Gadson v. Rhodes

Filing 24

ORDER adopting Report and Recommendations re 23 Report and Recommendation. IT IS FURTHER ORDERED that Petitioner's Petition for Writ of Habeas Corpus (Doc. 1 ) is DISMISSED. The Clerk of Court shall enter judgment accordingly and close the file in this action. Signed by Judge Jennifer G Zipps on 3/29/2021. (DLC)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Jermaine L Gadson,
Petitioner,

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ORDER

v.

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No. CV-18-00197-TUC-JGZ

R. Rhodes,

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Respondent.

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Pending before the Court is a Report and Recommendation issued by United States

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Magistrate Judge Bruce G. Macdonald. (Doc 23.) Magistrate Judge Macdonald

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recommends dismissing Petitioner’s § 2241 Petition for Writ of Habeas Corpus because

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Petitioner failed to establish his claim. (Id. at 9.)

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A review of the record reflects that the parties have not filed any objections to the

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Report and Recommendation and the time to file objections has expired. As such, the

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Court will not consider any objections or new evidence. Upon review of the record, the

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Court will adopt Magistrate Judge Macdonald’s recommendation that the Petition be

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dismissed.

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The district court stated at Petitioner’s sentencing, “I’ll give you credit for the

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serving of this sentence for the time you’ve been held in custody, in federal custody,” but,

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under applicable statutes and regulations, Petitioner had not been “in federal custody” until

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he was transferred to the Bureau of Prisons to begin serving his sentence on June 14, 2016.

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And although Petitioner did not receive federal credit for the time served between July 2,

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2014 and February 3, 2016, he did receive credit for that time in satisfaction of his state

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sentence.

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To the extent the sentencing court believed that Petitioner was in federal custody

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for sentencing purposes, it may have been mistaken. Even so, the record does not support

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the inference that the sentencing court intended for Petitioner to receive both federal and

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state credit for the time he was in state custody, but being held in federal facilities. The

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court could have ordered that Petitioner’s 120-month term of imprisonment run concurrent

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or partially concurrent to Warren County, Missouri, Circuit Court, Case No. 06BB-

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CR01033, but it did not. The court ordered that the sentence run consecutively. Between

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the state and the federal sentences, Petitioner has been credited with all the time he has

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served.1

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The Court notes that a certificate of appealability is not required in order for a
federal prisoner to appeal the denial of a § 2241 petition. See Harrison v. Ollison, 519 F.3d
952, 958 (9th Cir. 2008).

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Accordingly,

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IT IS ORDERED that the Report and Recommendation (Doc. 23) is ADOPTED.

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IT IS FURTHER ORDERED that Petitioner’s Petition for Writ of Habeas Corpus

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(Doc. 1) is DISMISSED.

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The Clerk of Court shall enter judgment accordingly and close the file in this action.

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Dated this 29th day of March, 2021.

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