Frederick Sutton v. Calvin Johnson

Filing 24

ORDER ACCEPTING REPORT AND RECOMMENDATIONS by Judge Fernando M. Olguin for Report and Recommendation (Issued) 17 . (ig)

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT

8

CENTRAL DISTRICT OF CALIFORNIA

9
10
11
12
13
14
15

FREDERICK SUTTON,
Petitioner,
v.
CALVIN JOHNSON,
Respondent.

16

)
)
)
)
)
)
)
)
)
)

Case No. ED CV 16-0532 FMO (JCG)
ORDER ACCEPTING REPORT AND
RECOMMENDATION OF UNITED
STATES MAGISTRATE JUDGE AND
DENYING CERTIFICATE OF
APPEALABILITY

17
18

Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, the Magistrate

19

Judge’s Report and Recommendation (“R&R”), [Dkt. No. 17], Petitioner’s Objections

20

to the Report and Recommendation (“Objections”), [Dkt. No. 21], Respondent’s

21

Opposition to the Objections, [Dkt. No. 23], and the remaining record, and has made a

22

de novo determination.

23

Petitioner’s Objections generally reiterate the same arguments made in the

24

Petition, and lack merit for the reasons set forth in the R&R. There is one issue

25

however, that warrants brief discussion here.

26
27

In his Objections, Petitioner argues that he: (1) “did not receive credit towards
the service of his Michigan Prison sentence because he was not available to the

28
1

1

Michigan Department of Corrections”; and (2) is thus “entitled to credit for time spent

2

in custody towards the service of his federal sentence.” (See Objections at 1-2.) In

3

support of his argument, Petitioner attaches a letter he received from Jeremy Stoner

4

(“Mr. Stoner”), a parole agent with the Michigan Department of Corrections, in which

5

Mr. Stoner states that:

6

I do not have documents verifying any credit for time served in regards to
your parole violation. . . . It appears to me that you were held in federal
custody until approximately 11/25/2009 before being transported back to
Michigan for the parole violation after becoming available to the Michigan
Department of Corrections. . . . I am not completely sure what you are
requesting. I am assuming you think you should have received credit for
time served while your federal criminal charges were pending but you
were not available to the Michigan Department of Corrections, therefore
not being held for us.

7
8
9
10
11
12
13
14

(Objections, Ex. A.) Notably, Mr. Stoner’s statements are not based on any official

15

prison documents or reports, and instead appear to be rooted in conjecture. (See

16

generally id.) In any event, they do not show that Petitioner was not given credit

17

towards the service of his Michigan prison sentence.1
In contrast, a Management Analyst at the Designation and Sentence

18
19

Computation Center of the Federal Bureau of Prisons (“BOP”) confirmed that, based

20

on correspondence with and documents provided by the Records Audit Specialist at

21

the Michigan Department of Corrections (“MDOC”): “[A]ll time Petitioner spent in

22

custody from January 5, 2009, when he was arrested in California, to November 24,

23

2009, when he was sentenced in federal court, was credited towards service of his

24

Michigan prison sentence.” (Declaration of Ronald C. Williams in Support of

25

Respondent’s Answer (“Williams Decl.”) ¶ 16(B).)

26
27

1

Relatedly, the Parole Board Notice of Decision attached to Petitioner’s Objections merely
states that “it was noted for the record that parolee became available 11-25-09,” and says nothing
about crediting or not crediting Petitioner for his state imprisonment. (See Objections, Ex. B. at 2.)

28
2

1

Specifically, the MDOC Records Audit Specialist provided the BOP with

2

Petitioner’s MDOC Offender Movement Report, which indicated that from January 5,

3

2009 to November 24, 2009: “[Petitioner] earned credit on his [Michigan] sentence

4

during this time. . . . As there was no ‘abscond’ [notation] during this period [on the

5

Report], this [] supports that he received full credit on his [Michigan] prison sentence

6

during this time period.” (Id., Ex. K at 3, 6.) As such, official MDOC records

7

definitively contradict the notion that Petitioner did not previously receive credit for

8

service of his Michigan sentence. See Stratmon v. Schultz, 2006 WL 1439398, at *6

9

(E.D. Cal. May 22, 2006) (denying Petitioner’s habeas petition, in part, because prison

10
11

disciplinary reports “contradict[ed] Petitioner’s claim”).
Accordingly, IT IS ORDERED THAT:

12

1.

The Report and Recommendation is approved and accepted;

13

2.

Judgment be entered dismissing this action with prejudice;

14

3.

All pending motions are denied as moot and terminated; and

15

4.

The Clerk serve copies of this Order on the parties.

16

Additionally, for the reasons stated in the Report and Recommendation, the

17

Court finds that Petitioner has not made a substantial showing of the denial of a

18

constitutional right. See 28 U.S.C. § 2253; Fed. R. App. P. 22(b); Miller-El v.

19

Cockrell, 537 U.S. 322, 336 (2003). Thus, the Court declines to issue a certificate of

20

appealability.

21
22
23
24

DATED: January 10, 2017

/s/
HON. FERNANDO M. OLGUIN
UNITED STATES DISTRICT JUDGE

25
26
27
28
3