Malone v. Babcock

Filing 13

ORDER AND FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 5/29/2012 ORDERING the clerk to assign a district judge to this case; and RECOMMENDING that respondent's 9 motion to dismiss be granted, and this action be dismissed. Assigned and Referred to Judge John A. Mendez; Objections due within 21 days. (Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CHARLES L. MALONE,

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Petitioner,

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No. 2:11-cv-1799 KJN P

vs.
MIKE BABCOCK, Warden,

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ORDER AND

Respondent.

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FINDINGS AND RECOMMENDATIONS
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Petitioner is a federal prisoner, proceeding without counsel, with an application

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for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. On February 2, 2012, respondent filed

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a motion to dismiss. On March 22, 2012, petitioner filed an opposition. No reply was filed. As

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set forth below, the court recommends that respondent’s motion to dismiss be granted.

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I. Background

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Petitioner was arrested on April 28, 2004, by the Texarkana, Bowie County,

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Texas Police Department, for possession of a controlled substance, Case No. 05F0266-102.

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Petitioner posted bond, and was released on April 29, 2004. (Dkt. No. 9-1 at 3.)

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On April 30, 2005, petitioner was arrested by the Texarkana, Texas Police

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Department, for unlawful possession of a firearm by a felon, Case No. 05F0267-102. Petitioner

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posted bond and was released on the same day. (Dkt. No. 9-1 at 3.)
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On May 17, 2005, petitioner was arrested by the Texarkana, Texas Police

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Department, for unlawful possession of a firearm by a felon, Case No. 06F0202-102. Petitioner

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posted bond and was released on May 18, 2005. (Dkt. No. 9-1 at 3.)

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On December 2, 2005, petitioner was arrested by the Long Beach, California,

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Police Department, on a Bowie County, Texas warrant for failure to appear in Case Nos.

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05F0266-102, 05F0267-102, and 05F0202-102. (Dkt. No. 9-1 at 4.) Petitioner was extradited to

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Bowie County, Texas, on December 16, 2005. (Id.)

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On January 30, 2006, petitioner was temporarily transferred to federal custody

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pursuant to a writ of habeas corpus ad prosequendum on Prohibited Person in Possession of a

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Firearm in the Eastern District of Texas. (Dkt. Nos. 9-1 at 4; 9-2 at 5.) On November 30, 2006,

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petitioner was sentenced in the United States District Court, Eastern District of Texas, Case No.

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5:06CR00001-001, to a term of 120 months for Prohibited Person in Possession of a Firearm.

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(Dkt. No. 9-1 at 4.) The federal Judgment and Commitment order was silent on whether

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petitioner’s sentence should run consecutively or concurrently with any subsequent prison

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sentences based on Texas convictions.1 (Dkt. No. 9-2 at 9.) On December 5, 2006, petitioner

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was returned to the custody of the Texas state authorities. (Dkt. No. 9-1 at 4.)

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On May 22, 2008, petitioner was sentenced in the 102nd District Court, Bowie
County, Texas, as follows:
(1) in Case No. 05F0266-102 - Possession of a Controlled Substance - a
term of six months with credit for time served from April 28, 2004, to April 29,
2004, and from December 17, 2005, to May 22, 2008. (Dkt. No. 9-1 at 4-5.)
(2) in Case No. 05F0267-102 - Unlawful Possession of a Firearm by a
Felon - a term of 2 years with credit for time served from April 30, 2005, to April
30, 2005, and from December 17, 2005, to May 22, 2008. (Dkt. No. 9-1 at 5.)
(3) in Case No. 06F0202-102 - Unlawful Possession of a Firearm by a
Felon - a term of 2 years with credit for time served from May 17, 2005, to May
18, 2005, and from December 17, 2005, to May 22, 2008. (Dkt. No. 9-1 at 5.)

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However, the judgment stated that petitioner’s sentence was “to run consecutively to
the sentence [petitioner] is presently serving in Case Number CR2004-54, out of the Circuit
Court of Howard County, Arkansas.” (Dkt. No. 9-2 at 9.)
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All state sentences were ordered to run concurrently. (Dkt. No. 9-2 at 17, 19, 21.) The Judgment

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of Conviction states that “If Defendant is to serve sentence in TDCJ (“Texas Department of

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Criminal Justice”), enter incarceration periods in chronological order: From 5/17/2005 to

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5/18/2005; from 12/17/2005 to 5/22/2008. (Dkt. No. 9-2 at 21.)

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On May 23, 2008, Bowie County, Texas authorities determined petitioner had

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satisfied his Texas state sentences and released him to the custody of federal authorities. Texas

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Department of Criminal Justice (“TDCJ”) authorities confirmed petitioner received credit toward

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his state sentences for all time spent in custody from April 28, 2004, through April 29, 2004;

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April 30, 2005; May 17, 2005, through May 18, 2005; and December 17, 2005, through May 22,

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2008. (Dkt. No. 9-2 at 23.) These dates include the January 30, 2006, through December 5,

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2006, period in which petitioner was detained under the writ of habeas corpus ad prosequendum.

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II. 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. While a federal prisoner who wishes to challenge the

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validity or constitutionality of his conviction must bring a petition for writ of habeas corpus

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pursuant to 28 U.S.C. § 2255, a petitioner challenging the manner, location, or conditions of that

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sentence's execution must bring a petition for writ of habeas corpus under 28 U.S.C. § 2241.

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See, e.g., Capaldi v. Pontesso, 135 F.3d 1122, 1123 (6th Cir. 1998); United States v. Jalili, 925

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F.2d 889, 893-94 (6th Cir.1991); Brown v. United States, 610 F.2d 672, 677 (9th Cir. 1990). To

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receive relief under 28 U.S.C. § 2241, a petitioner in federal custody must show that his sentence

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is being executed in an illegal, but not necessarily unconstitutional, manner. See, e.g. Clark v.

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Floyd, 80 F.3d 371, 372, 374 (9th Cir. 1995) (contending time spent in state custody should be

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credited toward federal custody); Jalili, 925 F.2d at 893-94 (asserting petitioner should be housed

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at a community treatment center); Brown, 610 F.2d at 677 (challenging content of inaccurate

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pre-sentence report used to deny parole).

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A petitioner filing a petition for writ of habeas corpus under 28 U.S.C. § 2241
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must file the petition in the judicial district of the petitioner’s custodian. Brown, 610 F.2d at 677.

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At the time the instant petition was filed, petitioner was in the custody of the U.S. Bureau of

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Prisons at Herlong, California, which is located within the jurisdiction of this court. 28 U.S.C.

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§ 2254(a); 2241(d).

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III. Exhaustion of Administrative Remedies

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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. Martinez v.

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Roberts, 804 F.2d 570, 571 (9th Cir. 1986). Respondent concedes that petitioner exhausted his

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administrative remedies.

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IV. Custody Time Credit

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Petitioner argues his federal sentence began to run on January 30, 2006, because

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he was in federal custody pursuant to a writ of habeas corpus ad prosequendum, and thus the

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Bureau of Prisons should give him credit toward his federal sentence for the time he was

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detained pursuant to the federal writ.

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The authority to compute a federal prisoner’s sentence is delegated to the United

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States Attorney General, who exercises this authority through the U.S. Bureau of Prisons

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(“BOP”). United States v. Wilson, 503 U.S. 329, 334-35 (1992). “Computing a federal sentence

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requires two separate determinations: first, when the sentence commences; and, second, to what

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extent the defendant in question may receive credit for any time already spent in custody.”

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United States v. Smith, 812 F. Supp. 368, 370 (E.D. N.Y.1993). A federal sentence commences

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“on the date the defendant is received in custody . . . to commence service of sentence at the

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

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regard, the Ninth Circuit has recently joined other circuits in noting that

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courts have interpreted § 3585(a) to mean that a federal sentence
cannot begin before the defendant has been sentenced in federal
court. See United States v. Gonzalez, 192 F.3d 350, 355 (2d
Cir.1999) (holding that a district court cannot “backdate” a federal
sentence to the beginning of a state prison term on related state
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charges.); United States v. Flores, 616 F.2d 840, 841 (5th Cir.
1980) (“[A] federal sentence cannot commence prior to the date it
is pronounced, even if made concurrent with a sentence already
being served.”)

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Schleining v. Thomas, 642 F.3d 1242, 1244 (9th Cir. 2011).
The statute governing credits and the calculation of a federal term of
imprisonment provides as follows:
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

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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;

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that has not been credited against another sentence.
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18 U.S.C. § 3585(b) (emphasis added). In enacting this provision, “Congress made clear that a

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defendant could not receive a double credit for his detention time.” United States v. Wilson, 503

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U.S. 329, 337 (1992). The BOP’s guidelines for computation of sentences are set forth in

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Program Statement 5880.28, which expressly incorporates the provisions of 18 U.S.C. § 3585(b).

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See Program Statement 5880.28 at 1-14 (“18 U.S.C. § 3585(b) . . . is controlling for making time

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credit determinations for sentences imposed under the [Sentencing Reform Act]”).

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A. When Federal Sentence Commenced

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Here, petitioner’s federal sentence commenced on May 23, 2008, when petitioner

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was released to the custody of federal authorities to begin serving his federal sentence. 18 U.S.C.

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§ 3585(a). Contrary to petitioner’s argument, a federal sentence does not begin to run when a

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federal defendant is produced from state custody for federal prosecution pursuant to a federal

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writ of habeas corpus ad prosequendum. Thomas v. Brewer, 923 F.2d 1361, 1366-67 (9th Cir.

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1991) (“When an accused is transferred pursuant to a writ of habeas corpus ad prosequendum he
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is considered to be ‘on loan’ to the federal authorities so that the sending state’s jurisdiction over

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the accused continues uninterruptedly.”). Although petitioner was in the physical custody of the

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United States Marshal during the time the federal writ was pending, he was still in the primary

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custody of the State of Texas, which did not relinquish its jurisdiction by temporarily

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surrendering physical custody to the federal government. Id.; United States v. Warren, 610 F.2d

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680, 684-85 (9th Cir. 1980) (discussing priority of custody and service as between state and

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federal sovereigns). Petitioner was released to exclusive custody on May 23, 2008; thus,

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petitioner’s federal sentence commenced on May 23, 2008.

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B. Credit Received

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Petitioner received credit toward his state sentence for his time in federal custody

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pursuant to the federal writ. (Dkt. Nos. 9-2 at 23.) Subsequent to petitioner’s arrest and

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extradition to Bowie County, Texas, on December 16, 2005, petitioner was temporarily

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transferred to federal court pursuant to the federal writ. The time that petitioner was in the

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temporary custody of the United States Marshal was applied to his state sentence. (Id.) By the

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time petitioner was taken into federal custody on May 23, 2008, to begin serving his federal

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sentence, petitioner had served his state term of incarceration.

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C. Whether Additional Credit is Due

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As set forth above, 18 U.S.C. § 3585(b) precludes granting double credit for time

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served in federal or state custody. Wilson, 503 U.S. at 337. Here, petitioner was credited time

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against his state court (Texas) sentence for his pre-sentence state custody, served while he was

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subject to the federal writ. (Dkt. No. 9-2 at 23.) For that reason, the BOP did not credit that time

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to petitioner’s federal sentence. Because petitioner was given time credit against his state

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sentence, he cannot receive the same credit against his federal sentence. 18 U.S.C. § 3585(b)

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(petitioner shall be given credit so long as his sentence “has not been credited against another

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sentence.”)

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Petitioner’s argument that he should be given time credit under Willis v. United

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States, 438 F.2d 923 (5th Cir. 1971), is likewise without merit. Although the language of

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§ 3585(b) does not provide for any exceptions, BOP policy is to award pre-sentence custody

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credits already credited to a concurrent state sentence in two narrow circumstances where the

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BOP has determined that the credits will be of “no benefit” to the federal prisoner. These credits

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are called Willis and Kayfez credits, and are based on judicially-created exceptions to § 3585(b)

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set forth in Kayfez v. Gasele, 993 F.2d 1288 (7th Cir. 1993),2 and Willis, 438 F.2d at 923. Only

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Willis credits are at issue here.

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The Fifth Circuit’s specific concern in Willis was that Willis had initially spent

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time in state custody only because he was subject to a federal detainer and, therefore, should get

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federal credit for that time. See id. at 925 (Where a defendant “was denied release on bail

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because the federal detainer was lodged against him, then that was time ‘spent in custody in

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connection with the [federal] offense,’ . . . since the detainer was issued upon authority of the

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appellant's federal conviction and sentence.”); see also Azure v. Gallegos, 97 Fed. Appx. 240

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(10th Cir. 2004). Given that circumstance, the court concluded that Willis was entitled to federal

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credit for that time spent in state custody due to the federal detainer which precluded him from

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being released on bail on the state charges. Willis, 438 F.2d at 925. However, to be eligible for

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Willis credits, the inmate must be serving a concurrent federal sentence, and the inmate must not

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actually benefit from a credit to his state sentence. Cruz v. Sanders, 2008 WL 5101021, at *2

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(C.D. Cal. Dec. 2, 2008).

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The BOP’s method for implementing this policy and determining whether the

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state pre-sentence credits will be of no benefit is set forth in BOP Program Statement 5880.28.

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Essentially, the BOP compares the full terms of the concurrent federal and state sentences before

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In Kayfez, the court was concerned that the petitioner’s concurrent non-federal sentence
had been vacated, thus destroying all concurrent credit. See Wright v. Hogsten, 2010 WL
1995011, at *2, n.2 (E.D. Ky. May 19, 2010) (articulating remedy prescribed by Kayfez).
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the application of any credits (the “Raw EFT”). In the case of Willis credits, which are the

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relevant credits here, the BOP will find that the state-awarded pre-sentence custody credits are of

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“no benefit” to the federal prisoner where the Raw EFT for the state sentence is shorter than the

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Raw EFT for the federal sentence.

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Initially, because the judgment by the District Court was silent as to whether the

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federal sentence was concurrent or consecutive, the court determines whether petitioner’s federal

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sentence was concurrent or consecutive to the state sentence.

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“[M]ultiple terms of imprisonment imposed at different times run consecutively
unless the court orders that the terms are to run concurrently.” 18 U.S.C. § 3584(a). “If the

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federal sentence is silent, or ordered to run consecutively to the non-existent term of

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imprisonment, then the federal sentence shall not be placed into operation until the U.S.

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Marshal’s Service or the Bureau of Prisons gains exclusive custody of the prisoner.” (Dkt. No.

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9-2 at 37, quoting BOP Program Statement 5880.28.)

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Here, the BOP considered petitioner’s request to have his federal sentence be

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deemed concurrent nunc pro tunc with his state sentence. BOP staff verified that the State of

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Texas had given petitioner custody credit against his state sentence for the appropriate periods,

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including the period from January 30, 2006, until December 5, 2006, while petitioner was

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temporarily in the custody of the United States Marshal. (Dkt. No. 9-2 at 23.) On March 3,

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2010, the BOP wrote the Chief Judge of the United States District Court for the Eastern District

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of Texas to inquire as to the court’s position on such retroactive construction. The federal court

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responded that “[i]n order to provide adequate incremental punishment for [petitioner’s]

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behavior, the Court would have held that Mr. Malone’s Federal sentence be served consecutive

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to any undischarged state sentence of imprisonment.” (Dkt. No. 9-2 at 26.) In light of this

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finding, the BOP declined to deem petitioner’s federal sentence to be served concurrent with his

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state sentences. “[T]he federal BOP is given the effective authority to enforce (or not) a state

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court’s determination that a state sentence should run concurrently.” Abdul-Malik v. Hawk8

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Sawyer, 403 F.3d 72, 76 (2d Cir. 2005); see also Fegans v. United States, 506 F.3d 1101, 1104

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(8th Cir. 2007) (BOP’s determination that the federal sentencing judge did not intend federal

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sentences to be concurrent to any subsequently imposed state sentence on unrelated charges was

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entitled to substantial deference.) Thus, petitioner’s federal sentence was to be served

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consecutively to his state sentence.

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Accordingly, petitioner is not entitled to Willis credit. First, petitioner benefitted

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from the credit applied to his state sentence, as set forth above. Second, as determined by the

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BOP, petitioner’s federal sentence was to be served consecutively, not concurrently. “Without

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concurrent state and federal sentences, the Willis exception cannot be applied.” Richardson v.

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Outlaw, 2011 WL 671997, at *7 (E.D. Ark. Feb. 17, 2011); Cruz, 2008 WL 5101021, at *2.

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Thus, petitioner is not entitled to Willis credits because he received credit against his state

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sentence, and both state and federal sentences were not concurrent.

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Petitioner’s claim that he should be given credit for the time he was subject to the

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federal writ because the state offense was one in which he could have posted bail, is likewise

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without merit. Petitioner claims the presence of the detainer made it impossible for him to post

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bail and rendered his pretrial custody federal in nature. However, because petitioner has received

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custody credit for this time toward his state sentence, his claim is meritless. Specifically, in

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Smith v. U.S. Parole Commission, 875 F.2d 1361 (9th Cir. 1989), the prisoner committed a state

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crime while on federal parole. Id. at 1362. Smith was initially arrested by the State and bail was

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set to which he could not afford. Id. The Parole Commission previously issued an arrest warrant

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and subsequently placed a detainer against Smith after his arrest. Id. Smith was sentenced to a

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state term to be run concurrent with his federal sentence and afforded him state credit for the time

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he had previously spent in state custody. Id. at 1363. Smith argued, among other things, that if

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he was able to post bail, he would have been taken into federal custody and would have then

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been afforded federal credit for the time he spent in pretrial custody. Id. at 1365. The court

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rejected Smith’s argument, since he had received credit against his state sentence, and was
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therefore not deprived of any enforceable right. Id. This argument only has potential merit if the

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prisoner does not get credit for pretrial custody time against any sentence at all, i.e. “dead time.”

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Id.

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The same logic applies here. Petitioner was in state custody when the federal

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government borrowed him on the federal writ. Petitioner received credit for all the time he spent

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in state custody against his sentence on state charges; therefore, petitioner suffered no “dead

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time” and no double credit against his federal sentence is due. Id.

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In sum, all the time spent in custody by petitioner prior to March 23, 2008, was

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credited toward his state sentence for crimes unrelated to the federal charges for which he was

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sentenced under federal law. The BOP’s calculation of credits is consistent with federal law.

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Accordingly, habeas relief is not warranted.

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V. Conclusion

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In accordance with the above, IT IS HEREBY ORDERED that the Clerk of the
Court is directed to assign a district judge to this case; and

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Accordingly, IT IS HEREBY RECOMMENDED that respondent’s motion to
dismiss (dkt. no. 9) be granted, and this action be dismissed.

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These findings and recommendations are submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-

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one days after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the

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objections shall be filed and served within fourteen days after service of the objections. The

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parties are advised that failure to file objections within the specified time may waive the right to

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appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: May 29, 2012

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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malo1799.mtd

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