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Gravel v. Fox

United States District Court, E.D. California

September 18, 2014

ERIC MICHAEL GRAVEL, Petitioner,
v.
WARDEN JACK FOX, Respondent.

ORDER

KENDALL J. NEWMAN, Magistrate Judge.

I. Introduction

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). Petitioner filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241, claiming that the Bureau of Prisons ("BOP") improperly calculated petitioner's sentence by not giving him credit for 87 days he spent in jail. As set forth more fully below, the court denies the petition.

II. Jurisdiction

Under 28 U.S.C. § 2241, habeas corpus relief is available to a federal prisoner in custody under the authority of the United States if he 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)(1) & (3). While a federal prisoner challenging the validity or constitutionality of a 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 the execution of that sentence is required to bring a petition for writ of habeas corpus under 28 U.S.C. § 2241. See Hernandez v. Campbell , 204 F.3d 861, 864 (9th Cir. 2000) ("Generally, motions to contest the legality of a sentence must be filed under § 2255 in the sentencing court, while petitions that challenge the manner, location, or conditions of a sentence's execution must be brought pursuant to § 2241 in the custodial court."). Under § 2241, a habeas corpus petition must be brought in the judicial district of the petitioner's custodian. See id. at 865.

III. Venue

Venue was proper in this district when this action was filed because petitioner was incarcerated at FCI-Herlong at the time. Petitioner has since been transferred to the U.S. Penitentiary Lompoc which is in the Central District of California. However, this court continues 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 is not destroyed by a transfer of the petitioner and the accompanying custodial change.") (internal quotation marks and citations omitted).

IV. Proper Respondent

In light of petitioner's transfer to Lompoc, the warden of Lompoc, Jack Fox, is substituted as respondent in this matter. See Brittingham v. United States , 982 F.2d 378, 379 (9th Cir. 1992).

V. Factual and Procedural Background

Petitioner is currently serving a 112 month federal prison sentence after pleading guilty to conspiracy to distribute 100 grams or more of heroin and 500 grams or more of cocaine, and unlawful user of drugs in possession of a firearm. (ECF No. 14-1[1] at 12-17.)

On September 21, 2004, petitioner was arrested on charges of possession of heroin, related to the instant federal offenses, and charged by information and affidavit in the Vermont Superior Court, Washington Criminal Division, in Case No. 962-9-04 Wncr. (ECF No. 14-1 at 40.) Petitioner was released the same day. (Id.)

On October 23, 2004, petitioner was arrested for violating the conditions of his release and charged in criminal case number XXXX-XXX-XX Wncr, again in the Vermont Superior Court, Washington Criminal Division. (ECF No. 14-1 at 38.) Petitioner was released the same day. (Id.)

On October 29, 2004, petitioner was arrested and charged with unlawful mischief in criminal case number XXXX-XX-XX Wncr. (ECF No. 14-1 at 36.) Petitioner was released the same day. (Id.)

On November 18, 2004, petitioner was arrested for violating the conditions of his release and charged in criminal case number XXXX-XX-XX Wncr, again in the Vermont Superior Court, Washington Criminal Division. (ECF No. 14-1 at 38.) Petitioner was released the same day. (Id.)

On November 24, 2004, petitioner was arrested for failing to appear in court for criminal case number 962-9-04 Wncr. (ECF No. 14-1 at 40.) According to the Vermont Department of Corrections, petitioner was released on December 1, 2004. (ECF No. 14-1 at 53.) Petitioner's release is not reflected on the criminal case docket sheet for case number 962-9-04 Wncr. (ECF No. 14-1 at 40.)

On December 18, 2004, petitioner was arrested for violating the conditions of his release in criminal case number XXXX-XX-XX Wncr in the Vermont Superior Court, Washington Criminal Division. (ECF No. 14-1 at 31.) Petitioner was released the same day. (Id.)

On April 11, 2005, petitioner was sentenced in the Washington Circuit Vermont District Court to a total term of 12 to 48 months of imprisonment in the following cases: (1) case number XXXX-XX-XX for 1 month to 6 months; (2) case number XXXX-XX-XX for 1 month to 6 months; (3) case number XXXX-XX-XX for 1 month to 6 months; (4) case number XXXX-XX-XX for 1 month to 6 months; (5) case number XXXX-XX-XX for 1 month to 6 months; (6) case number XXXX-XX-XX for 1 month to 6 months; and (7) case number XXXX-XX-XX for 6 months to 12 months. (ECF No. 14-1 at 27, 73.) All of these terms were ordered to be served consecutively to each other for a total term of 12 to 48 months. (ECF No. 14-1 at 27.) Petitioner was released on bond on April 11, 2005, and was ordered to begin serving his state sentence on May 20, 2005. (ECF No. 14-1 at 32; 33; 35; 37; 39; 41.) Petitioner began serving his state sentence with the Vermont Department of Corrections on May 20, 2005. (ECF No. 14-1 at 27.)

The docket sheet for criminal case number 962-9-04 Wncr reflects "credit for time served 7 days." (ECF No. 14-1 at 73.)

On February 22, 2006, petitioner was indicted on federal charges in the United States District Court for the District of Vermont in case number 2:06-cr-0016. On February 28, 2006, a writ of habeas corpus ad prosequendum was issued by the United States District Court for the District of Vermont for the production of petitioner to appear before the court on March 14, 2006, to answer for the charges in the indictment. (ECF No. 14-1 at 43-44.) On March 22, 2006, petitioner was transferred from the Northern State Correctional Facility in Newport, Vermont, to the U.S. Marshal pursuant to the writ. (ECF Nos. 1 at 22-23; 14-1 at 47.)

On November 15, 2007, the United States District Court for the District of Vermont entered judgment against petitioner whereby he received a sentence of 112 months imprisonment after pleading guilty to conspiracy to distribute 100 grams or more of heroin and 500 grams or more of cocaine, and unlawful user of drugs in possession of a firearm. ...


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