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Cordero v. Benov

United States District Court, Ninth Circuit

May 24, 2013

LUIS MORANT CORDERO, Petitioner,
v.
MICHAEL L. BENOV, Warden, Respondent.

FINDINGS AND RECOMMDENDATIONS OF DENIAL AND DISMISSAL OF THE PETITION FOR WRIT OF HABEAS CORPUS (Doc. 1) ORDER DIRECTING THAT OBJECTIONS BE FILED WITHIN TWENTY DAYS

JENNIFER L. THURSTON, Magistrate Judge.

Petitioner Luis Morant Cordero ("Petitioner") is a federal prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241.

PROCEDURAL HISTORY

Petitioner was arrested on federal charges on October 2, 2002, and released from federal custody the following day. (Doc. 9 at 12, Ex. A). Petitioner was arrested on state charges on April 30, 2004, in Lehigh County, Pennsylvania, where he remained in state custody until October 1, 2004. (Doc. 1 at 3, Doc. 9 at 2, 12, Ex. A). At that time, state officials released him to the custody of the U.S. Marshals, pursuant to a federal writ arising from his October 2, 2002 arrest. Id . On May 19, 2005, Petitioner was sentenced to a 120-month federal term. (Doc. 9 at 12-13, Ex. A). He was returned to state custody on May 26, 2005.

On July 29, 2005, Petitioner pled guilty to two state charges of drug manufacturing or possession with intent to deliver. (Doc. 1 at 31, Ex. B). The Lehigh County Court of Common Pleas sentenced Petitioner to concurrent four-year and six-year terms, which were to be served concurrently with his existing federal sentence. Id. at 31-34, Ex. B. Petitioner commenced his state sentence on July 29, 2005, and entered federal custody on May 22, 2006. (Doc. 1. at 34, Ex. B; Doc. 2 at 13). Currently, Petitioner is incarcerated at Taft Correctional Facility serving his 120-month federal sentence. (Doc. 1 at 18).

On February 14, 2011, Petitioner filed the instant petition, pursuant to 28 U.S.C. § 2241. Petitioner requests: (1) that he be granted a nunc pro tunc designation that would enable him to serve his federal and state sentences concurrently, and (2) that he be credited for the time spent in detention between April 30, 2004, and July 29, 2005. (Doc. 1 at 3). Respondent filed his answer on May 18, 2011. (Doc. 9). On June 14, 2011, Petitioner submitted his Traverse. (Doc. 10). Petitioner filed additional legal authority on March 20, 2013. (Doc. 15). Respondent has neither objected to Petitioner's supplemental arguments nor filed a response to them. Respondent seemingly concedes that Petitioner has exhausted all of his administrative remedies. (Doc. 9 at 3-4).

JURISDICTION

Writ of habeas corpus relief 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., Capaldi v. Pontesso , 135 F.3d 1122, 1123 (6th Cir. 1998); Kingsley v. Bureau of Prisons , 937 F.2d 26, 30 n.5 (2nd Cir. 1991); United States v. Jalili , 925 F.2d 889, 893-94 (6th Cir. 1991); 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, manner. 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); Jalili , 925 F.2d at 893-94 (asserting petitioner should be housed at a community treatment center); Barden v. Keohane , 921 F.2d 476, 479 (3rd Cir. 1990) (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 parole). A petitioner filing a petition for writ of habeas corpus under 28 U.S.C. § 2241 must file the petition in the judicial district of the petitioner's custodian. Brown , 610 F.2d at 677.

Here, Petitioner alleges that he is being denied unlawfully credits against his federal sentence. Petitioner also contends that the sentencing court misapplied the federal sentencing guidelines in computing his sentence. To the extent that Petitioner is challenging the computation of credits, he is challenging the execution of his sentence rather than its imposition. Thus, that claim is proper under 28 U.S.C. § 2241. In addition, because Petitioner was incarcerated at the time of filing of the petition at TCI located in Taft, California, which lies within the Eastern District of California, this Court has jurisdiction to proceed.

DISCUSSION

Petitioner contends that he is entitled to credits on his federal sentence from the date he was initially received into federal custody. (Doc. 1 at 3). He also contends that he is entitled to credit for time served in custody prior to May 22, 2006, on the basis of a nunc pro tunc designation. Both contentions are without merit.

A. Calculation of Credit for Time Served.

The authority to compute a federal prisoner's sentence is delegated to the Attorney General, who exercises it through the Bureau of Prisons ("BOP"). United States v. Wilson , 503 U.S. 329, 334-35, 112 S.Ct. 1351, 1354-55 (1992); Allen v. Crabtree , 153 F.3d 1030, 1033 (9th Cir. 1998), cert denied, 525 U.S. 1091 (1999). "Computing a federal sentence requires two separate determinations: first, when the sentence commences; and, second, to what extent the Respondent in question may receive credit for any time already spent in custody." United States v. Smith , 812 F.Supp. 368, 370 (E.D.N.Y. 1993); Jimenez v. Warden, FDIC, ...


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