Hymes v. Matevousian

Filing 12

ORDER DENYING PETITION for Writ of Habeas Corpus and DECLINING to Issue a Certificate of Appealability signed by Magistrate Judge Michael J. Seng on 7/25/2017. CASE CLOSED. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ROGER EUGENE HYMES,
Petitioner,

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v.
ANDRE MATEVOUSIAN, Warden

Case No. 1:15-cv-01781-MJS
ORDER DENYING PETITION FOR WRIT OF
HABEAS CORPUS AND DECLINING TO
ISSUE A CERTIFICATE OF APPEALABILITY
CLERK TO TERMINATE MOTIONS AND
CLOSE CASE

Respondent.

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

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habeas corpus under the authority of 28 U.S.C. § 2241. Respondent Andre Matevousian

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is represented by Michael G. Tierney of the United States Attorney’s Office, Eastern

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District of California. The parties have consented to the jurisdiction of a Magistrate Judge

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for all purposes pursuant to 28 U.S.C. § 636(c)(1). (ECF Nos. 4, 6.)

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Petitioner filed the instant petition for writ of habeas corpus on November 25,

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2015. (Pet., ECF No. 1.) He contends that the Bureau of Prisons unlawfully denied him

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credit for time served in state prison. On May 23, 2016, Respondent filed a response to

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the petition, arguing that the petition is moot and, alternatively, that it is without merit.

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(ECF No. 11.) Petitioner filed no traverse and the time for doing so has passed. The

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matter is submitted.

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I.

Factual and Procedural History

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At the time of filing his petition, Petitioner was in federal custody at United States

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Penitentiary, Atwater, pursuant to a judgment of the District Court for the Western District

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of Missouri, convicting him on three counts of bank robbery and sentencing him to a 150-

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month prison term and 3 years of supervised release. (ECF No. 11-1 at 6.) However, his

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claims relate to criminal proceedings that preceded his time in federal custody. That

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background is as follows:

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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,

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2007); see also Petition, ECF No. 1 at 10-11.
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Petitioner filed a motion in the Western District of Missouri, challenging his
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sentence calculation pursuant to 28 U.S.C. § 2255, after he learned that his federal
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sentence had not started to run while he was in state custody. He sought credit toward
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his federal sentence for time served in state prison. The § 2255 motion was denied on
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the ground that the claims were unexhausted and, in any event, should have been
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brought pursuant to § 2241. Id.

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On June 18, 2009, Petitioner submitted a Request for Informal Resolution to the

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Bureau of Prisons (“BOP”). (ECF No. 1 at 21-22.) His request was denied on the ground

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it could not be informally resolved. (Id. at 23.) Petitioner was advised to pursue the

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BOP’s Administrative Remedy process.

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On August 11, 2009, BOP received Petitioner’s Request for Administrative

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Remedy. (Id. at 24.) The Warden responded on August 26, 2009 as follows:

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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.

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(Id. at 26.)

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On November 9, 2009, Petitioner’s appeal was received by the South Central

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Regional Office. (Id. at 28.) On December 31, 2009, the Regional Office denied relief as

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follows:

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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.
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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.

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In addition, Program Statement 5880.28, Sentence
Computation 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 to the state. The statement on the federal judgment
indicating the defendant is remanded to the custody of the
USMS does not override the conditions of the writ.

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Based on a review of your sentence computation and the
information above, your federal sentence has been
accurately computed in accordance with Bureau of Prisons
policy and federal statute; therefore your appeal is denied.

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(Id at 30-31.)
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Petitioner’s appeal was received by the BOP Central Office on January 29, 2010.

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(Id. at 32.) The Central Office denied the appeal on March 29, 2010. (Id.) The appeal
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reviewer relayed substantially the same facts as those set forth by the Regional Office,
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and stated:
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Bureau of Prisons Program Statement 5880.28, Sentence
Computation Manual – CCCA, states “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 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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The time spent in state custody following the imposition of
your state sentence and time spent on a Federal Writ of
Habeas Corpus prior to receiving your federal sentence, was
all applied towards your prior state sentence and can not be
applied towards your current federal sentence.

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(Id. at 35.)
II.

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Jurisdiction and Venue
Writ of habeas corpus relief extends to a person in federal custody who can show

that he is “in custody in violation of the Constitution or laws or treaties of the United
States.” 28 U.S.C. § 2241(c)(3). Here, Petitioner's claims are proper, if at all, under 28
U.S.C. § 2241 and not 28 U.S.C. § 2255 because they concern the manner, location, or
conditions of the execution of Petitioner's sentence and not the fact of Petitioner's
conviction or sentence. Tucker v. Carlson, 925 F.2d 330, 331 (9th Cir. 1990) (stating that

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a challenge to the execution of a sentence is “maintainable only in a petition for habeas

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corpus filed pursuant to 28 U.S.C. § 2241”); Montano-Figueroa v. Crabtree, 162 F.3d

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548, 549 (9th Cir. 1998).

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Further, Petitioner is challenging the execution of his sentence at United States
Penitentiary, Atwater. He brought this petition while confined at that institution, which is
within the Fresno Division of the Eastern District of California. Under 28 U.S.C. § 2241, a
habeas corpus action must be brought in the district where Petitioner is confined. Venue
is therefore proper in this district. See Brown v. United States, 610 F.2d 672, 677 (9th
Cir. 1990); Hernandez v. Campbell, 204 F.3d 861, 864 (9th Cir. 2000).
III.

Exhaustion
“As a prudential matter, courts require that habeas petitioners exhaust all

available judicial and administrative remedies before seeking relief under § 2241.” Ward
v. Chavez, 678 F.3d 1042, 1045 (9th Cir. 2012) (citations omitted). Here, it appears that
Petitioner has exhausted his administrative remedies. Respondent does not argue to the
contrary.

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IV.

Review of Petition

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A.

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Petitioner filed this petition while incarcerated. During the pendency of this action,

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he was released from custody and presently is serving a term of supervised release.

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(ECF No. 11-1 at 5.) Respondent contends that Petitioner’s release from custody has

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rendered the petition moot, particularly where Petitioner has not stated that he wishes to

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pursue the only relief that remains available to him – a reduction in the term of his

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supervised release.

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Mootness

i.

Applicable Law

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A case becomes moot when it no longer satisfies the case-or-controversy

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requirement of Article III, Section 2, of the Constitution. Spencer v. Kemna, 523 U.S. 1, 7

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(1998). This requirement demands that the parties continue to have a personal stake in

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the outcome of a federal lawsuit through all stages of the judicial proceeding. Id. “This

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means that, throughout the litigation, the plaintiff ‘must have suffered, or be threatened

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with, an actual injury traceable to the defendant and likely to be redressed by a favorable

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judicial decision.’” Id. (quoting Lewis v. Continental Bank Corp., 494 U.S. 472, 477

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(1990)). A habeas petition is moot when the petitioner's claim for relief cannot be

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redressed by issuance of a writ of habeas corpus by the court. See id. Mootness is

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jurisdictional. See Cole v. Oroville Union High School District, 228 F.3d 1092, 1098. (9th

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Cir. 2000). When, because of intervening events, a court cannot give any effectual relief

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in favor of the petitioner, the proceeding should be dismissed as moot. Calderon v.

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Moore, 518 U.S. 149, 150 (1996).

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In some circumstances, a petitioner’s release from custody will moot a habeas

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petition. See, e.g., Picrin-Peron v. Rison, 930 F.2d 773, 776 (9th Cir. 1991) (dismissing a

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habeas corpus petition where the petitioner, who requested only release from custody,

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had been released); Kittel v. Thomas, 620 F.3d 949, 951-52 (9th Cir.2010) (dismissing

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as moot a petition challenging the denial of early release where the legal question had

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been definitively resolved and there was no live, justiciable question remaining on which

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the parties disagreed); Pacheco-Lozano v. Benov, No. 1:13-cv-00526-AWI, 2014 WL

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28805, at *3 (E.D. Cal. Jan. 2, 2014) (dismissing as moot challenge to state prison

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disciplinary proceeding on the ground Petitioner had been released). However, a

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petitioner generally can maintain a habeas petition, even following his release, if there is

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a “’possibility’ that the sentencing court would use its discretion to reduce a term of

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supervised release under 18 U.S.C. § 3583(e)(2).” Mujahid v. Daniels, 413 F.3d 991,

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994-95 (9th Cir. 2005).

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In a case virtually indistinguishable from that presented here, the Ninth Circuit

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Court of Appeals held that a claim challenging the BOP’s decision not to credit the

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petitioner for time served in state prison was not moot upon the petitioner’s release from

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prison to supervised release. Reynolds v. Thomas, 603 F.3d 1144, 1148 (9th Cir. 2010),

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abrogated on other grounds by Setser v. United States, 132 S. Ct. 1463 (2012).

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Specifically, the Ninth Circuit concluded that a sentencing court “could consider [the]

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alleged period of over-incarceration under 18 U.S.C. § 3583(e) as a factor weighing in

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favor of reducing the term of supervised release.” Id. (citing United States v. Johnson,

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529 U.S. 53, 60 (2000)).

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ii.

Discussion

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Petitioner was released from federal prison on December 15, 2015. (ECF No. 11-

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1 at 3, 5.) However, he had been sentenced to serve a three-year term of supervised

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release. (ECF No. 11-1 at 6.) Thus, it would appear that Petitioner presently remains on

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supervised release. Neither party presents evidence or argument to the contrary.

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As stated, the Ninth Circuit has clearly held that a petition that seeks credit for

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time spent in state prison is not necessarily moot following a petitioner’s release from

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prison to supervised release, because the “alleged period of over-incarceration” could be

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considered by the sentencing court as a “factor weighing in favor of reducing the term of

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supervised release.” Reynolds, 603 F.3d at 1148. Reynolds is not distinguishable from

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the instant case in any material way. Thus, under Reynolds and based on the facts

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presented, the Court cannot conclude that the instant petition is moot.

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Respondent’s citation to Combe v. Feather, No. C12-843-RSM, 2012 WL

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5388887, at *2-4 (W. D. Wash. Aug. 8, 2012), is unavailing. As an initial matter, Combe

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is an unpublished decision issued by a district court. It is not binding. More significantly,

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Combe is distinguishable from the instant case. There, the petitioner claimed that he was

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unlawfully civilly committed following his term of incarceration and, as a result, asked the

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court to vacate his term of supervised release. Id. at *3. The court noted that, in

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Reynolds and other cases similarly concluding that release from prison does not render

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a petition moot, “there appeared a realistic possibility that a sentencing court might use

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its discretion to reduce a term of supervised release.” Id. at *4. However, in Combe,

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there was no such possibility: the petitioner’s claims already had been rejected by the

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sentencing court and, in any event, the petitioner had waived, through a negotiated

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settlement agreement with the United States, his right to pursue a collateral attack on his

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term of supervised release. Id. Thus, no relief remained available to petitioner. No such

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facts are presented in the instant case.

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Accordingly, it appears that at least some relief remains available to Petitioner
and the petition is not moot. The Court will proceed to the merits of Petitioner’s claims.

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B.

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Petitioner contends that he is entitled to credit toward his federal sentence for

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time served in state prison because that was the intent of the state sentencing judge. He

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further contends that he is entitled to credit toward his federal sentence for time served

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when he was transferred to federal custody for federal proceedings via a writ of habeas

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corpus ad prosequendum.

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Merits

i.

Applicable Law

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In general, “[m]ultiple terms of imprisonment imposed at different times run

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consecutively unless the court orders that the terms are to run concurrently.” 18 U.S.C.

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§ 3584(a). “A court has the discretion, however, to order that multiple terms of

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imprisonment run concurrently when the court is imposing multiple terms on a defendant

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at the same time or is sentencing a defendant already subject to an undischarged term

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of imprisonment.” Reynolds, 603 F.3d at 1148-49 (citing 18 U.S.C. § 3584). A district

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court also has the discretion to order that a federal sentence run consecutively to an

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anticipated state sentence that has not yet been imposed. Setser v. United States, 566

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U.S. 231, 235-36 (2012). However, “concurrent sentences imposed by state judges are

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nothing more than recommendations to federal officials.” Taylor v. Sawyer, 284 F.3d

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1143, 1150 (9th Cir. 2002) (citation omitted). A state court has no control over a federal

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sentence. United States v. Yepez, 704 F.3d 1087, 1091 (9th Cir.2012) (en banc) (per

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curiam).

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“Once the district court has discharged its sentencing function, the defendant is

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committed to the custody of the BOP, which has the authority to calculate the

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defendant’s sentences in accordance with the district court’s orders, as well as to

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designate the facility for service of such sentences.” Reynolds, 603 F.3d at 1149. A

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federal sentence “commences on the date the defendant is received in custody” at the

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“official detention facility at which the sentence is to be served.” 18 U.S.C. § 3585(a).

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The BOP has the authority to “designate the place of the prisoner's

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imprisonment.” 18 U.S.C. § 3621(b). The BOP has interpreted 18 U.S.C. § 3621(b) as

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authorizing it to designate a state prison as the facility for concurrent service of a federal

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sentence “when it is consistent with the intent of the federal sentencing court or with the

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goals of the criminal justice system.” BOP Program Statement 5160.05 (January 16,

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2003). Thus, “[w]hen a federal judge orders or recommends a federal sentence run

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concurrently with a state sentence already imposed the Bureau implements such order

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or recommendation, ordinarily by designating the state facility as the place to serve the

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federal sentence.” Id. The BOP also may consider an inmate's request for “pre-sentence

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credit toward a federal sentence for time spent in service of a state sentence as a

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request for a nunc pro tunc designation.” Id. However, the BOP has “no obligation . . . to

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grant the request by designating a state institution retroactively as the place to serve the

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federal sentence.” Id. The Ninth Circuit has approved these procedures as being within

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the BOP’s authority. Taylor, 284 F.3d at 1148-49.

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ii.

Discussion

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To the extent Petitioner contends that the BOP was required to comply with the

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directive of the state sentencing court and thereby run his federal sentence concurrently

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with his state sentence, he is mistaken. The Ninth Circuit has clearly held that such

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statements by state court judges are “nothing more than recommendations to federal

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officials.” Taylor, 284 F.3d at 1150. The BOP has discretion to ignore such statements

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and “to decline to make a nunc pro tunc designation of a state prison notwithstanding a

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state court's contrary order.” Reynolds, 603 F.3d at 1151. “The BOP was under no

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obligation to follow the allegedly expressed wishes of the state court[.]” Taylor, 284 F.3d

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at 1150.

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To the extent Petitioner contends that BOP erroneously failed to credit him for

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time spent in federal custody pursuant to a writ of habeas corpus ad prosequendum, he

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also is mistaken. A review of the docket in his federal case reflects that petitioner was

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under the primary jurisdiction of the state of Missouri prior to being transferred to

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temporary federal custody on April 4, 2005 via the writ. United States v. Hymes, 2:04-cr-

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04049-SRB-1 (W.D. Mo.), ECF Nos. 4, 5, 17. See United States v. Warren, 610 F.2d

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680, 684-85 (9th Cir.1980) (“Normally, the sovereign which first arrests an individual

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acquires priority of jurisdiction for purposes of trial, sentencing, and incarceration.”).

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Petitioner subsequently was returned to state custody. In such circumstances, the state

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has primary jurisdiction over the prisoner, even while he is under temporary federal

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custody pursuant to the writ. Thomas v. Brewer, 923 F.2d 1361, 1365-1369 (9th Cir.

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1991). It appears that Petitioner received credit toward his state sentence for this time

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(see ECF No. 30), and Petitioner does not argue otherwise. Petitioner is not entitled to

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credit toward his federal sentence for this time. 18 U.S.C. § 3585(b) (“A defendant shall

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be given credit toward the service of a term of imprisonment for any time he has spent in

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official detention prior to the date the sentence commences . . . that has not been

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credited against another sentence.”)

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Petitioner does not present any other argument or evidence to suggest that the

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BOP’s determination was arbitrary, capricious, an abuse of discretion, or contrary to law.

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See Reynolds, 603 F.3d at 1152. Rather, his arguments appear to be premised entirely

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on his misunderstanding of the applicable law as discussed herein. Accordingly, he is

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not entitled to relief on his claims.

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III.

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Conclusion and Order
Based on the foregoing, the Court concludes that Petitioner is not entitled to relief.

Accordingly, it is HEREBY ORDERED that:

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1. The petition for writ of habeas corpus is DENIED with prejudice; and

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2. The Court declined to issue a certificate of appealability. 1

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IT IS SO ORDERED.

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Dated:

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July 25, 2017

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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Because petitioner is a federal prisoner bringing a § 2241 petition, a certificate of appealability is not
required. See Harrison v. Ollison, 519 F.3d 952, 958 (9th Cir. 2008) (“The plain language of [28 U.S.C.]
§ 2253(c)(1) does not require a petitioner to obtain a COA in order to appeal the denial of a § 2241
petition.”)

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