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Thomas v. Gill

United States District Court, E.D. California

April 14, 2014

VICTOR THOMAS, Petitioner,
v.
AUDREY GILL, Respondent.

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS ORDER DENYING PETITIONER'S MOTION FOR DISCOVERY [ECF No. 29] ORDER DIRECTING CLERK OF COURT TO ENTER JUDGMENT AND CLOSE CASE

GARY S. AUSTIN, Magistrate Judge.

Petitioner is a federal prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. The parties have voluntarily consented to the exercise of Magistrate Judge jurisdiction pursuant to 28 U.S.C. § 636(c)(1) for all purposes, including entry of final judgment.

Petitioner is currently in the custody of the Bureau of Prisons pursuant to a judgment of the United States District Court for the Western District of Pennsylvania entered on September 10, 2002, following his conviction for possession with intent to distribute cocaine and cocaine base. (Resp't's Answer, Ex. 1, Carr Decl., at ¶ 3.) Petitioner was sentenced to serve a term of 210 months in federal prison. (Id.)

On February 1, 2013, Petitioner filed the instant federal petition for writ of habeas corpus in this Court. The petition challenges the method in which the Bureau of Prisons ("BOP") has calculated Petitioner's federal sentence. Specifically, Petitioner complains that the BOP incorrectly determined the commencement date of his federal sentence. He also complains that he was not properly credited with the time he spent in state prison, and that his federal sentence was to run concurrently, not consecutively, with the state sentence. He further contends that the BOP abused its discretion in denying his request for a nunc pro tunc designation.

On September 20, 2013, Respondent filed a response to the petition for writ of habeas corpus.

On February 18, 2014, Petitioner filed a traverse to Respondent's response. In addition, Petitioner filed a motion for leave to conduct discovery.

DISCUSSION

I. 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 pursuant to 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., Brown v. United States , 610 F.2d 672, 677 (9th Cir. 1990); 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). 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 , 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 parole).

In this case, Petitioner challenges the execution of his sentence. Therefore, the Court has jurisdiction to consider the petition pursuant to 28 U.S.C. § 2241.

II. Venue

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. Petitioner is in the custody of the Bureau of Prisons at the Federal Correctional Institution in Mendota, California, which is located within the jurisdiction of this Court. 28 U.S.C. §§ 2254(a); 2241(d). Therefore, venue is proper in this Court.

III. Exhaustion

A petitioner who is in federal custody and wishes to seek habeas relief pursuant to 28 U.S.C. § 2241 must first exhaust available administrative and judicial remedies. Brown v. Rison , 895 F.2d 533, 535 (9th Cir. 1990); Chua Han Mow v. United States , 730 F.2d 1308, 1313 (9th Cir. 1984). It is only after a petitioner has fully exhausted his administrative remedies that he becomes entitled to present his claims to the federal court. See United States v. Mathis , 689 F.2d 1364, 1365 (11th Cir. 1982). However, the exhaustion requirement was judicially created; it is not a statutory requirement. Chua Han Mow , 730 F.2d at 1313; Montgomery v. Rumsfeld , 572 F.2d 250, 252 (9th Cir. 1978). Because exhaustion is not required by statute, it is not jurisdictional. Morrison-Knudsen Co., Inc. v. CHG Int'l, Inc. , 811 F.2d 1209, 1223 (9th Cir. 1987); Montgomery , 572 F.2d at 252. "Where exhaustion of administrative remedies is not jurisdictional, the district court must determine whether to excuse the faulty exhaustion and reach the merits, or require the petitioner to exhaust his administrative remedies before proceeding in court." Brown , 895 F.2d at 535.

The Bureau of Prisons has established an administrative remedy procedure governing prisoner complaints. The procedure is set forth at 28 C.F.R. §§ 542.10 et seq. First, an inmate must attempt to resolve the issue informally by presenting it to staff before submitting a Request for Administrative Remedy. 28 C.F.R. § 542.13. If dissatisfied with the response, the prisoner may proceed with the formal filing of an Administrative Remedy Request. 28 C.F.R. § 542.14. Upon denial by the warden of the institution, the prisoner may appeal the decision by filing a complaint with the Regional Director of the Bureau of Prisons. 28 C.F.R. § 542.15. The Regional Director's decision may be appealed to the General Counsel in Washington, D.C. Id . Appeal to the General Counsel is the final step in the administrative remedy process. Id.

In this case, Respondent does not contend that Petitioner has failed to exhaust his administrative remedies. From Respondent's exhibits and attachments, it appears that Petitioner exhausted his administrative appeals. (Resp't's Answer, Ex. 1, Carr Decl., at ¶ 12.) Therefore, the Court will review the claims.

IV. Background[1]

On March 30, 2001, Petitioner was arrested by state authorities. He was released on bail on April 18, 2001, and was re-arrested on April 19, 2001. He made bail again on April 23, 2001, but was returned to state custody on May 1, 2001. After May 1, 2001, he remained in the primary custody of the State of Pennsylvania.

On May 16, 2001, an indictment was filed in the United States District Court for the Western District of Pennsylvania charging Petitioner with possession with intent to distribute cocaine and cocaine base. On May 25, 2001, Petitioner was borrowed from the state by federal authorities pursuant to a federal writ of habeas corpus ad prosequendum. On June 6, 2001, he was returned to state custody. On July 6, 2001, August 15, 2001, and August 22, 2001, he was charged with several state offenses and continued to be held in state custody. On October 18, 2001, he was borrowed again from the state by federal authorities pursuant to a writ of habeas corpus ad prosequendum. On September 10, 2002, Petitioner was sentenced in federal court and the judgment was lodged against him by the U.S. Marshals Service as a detainer. Petitioner and Respondent agree that "[n]either the sentencing hearing transcript nor the judgment and commitment order reflect the court's intent to run Petitioner's federal sentence concurrent to his pending state charges." (Pet. at 39.) He was returned to state custody on September 11, 2002. On July 10, 2003, he was sentenced in state court to an indeterminate state term. The state court ordered that the state term "is intended to be consecutive to all periods of incarceration ordered through the federal sentencing process." He then began ...


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