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Johnson v. Gill
United States District Court, E.D. California
April 30, 2015
AUBRY REA JOHNSON, Petitioner,
A. GILL, Warden, Respondent.
FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS
MICHAEL J. SENG, 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. Petitioner claims entitlement to a credit against his federal sentence for time served in and out of state custody prior to serving his sentence for his federal convictions. (See Pet., ECF No. 1.)
I. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
The instant petition does not challenge Petitioner's conviction. Rather, Petitioner contends that the Bureau of Prisons ("BOP") is executing Petitioner's sentence in a way that violates federal law because the BOP refuses to give Petitioner credit for time spent in state custody and time spent when erroneously released from state custody prior to serving his federal sentence. The relevant facts of the case are not in material dispute. Respondent's recitation of the facts is as follows:
A. Initial Arrest and Imposition of State Sentences
On February 13, 2007, Petitioner was arrested by local authorities in Texas on charges in four different matters: (1) Fraud Use/Possession of Identifying Information (Case No. 110434701010, Harris County, Texas) ("First State Court Case"); (2) Probation Violation Warrant for Aggravated Robbery (Case No. 949865, Harris County, Texas) ("Second State Court Case"), and (3) Fraudulent Use/Possession of Identifying Information (Case Nos. 43918 and 43919, Fort Bend County, Texas) ("Third and Fourth State Court Cases"). See Davis Decl. ¶ 3. The charge in the First State Court Case was later dismissed. Id.
On June 7, 2007, while still in state custody, Petitioner was sentenced in the Second State Court Case (Case No. 949865) by the State of Texas to a 6-year term of imprisonment for Aggravated Robbery. Davis Decl. ¶ 5. On July 10, 2007, he was transferred to the Texas Department of Criminal Justice (TDCJ), the state prison system, to serve out his state sentence. Id . ¶ 7.
On August 14, 2007, Petitioner was transferred from TDCJ to Fort Bend County, Texas, on pending charges in the Third and Fourth State Court Cases (Case Nos. 43918 and 43919). On August 20, 2007, the petitioner was sentenced by the State of Texas to a 12-month concurrent term in both cases. Davis Decl. ¶ 8.
B. Petitioner Enters Federal Custody on Writ
On August 29, 2007, Petitioner was temporarily released from state custody to the United States Marshals Service (USMS) via writ of Habeas Corpus Ad Prosequendum. Id . ¶ 9. He was in USMS custody attending to the federal court case brought against him in United States District Court, Southern District of Texas, in Case No. 4:07CR00174-001 ("Federal Case"). On June 29, 2007, Petitioner pleaded guilty to Aiding and Abetting Access Device Fraud, in violation of 18 U.S.C. §§ 1029(a)(2); and Aiding and Abetting Aggravated Identity Theft, in violation of 18 U.S.C. §§ 1028A, 2. Davis Decl. ¶ 11, Attach. 8. Petitioner was sentenced to 88-months imprisonment in the Federal Case on February 29, 2013. Id . According to the judge's order, the federal term was to run consecutive to the 6-year sentence he received in the Second State Court Case. Id.
C. First Error and Return to State Custody
While he remained in federal custody, and before he was sentenced in his Federal Case, the State of Texas satisfied Petitioner's 12-month sentence in his Third and Fourth State Court Cases (Case Nos. 43918 and 43919). Petitioner's 12-month concurrent sentences were extinguished on February 14, 2008-one year after his February 13, 2007 arrest. Thus, the full 12-months he served after his initial arrest by state authorities was credited to his state sentence, including the time he spent in USMS custody on the writ ad prosequendum. Davis Decl. ¶ 10, Attach. 4.
At that time, the USMS erroneously recorded that the Petitioner's state obligation had been satisfied, overlooking his yet unsatisfied six-year term from his Second State Court Case (Case No. 949865). Id . ¶ 10. Thus, instead of returning Petitioner to state custody to finish serving his six-year state sentence, the USMS requested designation to a federal facility, and Petitioner was erroneously designated to FCI Beaumont, Texas. Davis Decl. ¶ 12, Attachs. 6, 9. Although he was housed at a federal institution during this time, however, he remained in the primary custody of the State of Texas, and was in federal custody only pursuant to the writ of Habeas Corpus Ad Prosequendum. Id.
As soon as the BOP became aware of the error, efforts were made to return the inmate to state custody. Pet.; Davis Decl., Attach. 6 (letter dated July 8, 2008). Petitioner was returned from BOP to USMS custody on July 31, 2008. The USMS housed Petitioner at Federal Detention Center (FDC) Houston until August 8, 2008, and at the Montgomery County Jail (Joe Corley Detention Center) until August 11, 2008. See Davis Decl. ¶ 13. Petitioner admits he was then transferred back to state custody at this time to serve his state sentence on his Second State Court Case (Case No. 949865). Pet. at 4.
D. New State Charges, Second Error, and Return to State Custody
While he was housed in state custody serving his state sentence, Petitioner was moved to the custody of the Dallas County Sheriff's Department on additional state charges in a Fifth State Court Case. See Pet., Ex. A. Those charges were later dismissed. Rather than return him to TDCJ to serve out the remainder of his existing state sentence, however, the Dallas County Sheriff's Department erroneously transferred him to the USMS on August 7, 2009 based on the federal detainer filed in his Federal Court Case. Davis Decl. ¶ 14, Attach. 7. After discovering the error, on November 3, 2009, USMS returned Petitioner to the Dallas County Sheriff's Department. Id.
E. Third Error and Return to State Custody
On December 9, 2009, the Dallas County Sheriff's Department again erroneously informed USMS that the inmate had completed his state sentence, and the State had released their hold. Pet., Ex. A. On December 14, 2009, Petitioner was again transferred to the custody of the USMS. Davis Decl. ¶ 15. The USMS again requested designation to a federal facility.
At this point, the BOP felt it was necessary to inquire as to whether the Petitioner had completed his sentence, based on the previous errors. State authorities again erroneously informed the BOP that Petitioner had completed his state sentence. Based on that information, BOP informed the USMS the inmate would return to Beaumont Medium. Pet., Ex. B.
He was not actually designated or transferred to Beaumont at that time. Instead, records indicate he remained in USMS custody until February 12, 2010. It appears that USMS became aware that the Petitioner had not completed his state sentence, because on that date he was again returned to the TDCJ to complete service of his six-year term for his Second State Court Case. See Davis Decl. ¶ 15, Attach. 7.
F. Fourth Error and Release
On February 23, 2011, approximately four years after his arrest, Petitioner paroled from the TDCJ from the 6-year term of imprisonment in his Second State Court Case. Accordingly, all of the time Petitioner had spent in custody, from February 13, 2007, through February 23, ...
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