The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS TO TO DENY PETITION FOR WRIT OF
HABEAS CORPUS (Doc. 1)
ORDER DIRECTING THAT OBJECTIONS BE FILED WITHIN 21 DAYS
Petitioner is a federal prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Petitioner filed the instant federal petition on February 10, 2011. (Doc. 1).
Relief by way of a writ of habeas corpus extends to a person in custody under the authority of the United States. See 28 U.S.C. § 2241. While a federal prisoner who wishes to challenge the validity or constitutionality of his conviction must bring a petition for writ of habeas corpus under 28 U.S.C. § 2255, a petitioner challenging the manner, location, or conditions of that sentence's execution must bring a petition for writ of habeas corpus under 28 U.S.C. § 2241. See, e.g., United States v. Giddings, 740 F.2d 770, 772 (9th Cir.1984); Brown v. United States, 610 F.2d 672, 677 (9th Cir. 1990). To receive relief under 28 U.S.C. § 2241, a petitioner in federal custody must show that his sentence is being executed in an illegal, but not necessarily unconstitutional, manor. See, e.g., Clark v. Floyd, 80 F.3d 371, 372, 374 (9th Cir. 1995) (contending time spent in state custody should be credited toward federal custody); United States v. Jalili, 925 F.2d at 893-94 (asserting petitioner should be housed at a community treatment center); Barden v. Keohane, 921 F.2d at 479 (arguing Bureau of Prisons erred in determining whether petitioner could receive credit for time spent in state custody); Brown, 610 F.2d at 677 (challenging content of inaccurate pre-sentence report used to deny parol).
Here, Petitioner is attacking the term of his incarceration. Therefore, the matter is properly before this Court under § 2241.
Petitioner was arrested on December 6, 2008, in Kane County, Illinois. (Doc. 1 at 3; Doc. 12 at 7; Doc. 12-1 at 7-11) He was charged with forgery and obstruction of justice in two separate cases and held in the county jail.
While awaiting trial on the state charges, on January 21, 2009, Petitioner was transferred to federal custody pursuant to a writ of habeas corpus ad prosequendum.*fn2 (Doc. 12 at 13-14) At that time, he was facing federal charges of "illegal re-entry" according to 8 U.S.C. § 1326. (Doc. 1 at 2; Doc 12 at 16; Doc. 12-1 at 1-7) He was sentenced on the federal charge on May 29, 2009, to 39 months in prison. (Doc 12 at 16; Doc. 12-1 at 1-7) The federal judge made no mention of the state charges and, because he had not yet been convicted of the state offenses, made no mention of whether the federal sentence would run concurrently with the state sentence, when it was imposed. Id. After sentencing, Petitioner was returned to the county jail. (Doc. 1 at 3)
Petitioner was tried and ultimately convicted on the state charges. (Doc. 12 at 7-11) On July 23, 2009, the state court judge sentenced Petitioner to 42 months in custody on each charge and ordered that these sentences to run concurrently and to run "concurrent with Federal sentence that [Defendant] is serving." Id. The state court also credited Petitioner with the amount of time he had served to that point, from December 6, 2008 to July 23, 2009, which was 229 days. Id. Additionally, the state court judge remanded Petitioner to the custody of the Department of Corrections. Id. The orders read,
NOW, THEREFORE, is Ordered, Adjudged and Decreed that the defendant be sentenced to the Illinois Department of Corrections for the crime he/she stands convicted, for a term of days, months or years as set forth herein; and FURTHER, that the defendant be taken from the bar of this Court to the Kane County Jail, and from there, by the Sheriff to the Kane County Jail, and from there, by the Sheriff of Kane County, to the nearest reception and classification center of the Illinois Department of Corrections, and the Illinois Department of Corrections is hereby required and commanded to take the body of the defendant and confine him/her in a Penitentiary or State Farm, according to the law, from and after delivery thereof until discharged according to law, provided such term of imprisonment shall not be less than nor more than the term of days, months or years for which the defendant stands convicted.
Petitioner served his state sentence and was paroled on March 5, 2010 and, on that date, was placed in the custody of the United States Marshal Service for transport to the Bureau of Prisons. (Doc. 12-1 at 7) At that time, the BOP made the initial decision that the time spent in state custody would not be credited against his federal sentence. Id. Petitioner filed an appeal of this decision which was denied on July 26, 2010, September 8, 2010, October 22, 2010 and ultimately on March 7, 2011. (Doc. 1 at 5, 8-9; Doc 12 at 2)
In the October 22, 2010 Third Administrative Appeal determination, the BOP denied Petitioner's based upon the following analysis:
You are requesting to have your sentence re-computed to show your federal sentence is running concurrent to your state sentence . .
We have investigated your appeal and agree with the Warden's response to you. On December 6, 2008, you were arrested by local authorities on local charges, unrelated to your federal case. On January 21, 2009, while in the primary custody of the local authorities in Illinois, you were released via a federal writ to the United States Marshals. On May 29, 2009, you were sentenced to 39 months in federal court. This order was silent which the Bureau interprets as consecutive to any sentence. You were returned to the custody of local authorities in Illinois and sentenced in Kane County Circuit Court to a 42-month term of imprisonment in state custody on July 23, 2009. You claim the state court ordered your federal sentence to be run concurrent to your state sentence. At no time can the state courts order a federal sentence to run in a manner not directed by the federal court.
Program Statement 5880.28 CN 3 Sentence Computation Manual, Multiple Sentences of Imprisonment, citing, Title 18 U.S.C. 3584 subsection (a) states "multiple terms of imprisonment imposed at different times run consecutively unless the Court orders that the terms are to run concurrently." The Judgment and Commitment Order was silent as to the order of the sentence, therefore, the Bureau of Prisons interprets the statute to require the sentence to run consecutively. Your federal sentence began on the release date of your state sentence and has been correctly computed in accordance with applicable Bureau of Prisons policies and federal statutes to run consecutive to your state sentence. All time spent in custody of the state was credited to your state sentence.
According to law, the Bureau of Prisons cannot credit your federal sentence with time in custody that was credited to another sentence. Title 18 U.S.C. 3585 (b), Credit for Prior Custody, states, "Defendant shall be given credit toward the service of a term of imprisonment for any time he has spent in official detention prior to the date the sentence commences . . . . that has not been credited against another sentence."
Program Statement 5BBO. 2B, Sentence Computation Manual-CCCA, states "Time spent in custody under a writ of habeas corpus from non-federal custody will not in and of itself be considered for the purpose of crediting presentence time. The primary reason for 'writ' custody is not the federal charge. The federal court merely 'borrows' the prisoner under the provisions of the writ for secondary custody." Based on the above information, your request for administrative remedy is denied . . .
(Doc. 1 at 8-9) When Petitioner again appealed, the BOP recognized its discretion under 18 USC § 3621(b) to evaluate whether the state prison where Petitioner had been housed should be determined as a place of imprisonment, nunc pro tunc, for serving his federal sentence. (Doc. 12-1 at 15-16) Toward this end, the BOP wrote to the federal sentencing judge and presented ...