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Herrera v. United States

July 27, 2009


The opinion of the court was delivered by: Anthony W. Ishii Chief United States District Judge



On December 1, 2008, Jesus Oscar Herrera ("Petitioner") filed a pleading titled "Application of Time Credits/ Sentence Adjustment" (hereinafter, the "Application"). Petitioner was convicted by plea of guilty to one count of conspiracy to distribute and possess with intent to distribute cocaine base in violation of 21 U.S.C. § 841(a)(1) and 846. Petitioner was originally sentenced to a term of 168 months imprisonment. Judgment was entered on November 30, 2006. As a result of a subsequent motion for reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2), the sentence was reduced to 140 months. Judgment was reentered on October 9, 2008. Essentially, Petitioner's Application requests the court apply a ten-month adjustment to Petitioner's sentence to credit him for time served in state custody as a result of a parole violation that was occasioned by the same conduct that was charged in Petitioner's federal case. For the reasons discussed below, the court will construe Petitioner's Application as a motion pursuant to 28 U.S.C. § 2255 and will deny the motion.


Petitioner was arrested on January 10, 2005, for possession of cocaine, possession of a firearm and ammunition, and drug trafficking paraphernalia -- conduct that would become the basis of the charges against Petitioner in this court. Prior to his arrest, Petitioner had been convicted in state court on January 17, 1999, and was on parole having served a 36-month state term of imprisonment. Petitioner also suffered a conviction in state court on March 15, 2001, for possession of cocaine base and served a two-year term and suffered another convicted on November 9, 2001, for infliction of corporal injury on a spouse for which he was sentenced to a 2-year term consecutive to the term imposed as a result of the March 15 conviction. At the time of his arrest on January 10, 2005, Petitioner was on parole on each of the three prior convictions. Petitioner was returned to state custody on January 10, 2005, for parole violations on each of the three prior convictions. Petitioner was paroled from state custody on November 6, 2005, approximately 10-months after his arrest on the federal charges.


Of primary concern to the court is the question of how, if at all, the court may assert jurisdiction over Petitioner's "Application." Although Petitioner's pleading is styled as an "Application for Time Credits" or a sentence adjustment, the essence of the pleading is Petitioner's contention that the court erroneously "overlooked" the fact of Petitioner's state custody and erred by failing to order the ten-month period of time Petitioner spent in state custody credited to his federal sentence. Thus, in broad terms, Petitioner's Application seeks to correct his sentence based on the allegation of error by the court in either failing to direct the Bureau of Prisons ("BOP") to calculate Petitioner's term of imprisonment to run concurrently with his state term, or in failing to reduce Petitioner's sentence at the time of sentencing by the amount of time previously served in state custody up to the time of sentencing.

It is well settled that a district court cannot calculate the amount of credit for prior detention at the time of sentencing. United States v. Wilson, 503 U.S. 329, 334 (1992). Rather, "'[i]t is the administrative responsibility of the Attorney General, the Department of Justice and the Bureau of prisons to compute sentences and apply credit where it is due. It is not the province of the sentencing court.' [Citation.]" United States v. Martinez, 837 F.2d 861, 865-866 (9th Cir. 1988). The determination of the Attorney General are subject to review in district courts, but only after exhaustion of remedies within the prison system. Id. at 865. Such a review may be undertaken either by way of motion pursuant to 28 U.S.C. § 2241 or by motion pursuant to 28 U.S.C. § 2255. In the alternative, a defendant who has been sentenced in a federal court may challenge the accuracy and lawfulness of the court's sentence by way of a motion pursuant to section 2255.

In materials accompanying the Application, Petitioner includes copies of administrative responses to the denial of Petitioner's requests to have his federal and state sentences run concurrently and to have his federal sentence re-computed. The materials included in the Application indicate Petitioner has received denials of administrative relief up to and including the level of the Regional Administrative Remedy Appeal. Denial of the Regional Administrative Remedy Appeal is dated April 2, 2008.

It is not clear to the court that Petitioner has exhausted all available administrative remedies, however the court will find for purposes of its jurisdiction over the instant matter that further review of Petitioner's claims through administrative channels would be futile and that the administrative review process is therefore deemed exhausted. Thus, the court concludes that it had jurisdiction to consider Petitioner's claims both with respect to Petitioner's claim that BOP erroneously failed to credit Petitioner with time served in state custody and Petitioner's claim that the court erred in failing to either direct the BOP to run the federal sentence concurrently with the state sentence or to erred in failing to directly reduce the federal sentence by ten months to correct for the state time served.

To effectuate this review, the court will construe Petitioner's Application as a motion to correct, vacate or set aside the judgment pursuant to 28 U.S.C. § 2255. Pursuant to 28 U.S.C. § 2244(d)(2) time limits for the filing of a motion pursuant to section 2255 are tolled during the pendency of any state review. The court finds Petitioner's Application was filed within one-year of the time his administrative remedies are deemed exhausted and is therefore timely under the limits imposed by section 2255.


28 U.S.C. § 2255 provides, in pertinent part: "A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States ... may move the court which imposed the sentence to vacate, set aside or correct the sentence." Under section 2255, "a district court must grant a hearing to determine the validity of a petition brought under that section, '[u]nless the motions and the files and records of the case conclusively show that the prisoner is entitled to no relief.' " United States v. Blaylock, 20 F.3d 1458, 1465 (9th Cir.1994) (quoting 28 U.S.C. § 2255) (emphasis in the original). The court may deny a hearing if the movant's allegations, viewed against the record, fail to state a claim for relief or "are so palpably incredible or patently frivolous as to warrant summary dismissal." United States v. McMullen, 98 F.3d 1155, 1159 (9th Cir.1996) (internal quotations omitted), cert. denied, 520 U.S. 1269, 117 (1997). To earn the right to a hearing, therefore, ...

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