The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Petitioner is a federal prisoner, incarcerated at Herlong Federal Correction Institution, who proceeds without counsel with a petition for writ of habeas corpus, pursuant to 28 U.S.C. § 2241.*fn2 Petitioner, who paid the filing fee, challenges the calculation of his sentence.
Pending before the court is respondent's motion to dismiss the petition. Petitioner timely filed an opposition; respondent did not file a reply. After reviewing the parties' papers and the record, and for the reasons set forth below, this court recommends that respondent's motion be granted.
Petitioner is serving a federal prison sentence of 14 years (168 months); his projected release date, assuming credit for good time, is March 23, 2020. (Dkt. No. 12 at 20; Dkt. No. 13 at 14.)*fn3
Petitioner was sentenced on January 9, 2009, by the United States District Court, District of Alaska, following a jury trial and conviction on the criminal charge of possession of a controlled substance (cocaine base or "crack"), with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). (Alaska District Court Case No. 4:08-cr-00006 RRB-1.) The conviction was premised on petitioner's arrest, on January 12, 2008, by the Fairbanks Police Department, based on an officer's observation that petitioner, who was alone, had expired plates, and had difficulty getting into his car in the parking lot of a liquor store. A search of petitioner and his car was undertaken, pursuant to the officer's closer observation that there was a vodka bottle on the passenger seat of petitioner's car and petitioner appeared to be under the influence, as well as information that petitioner was on parole. The search disclosed a baggie containing 7.1 grams of crack, an electronic digital scale, and $1866 in cash. A subsequent search of the car disclosed a crack pipe. Investigators later interviewed Toni Rosenthal, Roberta Titus, and Lisa Lozano, concerning their knowledge of petitioner's alleged distribution of crack cocaine. Rosenthal stated that she first purchased crack cocaine from petitioner during the summer of 2005, and estimated that she had purchased crack from petitioner a total of ten times, most recently around Christmas 2007. Titus stated that she had purchased crack from petitioner, on an irregular basis, for three to four years prior to petitioner's last conviction. Lozano stated that she met petitioner the year before, and had since purchased crack from him an average of two times a week. (See Federal Presentence Report ("PSR"); Opposition (Dkt. No. 16 at 17-18); also filed "under seal" by respondent (Dkt. No. 12, Attachment 1).)
At the time of his arrest, petitioner was on parole pursuant to a January 2006 state criminal conviction in Alaska Superior Court Case No. 4FA-05-02873 CR (premised on a conviction for Misconduct Involving a Controlled Substance III, in violation of Alaska Penal Code section 11.71.030). That conviction was based on evidence obtained pursuant to petitioner's arrest, on August 23, 2005, by the Fairbanks Police Department, also pursuant to a parking lot stop; Roberta Titus and Liza Lozano were, at the time, passengers in petitioner's vehicle. In August 2005, petitioner already had prior convictions involving drug use.
Thus, pursuant to his January 12, 2008 arrest, petitioner was charged with violating his state parole (in Alaska Superior Court Case No. 4FA-05-02873 CR), and charged in a new state criminal proceeding with Misconduct Involving a Controlled Substance IV, in violation of Alaska Penal Code section 11.71.040 (Alaska Superior Court Case No. 4FA-08-00136 CR). However, on December 3, 2008, the Alaska State Court of Appeals overturned petitioner's 2006 state criminal conviction, based on a finding that the trial court had erred in denying petitioner's motion to suppress. (Dkt. No. 13 at 6-10.) As a result, on January 7, 2009, the Alaska Superior Court vacated petitioner's 2006 state criminal conviction, as well as his alleged parole violation thereon. (Alaska Superior Court Case No. 4FA-05-02873 CR.) (Dkt. No. 13 at 2.) In addition, the Alaska Superior Court dismissed the new state criminal charge against petitioner (Alaska Superior Court Case No. 4FA-08-00136 CR), in deference to the federal court's assumption of jurisdiction in prosecuting the same conduct in the instant case.
Meanwhile, on March 19, 2008, petitioner was indicted in the United States District Court for the District of Alaska, on one count of "Possession with Intent to Distribute Cocaine Base," in violation of 21 U.S.C. § 841(a)(1), subject to the penalties of 21 U.S.C. § 841(b)(1)(B), based on petitioner's possession of "5 grams or more of a mixture and substance containing cocaine base (crack)," "[o]n or about January 12, 2008." (Alaska District Court Case No. 4:08-cr-00006 RRB-1, Dkt. No. 2.) Petitioner was arraigned on March 20, 2008. (Id., Dkt. Nos. 7, 8.) Following a jury trial, a verdict was reached on July 11, 2008, finding petitioner guilty "of the crime of Possession of Cocaine Base with Intent to Distribute, in violation of Section 841(a)(1) of Title 21 of the United States Code, as charged in Count 1 of the Indictment." (Id., Dkt. No. 146.)
Petitioner's federal sentencing hearing, initially convened on November 14, 2008 (id., Dkt. No. 183), was concluded on January 9, 2009 (id., Dkt. No. 194). The district judge declined to apply the career offender enhancement set forth in the Federal Sentencing Guidelines, but found that the quantity of cocaine base in petitioner's possession at the time of his arrest included at least five grams intended for distribution (as opposed to personal consumption). As a result, the district judge initially imposed a ten-year minimum sentence, as then required by 21 U.S.C. § 841(b)(1)(B)(iii) (2009) (ten-year mandatory minimum sentence for defendants with prior felony drug offense convictions). See U.S. Sentencing Guidelines ("U.S.S.G.") § 4B1.1; (see also Transcript of Sentencing Hearing (hereafter "Transcript"), Alaska District Court Case No. 4:08-cr-00006 RRB-1, Dkt. No. 214 at 30-31, 33). Thereafter, pursuant to the factors set forth in 18 U.S.C. § 3553(a), the district judge found, based on "clear and convincing evidence," that petitioner had a lengthy history of drug abuse, repeated past failures to succeed in rehabilitation programs, and a history of distributing crack to others, particularly to vulnerable women, including the witnesses previously identified. Based upon these findings, the district judge sentenced petitioner to a total term of fourteen years in federal prison. (Transcript at 31- 38.)
On February 19, 2009, the Alaska Department of Corrections released petitioner into primary federal custody.*fn4 (See Dkt. No. 12 at 7 (¶ 18), 17.)
Petitioner now contends that the federal Bureau of Prisons failed to accord him prior custody credit, pursuant to 18 U.S.C. § 3585(b), for the time he spent in custody pursuant to his vacated 2006 state criminal conviction in Alaska Superior Court Case Number 4FA-05-2873CR. As required, petitioner exhausted his administrative remedies in challenging this matter, before bringing the instant action. See Dkt. No. 12, Attachment 2. ...