(HC) Jimenez v. Rex ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LUIS FERNANDO JIMENEZ, Case No. 1:22-cv-00758-HBK (HC) 12 Petitioner, OPINION AND ORDER GRANTING RESPONDENT’S MOTION TO DENY 13 v. PETITION1 14 J. REX, (Doc. No. 9) 15 Respondent. 16 17 18 19 Petitioner Luis Fernando Jimenez (“Petitioner”), a former federal inmate who is currently 20 serving supervised release, initiated this action by filing a pro se petition for writ of habeas corpus 21 under 28 U.S.C. § 2241 while he was incarcerated in Atwater Penitentiary, located in Merced 22 County, California, which is within the venue and jurisdiction of this Court on June 22, 2022.2 23 (Doc. No. 1, “Petition”). The Petition challenges the execution of Petitioner’s sentence. (Id. at 24 4). Specifically, as stated, Petitioner claims the Bureau of Prisons (“BOP”) “have refused – and 25 26 1 Both parties have consented to the jurisdiction of a magistrate judge, in accordance with 28 U.S.C. § 636(c)(1). (Doc. No. 11). 27 2 Petitioner was released from incarceration on July 22, 2022. Doc. No. 9 at 1 n.1 (citing Doc. No. 9-1 at 3-4). The instant petition is not moot because Petitioner remains “in custody” due to his supervised terms 28 of release. Tablada v. Thomas, 533 F.3d 800, 801 n.1 (9th Cir. 2008). 1 are refusing – to execute the second and subsequent sentencing judgment – which modified a first 2 sentencing judgment imposed by the same federal sentencing court judge – that specifically 3 referenced both sentencing judgments in the secondary judgment – ordering both to run 4 concurrent to each other – overruling his previous first judgment order that the first sentencing 5 judgment was to run consecutive to the second sentencing judgment not yet then imposed.” (Id. 6 at 8). Respondent filed a Motion to Dismiss in response to the Petition on September 13, 2022. 7 (Doc. No. 9). Respondent seeks dismissal of the Petition due to Petitioner’s failure to exhaust his 8 administrative remedies. (Id. at 3). In the alternative, Respondent contends the Petition fails on 9 the merits. (Id. at 4). As of the date of this Opinion and Order, Petitioner has not filed a response 10 to the Motion, nor requested an extension of time to respond, and the time for doing so has 11 expired. (See Doc. No. 7 at ¶ 4, advising Petitioner that he has twenty-one (21) days to file a 12 response if Respondent files a motion to dismiss). For the reasons set forth more fully herein, the 13 Court grants Respondent’s Motion and denies the Petition. 14 I. BACKGROUND 15 A. Procedural History 16 On October 25, 2016, Petitioner was arraigned on charges of distribution of 17 methamphetamine and unlawfully possessing a firearm and was ordered detained pending trial. 18 See United States v. Jimenez, case no. 2:16-cr-00763-GW-1, Crim. Doc. Nos. 1, 3-5, 7, 10 (C.D. 19 Cal.)3; Doc. No. 9-1 at 56-57. While in pretrial custody on those charges, Petitioner separately 20 was charged by indictment with assault on a federal officer or employee resulting in the infliction 21 of bodily injury and aiding and abetting in violation of 18 U.S.C. §§ 111(a)(1), (b); 2(a). See 22 United States v. Garcia, case no. 2:17-cr-00273-ODW, Crim. Doc. Nos. 1 (C.D. Cal.); Doc. No. 23 9-1 at 11-12. After a jury trial and conviction as charged in case no. 2:17-cr-273-ODW, 24 Petitioner was sentenced on March 12, 2018 to a 57-month sentence to run consecutive to “any 25 undischarged term of imprisonment in case 16-cr-763-GW.” Crim. Doc. No. 124; Doc. No. 9-1 26 at 14-18. Petitioner entered a guilty plea in case no. 2:16-cr-763-GW, and on September 16, 27 3 The undersigned cites to the record in Petitioner’s underlying CDCA criminal cases as “Crim. Doc. No. 28 _.” 1 2019, was sentenced to a 60-month sentence to run concurrent with the judgment in case no. 2 2:17-cr-273-ODW. Crim. Doc. No. 59; Doc. No. 9-1 at 20-24. 3 As noted by Respondent, after the imposition of his September 16, 2019 sentence in case 4 no. 2:16-cr-763-GW, Petitioner commenced serving his aggregate federal sentence. (Doc. No. 9 5 at 3 (citing Doc. No. 9-1 at 34)). Petitioner received credit of 503 days toward the aggregate 6 sentence for pretrial detention starting from October 25, 2016, the day he was charged in case no. 7 2:16-cr-763-GW, through March 11, 2018, the day before the earlier-imposed sentence began in 8 case no. 2:17-cr-273-ODW; as well as 202 days of earned good conduct time. (Doc. No. 9-1 at 9 34-36). Petitioner completed the incarceration term of his federal sentence on July 22, 2022 but 10 remains in service of his supervised release terms at the time Respondent filed the instant Motion. 11 (Doc. No. 9 at 1 n.1; Doc. No. 9-1 at 36). 12 II. APPLICABLE LAW AND ANALYSIS 13 Under Rule 4, if a petition is not dismissed at screening, the judge “must order the 14 respondent to file an answer, motion, or other response” to the petition. R. Governing 2254 Cases 15 4. The Advisory Committee Notes to Rule 4 state that “the judge may want to authorize the 16 respondent to make a motion to dismiss based upon information furnished by respondent.” A 17 motion to dismiss a petition for writ of habeas corpus is construed as a request for the court to 18 dismiss under Rule 4 of the Rules Governing Section 2254 Cases. O’Bremski v. Maass, 915 F.2d 19 418, 420 (9th Cir. 1990). Under Rule 4, a district court must dismiss a habeas petition if it 20 “plainly appears” that the petitioner is not entitled to relief. See Valdez v. Montgomery, 918 F.3d 21 687, 693 (9th Cir. 2019); Boyd v. Thompson, 147 F.3d 1124, 1127 (9th Cir. 1998). 22 A. Exhaustion 23 “Federal prisoners [generally] are required to exhaust their federal administrative 24 remedies prior to bringing a petition for a writ of habeas corpus in federal court.” Martinez v. 25 Roberts, 804 F.2d 570, 571 (9th Cir. 1986); see also Ward v. Chavez, 678 F.3d 1042 (9th Cir. 26 2012). The requirement that federal prisoners exhaust administrative remedies before filing a 27 habeas corpus petition is judicially created; it is not a statutory requirement. Brown v. Rison, 895 28 F.2d 533, 535 (9th Cir. 1990), overruled on other grounds by Reno v. Koray, 515 U.S. 50, 54-55 1 (1995). Because exhaustion is not required by statute, it is not jurisdictional. Id. (citing 2 Morrison-Knudsen Co., Inc. v. CHG Int’l, Inc., 811 F.2d 1209, 1223 (9th Cir. 1987)). If 3 petitioner has not properly exhausted his claims, the district court, in its discretion, may 4 “determine whether to excuse the faulty exhaustion and reach the merits or require the petitioner 5 to exhaust his administrative remedies before proceeding in court.” Id. 6 Requiring a petitioner to exhaust administrative remedies (1) aids judicial review “by 7 allowing the appropriate development of a factual record in an expert forum,” (2) conserves “the 8 court's time because of the possibility that the relief applied for may be granted at the 9 administrative level,” and (3) allows “the administrative agency an opportunity to correct errors 10 occurring in the course of administrative proceedings.” Ruviwat v. Smith, 701 F.2d 844, 845 (9th 11 Cir. 1983) (per curiam). Dismissal is appropriate when a federal prisoner has not exhausted the 12 administrative remedies made available by the BOP. See Quinonez v. McGrew, 649 F. App'x 475 13 (9th Cir. 2016) (affirming district court's dismissal of a § 2241 petition where the petitioner “did 14 not complete any level of the BOP's Administrative Remedy Program and there is no indication 15 that his pursuit of those remedies would be futile”). However, the Court may waive the 16 exhaustion requirement when administrative remedies are inadequate, irreparable injury may 17 occur without immediate judicial relief, or exhaustion otherwise would be futile. Laing v. 18 Ashcroft, 370 F.3d 994, 1000-01 (9th Cir. 2004) (“[D]istrict court's habeas jurisdiction under 28 19 U.S.C. § 2241 is ordinarily reserved for instances in which no other judicial remedy is 20 available.”). 21 Respondent argues Petitioner failed to exhaust the administrative remedy process, and 22 therefore the “BOP did not have [an] opportunity to review Petitioner’s claim that the latter 23 judgment (in CDCA 16-cr-763) voided the earlier judgment (in CDCA 17-cr-273).” (Doc. No. 9 24 at 4; Doc. No. 9-1 at 2 (noting Petitioner attempted to file two administrative remedies and both 25 were rejected “for procedural reasons”)). In the Petition, Petitioner states he filed a first, second, 26 and third level appeal (Doc. No. 1 at 2-3); and attaches exhibits to his Petition that include 27 multiple attempts at administrative remedy, and the reasons given for denying his requests. (Id. at 28 15-31). After reviewing the documents submitted by both parties, it is unclear to the Court 1 whether Petitioner has fully exhausted his administrative remedies. Here, the Court finds it 2 would be futile for Petitioner to pursue further administrative remedies because, although “in 3 custody” Petitioner is no longer incarcerated and his sole ground for relief has no merit. See 4 Seriales v. Lizarraga, 2019 WL 201524, at *4 (E.D. Cal. Jan. 15, 2019) (excusing exhaustion 5 requirement because Petitioner’s claims are without merit, and any attempt to exhaust would be 6 futile); see also Keegan v. Derr, 2023 WL 2403941, at *3 (D. Haw. Mar. 8, 2023) (waiving 7 exhaustion requirement because petitioner is no longer an inmate and is therefore unable to 8 exhaust the administrative remedy process). Therefore, the Court waives the exhaustion 9 requirement and will turn to the merits of the Petition. 10 B. The BOP Properly Executed Petitioner’s Sentences 11 A federal prisoner challenging the validity or constitutionality of a conviction must bring a 12 petition for writ of habeas corpus under 28 U.S.C. § 2255, but a petitioner challenging the 13 manner, location, or conditions of the execution of that sentence is required to bring a petition for 14 writ of habeas corpus under 28 U.S.C. § 2241. See Hernandez v. Campbell, 204 F.3d 861, 864 15 (9th Cir. 2000) (“Generally, motions to contest the legality of a sentence must be filed under § 16 2255 in the sentencing court, while petitions that challenge the manner, location, or conditions of 17 a sentence's execution must be brought pursuant to § 2241 in the custodial court.”). To receive 18 relief under 28 U.S.C. § 2241, a petitioner in federal custody must show that his sentence is being 19 executed in an illegal, but not necessarily unconstitutional, manner. See, e.g., Clark v. Floyd, 80 20 F.3d 371, 372, 374 (9th Cir. 1996) (contending time spent in state custody should be credited 21 toward federal custody); United States v. Jalili, 925 F.2d 889, 893-94 (6th Cir. 1991) (asserting 22 petitioner should be housed at a community treatment center); Barden v. Keohane, 921 F.2d 476, 23 479 (3rd Cir. 1990) (arguing BOP erred in determining whether petitioner could receive credit for 24 time spent in state custody); United States v. Brown, 610 F.2d 672, 677 (9th Cir. 1980) 25 (challenging content of inaccurate pre-sentence report used to deny parole). 26 Here, Petitioner claims the BOP’s computation of his sentence unlawfully effects the 27 length of his sentence. Thus, the claim is proper under 28 U.S.C. § 2241 as it challenges the 28 execution of Petitioner’s sentence rather than the sentence’s imposition. See, e.g., Schleining v. 1 Thomas, 642 F.3d 1242, 1244 (9th Cir. 2011) (upholding BOP’s computation of good time credits 2 and expected release date). 3 Under 18 U.S.C. § 3585, the Attorney General, through the BOP, is responsible for 4 computing federal sentences. United States v. Wilson, 503 U.S. 329, 333 (1992). “After a 5 defendant is sentenced, the BOP is responsible for determining (i) the date the federal sentence 6 ‘commences’; (ii) whether the defendant should receive credit for time spent in custody before 7 the sentence ‘commenced’; and (iii) whether the defendant should be awarded credit for ‘good 8 time.’” Tompkins v. Graber, 2015 WL 1536289, at *5 (D. Ar. Apr. 6, 2015) (citing 18 U.S.C. § 9 3585(a) and (b); Wilson, 503 U.S. at 331-32 (BOP determines credit issues, not district courts)). 10 Pursuant to 18 U.S.C. § 3585(a), a federal sentence “commences on the date the defendant is 11 received in custody” at the “official detention facility at which the sentence is to be served.” 12 Thus, “a federal sentence cannot commence until a prisoner is sentenced in federal district court.” 13 Schleining, 642 F.3d at 1244; United States v. Flores, 616 F.2d 840, 841 (5th Cir. 1980) (“[A] 14 federal sentence cannot commence prior to the date it is pronounced, even if made concurrent 15 with a sentence already being served.”)(citation omitted); BOP Program Statement 5880.28, 16 Sentence Computation Manual (CCCA of 1984) at 1-13 (“In no case can a federal sentence of 17 imprisonment commence earlier than the date on which it is imposed”). Moreover, “[a] sentence 18 can run concurrent with an unexpired portion of a previously imposed sentence, but it cannot run 19 concurrent with that part of a previously imposed sentence that has already run. A sentence starts 20 when the defendant is taken into custody to serve that sentence, and not before.” Sadler v. 21 Baltazar, 2019 WL 4419014, at *2 (D. Ar. Aug. 23, 2019); Trine v. Salazar, 770 F. App’x 874 22 (9th Cir. 2019) (federal sentence to be served concurrently with his previously imposed state 23 sentence began on date of federal sentencing, and “cannot be backdated prior to its 24 commencement”). 25 Petitioner argues the BOP failed to execute his sentences in accordance with the most 26 recent judgment issued by the sentencing court on September 16, 2019. (Doc. No. 1 at 6). More 27 specifically, Petitioner claims that the “second and subsequent” judgment in 2:16-cr-763-GW 28 “overruled” the previously assessed judgment in 2:17-cr-273-ODW, and that “notwithstanding 1 the latter sentencing judge’s specific sentencing instruction, the BOP have executed – and are 2 executing – the first sentencing judgment consecutive to the second sentencing judgment ignoring 3 the commanded modification in the second sentencing judgment – that both run concurrent to 4 each other.” (Id. at 8). In essence, Petitioner argues that his aggregate term should run 5 concurrently from the start date of his March 12, 2018 prior sentence. Respondent contends the 6 BOP properly aggregated the two federal sentences to form a single sentence, and determined the 7 aggregated sentence to commence running concurrently on September 16, 2019, the date the 8 second sentence was imposed. (Doc. No. 9 at 4). The Court agrees. 9 Petitioner’s sentence was computed in accordance with 18 U.S.C. § 3585 and BOP 10 Program Statement 5880.28, Sentence Computation Manual (CCCA of 1984), and consistent with 11 the sentencing court’s intent to have Petitioner’s sentence in case no. 2:16-cr-763-GW run 12 concurrently with the previously imposed sentence in case no. 2:17-cr-273-ODW. To wit, 13 Petitioner’s 60-month sentence in 2:16-cr-763-GW started on the day it was imposed, September 14 16, 2019.4 It was administratively aggregated with the unexpired portion of the previously 15 imposed 57-month sentence until that sentence expired, and after applying the appropriate credits 16 for pretrial detention and good time conduct, Petitioner’s projected release date was properly 17 calculated as July 22, 2022. (Doc. No. 9-1 at 33-36). Petitioner has failed to show any violation 18 of federal law in the BOP’s commencement of his aggregate sentence; nor has he cited any 19 evidence or federal law to support his argument that the later imposed sentence “overruled” the 20 earlier sentence. 21 Finally, a federal prisoner is entitled to “credit toward the service of a term of 22 imprisonment for any time he has spent in official detention prior to the date the sentence 23 commences ... that has not been credited against another sentence.” 18 U.S.C. § 3585(b)(2) 24 (emphasis added). To the extent Petitioner claims his credit for time served in pretrial detention 25 “from the time of his initial arrest” was improperly applied (Doc. No. 1 at 9), Respondent 26 explains that Petitioner received 503 days of jail credit for his time in pretrial detention for case 27 4 The Court notes that if Petitioner’s 60-month sentence was run consecutive to his previously imposed 57- 28 month sentence, it would not have started until the 57-month sentence was over. 1 | no. 2:16-763-GW, calculated from the onset of Petitioner’s arrest on those charges on October 25, 2 | 2016, through March 11, 2018, the date his sentence was imposed in case no. 2:17-cr-273. (Doc. 3 | No. 9 at 1-2; Doc. No. 9-1 at 3-4). Thus, Petitioner is not entitled to any separate or additional 4 | credit for the time he spent in pretrial detention prior to his later imposed concurrent sentence in 5 | case no. 2:16-763-GW, because it was properly credited toward his aggregate sentence in 6 | compliance with 18 U.S.C. § 3585(b). Wilson, 503 U.S. at 337 (“Congress made it clear that a 7 | defendant could not receive a double credit for his detention time.”); Fitch v. Johnson, 2017 WL 8 | 1508560, at *3 (C.D. Cal. Mar. 21, 2017) (holding the time that petitioner spent in federal 9 | custody related to his federal charges was credited to that sentence, and therefore could not be 10 || credited towards his sentence following his later conviction on other federal charges). After 11 | applying those credits, and good time credits, Petitioner’s release date for the aggregate sentence 12 || was properly calculated as July 22, 2022. Cd.) 13 Based on the foregoing, Petitioner has not shown that the BOP committed legal error in 14 | the execution of his sentence. As Petitioner has failed to establish that his continuing 15 | confinement is unlawful, he is not entitled to habeas corpus relief. 16 Accordingly, it is ORDERED: 17 1. Respondent’s Motion (Doc. No. 9) is GRANTED to the extent the Petition is DENIED 18 | on the merits. 19 2. The Clerk of Court is directed to terminate any pending motions and close this case. 20 *I | Dated: _ May 15, 2023 Mihaw. Wh. foareh fackte 22 HELENA M. BARCH-KUCHTA 33 UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28