United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS TO GRANT RESPONDENT'S MOTION TO DISMISS PETITION (Doc. 28) ORDER DIRECTING THAT OBJECTIONS BE FILED WITHIN TWENTY-ONE DAYS
JENNIFER L. THURSTON, 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 instant petition was filed on April 13, 2012, challenging the computation of credits on Petitioner's sentence by the United States Bureau of Prisons ("BOP"). (Doc. 1).
A. The Instant Petition.
On June 6, 2012, Respondent requested a stay of proceedings because the issue of Petitioner's credits was already pending before the U.S. District Court for the Eastern District of New York. (Doc. 12). To avoid duplication of judicial resources, Respondent requested that the proceedings be held in abeyance pending the New York federal court's resolution of this issue. Id . On November 8, 2012, the Court granted the stay and required Respondent to file regular status reports. (Doc. 13).
On October 20, 2014, Respondent notified the Court that the New York district court had adjudicated the issues raised in this petition and requested the stay be lifted. (Doc. 27). On November 19, 2014, Respondent filed the instant motion to dismiss, contending that, pursuant to the ruling of the New York court, Petitioner has been accorded all of the relief to which he is entitled concerning credits and that the petition should be dismissed. (Doc. 28). Petitioner has not filed an opposition to Respondent's motion to dismiss.
B. Prior Procedural History.
Petitioner is in custody of the BOP serving a 276-month sentence. This sentence was imposed after his 2007 conviction in the United States District Court for Eastern District of New York for killing an individual while distributing cocaine, a violation of 18 U.S.C. § 848(e)(1)(A). (Doc. 28, Ex. 2, Attach 7).
According to the documents filed with the motion to dismiss, including a declaration by Marcus Boudreaux, a BOP Management Analyst who audited the records relating to Petitioner's sentence. (Doc. 28, Ex. 2), following is the case chronology: Petitioner was arrested on March 15, 2004 in Brooklyn, New York, by non-federal authorities on the charges of attempted first degree robbery, criminal possession of a weapon, menacing, and possession of an ammunition clip. ( Id., p. 3). On May 10, 2004, Petitioner pleaded guilty to disorderly conduct in state court and was sentenced to time served. (Id.). During that time, he was in the continuous custody of the New York City Department of Corrections ("NYC-DOC"). (Id.).
When Petitioner was arrested on these charges, he was on parole after a conviction of sale of a controlled substance in another state court and had been originally sentenced on that case to a two-year minimum, six-year maximum prison term. (Doc. 28, Ex. 2 at p. 3) As a result of the March 15, 2004 arrest and plea, the state, on March 24, 2004, commenced proceedings to revoke Petitioner's parole on the earlier charge. (Id.). After the state determined that Petitioner had four years, two months, nineteen days remaining on his original sentence, the court revoked Petitioner's parole and returned him to custody for an additional five-month term. (Id.). Petitioner remained in the custody of the NYC-DOC until June 2, 2004, when he was released into the custody of the New York State Department of Correctional Services (NY-DOC), to continue service of his original sentence for sale of a controlled substance. (Id.).
On July 27, 2004, the state parole board determined that the earliest possible release date for Petitioner was August 18, 2004. ( Id., p. 4). On August 12, 2004, Petitioner was temporarily transferred to federal custody pursuant to a writ. (Doc. 28, Ex. 2, Attach. 17). Petitioner was prosecuted on the federal charges and on July 18, 2007, was sentenced by the U.S. District Court for the Eastern District of New York, to a 276-month term for killing an individual while distributing cocaine. (Doc. 28, Ex. 2, p. 4). The sentencing order does not indicate that the 276-month term was to be served concurrent with any other prison term. (Doc. 28, Ex. 2, Attach 6).
On July 26, 2007, Petitioner was returned to the custody of the NY-DOC to continue serving his state sentence. (Doc. 28, Ex. 2, p. 4). A federal detainer was lodged with the NY-DOC regarding Petitioner's federal sentence, holding him when he completed the state prison term. (Id.). According to Management Analyst Boudreaux, during the period Petitioner was subject to the federal writ, i.e., from August 12, 2004 until July 26, 2007, Petitioner remained in the primary custody of the state authorities, several state parole hearings were held, and the parole decision in all of those proceedings were designated "Postponed" because Petitioner was being held subject to the federal writ. ( Id., p. 5). On October 10, 2007, Petitioner, at his own request, was released via parole in order to "start his Federal sentence earlier." (Id.).
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 under 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., 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); Brown v. United States , 610 F.2d 672, 677 (9th Cir. 1990). 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 v. Keohane , 921 F.2d 476, 479 (3rd Cir. 1990) (arguing Bureau of Prisons erred in determining whether petitioner could receive ...