Galindo v. Salazar

Filing 14

ORDER signed by Magistrate Judge Edmund F. Brennan on 6/12/2018 ORDERING the petition for writ of habeas corpus is DENIED; the clerk shall close this case; and the court DECLINES to issue a certificate of appealability. CASE CLOSED. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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SILVER GALINDO,

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Petitioner,

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No. 2:17-cv-0302-EFB P

v.

ORDER

JOSIAS SALAZAR,

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Respondent.

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Petitioner is a federal prisoner proceeding without counsel seeking a writ of habeas corpus

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pursuant to 28 U.S.C. § 2241.1 He argues that the Bureau of Prisons (BOP) failed to credit his

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federal sentence with time spent in federal custody prior to the imposition of that sentence. ECF

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No. 1 at 7-9. The government has responded (ECF No. 11) and petitioner has not filed a reply

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within the allotted time. After review of the record and, for the reasons stated below, the petition

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is denied.

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I.

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Following his release on parole, Hawaiian authorities arrested petitioner on March 11,

Background

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2004 for various felonies related to firearm possession, drug distribution, and unauthorized entry

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into a motor vehicle in violation of state law. ECF No. 11-1 at 3, ¶¶ 8-12. His parole term was

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The parties in this action have consented to proceed before a United States Magistrate
Judge pursuant to 28 U.S.C. § 636(c). ECF Nos. 6, 8.
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extended to January 29, 2006. Id. ¶11. To facilitate petitioner’s presence for trial and sentencing,

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the United States District Court for the District of Hawaii issued a writ of habeas corpus ad

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prosequendum on March 19, 2004. Id. at 4, ¶13. On April 5, 2004, the United States Marshals

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took petitioner into custody and placed him in the Federal Detention Center, Honolulu, HI (FDC

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Honolulu). Id. ¶14. He remained under the primary jurisdiction of the state of Hawaii at this

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time and continued to earn credit toward his parole date of January 29, 2006. Id.

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On October 14, 2008, petitioner was sentenced to a federal prison term of 39 years and 2

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months. Id. ¶15. The total term reflected consecutively imposed sentences of 110 months, 5

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years, and 25 years. Id. Once petitioner’s federal court appearances had ended, he was returned

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from FDC Honolulu to the Oahu Community Corrections Center. Id. ¶16. He remained under

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Hawaii’s primary jurisdiction. Id.

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On January 12, 2009, petitioner was sentenced to thirty days incarceration with credit for

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time served in his state case. Id. ¶17. Petitioner transferred to the exclusive jurisdiction of the

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United States on January 13, 2009. Id. He was transferred to a federal facility to January 14,

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2009 and given a one day credit toward his federal term. Id. at 5, ¶18. On November 1, 2015,

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petitioner’s aforementioned 110 month sentence was reduced to 92 months. Id. ¶21.

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II.

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Petitioner argues that his time served for the period from April 5, 2004 until January 29,

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2006 should be credited to his federal term. ECF No. 1 at 9. A federal sentence begins “on the

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date the defendant is received into custody . . . to commence service of sentence at the official

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

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federal sentence cannot begin before a defendant has been sentenced in federal court. See

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Schleining v. Thomas, 642 F.3d 1242, 1244 (9th Cir. 2011). Here, petitioner was sentenced in

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federal court on October 14, 2008 and he was not transferred to begin his federal sentence until

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January 14, 2009. And although a federal court issued a writ of habeas corpus ad prosequendum

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to facilitate his trial and sentencing, he remained under the jurisdiction of the state of Hawaii. See

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Thomas v. Brewer, 923 F.2d 1361, 1367 (9th Cir. 1991) (“When an accused is transferred

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pursuant to a writ of habeas corpus ad prosequendum he is considered to be ‘on loan’ to the

Analysis

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federal authorities so that the sending state’s jurisdiction over the accused continues

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uninterruptedly.”) (citing Crawford v. Jackson, 589 F.2d 693, 695 (D.C. Cir. 1978)). Thus,

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petitioner is not entitled to credit for time served from April 5, 2004 until January 29, 2006 – a

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period before he was sentenced in federal court. Schleining, 642 F.3d at 1249-1250 (“Because a

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prisoner can receive GCT credit under 18 U.S.C. § 3624(b) only on time he has served on his

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federal sentence, and his federal sentence does not begin under 18 U.S.C. § 3585 until he has

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been sentenced in federal court, [petitioner] is not eligible for GCT credit for the 21 months he

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spent in state custody — serving a state sentence — before imposition of his federal sentence on

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July 8, 2005 . . . .”).

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Additionally, 18 U.S.C. § 3585(b) explicitly states that:

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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 was 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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(emphasis added). The government correctly asserts that the period from April 5, 2004 to January

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29, 2006 cannot be credited to his federal term because it has already been credited toward his

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state parole violation term. See ECF No. 13 at 10 (noting that, due to the revocation of parole,

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maximum date of state imprisonment extended to January 29, 2006). The United States Supreme

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Court has confirmed that § 3585(b) prohibits a defendant from receiving double credit for his

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detention time. United States v. Wilson, 503 U.S. 329, 337 (1992).

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III.

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Based on the foregoing it is ORDERED that:

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1. The petition for writ of habeas corpus (ECF No. 1) is DENIED;

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2. The Clerk is directed to close the case; and

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/////

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Conclusion

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3. The court declines to issue a certificate of appealability.
DATED: June 12, 2018.

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