FINDINGS AND RECOMMENDATIONS
Petitioner is a federal prisoner without counsel seeking an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Petitioner challenges the calculation of his federal sentence by the Federal Bureau of Prisons (BOP). Upon careful consideration of the record and the applicable law, the undersigned recommends that petitioner's application for habeas corpus relief be denied.
Petitioner is currently serving an 84-month term of imprisonment following his November 21, 2007 plea of guilty in the United States District Court for the District of Montana to a charge of possession of a stolen firearm, in violation of 18 U.S.C. § 922(j). Dckt. No. 14 at 9, 10. Petitioner's current projected release date is April 1, 2015, via good conduct time. Dckt. No. 14 at 3; Dckt. No. 19 at 3-5. At the time he filed the instant petition, petitioner was incarcerated at the Federal Correctional Institution in Herlong, California (FCI Herlong). Dckt. No. 1 at 1. Petitioner was subsequently transferred and is currently housed in the Federal Correctional Institution in Sheridan, Oregon (FCI Sheridan). Dckt. No. 17.
Petitioner filed his federal habeas petition in this court on January 3, 2011. Dckt. No. 1. Respondent filed an answer on May 12, 2011, and petitioner filed a traverse on May 27, 2011. Dckt. No. 13, 15.
II. Standards of Review Applicable to Habeas Corpus Claims Under § 2241
Relief by way of a writ of habeas corpus extends to a prisoner in custody under the authority of the United States who shows that his custody violates the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2241(c)(3). Federal district courts do not have the responsibility or the authority to determine the number of pre-sentence custody credits owing to a defendant at the time of sentencing. United States v. Wilson, 503 U.S. 329, 333--34 (1992). Upon arrival at a federal prison, however, the Attorney General, through the BOP, must administer a defendant's federal sentence, including calculation of the time left to be served. Id. at 335. If, after exhausting administrative review, a defendant disagrees with the BOP's calculations, he or she may seek judicial review by filing a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. See Harrison v. Ollison, 519 F.3d 952, 956 (9th Cir. 2008) (a federal prisoner challenging the manner, location, or conditions of the execution of a sentence must bring a petition for writ of habeas corpus under 28 U.S.C. § 2241); Hernandez v. Campbell, 204 F.3d 861, 864-65 (9th Cir. 2000) (same).
Previously named as respondent was Richard Ives, the Warden of FCI Herlong. However, as explained above, petitioner is now housed in FCI Sheridan. In a habeas challenge, "the proper respondent is the warden of the facility where the prisoner is being held." Rumsfeld v. Padilla, 542 U.S. 426, 435 (2004). See also Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 494-95 (1973) (stating, in a habeas corpus action pursuant to 28 U.S.C. § 2241, "The writ of habeas corpus does not act upon the prisoner who seeks relief, but upon the person who holds him in what is alleged to be unlawful custody."). Accordingly, the court now substitutes in the correct respondent, the Warden of Sheridan, where petitioner is presently incarcerated.
Pursuant to 28 U.S.C. § 2241(d), a petition for a writ of habeas corpus must be brought in the district court where the petitioner is confined or in the district where he was convicted and sentenced. Venue was proper in the Eastern District of California when this action was filed because petitioner was incarcerated at FCI Herlong. Petitioner has since been transferred to FCI Sheridan, which is in the District of Oregon. However, this court may continue to exercise jurisdiction over this action, notwithstanding petitioner's transfer. See Francis v. Rison, 894 F.2d 353, 354 (9th Cir. 1990) ("'[J]urisdiction attaches on the initial filing for habeas corpus relief, and it is not destroyed by a transfer of the petitioner and the accompanying custodial change'") (quoting Santillanes v. United States Parole Comm'n, 754 F.2d 887, 888 (10th Cir. 1985); accord Smith v. Campbell, 450 F.2d 829, 834 (9th Cir. 1971) ("We hold that by reason of the fact that the petitioner and his custodian, his immediate commanding officer, were within the territorial jurisdiction of the district court at the time the petition for writ of habeas corpus was filed, the district court had jurisdiction to determine the merits of the litigation . . . subsequent involuntary removal of the petitioner from the district does not defeat that jurisdiction when those having present custody of the petitioner are subject to the process of the court").
In his first ground for relief, petitioner claims that the BOP has miscalculated his release date because of an inaccurate determination of the date on which his federal sentence began to run. Dckt. No. 1 at 3. Petitioner's arguments are based on the interplay between the sentences he received in connection with three state criminal proceedings and the federal sentence imposed on him in the instant case.
On May 30, 2006, petitioner was arrested for numerous violations of Montana state law. Dckt. No. 14 at 3. He was prosecuted for those violations in three separate state criminal cases. Id. Petitioner was sentenced on all three cases on December 18, 2006, by Judge Ed McLean of the Montana Fourth Judicial District in Missoula County, Montana. Dckt. No. 1 at 7.
In Case No. DC-06-294, petitioner was sentenced to five years in "suitable placement" on charges of felony criminal possession of dangerous drugs; six months in a state detention facility on a charge of criminal possession of drug paraphernalia; and ten years in state prison on a charge of aggravated burglary. Id. at 25-26. The sentencing order provides that "Counts One, Two and Three are all suspended and the last five (5) years of Count Five are suspended." Id. at 26. Further, "all counts shall run concurrently with each other but consecutively to Cause Nos. DC-04-520 and DC-06-103." Id. Petitioner characterizes this as "essentially a five year sentence." Id. at 7.
In Case No. DC-04-520, petitioner was sentenced to five years in a "suitable facility" on charges of felony burglary, misdemeanor theft, and felony criminal possession of dangerous drugs. Id. at 28. The sentencing order in that case notes that "Cause No. DC-06-294 is to run consecutively to this cause." Id.
Finally, in Case No. DC-06-103, petitioner was sentenced to five years in "suitable placement" on charges of felony theft and criminal possession of dangerous drugs, and six months on charges of misdemeanor theft and driving while his license was suspended or revoked. Id. at 30. The sentencing order in that case further provides that "these counts shall run concurrently with each other and concurrently with Case No. DC-04-520." Id.
Petitioner began serving his state sentences on December 18, 2006, the date on which he was sentenced. He received credit for time served from the date of his arrest on May 30, 2006 until December 17, 2006, totaling 203 days of credit. Dckt. No. 13 at 4.
On May 16, 2007, petitioner was temporarily taken into federal custody by the United States Marshals Service on a federal Writ of Habeas Corpus Ad Prosequendum in connection with his federal criminal proceedings. Dckt. No. 14 at 4; Dckt. No. 14-1 at 4. On November 21, 2007, petitioner was sentenced in his federal case in the United States District Court for the District of Montana to 84 months in prison. Dckt. No. 14 at 9-10. His 84 month sentence was ordered "to run consecutively to defendant's sentence in Missoula County District Court docket # DC-04-520 and concurrently to docket #s DC-06-103 and DC-06-294." Id. at 10. On November 28, 2007, following sentencing in federal court, petitioner was returned to the state of Montana to complete his Montana state sentences. Dckt. No. 14 at 4; Dckt. No. 14-1 at 5.
Petitioner was paroled from state custody on February 25, 2009. Dckt. No. 14 at 4-5; Dckt. No. 13 at 4; Dckt. No. 14-1 at 5. He was taken into custody that day by the United States Marshals Service and incarcerated at Herlong. Dckt. No. 14 at 4-5; Dckt. No. 14-1 at 5. The BOP determined that petitioner's 84 month federal sentence commenced on February 25, 2009, the day he was transferred to Herlong, and that he was eligible to be released on April 1, 2015, via good conduct time.
2. Petitioner's Arguments
Petitioner claims that the BOP has miscalculated the date his federal sentence began to run and, therefore, his eligible release date. Petitioner's own calculation is that his federal sentence commenced on May 30, 2006,*fn1 and that his release date should be recalculated accordingly. Dckt. No. 1 at 8. He argues that this is what the federal sentencing order states and what the United States District Judge intended when he ordered that his federal sentence would run concurrently to Case No. DC-06-294. Id.
Petitioner acknowledges that the federal sentencing order appears to be "contradictory." Id. Specifically, he argues that if his federal sentence ran "consecutively" to case No. DC-06-103, as the sentencing order states, it did not commence until February 25, 2009, because this was the date he was paroled ("DC-06-103 ends with parole on February 25, 2009."). Id. On the other hand, if his federal sentence ran "concurrently" with case No. DC-06-294, it commenced on May 30, 2006, the date he began serving his sentence on case No. DC-06-294. Petitioner states that "there is no easy method to determine the Federal Court's intent" and that "intervention and interpretation" by this court is required to resolve any questions as to the intent of the federal sentencing judge. Id. Petitioner argues, however, that any ambiguity in the federal sentencing order must be resolved in favor of his own calculation of when his federal sentence commenced and when it will be completed.
Petitioner informs this court that he chose not to challenge his sentence in his direct appeal because he "believed that the sentence was fair when run concurrent with the state charges and commencing on May , 2006." Id. at 9. He states that "this was how the sentence was described by the sentencing court to him and Petitioner felt the matter settled." Id. However, he explains that when he later received his "Sentence Computation Sheet," he discovered that "the BOP had interpreted the order completely differently with a 'start date' of February 25, 2009." Id. at 10. Petitioner requests "an 'Amended Judgment and Commitment Order' clarifying the start date of his federal sentence as May , 2006." Id.
Petitioner has filed several pages from his federal sentencing transcript in support of his arguments regarding the computation of his sentence. Dckt. No. 15 at 5-7. He contends that the judge's intent that his federal sentence commence during the service of his state sentences is clear from the judge's remarks. Those remarks are as follows:
THE COURT: All right. Mr. Van de Wetering, what's the government's position?
MR. VAN de WETERING: Well, your Honor, I'm not aware of case law that requires the Court to sort of open that door to allow credit. If that's the case, I certainly don't object to it. But I agree with the Court's initial observation that really it's the BOP's call and I don't think this is the forum for making that determination. THE COURT: Right. Well, I think that it's been my experience, and it's my understanding of the law, that ...