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Calvin Edward Baskerville v. Michael Babcock*Fn1

June 28, 2012



Petitioner is a federal prisoner proceeding pro se with an application for writ of habeas corpus pursuant to 28 U.S.C. § 2241.*fn2 Petitioner claims entitlement to a credit against his federal sentence for time served in a state correctional facility. Presently before the court is respondent's December 2, 2011 motion to dismiss and response. Petitioner has filed an opposition. On review of the motion and response and good cause appearing therefor, THE COURT FINDS AS FOLLOWS:


The instant petition does not challenge petitioner's conviction or sentence. Rather, petitioner contends that the Bureau of Prisons ("BOP") is executing petitioner's sentence in a way that violates federal law because the BOP refuses to give petitioner credit for time served on state charges.

On May 18, 2005, petitioner was arrested by the Savannah-Chatham Metropolitan Police in the State of Georgia for an outstanding arrest warrant from the State of New Jersey. Johnson Decl., ¶ 3. During the course of being arrested, petitioner attempted to escape, which led to the filing of a charge of Obstruction of an Officer in a Georgia state court. Id. Following his arrest, investigating officers collected ammunition in petitioner's hotel room. Id.

On June 16, 2005, petitioner was arrested again by Georgia law enforcement and charged with three counts of burglary. Johnson Decl., ¶ 4.

On September 15, 2006, a Grand Jury sitting in the Georgia federal court returned a one-count indictment charging petitioner with possession of ammunition by a felon in violation of 18 U.S.C. § 922(g)(1) in case number 4:06-cr-0304-BAE. See Doc. No. 19-4 at 2. An amended indictment was returned on January 11, 2007, charging petitioner with the same count, but also setting forth petitioner's prior felony convictions. Id. at 3.

On September 21, 2006, the Georgia federal court issued a Writ of Habeas Corpus Ad Prosequendum ("WHCAP") seeking petitioner's presence at an October 4, 2006 arraignment / initial appearance. Doc. No. 19-4 at 1. Pursuant to the WHCAP, petitioner was released to the custody of the United States Marshal Service ("USMS") on October 4, 2006. Doc. No. 5.

On January 4, 2007, petitioner entered a guilty plea to the Amended Indictment in the federal court, and on April 3, 2007 petitioner was sentenced to 92 months imprisonment and remanded to the custody of the USMS. Doc. Nos. 19-4, 19-5 and 19-6.

Following his return to the custody of the USMS, petitioner was transferred back to Chatham County, Georgia officials. Doc. No. 19-5. The Georgia federal court's Judgment and Commitment Order was lodged by the USMS as a detainer against petitioner. Johnson Decl., ¶ 8.

On May 3, 2007, petitioner pled guilty to three counts of burglary in the Superior Court of Chatham County Georgia in case number CR05-2107-FR. Doc. No. 19-7. He was subsequently sentenced to seven years on each count. Id. The state court judge ordered that each term run concurrently to each other as well as concurrently to any other sentence that petitioner was then serving. Id.

On March 29, 2010, petitioner was paroled from the custody of the State of Georgia to the USMS detainer for service of the sentence imposed by the Georgia federal court. Doc. Nos. 19-8 and 19-9. His sentence was calculated to commence on that date.

On July 28, 2010, petitioner initiated the administrative remedies process with the BOP by submitting a request for a nunc pro tunc designation. See Doc. No. 19-10. Petitioner sought to have his federal sentence be deemed to have commenced on the date he was sentenced in federal court (April 3, 2007) as opposed to the date that he was transferred to federal custody (March 29, 2010). Id. at 3.

On August 30, 2010, petitioner filed a "Motion for Court's Recommendation to BOP in Support of BOP's Nunc Pro Tunc Designation under 18 U.S.C. § 3621(b)" in the Georgia federal court. Doc. No. 19-11. Therein, petitioner sought a recommendation from his federal sentencing judge to the BOP that petitioner's federal sentence should run concurrently with his state sentence. Id. Petitioner's request was denied by the federal court on August 31, 2010. Doc. No. 19-12.

On January 20, 2011, petitioner exhausted the administrative remedies process when the BOP denied petitioner's application for a nunc pro tunc designation based on the second, third and fourth factors of 18 U.S.C. § 3621(b). Doc. No. 19-13. Specifically, the BOP determined that the nunc pro tunc designation was unavailable in light of "the nature and circumstances of petitioner's underlying offense" (possession of ammunition by a convicted felon); "the history and characteristics of the prisoner" (his guilty plea in state court to three charges of burglary); and "any statements by the court that imposed the sentence" (the federal court's August 31, 2010 denial of petitioner's request for a recommendation to the BOP). Id.

Petitioner filed the instant action on Marc 29, 2011. Respondent filed a motion to dismiss and response on December 2, 2011.


A. Jurisdiction

Under 28 U.S.C. § 2241, habeas corpus relief is available to a federal prisoner in custody under the authority of the United States if he can show he is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(1) & (3). While a federal prisoner challenging the validity or constitutionality of a 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 the execution of that sentence is required to bring a petition for writ of habeas corpus under 28 U.S.C. § 2241. See Hernandez v. Campbell, 204 F.3d 861, 864 (9th Cir. 2000) ("Generally, motions to contest the legality of a sentence must be filed under § 2255 in the sentencing court, while petitions that challenge the manner, location, or conditions of a sentence's execution must be brought pursuant to § 2241 in the custodial court."); Tucker v. Carlson, 925 F.2d 330, 331 (9th Cir. 1990) (stating that a challenge to the execution of a sentence is "maintainable only in a petition for habeas corpus filed pursuant to 28 U.S.C. § 2241"). Under § 2241, a habeas corpus petition must be brought in the judicial district of the petitioner's custodian. Hernandez, 204 F.3d at 865.

In this case, petitioner is incarcerated at FCI Herlong, which is in the Eastern District of California. Michael Babcock, the Warden of Herlong, is named as respondent. Accordingly, ...

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