United States District Court, E.D. California
KENDALL J. NEWMAN, District Judge.
Petitioner is a federal prisoner proceeding without counsel. Both parties consented to proceed before the undersigned for all purposes. See 28 U.S.C. § 636(c).
By order filed March 31, 2014, petitioner was granted leave to file an amended petition. The amended 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 partially denied his request for a nunc pro tunc designation that his state sentence run concurrently with his federal sentence. As set forth more fully below, the court denies the petition.
II. Factual and Procedural Background
On March 25, 1995, the Third District Court of the State of Utah sentenced petitioner to five years to life imprisonment for aggravated robbery. (ECF No. 37-1 at 2; 17.) On December 14, 1999, petitioner was paroled from the Utah State Prison. (ECF No. 37-1 at 22.)
On January 20, 2000, petitioner committed the instant federal offense of aiding and abetting a bank robbery while on state parole. (ECF No. 37-1 at 13-16, 18.) On January 25, 2000, petitioner was arrested by a Utah State parole officer after petitioner was seen in a drinking establishment past curfew, and he was subsequently returned to the Utah State Prison. (ECF No. 37-1 at 16.)
On March 9, 2000, a writ of habeas corpus ad prosequendum was issued by the United States District Court for the District of Utah for the production of petitioner to appear before the court on March 14, 2000, to answer for the federal bank robbery charge. (ECF No. 37-1 at 26.) On October 26, 2001, the District of Utah entered judgment against petitioner whereby he received a sentence of 200 months imprisonment for aiding and abetting an armed bank robbery. (ECF No. 37-1 at 40-44.) The judgment was silent as to whether the petitioner's federal sentence should be served concurrently with that imposed by the State of Utah. (ECF No. 37-1 at 40.) Petitioner was then transferred back to the custody of the State of Utah on November 1, 2001, in satisfaction of the writ of habeas corpus ad prosequendum. (ECF No. 37-1 at 20, 37-38.)
On March 26, 2002, the Board of Pardons and Parole of the State of Utah revoked petitioner's state parole supervision with an effective date of December 14, 1999. (ECF No. 37-1 at 47.) Additionally, the Utah Parole Board terminated petitioner's state sentence as of April 30, 2002. (ECF No. 37-1 at 47.) On April 30, 2002, petitioner was released on his state charges and transferred to the federal authorities.
On June 29, 2010, the United States District Court for the District of Utah issued a decision regarding petitioner's request to have his federal sentence run concurrently with his previously served state sentence. (ECF No. 37-1 at 49-50.) The court stated as follows:
Defendant is seeking to have approximately 26 months of his 200-month federal sentence run concurrently with his state sentence. He represents that the BOP has found him ineligible for credit against his federal sentence for those months because he already received credit for those months against his state sentence.
The Court will grant the request and make such a recommendation. However, Defendant is reminded that while the Court may make such a recommendation, the BOP is not bound to follow that recommendation. It is only the BOP that has the authority to make a nunc pro tunc designation of the state facility in which Defendant was serving his state sentence as the place of his federal confinement.
(ECF No. 37-1 at 49-50.) On November 10, 2010, the BOP denied petitioner's request for a nunc pro tunc designation. (ECF No. 37-1 at 52-53.) The BOP stated as follows with respect to the factors under 18 U.S.C. § 3621(b):
Factor (1) - the resources of the facility contemplated: Inmate Espinoza arrived in the BOP in 2002, after completion of his Utah State Parole Violation sentence. He was initially designated to FLP, ultimately receiving transfers and currently designated at FCI Herlong.
Factor (2) - the nature and circumstances of the offense: Inmate Espinoza was convicted of Armed Bank Robbery and Aiding and Abetting. This offense is violent in nature. Circumstances of this case are that Espinoza and an accomplice robbed a bank at gun point. During the crime, Espinoza put the weapon in the victim tellers face.
Factor (3) - the history and characteristics of the prisoner (to include institutional adjustment and prior criminal history) Inmate Espinoza is currently housed at FCI Herlong. He has participated and completed most routine programming, with the exception of Drug Treatment. He has the following disciplinary action:
Use of Drugs - 2008 Violating Visiting Regulations - 2005 Assaulting w/o serious injury - 2005 Refusing to Obey an Order - 2005 Being in Unauthorized Area - 2004
His criminal history which includes his Utah State Parole Violation sentence he released from on 4-30-02, includes:
Juvenile Adjudications from 1983-1993 Adult:
Trespass - 1994 Burglary - 1994 Aggravated Burglary - 1994 Burglary of a Vehicle - 1994
Factor (4) - any statement by the court that imposed the sentence (to include no response from the judge: The court issued an order granting the inmate's motion to recommend a Nunc Pro Tunc designation, even though criteria pursuant to Barden [v. Keohane , 921 F.2d 476 (3rd Cir. 1990)], had not been met. Order issued June 29, 2010.
PACER was checked for additional documentation, if there was no response from the court: N/A
Factor (5) - Any pertinent policy statement issued by the Sentencing Commission pursuant to section 994 (a)(2) of title 28: N/A
(ECF No. 37-1 at 52-53.) In denying his request for nunc pro tunc designation, the BOP cited as justification factors (2), (3) and (4). (ECF No. 37-1 at 52-53.)
In April 2011, petitioner filed his original federal habeas petition, raising the following three issues: (1) the Bureau of Prisons ("BOP") decision to deny petitioner's request for nunc pro tunc designation was arbitrary and capricious because they have changed their practices under the policy; (2) the BOP's decision to deny petitioner's request for nunc pro tunc designation was arbitrary and capricious because prisoners similarly situated to him have received both an adjustment and concurrent sentence by the BOP; and (3) the BOP's practice of either granting or denying a prisoner's nunc pro tunc request violates the separation of powers doctrine. (ECF No. 1.) Respondent filed an answer on June 2, 2011. (ECF No. 13.) On July 25, 2011, petitioner filed a traverse. (ECF No. 19.) Petitioner also filed a supplement to his petition on May 18, 2012, arguing that he may be entitled to relief pursuant to the Supreme Court's holding in Setser v. United States , 132 S.Ct. 1463 (2012).
On or about February 21, 2013, while petitioner's April 2011 petition was pending before the court, petitioner filed an administrative remedy appeal with the BOP. Therein, petitioner renewed his request for pre-sentence custody credit and requested the BOP to file a motion with the federal sentencing court pursuant to 18 U.S.C. § 3582(c)(1)(A) and Setser. (ECF No. 25 at 50-51.) On April 12, 2013, the BOP partially granted petitioner's appeal, and with respect to petitioner's request for a pre-sentence custody credit, stated:
Title 18 U.S.C. § 3585(b) precludes the application of any time that has been credited against another sentence toward the federal sentence. BOP Program Statement 5880.28, Sentence Computation Manual (CCCA of 1984), also states in part, "time spent in custody under a writ of habeas corpus from non-federal custody will not in and of itself be considered for the purpose of crediting presentence time." Records reflect the time you spent in custody from January 25, 2000, through April 29, 2002, was ...