Cantru v. Wands

Filing 14

ORDER. Applicant David Michael Cantu's 1 Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 is denied. This case is dismissed with prejudice. By Judge Philip A. Brimmer on 6/8/11. (mnf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 10-cv-00859-PAB
DAVID MICHAEL CANTU,
Applicant,
v.
JULIE WANDS,
Respondent.

ORDER

This matter comes before the Court on applicant David Michael Cantu’s
Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (“Application”)
[Docket No. 1]. Respondent filed a preliminary response to the Application [Docket No.
6] and a response [Docket No. 10] to an Order to Show Cause. Applicant has not filed
a traverse. The Application is ripe for disposition.1
I.

BACKGROUND
Applicant is incarcerated at the Bureau of Prisons (“BOP”) Federal Correctional

Institution located in Florence, Colorado. Applicant, who is proceeding pro se,2

Because the material facts are not in dispute, there is no need for an evidentiary
hearing. See 28 U.S.C. § 2243 (a court must hold a hearing at which the applicant is
present, unless the writ and return present only issues of law).
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In light of applicant’s pro se status, the Court will construe the Application
liberally. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d
1106, 1110 (10th Cir. 1991).
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contends that (1) the federal sentencing judge committed reversible error by concluding
that he could not order applicant’s federal sentence to run concurrently with a state
sentence which had not yet been imposed, and (2) certain time that applicant spent in
state custody should be credited toward his federal sentence.
On August 4, 2002, applicant was arrested by the Larimer County, Colorado
Sheriff on kidnaping charges. Docket No. 10-1 ¶ 3; Docket No. 10-2 at 4. On
September 10, 2002, the United States Marshals Service (“USMS”) “borrowed”
applicant from state custody via federal writ. Docket No. 10-1 ¶ 4; Docket No. 10-2 at
6. On December 18, 2003, this Court sentenced applicant in Case No. 02-cr-00293-RB
to an 87-month term for two counts of Knowingly or Intentionally Using a
Communications Facility in Committing a Drug Offense. The Court did not indicate the
relationship of this sentence to any pending state sentence. Docket No. 10-2 at 9-10.
The USMS returned applicant to state custody on December 24, 2003. Docket No. 102 at 6.
On January 5, 2004, the State of Colorado sentenced applicant to seven years
imprisonment for Assault to Cause Injury with a Deadly Weapon and Felony Menacing
with a Real/Simulated Weapon. Docket No. 10-2 at 13-14. On July 8, 2005, after a
reconsideration hearing, the State of Colorado reduced the sentence to “time served,”
which was 1,074 days, and suspended the remainder of the sentence for eight years.
Docket No. 10-2 at 17-18. The amended sentence required that “Defendant shall
successfully complete the federal sentence in [the federal case], including parole.

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Upon completion of the federal sentence and parole this sentence will be considered
served.” Docket No. 10-2 at 17-18. The State of Colorado thereafter relinquished
custody of applicant to the USMS on July 22, 2005. Docket No. 10-2 at 22.
Applicant’s federal sentence commenced on July 22, 2005, the date that he was
released by the State of Colorado to the USMS. See 18 U.S.C. § 3585(a); Docket No.
10-2 at 30-32. The BOP gave applicant 13 days prior custody credit for the period that
he was in state custody from July 9, 2005, the day after the remainder of his state
sentence was suspended, until July 21, 2005, the day before his federal sentence
commenced. Docket No. 10-1 ¶ 9; Docket No. 10-2 at 30-32.
II.

ANALYSIS
A.

Claim One

Because this Court did not specify at sentencing that applicant’s federal
sentence and state sentence would run concurrently, the sentences run consecutively.
See 18 U.S.C. § 3584(a). In his first claim, applicant alleges that the Court erred by
concluding that it was prohibited from ordering the federal sentence to run concurrently
with a state sentence which had not yet been imposed.
Applications under 28 U.S.C. § 2241 “are used to attack the execution of a
sentence,” McIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 811-12 (10th Cir. 1997),
and thus “generally . . . [include] such matters as the administration of parole,
computation of a prisoner’s sentence by prison officials, prison disciplinary actions,
prison transfers, type of detention and prison conditions.” Jiminian v. Nash, 245 F.3d

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144, 146 (2d Cir. 2001). By contrast, an attack on the validity of a sentence must be
brought in a 28 U.S.C. § 2255 habeas petition. Bradshaw v. Story, 86 F.3d 164, 166
(10th Cir. 1996).
In United States v. Ellsworth, 2008 WL 4567113 (10th Cir. Oct. 2, 2008), the
defendant, like applicant in the present case, asserted that “the district court erred when
it concluded that it could not order his federal sentence to run concurrent to his not-yetimposed state sentence . . . .” Id. at * 3. The defendant argued that “the district court
should have construed his motion, captioned as a writ of habeas corpus, as an initial
writ of habeas corpus filed pursuant to 28 U.S.C. § 2241, rather than as a successive
§ 2255 motion.” Id. The Tenth Circuit concluded that the defendant had “state[d] no
viable § 2241 claim because there is no error in the execution of his federal sentence,”
and that the defendant’s claim was one for error in the imposition of his sentence, which
“could only have been raised at sentencing, on direct appeal and in Mr. Ellsworth’s
initial § 2255 motion.” Id. Ellsworth makes clear that applicant’s first claim attacks the
imposition, not the execution, of his sentence, and that the claim thus is not cognizable
in a § 2241 application. Moreover, the claim cannot be recharacterized as a motion
under 28 U.S.C. § 2255 because any such claim would be barred by the one-year

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statute of limitations applicable to § 2255 claims.3 Therefore, applicant’s first claim will
be dismissed.
B.

Claim Two

In his second claim, applicant alleges that he should be credited for time that he
spent in state custody prior to July 9, 2005. Section 3585(b) of Title 18 of the United
States Code explains the calculation of credit for prior custody:
Credit for prior custody.-- 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
was imposed; or
(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.
18 U.S.C. § 3585(b) (emphasis added). Here, all of the time that applicant spent in
state custody prior to July 9, 2005 was credited toward his state sentence since he was

Final judgment in applicant’s criminal case was entered on December 24, 2003.
Because applicant did not file an appeal, his conviction became final ten days later, on
January 5, 2004. Fed. R. App. P. 4(b)(1)(A)(i). (The period is now 14 days, but at the
time of applicant’s conviction it was ten days.) Under 28 U.S.C. § 2255(f)(1), any
§ 2255 motion had to be filed within one year of that date, January 5, 2005. This action
was not filed until April 16, 2010. Additionally, because applicant did not present his
claim in a direct appeal, he would be barred from raising it a § 2255 motion unless he
could show cause excusing his procedural default and actual prejudice. See United
States v. Hollis, 552 F.3d 1191, 1193-94 (10th Cir. 2009).
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re-sentenced on July 8, 2005 to “time served.” He cannot receive credit on his federal
sentence for that same confinement. See U.S. v. Wilson, 503 U.S. 329, 337 (1992) (a
defendant cannot receive “double credit” for time served). Further, contrary to
applicant’s argument, the state court’s suspension of the remainder of applicant’s state
sentence does not mean that the state time served would, for some reason, be credited
to the federal sentence.4 The state court made clear its intention that applicant would
complete his entire federal sentence. Because applicant is not entitled to credit for the
time that he spent in state custody prior to July 9, 2005, the second claim properly is
dismissed.
For the foregoing reasons, it is
ORDERED that Applicant David Michael Cantu’s Application for a Writ of
Habeas Corpus Pursuant to 28 U.S.C. § 2241 [Docket No. 1] is DENIED. It is further
ORDERED that this case is dismissed with prejudice.

DATED June 8, 2011.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

Applicant is mistaken that his entire state sentence was suspended. See
Docket No. 2 at 6. Only the unserved portion was suspended. See Docket No. 10-2 at
17-18.
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