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Hymes v. Matevousian

United States District Court, E.D. California

July 25, 2017

ROGER EUGENE HYMES, Petitioner,
v.
ANDRE MATEVOUSIAN, Warden Respondent.

          ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY CLERK TO TERMINATE MOTIONS AND CLOSE CASE

          Michael J. Seng UNITED STATES MAGISTRATE JUDGE.

         Petitioner is a former federal prisoner proceeding pro se with a petition for writ of habeas corpus under the authority of 28 U.S.C. § 2241. Respondent Andre Matevousian is represented by Michael G. Tierney of the United States Attorney's Office, Eastern District of California. The parties have consented to the jurisdiction of a Magistrate Judge for all purposes pursuant to 28 U.S.C. § 636(c)(1). (ECF Nos. 4, 6.)

         Petitioner filed the instant petition for writ of habeas corpus on November 25, 2015. (Pet., ECF No. 1.) He contends that the Bureau of Prisons unlawfully denied him credit for time served in state prison. On May 23, 2016, Respondent filed a response to the petition, arguing that the petition is moot and, alternatively, that it is without merit. (ECF No. 11.) Petitioner filed no traverse and the time for doing so has passed. The matter is submitted.

         I. Factual and Procedural History

         At the time of filing his petition, Petitioner was in federal custody at United States Penitentiary, Atwater, pursuant to a judgment of the District Court for the Western District of Missouri, convicting him on three counts of bank robbery and sentencing him to a 150-month prison term and 3 years of supervised release. (ECF No. 11-1 at 6.) However, his claims relate to criminal proceedings that preceded his time in federal custody. That background is as follows:

On August 10, 2005, Hymes pled guilty, pursuant to a plea agreement with the government, to three separate counts of robbery of an FDIC insured financial institution in violation of 18 U.S.C. § 2113(a). On November 28, 2005, [the United States District Court for the Western District of Missiouri] sentenced Hymes to 150 months, the high-end of the advisory guidelines range, along with three years of supervised release and restitution in the amount of $31, 494.92. On December 5, 2005, [the District Court] issued an Amended Judgment and Commitment, correcting the “Additional Conditions of Supervised Release.”
On December 15, 2005, in a separate proceeding in St. Louis County Circuit Court, Hymes pled guilty to two separate bank robberies, receiving concurrent ten-year sentences. The state court judge ordered that Hymes's sentences in the state cases be served concurrent with his federal sentence and that he was to be remanded to the “Federal Department of Corrections from whence he came.” However, contrary to the state court's order, Hymes was turned over to the Missouri Department of Corrections.

Hymes v. United States of America, No. 07-4106-CV-C-NKL-P (W.D. Mo. Sept. 21, 2007); see also Petition, ECF No. 1 at 10-11.

         Petitioner filed a motion in the Western District of Missouri, challenging his sentence calculation pursuant to 28 U.S.C. § 2255, after he learned that his federal sentence had not started to run while he was in state custody. He sought credit toward his federal sentence for time served in state prison. The § 2255 motion was denied on the ground that the claims were unexhausted and, in any event, should have been brought pursuant to § 2241. Id.

         On June 18, 2009, Petitioner submitted a Request for Informal Resolution to the Bureau of Prisons (“BOP”). (ECF No. 1 at 21-22.) His request was denied on the ground it could not be informally resolved. (Id. at 23.) Petitioner was advised to pursue the BOP's Administrative Remedy process.

         On August 11, 2009, BOP received Petitioner's Request for Administrative Remedy. (Id. at 24.) The Warden responded on August 26, 2009 as follows:

The Credit which you request is precluded under Title 18:3583(b) at this time. Your request has been forwarded to the Designation and Sentence Computation Center (DSCC), for review and determination in accordance with Bureau of Prisons' Program Statement 5160.05, Designation of State Institution for Service of Federal Sentence. You will be advised on the Bureau of Prisons' determination upon completion of the review.

(Id. at 26.)

         On November 9, 2009, Petitioner's appeal was received by the South Central Regional Office. (Id. at 28.) On December 31, 2009, the Regional Office denied relief as follows:

Investigation reveals you were arrested by state of Missouri law enforcement officials on July 2, 2004, for robbery charges. Prior to being sentenced by the state, you were transferred to the custody of the United States Marshals Service (USMS) pursuant to a Writ of Habeas Corpus Ad Prosequendum based on pending federal charges. On November 28, 2005, you were sentenced in the Western District of Missouri to a 150-month term of imprisonment for three counts of Bank Robbery. Your federal Judgment and Commitment Order was silent as to the service of your federal sentence; thus it was appropriately calculated as consecutive to your state term. After sentencing, you were returned to state custody. On December 15, 2005, you were sentenced to a 10-year term of imprisonment for Second Degree Robbery to be served in the Missouri Department of Corrections. On January 5, 2009, you paroled from your state sentence to USMS custody at which time you were designated and delivered to the Bureau of Prisons for service of your federal term.
Title 18 U.S.C. § 3585(b) is the statute authorizing the award of presentence credit. This statute authorizes credit for time spent in official detention prior to the imposition of a sentence that has not been credited against another sentence. To award credit toward your federal sentence that was applied to your state term would be contrary to the intent of this statute. Contact with state of Missouri officials has confirmed you received credit on your state sentence from the date of your arrest on July 2, 2004, through January 5, 2009, the date you paroled.
In addition, Program Statement 5880.28, SentenceComputation Manual (CCCA of 1984), states time spent under a writ of habeas corpus from non-federal custody will not, in itself, be considered for the purpose of custody credit. The primary reason for custody is not the federal charge. It is considered the federal court “borrows” an individual under the provisions of the writ for the purpose of the court appearance. Additionally, production of a defendant via a federal Writ of Habeas Corpus Ad Prosequendum does not shift the primary jurisdiction of custody to the federal authorities. After the writ is satisfied, the USMS must return the “loaned” defendant back ...

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