Diaz-Fontanez v. Daniels

Filing 22

ORDER OF DISMISSAL. By Judge Christine M. Arguello on 04/25/2014. (athom, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 13-cv-02531-CMA-KLM
JOSE DIAZ-FONTANEZ,
Petitioner,
v.
C. DANIELS, Warden,
Respondent.

ORDER OF DISMISSAL

Petitioner Jose Diaz-Fontanez is in the custody of the Bureau of Prisons (“BOP”),
and is currently incarcerated at the United States Penitentiary, Florence High, in
Florence, Colorado. Mr. Diaz-Fontanez initiated this action by filing a pro se Application
for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 on September 16, 2013.
(Doc. # 1.) For the reasons stated below, the Application is denied.
I.

BACKGROUND

On December 15, 1992, Mr. Diaz- Fontanez was sentenced by the
Commonwealth of Puerto Rico to a two-year term of imprisonment for a firearms
violation. (Doc. # 19-1 at 16.) The execution of the term was suspended and Mr. DiazFontanez was placed on probation. (Id.) Subsequently, Mr. Diaz-Fontanez was
sentenced by the Commonwealth of Puerto Rico to an eight-year term of imprisonment
on firearm charges in June of 1993, imposed consecutively to any sentence being

served. (Id.) His probation was revoked on August 6, 1993. In 1996, Mr. DiazFontanez was sentenced to a three year term for another firearms violation. (Id. at 17.)
On April 11, 1997, while serving these non-federal sentences, Mr. DiazFontanez was taken into federal custody, pursuant to a Writ of Habeas Corpus ad
Prosequendum (“Writ of HCAP”) issued by the United States District Court for the
District of Puerto Rico. (Id. at 25.) While in federal detention awaiting conviction
and sentencing on federal charges, Mr. Diaz-Fontanez was sentenced by the
Commonwealth of Puerto Rico to a 25 year term for murder, to be served concurrently
with the federal term to be imposed. (Id. at 17.) On June 14, 2002, the United States
District Court for the District of Puerto Rico sentenced Mr. Diaz-Fontanez to a 324
month term of imprisonment for conspiracy to distribute narcotics, which was to run
concurrently with his existing state sentences. (Doc. # 19-1 at 29.) Mr. Diaz-Fontanez
was returned to state custody on July 1, 2002. (Id. at 26.) Upon completion of his state
sentence on June 15, 2006, Mr. Diaz-Fontanez was transferred to federal custody to
serve the remainder of his federal drug trafficking sentence. (Id. at 3.) Subsequently,
Mr. Diaz-Fontanez’s federal sentence was reduced by the United States District Court
for the District of Puerto Rico to a term of 192 months and 11 days on February 26,
2009, and further reduced to a term of 188 months on December 10, 2012. (Id. at 5.)
Mr. Diaz-Fontanez’s projected release date is May 22, 2016. (Id. at 42.)
Mr. Diaz-Fontanez filed a Request for Administrative Remedy on March 20,
2013, alleging that the BOP failed to credit him the pre-sentence jail time from April 11,
1997 to June 14, 2002, to which he is entitled. (Doc. # 1 at 7.) When his initial Request

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was denied on April 4, 2013, Mr. Diaz-Fontanez filed a Regional Administrative Remedy
Appeal on April 10, 2013, which was denied on April 24, 2013. (Id. at 8.) Mr. DiazFontanez filed his final Administrative Remedy Appeal to the Central Office
Administrative on May 22, 2013, which was denied on June 27, 2013. (Id. at 11.)
On March 27, 2013, during the administrative appeal process, Mr. Diaz-Fontanez
filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 in the
United States District Court for the District of Colorado. (Id. at 12.) The writ was denied
and the action was dismissed without prejudice on May 31, 2013, due to Mr. DiazFontanez’s failure to exhaust all administrative remedies. (Id. at 14-16.) On September
16, 2013, after his final administrative appeal was denied, Mr. Diaz-Fontanez filed the
instant action, a second application for a writ of habeas corpus. (Id.) In the application,
Mr. Diaz-Fontanez alleges that the BOP’s failure to credit him pre-sentence jail time
served from April 11, 1997 to June 14, 2002, violates his Fifth and Eighth Amendment
rights, and is a miscalculation of his sentence under United States Sentencing
Commission, Guidelines Manual, § 5G1.3(b) (Nov. 2012). (Id. at 2-3.) As relief,
he seeks immediate release from federal custody. (Id. at 2.)
II.

LEGAL STANDARD

The Court must construe a prisoner’s pleadings liberally when he is proceeding
pro se. See Haines v. Kerner, 404 U.S. 519, 520 (1972) (pro se complaints are held
“to less stringent standards than formal pleadings drafted by lawyers”). At the same
time, the Court cannot act as an advocate for a pro se litigant. Hall v. Bellmon, 935

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F.2d 1106, 1110 (10th Cir. 1991) (noting that a pro se litigant must make more than
conclusory allegations to state a valid claim).
A Section 2241 habeas proceeding is “an attack by a person in custody upon the
legality of that custody, and . . . the traditional function of the writ is to secure release
from illegal custody.” McIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 811 (10th Cir.
1997) (quoting Preiser v. Rodriguez, 411 U.S. 475, 484 (1973)). Habeas corpus relief
is warranted only if the applicant “is in custody in violation of the Constitution or laws
or treaties of the United States.” 28 U.S.C. § 2241(c)(3). “A petition under 28 U.S.C.
§ 2241 attacks the execution of a sentence rather than its validity and must be filed in
the district where the prisoner is confined.” Bradshaw v. Story, 86 F.3d 164, 166 (10th
Cir. 1996) (citation omitted).
III.
A.

DISCUSSION

WRIT OF HCAP
Mr. Diaz-Fontanez contends that he is entitled to pre-sentence jail time credit for

the April 11, 1997 to June 14, 2002 period when he was in federal custody pursuant to
the Writ of HCAP.
“The computation of a federal sentence requires consideration of two separate
issues. Initially, we determine the commencement date of the federal sentence and then
turn to the extent to which a defendant can receive credit for time spent in custody prior
to commencement of sentence.” Newman v. Cozza-Rhodes, 526 F. App’x. 818, 821
(10th Cir. 2013) (citing Binford v. United States, 436 F.3d 1252, 1254 (10th Cir. 2006)).

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Pursuant to this framework, the Court determines that Mr. Diaz-Fontanez’s
federal sentence commenced on the date he was sentenced, June 14, 2002.
“A sentence to a term of imprisonment commences on the date the defendant is
received in custody awaiting transportation to, or arrives voluntarily to commence
service of sentence, at the official detention facility at which the sentence is to be
served.” Id. (citing 18 U.S.C. § 3585(a)). However, a concurrent federal sentence
imposed upon a prisoner already in state custody begins to run on the date of its
imposition. See Azure v. Gallegos, 97 F. App’x 240, 244 (10th Cir. 2004). Temporary
federal custody pursuant to an HCAP does not “begin” the service of a federal
sentence, because the prisoner is surrendered back to state custody without having
been received at a federal penal institution for service of a federal sentence. See
Thomas v. Ledezma, 341 F. App’x. 407, 411 n.6 (10th Cir. 2009).
On June 14, 2002, the federal sentencing court imposed a sentence to run
concurrently with Mr. Diaz-Fontanez’s existing state sentence. (Doc. # 19-1 at 29).
During the period from April 11, 1997 to June 14, 2002, when Mr. Diaz-Fontanez was in
federal jail pursuant to the Writ of HCAP, he was merely “on loan” from state to federal
custody in order to be prosecuted for federal drug trafficking charges, and the state
never relinquished custody over him. See Brown v. Perrill, 28 F.3d 1073, 1074 (10th
Cir. 1994.) Because Mr. Diaz-Fontanez was returned to state custody after June 14,
2002, to serve out the rest of his state sentence, his federal sentence “began” on the
date when the federal sentence was imposed and the Writ of HCAP expired: June 14,
2002. See Azure, 97 F. App’x at 244.

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Turning to whether Mr. Diaz-Fontanez can receive credit for time spent in
custody prior to commencement of his federal sentence, the Court determines that he
cannot. The 62 months Mr. Diaz-Fontanez spent in federal detention on the Writ of
HCAP were credited towards his state sentence. (Doc. # 19-1 at 5-6.) His consecutive
state sentences totaled 13 years 1; thus, Mr. Diaz- Fontanez was released from state to
federal custody at the proper time, on June 15, 2006. Even though he served some
of the state sentence in federal prison pursuant to the Writ of HCAP, at no time was
Mr. Diaz-Fontanez’s state sentence disturbed. Because of the statutory prohibition on
double sentencing credit, the time Mr. Diaz-Fontanez spent under the Writ of HCAP
cannot also be credited towards his federal sentence. See 18 U.S.C. § 3585(b)(2)
(“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.”) (emphasis added). Therefore, Mr. Diaz-Fontanez is not
entitled to relief on his first claim.

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The government fails to explain how Mr. Diaz-Fontanez’s sentences in the Commonwealth
of Puerto Rico were calculated. The Court presumes that when Mr. Diaz-Fontanez’s probation
was revoked on August 6, 1993 (Doc. # 19-1, at 16), the trial court reinstated the original two
year term that was suspended when he was placed on probation, pursuant to 34 L.P.R.A.
§ 1029 (“[T]he trial court may, in its judgment, revoke said probation and shall order the
confinement of the convicted person for the full term of the sentence whose execution was
originally suspended to place him on probation without crediting him with the period of time
he was on probation.”), to run concurrently to the eight year term imposed on June 10, 1993.
Nonetheless, Mr. Diaz-Fontanez does not raise any arguments concerning the calculation of
his state sentence, including whether he received proper credit toward his state sentence while
in federal prison pursuant to the Writ of HCAP.

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B.

SENTENCING UNDER U.S.S.G. § 5G1.3(b)
Mr. Diaz-Fontanez also contends that he was improperly sentenced under

U.S.S.G. § 5G1.3(b). Section 5G1.3(b) provides, in pertinent part, that when
a term of imprisonment resulted from another offense that is relevant
conduct to the instant offense . . . that was the basis for an increase in the
offense level for the instant offense . . . the court shall adjust the sentence
for any period of imprisonment already served on the undischarged term
of imprisonment if the court determines that such period of imprisonment
will not be credited to the federal sentence . . . and the sentence for the
instant offense shall be imposed to run concurrently to the remainder of
the undischarged term of imprisonment.
However, attacks on the execution of a sentence properly fall under 28 U.S.C.
§ 2241, while challenges to the validity of a federal sentence trigger 28 U.S.C. § 2255.
See Bradshaw, 86 F.3d at 166. Mr. Diaz-Fontanez’s contention that his sentence was
miscalculated under U.S.S.G. § 5G1.3(b) is a challenge to the validity of the sentence,
not its execution, and must be made in a Section 2255 action, not pursuant to Section
2241. See Carroll v. Peterson, 105 F. App’x 988, 2004 WL 1752400, at *1 (10th Cir.
Aug. 5, 2004) (order and judgment) (petitioner’s contention that federal sentencing court
should have provided for concurrent federal and state sentences pursuant to U.S.S.G.
§ 5G1.3(c) challenged the validity of his sentence and must be brought under Section
2255); see also Garrett v. Snyder, 41 F. App’x 756, 758, 2002 WL 1379036, at *2 (6th
Cir. June 25, 2002) (28 U.S.C. § 2255, rather than 28 U.S.C. § 2241, was the proper
vehicle because “Garrett’s U.S.S.G. § 5G1.3 argument constitutes a challenge to the
imposition of his sentence, not the execution or manner in which his sentence is being
served”). Further, a Section 2255 action is utilized to challenge the sentencing court’s
sentencing decision, and it “must be filed in the district that imposed the sentence,”
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Bradshaw, 86 F.3d at 166 (citations omitted), rather than in the district where the
prisoner is confined, unless a remedy under Section 2255 would be inadequate
or ineffective. See Sines v. Wilner, 609 F.3d 1070, 1073 (10th Cir. 2010).
There is no indication that a Section 2255 motion filed in the District of Puerto
Rico would be inadequate or ineffective. See id. Therefore, if Mr. Diaz-Fontanez
wishes to challenge the validity of his federal sentence, he must file his claim pursuant
to 28 U.S.C. § 2255 in the District of Puerto Rico, where he was convicted and
sentenced. See Carroll, 2004 WL 1752400, at *1; Bradshaw, 86 F.3d at 166.
This Court lacks jurisdiction over Mr. Diaz-Fontanez’s second claim.
IV.

CONCLUSION

Accordingly, it is ORDERED that Mr. Diaz-Fontanez’s Application for Writ of
Habeas Corpus pursuant to 28 U.S.C. § 2241 (Doc. # 1) is DENIED. Specifically, it is
FURTHER ORDERED that Mr. Diaz-Fontanez’s claim that he is entitled to
pre-sentence credit for the time he served on a Writ of HCAP is DISMISSED WITH
PREJUDICE. It is
FURTHER ORDERED that Mr. Diaz-Fontanez’s claim of invalid sentencing
is DISMISSED WITHOUT PREJUDICE for lack of jurisdiction.
DATED: April 25, 2014
BY THE COURT:

________________________________
CHRISTINE M. ARGUELLO
United States District Judge

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