United States District Court, N.D. California
ORDER RE REQUEST FOR INFORMATION ABOUT SENTENCE AND NOTICE RE: SECTION 2255 MOTION Re: Dkt. No. 60, 63
PHYLLIS J. HAMILTON, District Judge.
Defendant Mark Enriquez, appearing pro se, submitted a letter to the court, filed December 12, 2014, asking "has my federal time stopped [as] of the day I was transferred to Nevada.'" Doc. no. 60. He further asks "is there some kind of motion or procedure' that I can file to maybe at least to please have my fed time' run concurrent with my Nevada time.'" The government filed a response to Enriquez's letter seeking information about his sentence.
Enriquez subsequently submitted another letter, filed December 22, 2014, asking for information from the Bureau of Prisons. Doc. no. 63. The court hereby addresses Enriquez's inquiries.
A. Federal Sentence Runs Consecutive to State Sentences
Enriquez was charged with conspiracy to commit identity theft in violation of 18 U.S.C. § 371, and a criminal forfeiture allegation pursuant to 18 U.S.C. § 982, by indictment filed September 15, 2011. On December 22, 2012, the court granted the government's motion for issuance of a writ of habeas corpus ad prosequendum, ordering that Enriquez be brought to the court from Washoe County, Nevada, where Enriquez was in custody, for his initial appearance on the charges and for all times necessary until the termination of proceedings in this court. Enriquez made an initial appearance before the magistrate judge on February 12, 2013. Enriquez was set to be sentenced in two unrelated pending cases in Nevada on January 17, 2013, but his Nevada sentencing date was reset to August 1, 2013.
Enriquez pleaded guilty to the sole count of the indictment, and on June 26, 2013, he was sentenced by this court to a term of 46 months imprisonment and supervised release for a term of 3 years. Enriquez represents in his two letters that he was transferred to Nevada on August 1, 2013 for the pending state charges, doc. no. 63, and was sentenced in state court for two consecutive sentences, each with a term of 6 to 15 years, doc. no. 60. Enriquez indicates that his case worker informed him that his federal sentence has stopped, and he asks whether that is because he is in state custody and, if so, why. Doc. no. 60.
As the government states in its response, Enriquez's federal sentence will commence on the day he is received into federal custody to serve his sentence, which cannot begin until he has completed his state sentences. "A federal sentence commences on the date the defendant is received in custody awaiting transportation to, or arrives... at, the official detention facility at which the sentence is to be served, ' 18 U.S.C. § 3585, not when sentence is imposed." Taylor v. Reno, 164 F.3d 440, 445 (9th Cir. 1998). At the time the federal sentence was imposed by this court, the state of Nevada had primary jurisdiction over Enriquez. "The term primary jurisdiction' in this context refers to the determination of priority of custody and service of sentence between state and federal sovereigns." Id. at 444 n.1. Where, as here, a defendant is brought before a federal court pursuant to a writ of habeas corpus ad prosequendum, "which ordered a defendant who was held in state custody to be produced for sentencing in federal court on a specific date and also at such other times as may be ordered by the said court, '" the writ ad prosequendum is "sufficient to support the delivery of the defendant to federal court on a later date without interrupting the state's priority of jurisdiction." Id. at 445 (citing Thomas v. Brewer, 923 F.2d 1361, 1365 (9th Cir. 1991)). Until Nevada relinquishes primary jurisdiction over Enriquez, this court lacks authority to place him into federal custody to commence his federal sentence. Id.
When the court sentenced Enriquez to 46 months in custody, the court did not order that the federal sentence run concurrently with the state sentences, which had not yet been imposed. This court imposed a sentence that runs consecutively to the state sentences. See 18 U.S.C. § 3584 ("Multiple terms of imprisonment imposed at different times run consecutively unless the court orders that the terms are to run concurrently."). As discussed above, Enriquez's federal sentence does not begin to run until he arrives in federal custody after serving his state sentences.
B. Section 2255 Governs Motions to Vacate, Set Aside or Correct Sentence
Enriquez also indicates that at sentencing it "was never addressed" whether his his sentence would be affected regardless of the outcome of his sentencing by the state court in Nevada. The government points out that the judgment of conviction, including the 46-month sentence, is final. See 18 U.S.C. § 3582(b). Enriquez asks the court if there is a motion or procedure to ask that the federal sentence and state sentences run concurrently. Such a motion to vacate, set aside or correct the sentence is governed by 28 U.S.C. § 2255. However, a court may not recharacterize a pro se litigant's motion as the litigant's first § 2255 motion unless the court informs the litigant of its intent to do so. Castro v. United States, 540 U.S. 375, 377 (2003). As the Ninth Circuit Court of Appeals explained:
When presented with a pro se motion that could be recharacterized as a 28 U.S.C. § 2255 motion, a district court should not so recharacterize the motion unless: (a) the pro se prisoner, with knowledge of the potential adverse consequences of such a recharacterization, consents or (b) the district court finds that because of the relief sought that the motion should be recharacterized as a 28 U.S.C. § 2255 motion and offers the pro se prisoner the opportunity, after informing the prisoner of the consequences of recharacterization, to withdraw the motion. Under either scenario, the pro se prisoner has the option to withdraw the motion and file one all-inclusive 28 U.S.C. § 2255 motion within the one-year statutory period.
United States v. Seesing, 234 F.3d 456, 464 (9th Cir. 2001). If this is not done, a recharacterized motion will not count as a § 2255 motion for purposes of applying § 2255's "second or successive" provision. Castro, 540 U.S. at 377.
Enriquez has not expressly filed a motion seeking relief from the sentence, but asks whether there is a motion or procedure for running his federal sentence concurrently with the state sentences. Very liberally construed, this inquiry could be recharacterized as a motion to vacate, set aside or correct the sentence. As required under Castro and Seesing, the court will provide Enriquez an opportunity to clarify whether he seeks relief pursuant to § 2255 and provide him notice of the potential adverse consequences of treating his request for relief as a § 2255 motion. That is, before recharacterizing the inquiry as a motion to vacate, set aside or correct his sentence pursuant to § 2255, the court provides Enriquez with notice that this recharacterization means that any subsequent § 2255 motion will be subject to the restrictions on "second or successive" motions, Castro, 540 U.S. at 383, and provides him an opportunity to clarify whether he seeks to recharacterize his request as a motion under § 2255. In the interest of managing the court's docket, the court will ...