Guereca v. Benov

Filing 11

ORDER to SHOW CAUSE Why Petition for Writ of Habeas Corpus Should not be Granted, signed by Magistrate Judge Michael J. Seng on 8/29/13. Thirty-Day Deadline. (Gonzalez, R)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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Case No. 1:12-cv-01910 MJS (HC)
JUAN FRANCISCO ORTIZ
GUERECA,

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ORDER TO SHOW CAUSE WHY
PETITION FOR WRIT OF HABEAS
Petitioner, CORPUS SHOULD NOT BE GRANTED
Response Due Within Thirty (30) Days

v.
MICHAEL L. BENOV, Warden,

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Respondent.

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Petitioner is a federal prisoner proceeding pro se with a petition for writ of habeas

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corpus pursuant to 28 U.S.C. § 2241. Both parties have consented to Magistrate Judge

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jurisdiction under 28 U.S.C. § 636(c). (ECF Nos. 4, 6.)

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Petitioner claims entitlement to a credit against his federal sentence for time

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served in federal custody of Immigrations and Customs Enforcement ("ICE") prior to

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being criminally charged for illegal re-entry. (Pet. at 6-8, ECF No. 1.) Presently before

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the court is Respondent's June 14, 2013, answer. (Answer, ECF No. 9.) Petitioner did

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not file a traverse to the answer.

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I.

STANDARD OF REVIEW

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Writ of habeas corpus relief extends to a person in custody under the authority of

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the United States. See 28 U.S.C. § 2241. Writ of habeas corpus relief is available if a
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federal prisoner can show he is "in custody in violation of the Constitution or laws or

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treaties of the United States." 28 U.S.C. § 2241(c)(3). Petitioner's claims are proper

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under 28 U.S.C. § 2241 and not 28 U.S.C. § 2255 because they concern the manner,

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location, or conditions of the execution of Petitioner's sentence and not the fact of

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Petitioner's conviction or sentence. Tucker v. Carlson, 925 F.2d 330, 331 (9th Cir.1990)

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(stating that a challenge to the execution of a sentence is "maintainable only in a petition

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for habeas corpus filed pursuant to 28 U.S.C. § 2241"); Montano-Figueroa v. Crabtree,

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162 F.3d 548, 549 (9th Cir. 1998).

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Further, Petitioner is challenging the execution of his sentence at Taft

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Correctional Institution in Taft, California, which is within the Fresno Division of the

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Eastern District of California; therefore, the Court has jurisdiction over this petition. See

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Brown v. United States, 610 F.2d 672, 677 (9th Cir. 1990).

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II.

REVIEW OF THE PETITION

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A.

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Before filing a petition for writ of habeas corpus, a federal prisoner challenging

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any circumstance of imprisonment must first exhaust all administrative remedies.

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Martinez v. Roberts, 804 F.2d 570, 571 (9th Cir. 1986); Chua Han Mow v. United States,

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730 F.2d 1308, 1313 (9th Cir. 1984); Ruviwat v. Smith, 701 F.2d 844, 845 (9th Cir.

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1983).

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Exhaustion of Administrative Remedies

Respondent,

in

his

answer

described

Petitioner's

attempt

to

exhaust

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administrative remedies and does not presently argue that Petitioner failed to exhaust.

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(Answer at 2-3.)

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B.

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On February 4, 2011, Petitioner was stopped by the Idaho State Police for

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speeding and was turned over to ICE the same day. (Decl. of Heidi Adams (“Adams

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Decl.”), Ex. C.) Petitioner was held by immigration authorities from February 4, 2011

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through March 8, 2011 while they conducted an investigation to determine whether or

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not to prosecute. (Id.) On March 9, 2011, Petitioner was criminally indicted for the federal

Facts Relating to Sentence Computation

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offense of Illegal Entry. (Id.) Petitioner was found guilty and on October 18, 2011, and

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sentenced to thirty (30) months of federal custody. (Pet. at 2.) Petitioner received jail

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credit from the date of the criminal indictment on March 9, 2011, through the day before

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he was sentenced on October 18, 2011. (Id.) Petitioner was not credited for the time he

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was held by ICE, from February 4, 2011 through March 8, 2011. Petitioner challenges

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the absence of jail credit for this period. Respondent alleges that the time spent in ICE

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custody was considered a civil deportation proceeding, not official detention and,

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therefore, not creditable toward a federal sentence.

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C.

Facts Relating to Sentence Computation

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Title 18 U.S.C. § 3585(a) states: "[a] sentence to a term of imprisonment

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commences on the date the defendant is received in custody awaiting transportation to .

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. . the official detention facility at which the sentence is to be served." The Attorney

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General is responsible for sentence computation decisions under § 3585. United States

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v. Wilson, 503 U.S. 329 (1992); United States v. Checchini, 967 F.2d 348, 350 (9th Cir.

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1992). Sentence computation authority has been delegated to the Federal Bureau of

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Prisons. 28 C.F.R. § 0.96; see also United States v. Moore, 978 F.2d 1029 (8th Cir.

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1992).

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Pursuant to 18 U.S.C. § 3585(b):

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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 —

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(1) as a result of the offense for which the sentence is imposed; or

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(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.

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18 U.S.C. § 3585(b).

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Petitioner's sentence computation began on June 23, 2011, the date his sentence

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was imposed. Petitioner was awarded prior custody credit for the period he spent in

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federal pre-trial custody from March 9, 2011, the date he was criminally charged, through

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October 17, 2011, the day before he was sentenced. (Adams Decl., Ex. C.) Petitioner
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was not awarded credit for the period of February 4, 2011, through March 8, 2011,

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during which he was in the custody of ICE.

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Under existing precedent, detention by immigration authorities pending

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deportation is considered civil, rather than criminal, in nature. See Ramirez-Osorio v.

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INS, 745 F.2d 937, 944 (5th Cir. 1984); Shoaee v. INS, 704 F.2d 1079, 1083 (9th Cir.

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1983); and Cabral-Avila v. INS, 589 F.2d 957. 959 (9th Cir. 1978). Thus, various courts

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have found that time spent in the custody of immigration officials awaiting a deportation

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determination is not "official detention" within the meaning of 18 U.S.C. § 3585(b). See

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Alba-Tovar v. United States, 2006 U.S. Dist. LEXIS 74139, 2006 WL 2792677 *2 (D. Or.

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Sep. 22, 2006) ("Petitioner's custody during that time was due to pending administrative

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deportation proceedings and does not constitutes 'official detention' under § 3585(b)"

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and therefore, the "BOP properly excluded that time in calculating petitioner's time

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served"); Galan-Paredes v. Hogsten, 2007 U.S. Dist. LEXIS 86, 2007 WL 30329 *2 (S.D.

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Ga. M.D. Pa. Jan.3, 2007) (same); United States v. Acosta-Leal, 2010 U.S. Dist. LEXIS

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117792, 2010 WL 4608477 *2 (S.D. Ill. Nov. 5, 2010) (same); Ghadiri v. Sniezek, 2006

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U.S. Dist. LEXIS 79868, 2006 WL 3023034 *3 (N.D. Ohio Oct. 23, 2006) (same);

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Decraene v. Winn, 2004 U.S. Dist. LEXIS 4689, 2004 WL 594976 *3 (D. Mass. Mar. 23,

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2004) ("given that . . . deportation proceedings are civil in nature, petitioner cannot fairly

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contend that he was, while in the custody of INS awaiting a deportation hearing, he was

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in custody ... as a result of the offense for which the sentence was imposed ... or as a

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result of any other charge for which the defendant was arrested after the commission of

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the offense for which the sentence was imposed") (quotations and citations omitted); De

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Leon v. Copenhauer, 2012 U.S. Dist. LEXIS 168285 (E.D. Cal. Nov. 26, 2012).

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This general rule admits of one exception, however. Prisoners who are being held

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in immigration custody in anticipation of a federal indictment for illegal re-entry are

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entitled to credit for the time period during which immigration officials held them awaiting

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indictment, rather than removal. See e.g., Reyes-Ortiz v. Schultz, No. 08-6386, 2009

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U.S. Dist. LEXIS 111937, 2009 WL 4510131 (D.N.J. Dec. 1, 2009); Galan-Paredes v.
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Hogsten, No. 06-1730, 2007 U.S. Dist. LEXIS 86, 2007 WL 30329 (M.D. Pa. Jan. 3,

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2007); Guante v. Pugh, No. 305-92, 2005 U.S. Dist. LEXIS 41261, 2005 WL 3867597

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(S.D. Ga. Dec. 2, 2005); but see Abpikar v. Lompoc Fed. Bureau of Prisons, 2012 U.S.

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Dist. LEXIS 124634 (C.D. Cal. July 16, 2012) ("Although ICE may influence the ultimate

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decision to charge a given detainee with a federal crime, ICE is not the decision maker.

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A decision to charge can be made only by a grand jury via indictment or a United States

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Attorney via either a complaint or a criminal information. In the Court's view, the better

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reading of the statute, and certainly the more practical one, is to require a charge or a

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determination of probable cause before detention may be said to be "official detention . .

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. as a result of the offense.").

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Respondent, in his answer, did not address whether this exception applies to

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Petitioner nor provide evidence and documentation of Petitioner's status while detained

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by ICE. The Court will thus require Respondent to provide additional evidence

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concerning if and when ICE made a decision to criminally prosecute Petitioner.

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III.

ORDER

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Accordingly, IT IS HEREBY ORDERED:

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1) That Respondent provide a supplemental answer, along with all relevant

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evidence from ICE, as to why Petitioner is not entitled to credits for the time he was held

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by ICE, from February 4, 2011 through March 8, 2011. The supplemental answer is due

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within thirty (30) days from the date of the issuance of this order; or

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2) Respondent may within thirty (30) days from the date of the issuance of this

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order.file a statement of non-opposition to granting the petition for writ of habeas corpus

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and granting Petitioner the additional credits.

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IT IS SO ORDERED.
Dated:

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August 29, 2013

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE
DEAC _Signature- END:

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