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Guereca v. Benov

United States District Court, Ninth Circuit

August 30, 2013

JUAN FRANCISCO ORTIZ GUERECA, Petitioner,
v.
MICHAEL L. BENOV, Warden, Respondent.

ORDER TO SHOW CAUSE WHY PETITION FOR WRIT OF HABEAS CORPUS SHOULD NOT BE GRANTED

MICHAEL J. SENG, District Judge.

Petitioner is a federl prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Both parties have consented to Magistrate Judge jurisdiction under 28 U.S.C. § 636(c). (ECF Nos. 4, 6.)

Petitioner claims entitlement to a credit against his federal sentence for time served in federal custody of Immigrations and Customs Enforcement ("ICE") prior to being criminally charged for illegal re-entry. (Pet. at 6-8, ECF No. 1.) Presently before the court is Respondent's June 14, 2013, answer. (Answer, ECF No. 9.) Petitioner did not file a traverse to the answer.

I. STANDARD OF REVIEW

Writ of habeas corpus relief extends to a person in custody under the authority of the United States. See 28 U.S.C. § 2241. Writ of habeas corpus relief is available if a federal prisoner 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)(3). Petitioner's claims are proper under 28 U.S.C. § 2241 and not 28 U.S.C. § 2255 because they concern the manner, location, or conditions of the execution of Petitioner's sentence and not the fact of Petitioner's conviction or sentence. 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"); Montano-Figueroa v. Crabtree , 162 F.3d 548, 549 (9th Cir. 1998).

Further, Petitioner is challenging the execution of his sentence at Taft Correctional Institution in Taft, California, which is within the Fresno Division of the Eastern District of California; therefore, the Court has jurisdiction over this petition. See Brown v. United States , 610 F.2d 672, 677 (9th Cir. 1990).

II. REVIEW OF THE PETITION

A. Exhaustion of Administrative Remedies

Before filing a petition for writ of habeas corpus, a federal prisoner challenging any circumstance of imprisonment must first exhaust all administrative remedies. Martinez v. Roberts , 804 F.2d 570, 571 (9th Cir. 1986); Chua Han Mow v. United States , 730 F.2d 1308, 1313 (9th Cir. 1984); Ruviwat v. Smith , 701 F.2d 844, 845 (9th Cir. 1983).

Respondent, in his answer described Petitioner's attempt to exhaust administrative remedies and does not presently argue that Petitioner failed to exhaust. (Answer at 2-3.)

B. Facts Relating to Sentence Computation

On February 4, 2011, Petitioner was stopped by the Idaho State Police for speeding and was turned over to ICE the same day. (Decl. of Heidi Adams ("Adams Decl."), Ex. C.) Petitioner was held by immigration authorities from February 4, 2011 through March 8, 2011 while they conducted an investigation to determine whether or not to prosecute. (Id.) On March 9, 2011, Petitioner was criminally indicted for the federal offense of Illegal Entry. (Id.) Petitioner was found guilty and on October 18, 2011, and sentenced to thirty (30) months of federal custody. (Pet. at 2.) Petitioner received jail credit from the date of the criminal indictment on March 9, 2011, through the day before he was sentenced on October 18, 2011. (Id.) Petitioner was not credited for the time he was held by ICE, from February 4, 2011 through March 8, 2011. Petitioner challenges the absence of jail credit for this period. Respondent alleges that the time spent in ICE custody was considered a civil deportation proceeding, not official detention and, therefore, not creditable toward a federal sentence.

C. Facts Relating to Sentence Computation

Title 18 U.S.C. § 3585(a) states: "[a] sentence to a term of imprisonment commences on the date the defendant is received in custody awaiting transportation to... the official detention facility at which the sentence is to be served." The Attorney General is responsible for sentence computation decisions under § 3585. United States v. Wilson , 503 U.S. 329 (1992); United States v. Checchini , 967 F.2d 348, 350 (9th Cir. 1992). Sentence computation authority has been ...


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