Cygnus Systems, Inc. v. Microsoft Corporation, et al

Filing 112

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Cygnus Systems, Inc. v. Microsoft Corporation, et al Doc. 112 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 DIANE J. HUMETEWA United States Attorney District of Arizona ELIZABETH WILSON Assistant U.S. Attorney Arizona State Bar No. 017087 405 W. Congress Street, Suite 4800 Tucson, Arizona 85701-5040 Telephone: (520) 620-7300 Attorneys for Respondent UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA ) ) Petitioner, ) ) v. ) ) ) LOUIS WYNN, ) ) Respondent. ) ____________________________________) CARL EMERSON SLOAN, CV 07-603-TUC-CKJ RETURN AND ANSWER TO ORDER TO SHOW CAUSE WHY PETITION FOR WRIT OF HABEAS CORPUS SHOULD NOT BE GRANTED Respondent Louis Winn (misspelled Wynn in petition), Warden, Federal Correctional Institution, Tucson, by and through his attorneys, Diane J. Humetewa, United States Attorney for the District of Arizona, and Elizabeth Wilson, Assistant United States Attorney, returns and answers the order to show cause why Petitioner Carl Emerson Sloan's petition for writ of habeas corpus should not be granted and requests that the Court deny and dismiss the petition based upon the accompanying memorandum of points and authorities. MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Petitioner Carl Emerson Sloan ("Sloan"), federal register number 57014-097, is an inmate currently incarcerated at the Federal Correctional Institution (FCI), Tucson, Arizona. (Exhibit 1, 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Inmate History.) He is serving a one year and one day sentence for a Supervised Release Revocation Judgment. (Exhibit 2, Supervised Release Revocation Judgment.) On November 15, 2007, petitioner filed an Petition Under 28 U.S.C. 2241 For a Writ of Habeas Corpus by a Person in Federal Custody ("Petition") with attached Emergency Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. 2241 ("Emergency Petition") commencing this case. The Petition should be denied because Sloan failed to exhaust his administrative remedies with respect to his claims. On the merits the Petition should be denied because Sloan's sentence has been properly computed and he is not entitled to the relief he seeks. II. FACTS On April 11, 1996, Sloan was sentenced by the Central District of California to a term of 84 months imprisonment followed by three years of supervised release after his conviction for violations of 18 U.S.C. 2113(a), Bank Robbery. He was released from custody on March 7, 2002, via good conduct time release, and was placed on supervised release. Exhibit 1, Inmate History. On June 25, 2002, a Petition on Probation and Supervised Release (Bench Warrant) was filed ("Supervised Release Revocation ") (Exhibit 3, Central District of California Docket United States v. Carl Emerson Sloan, 95-cr-00857.) The Petition to Revoke was subsequently amended on June 4, 2003. Id. On June 29, 2002, Sloan was arrested by the Smithville, Tennessee Police Department for Aggravated Assault and Robbery. (Exhibit 4, Michael Hillebrand Letter, pg 1.) He was detained under the authority of the Dekalb County Correctional Facility until he was sentenced by the State of Tennessee, on April 9, 2003, to a term of six years. (Emergency Petition, 2);( See also Exhibit 4, pg 1.) This sentence was ordered to run consecutive to any term imposed on the Federal Supervised Release Revocation sentence. Id. On April 9, 2003, Sloan was turned over to the United States Marshals Service (USMS) for the Supervised Release Revocation charge. (Exhibit 1, pg 1.) On July 28, 2003, Sloan was found to be in violation of the terms of release and was sentenced to a one year and one day term 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 of imprisonment, to run consecutively to his State of Tennessee sentence. (Exhibit 2.) This sentence was imposed by the Honorable Edward Rafeedie, United States District Judge for the Central District of California. Id. On December 2, 2003, Sloan was mistakenly delivered to the United States Penitentiary (USP) Lompoc, instead of being returned to the State of Tennessee authorities for service of his state sentence. (Exhibit 4, pg 2.) Officials at USP Lompoc immediately detected this error and made arrangements for the USMS to deliver Sloan to the State of Tennessee Department of Corrections to serve his state sentence. Id. Sloan departed USP, Lompoc on December 5, 2003 and was subsequently delivered to the State of Tennessee to serve his sentence. (Exhibit 1, pg 1.) Sloan was paroled from his State of Tennessee sentence on May 15, 2007. (Exhibit 5, Designation and Sentence Computation Memorandum, dated August 17, 2007.) In calculating Sloan's release date from the State of Tennessee facility, Sloan was given credit for the 284 days he was incarcerated during the period prior to his State trial, as well as 72 days additional days granted for pretrial good behavior. (Exhibit 6, State of Tennessee Sentence Calculation Worksheet.) In addition, Sloan was given credit for all post-judgment time spent in federal custody and 328 days good behavior credit for time served in State custody. Id. On May 15, 2007, Sloan was released to the USMS to begin serving his federal sentence. (Exhibit 1.) Sloan's federal sentence computation began on May 15, 2007. (Exhibit 7, Federal Sentence Computation Worksheet.) The Designation and Sentence Computation Center of the Bureau of Prisons confirmed with the Tennessee Department of Corrections that there was no time which needed to be credited to Sloan's federal sentence prior to May 15, 2007. ( Exhibit 5.) Based on the foregoing, Sloan is projected to complete his federal sentence on March 29, 2008. (Exhibit 7.) III. ARGUMENT A. THE PETITION SHOULD BE DISMISSED BECAUSE SLOAN HAS FAILED TO EXHAUST ADMINISTRATIVE REMEDIES. A federal prisoner challenging any circumstance of his imprisonment must exhaust all 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 available administrative remedies prior to bringing a petition for writ of habeas corpus. See McKart v. United States, 395 U.S. 185 (1969); Parisi v. Davidson, 405 U.S. 34, 37 (1972); Terrell v. Brewer, 935 F.2d 1015 (9th Cir. 1991); Martinez v. Roberts, 804 F.2d 570, 571 (9th Cir. 1986); Brice v. Day, 604 F.2d 664 (10th Cir. 1979), cert. denied, 444 U.S. 1086 (1980); Angle v. Laird, 429 F.2d 892 (10th Cir. 1970), cert. denied, 401 U.S. 918 (1971). A request for prior custody credit is no exception. "[I]t is well-established that a request for credit for prior custody under 18 U.S.C. 3585(b)(2) must be made, in the first instance, to the Attorney General through the Bureau of Prisons upon imprisonment after sentencing. See United States v. Wilson, 503 U.S. 329, 334, 112 S.Ct. 1351, 117 L.Ed.2d 593 (1992). Once administrative remedies are exhausted, see 28 C.F.R. 542.10-542.16, prisoners may then seek judicial review of any jail-time credit determination, see Wilson, 503 U.S. at 335, 112 S.Ct. 1351, by filing a habeas petition under 28 U.S.C. 2241." Rogers v. U.S., 180 F.3d 349, 358 (1st Cir. 1999)(footnote and internal quotations omitted) . Dismissal is warranted when a petitioner fails to exhaust his administrative remedies. Martinez v. Roberts, 804 F.2d at 571. As stated by the Ninth Circuit in McKinney v. Carey, 311 F.3d 1198, 1200 - 1201 (9th Cir. 2002), "Requiring dismissal without prejudice when there is no presuit exhaustion provides a strong incentive that will further Congressional objectives, permitting exhaustion pendente lite will inevitably undermine attainment of them." Sloan argues that he "attempted Administrative Remedies at the local level to no avail." Petition, pg 4. However, according to the Bureau of Prison's records, Sloan has not filed any administrative remedies on any level regarding his sentence computation. (Exhibit 8, Declaration of Matthew Carney with attachments.) Sloan's only administrative remedy filing involved a medical issue. (Exhibit 8.) Consequently, the Bureau of Prisons has not been given an opportunity, pursuant to the provisions of 28 C.F.R. 542, to address this issue. Accordingly, Sloan has not exhausted his available administrative remedies as required prior to filing and therefore, the Petition should be dismissed without prejudice. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 B. SLOAN HAS BEEN GIVEN ALL CUSTODY CREDITS TO WHICH HE IS ENTITLED. Sloan contends that none of the time he spent in federal custody pursuant to the federal writ of habeas corpus ad prosequendum was credited towards either the State of Tennessee sentence or the federal sentence. (Petition, pg 4.) Therefore, Sloan contends that because he was in federal custody from April 9, 2003 to February 10, 2004 and again from May 15, 2007 to present, he has served his entire federal sentence and is being held illegally for a sentence already served. (Petition, pg. 4.) Sloan is essentially seeking credit toward his federal sentence for the time he was in federal custody pursuant to a writ of habeas corpus ad prosequendum. Sloan's contention is wrong for two reasons. First, a federal sentence does not begin to run when the defendant is produced for prosecution by a federal writ of habeas corpus ad prosequendum from state custody. Thomas v. Brewer, 923 F.2d 1361 (9th Cir. 1991). A federal sentence commences when a defendant is "received at an institution either to serve his sentence, or to be transported to another institution where his sentence was to be served. Id. at 1368. Although Sloan may have been in the physical custody of the United States Marshal pending sentencing on the Supervised Release Revocation charge, Sloan was not in custody to serve his sentence or to be transported to an institution to serve his sentence. Moreover, the State of Tennessee had not relinquished its jurisdiction by temporarily surrendering physical custody to the federal government and thus, Sloan was still in the primary custody of the State of Tennessee. Id. at 1366-1367. As set forth above, Sloan was arrested by the State of Tennessee on June 29, 2002, for Aggravated Assault and Robbery. (Exhibit 6.) After he was sentenced by the State of Tennessee, on April 9, 2003, Sloan was brought into federal custody via a writ of ad prosequendum (borrowed) and sentenced on July 29, 2003. (Exhibit 4.) When two different sovereigns have custody of a criminal defendant over a period of time, the sovereign who first acquires custody of the defendant has primary jurisdiction over 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 the defendant and primary jurisdiction remains vested in the sovereign until the sovereign relinquishes its priority to the other sovereign by, e.g., bail release, dismissal of the state charges, parole release, or expiration of the sentence. United States v. Warren, 610 F.2d 680, 684-645 (9th Cir. 1980). As the State of Tennessee had primary jurisdiction that had not been relinquished, when Sloan was transferred pursuant to a writ of habeas corpus ad prosequendum, he was considered to be "on loan" to the federal authorities. See Thomas v. Brewer 923 F.2d at 1367. The State of Tennessee's primary jurisdiction continued uninterrupted from the date of Sloan's arrest, June 29, 2002, until May 15, 2007, the date Sloan completed his State of Tennessee sentence and the State of Tennessee relinquished jurisdiction. See Del Guzzi v. United States, 980 F.2d 1269 (9th Cir. 1992)(Federal custody does not commence until the state authorities relinquish the prisoner on satisfaction of the state obligation.) Second, all time Sloan spent in federal custody was credited to his State of Tennessee sentence. (Exhibit 6.) The State of Tennessee gave Sloan credit for all periods of incarceration from June 29, 2002, in addition to good conduct credit for those periods served in state custody1. Id. Pursuant to 18 U.S.C. 3585: A defendant shall be given credit toward the service of a term of imprisonment for any time he has spent in official detention prior to the date the sentence commences-(1) as a result of the offense for which the sentence is imposed; or (2) as a result of any other charge for which the defendant was arrested after the commission of the offense for which the sentence was imposed; that has not been credited against another sentence. 18 U.S.C. 3585(b). The plain language of the statute provides that, when time in federal custody has been credited against another sentence, the inmate is not entitled to credit for that time on his federal sentence. To support his contention that he received no credit for the time he served in federal custody, Sloan alleges that he was entitled to twelve (12) days per month "Good Time" credit, for the six (6) year term of his sentence. Tenn.Code Ann 41-21-236 provides that an inmate is entitled to only eight days credit per month for good institutional behavior and that the credits are earned on a monthly basis. Therefore, inmates are only entitled to credit for the time served, not the length of the original sentence. 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 See United States v. Wilson, 503 U.S. 329,337, 112 S.Ct. 1351, 117 L.Ed.2d 593 (1992) ("Congress made clear that a defendant could not receive a double credit for his detention time."). This rule of sentence computation is also contained in Bureau of Prisons Program Statement 5880.28, entitled Sentence Computation Manual. (Exhibit 9, Sentence Computation Manual pg 1 - 14.) Sloan is not entitled to Sloan sentence credit for any time spent in Sloan custody via a writ of ad prosequendum. Sloan's federal Judgment and Commitment Order states that the federal sentence is to run consecutive to the State of Tennessee sentence. (Exhibit 2.) Sloan received credit on his state sentence for time served on the federal writ of ad prosequendum, from April 9, 2003 to December 3, 2003. Accordingly, Sloan's sentence computation has been correctly calculated and awarding Sloan credit on his federal sentence for the same period would constitute impermissible double counting. IV. CONCLUSION For the foregoing reasons, Sloan's Petition should be denied and dismissed Respectfully submitted this 20th day of December, 2007. DIANE J. HUMETEWA United States Attorney s/Elizabeth Wilson ELIZABETH WILSON Assistant U.S. Attorney I hereby certify that on December 20, 2007, I served the attached document by first class mail on the following, who is not a registered participant of the CM/ECF System: Carl Emerson Sloan Fed. Reg. 57014-097 Federal Correctional Institution P.O. Box 23811 Tucson, AZ 85734 s/Lorna Conlisk

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