)). 19 Petitioner’s objection argues that he can file a request for an administrative remedy 20 directly with the DSCC. Petitioner did, in fact, file a request for recalculation directly with 21 the DSCC, but on August 12, 2021, the request was rejected, and Petitioner was notified 22 of his right to utilize the administrative remedy process if unsatisfied with the decision. 23 (Doc. 9.) Petitioner did not exhaust the available administrative remedies by appealing this 24 decision to the appropriate administrative agency. Rather, he filed the Petition in this Court. 25 The Court agrees with the R&R that Petitioner was required to exhaust his administrative 26 remedies and that exhaustion would not have been futile, but would have provided a 27 speedier resolution than litigating in federal court. 28 C. Calculation of Sentence 1 “A sentence to a term of imprisonment commences on the date the defendant is 2 received in custody awaiting transportation to… the official detention facility at which the 3 sentence is to be served.” 18 U.S.C. § 3585(a); see also Schleining v. Thomas, 642 F.3d 4 1242, 1244 (9th Cir. 2011) (“[A] federal sentence cannot commence until a prisoner is 5 sentenced in federal district court.”) “When an accused is transferred pursuant to a writ of 6 habeas corpus ad prosequendum he is considered to be ‘on loan’ to the federal authorities 7 so that the sending state's jurisdiction over the accused continues uninterruptedly.” Thomas 8 v. Brewer, 923 F.2d 1361, 1367 (9th Cir. 1991) (citation omitted). 9 “Multiple terms of imprisonment imposed at different times run consecutively 10 unless the court orders that the terms are to run concurrently.” 18 U.S.C. § 3584(a). Credit 11 for prior custody shall be given “toward the service of a term of imprisonment for any time 12 [a defendant] has spent in official detention prior to the date the sentence commences…” 13 Id. § 3585(b). However, this credit cannot be “credited against another source.” Id. 14 Concurrent sentencing only applies prospectively, and the court may not “backdate a 15 federal sentence to make it concurrent with a prior term of state imprisonment; it can make 16 a federal sentence concurrent only with a state sentence from the date of imposition 17 forward.” Schleining, 642 F.3d at 1248 n.8. 18 Petitioner argues that the R&R should be rejected for failure to consider the effect 19 a court’s primary jurisdiction has on a sentence computation. (Doc. 17.) Petitioner attaches 20 the dissent from Johnson v. Gill, 883 F.3d 756 (9th Cir. 2018) and an unpublished District 21 of Pennsylvania case, Taylor v. Miner, 4:06-CV-1086, 2008 WL 2705535 (M.D. Pa. July 22 10, 2008) in support of his argument. However, both cases hold that a defendant may not 23 receive both state and federal sentence credit as such a double credit would violate 18 24 U.S.C. § 3585(b). In Johnson, the majority concluded that a federal sentence does not 25 commence until a federal court has physical custody and primary jurisdiction over a 26 defendant, and a state court must actively intend to surrender primary jurisdiction. Johnson, 27 883 F.3d at 761. In Petitioner’s case, the federal court did not possess primary jurisdiction 28 over Petitioner until December 5, 2018 when he was transferred into federal custody. 1 Therefore, in accordance with Johnson, Petitioner’s federal sentence commenced on 2 December 5, 2018. The R&R did not err for failure to consider the effect of primary 3 jurisdiction on a sentence computation. 4 In 2015, the federal sentencing judge determined that the state and federal sentences 5 were to run consecutively and not concurrently.1 Petitioner was entitled to credit for time 6 served prior to his federal sentence as long as the time was not “credited against another 7 source.” 18 U.S.C. § 3585(b). The time Petitioner spent in custody prior to his federal 8 sentencing was credited to his state sentence, including the time spent in federal custody 9 from January 16, 2014 until May 28, 2014 pursuant to the writ of habeas corpus ad 10 prosequendum. Therefore, BOP correctly based its calculation of Petitioner’s sentence on 11 a finding that none of this time served should be credited to his federal sentence. Upon 12 independent de novo review, the Court finds that Petitioner’s sentence was correctly 13 calculated and will affirm the R&R, deny the Petition, and overrule the Objection. 14 D. Appointment of Counsel 15 Lastly, Petitioner argues that the R&R should be rejected for its failure to address 16 Petitioner’s request to appoint counsel under 18 U.S.C. § 3006A(a)(2)(B). (Doc. 17.) 17 “Indigent state prisoners applying for habeas corpus relief are not entitled to appointed 18 counsel unless the circumstances of a particular case indicate that appointed counsel is 19 necessary to prevent due process violations.” Chaney v. Lewis, 801 F.2d 1191, 1196 (9th 20 Cir. 1986). However, the Court may appoint counsel for an indigent applicant seeking 21 relief under section 2241 in the interest of justice. 18 U.S.C. § 3006A(a)(2)(B). 22 The Court, in its discretion, will deny Petitioner’s request for appointment of 23 counsel as it does not find that the interest of justice mandates such appointment. 24 Appointment of counsel will not resolve the deficiencies in Petitioner’s claim, as discussed 25 above. 26 . . . . 27 1 The state court recommended concurrent sentences. However, this was only a recommendation to the federal court and was not binding. See Taylor v. Sawyer, 284 F.3d 28 1143, 1150 (9th Cir. 2002) (“[C]oncurrent sentences imposed by state judges are nothing more than recommendations to federal officials.”) 1 III. Motion for Preliminary Injunction 2 Petitioner also filed a Motion for Preliminary Injunction. (Doc. 14.) The R&R 3 || recommends the Motion for Preliminary Injunction be denied because it seeks the same 4|| relief requested in the Petition. (Doc. 24 at 5.) Petitioner does not object to the R&R’s 5 || recommendation regarding the Motion for Preliminary Injunction. Therefore, this Court || reviews the R&R’s findings on the Motion for Preliminary Injunction for clear error. 7\| Johnson, 170 F.3d at 739. 8 “A plaintiff seeking a preliminary injunction must establish that he is likely to || succeed on the merits, that he is likely to suffer irreparable harm in the absence of || preliminary relief, that the balance of equities tips in his favor, and that an injunction is in 11 || the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). Because the Petition will be denied, Petitioner has failed to show he is likely to succeed on the merits 13 || such that injunctive relief would be warranted. Therefore, the Court finds no clear error in 14]| this portion of the R&R and the Motion for Preliminary Injunction will be denied. 15 Accordingly, 16 IT IS ORDERED that the Report and Recommendation (Doc. 16) is accepted and || adopted in full. Petitioner’s Objection (Doc. 17) is overruled. 18 IT IS FURTHER ORDERED that the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 (Doc. 1) is denied. 20 IT IS FURTHER ORDERED that the Motion for Preliminary Injunction (Doc. 14) is denied. The Clerk of Court is directed to enter judgment accordingly and close this case. 23 Dated this 15" day of December, 2022. 24 — “HA fare ) 27 Honorable Rostviary Mafquez 28 United States District Iidge -7-