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Lopez v. Ives

August 14, 2009


The opinion of the court was delivered by: Milan D. Smith, Jr. United States Circuit Judge


Petitioner Juan David Lopez, proceeding pro se, has filed an application for a writ of habeas corpus under 28 U.S.C. § 2241. Pending before the court are Lopez's petition for writ of habeas corpus and memorandum of points and authorities, filed on June 23, 2008, and Richard B. Ives's (Respondent) answer to Lopez's petition under 28 U.S.C. § 2241, filed on November 24, 2008. For the reasons discussed below, Lopez's application for a writ of habeas corpus pursuant to § 2241 is DENIED.


Lopez was arrested on December 19, 2002 by Midland, Texas police for multiple drug and weapon offenses. He was released on bond two days later. On March 7, 2003, Lopez surrendered to Midland County, Texas officials for a probation revocation.

On April 3, 2003, Lopez was temporarily released to the United States Marshals pursuant to a writ of habeas corpus ad prosequendum to face federal charges in the Western District of Texas stemming from the December 19 arrest. On July 28, 2003, Lopez was sentenced in the federal case to five years' imprisonment for possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c). MO-3-CR-009-RAJ.

On July 28, 2003, federal officials released Lopez back to Midland County officials and, on August 4, 2003, in the Midland County State Court, he was sentenced to five years' imprisonment for burglary of a habitation. Tex. Penal Code Ann. § 30.02(c)(2) (2003), Case No. CR26-054. On July 30, 2003, the state sentencing judge put Lopez on a personal recognizance bond to allow for federal attachment, which would permit Lopez's state incarceration time to run concurrently with the federal time. Lopez remained in the state's custody, however, because he also had been indicted for possession of dangerous drugs, Tex. Health & Safety Code § 483.041, a charge in which no bond was ever issued. Rather than being released, he was convicted for this subsequent state drug crime, Case No. 98649, and sentenced to sixty days in the Midland County jail. On August 30, 2003, he completed his county jail time for the state drug crime, and was transferred to the Texas Department of Correction (TDC) to serve his state term of five years for the burglary conviction. He was paroled from state custody on January 5, 2005 to the custody of the United States Marshals Service.

On March 9, 2005, the Federal Bureau of Prisons (BOP) computed Lopez's sentence to commence on the date he was paroled from the Texas state sentence, which effectively caused his federal sentence to run consecutive to his state sentence. Lopez sought to avoid a consecutive sentence by filing an administrative nunc pro tunc request with the BOP warden, who denied his request. Lopez then appealed the BOP warden's denial successively to the regional director and national administrator, both of whom also denied his request. Lopez now requests relief from this Court, seeking a nunc pro tunc designation of Lopez's Texas state sentence for the purpose of seeking credit towards his federal sentence. At the time this action was filed, Lopez was incarcerated at the federal correctional institution in Herlong, California.


I. Jurisdiction

"Review of the execution of a sentence may be had through petition for a writ of habeas corpus under 28 U.S.C. § 2241." United States v. Giddings, 740 F.2d 770, 772 (9th Cir. 1984). "The proper forum to challenge the execution of a sentence is the district where the prisoner is confined." Dunne v. Henman, 875 F.2d 244, 249 (9th Cir. 1989). This court is the proper forum for Lopez's petition because he is confined within the Eastern District of California.

II. Standard of Review

A sentencing designation by the BOP "is plainly and unmistakably within the BOP's discretion." Taylor v. Sawyer, 284 F.3d 1143, 1149 (9th Cir. 2002). Therefore, "we cannot lightly second guess a deliberate and informed determination by the agency charged with administering federal prison policy."*fn1

Id. This court reviews the BOP's final decision to grant or deny a prisoner's nunc pro tunc designation request for abuse of discretion. Id. In this instance, the final decision is that of the national administrator, dated May 13, 2008.

The BOP has broad discretion in granting or denying an inmate's nunc pro tunc request. "Federal prison officials are under no obligation to, and may well refuse to, follow the recommendation of state sentencing judges that a prisoner be transported to a federal facility. Moreover, concurrent sentences imposed by state judges are nothing more than recommendations to federal officials." Del Guzzi v. United States, 980 F.2d 1269, 1272 (9th Cir. 1992) (Norris, J. concurring). However, while the BOP is given broad discretion to grant or deny an inmate's nunc pro tunc ...

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