Johnson v. Denham
Filing
23
ORDER denying the Application for a Writ of Habeas Corpus filed pursuant to 28 U.S.C. §2241, by the Applicant, Joshua Johnson 5 , by Judge Lewis T. Babcock on 12/19/2018. (ebuch)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
LEWIS T. BABCOCK, JUDGE
Civil Action No. 16-cv-03104-LTB
JOSHUA JOHNSON,
v.
Applicant,
D. DENHAM, Warden,
Respondent.
______________________________________________________________________________
ORDER
______________________________________________________________________________
This matter is before me on an Application for a Writ of Habeas Corpus filed
pursuant to 28 U.S.C. §2241, by the Applicant, Joshua Johnson, a federal prisoner
appearing pro se. [Doc #5] In this application, Mr. Johnson asserts that the Bureau
of Prisons (the “BOP”) erred when computing his federal sentence. Specifically, he
asserts that the BOP only credited him with 103 days for pre-sentence time he
served while in detention in Colorado jurisdictions prior to the commencement of
his federal sentence. Mr. Johnson contends that he should be credited with 331
days. After consideration of the petition, the response filed by the Respondent, the
United States of America [Doc #15], and the reply file by Mr. Johnson [Doc #21], I
DENY the application for the reasons set forth below.
I. LAW
An action brought by a federal prisoner pursuant to 28 U.S.C. §2241 is one
that challenges the execution of a sentence as “the traditional function of the writ is
to secure release from illegal custody.” Preiser v. Rodriguez, 411 U.S. 475, 484, 93
S.Ct. 1827, 36 L.E.2d 439 (1973); see also McIntosh v. United States Parole
Comm’n, 115 F.3d 809, 811 (10th Cir. 1997). A challenge to the calculation of a
federal prison sentence is properly brought under §2241. See Bloomgren v. Belaski,
948 F.2d 688 (10th Cir. 1991).
Computation of a federal prison sentence – including the extent to which a
defendant can receive credit for time spent in custody prior to commencement of his
sentence – is governed by 18 U.S.C. §3585, which provides as follows:
(a) Commencement of sentence. —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.
(b) 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.
The Attorney General, through the BOP, is responsible for making the sentence
calculation contemplated by §3585. United States v. Wilson, 503 U.S. 329, 337, 112
S.Ct. 1351, 117 L.E.2d 593 (1992).
As relevant here, Section 3585(b)(2) allows an inmate to use time served in
custody prior to the imposition of the federal sentence when the custody was “as a
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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.” The last clause provides that prior time spent
in custody cannot be credited toward a federal sentence if it was used to satisfy
another sentence. The Supreme Court has made clear that inmates are not allowed
to “double count” credit. U.S. v. Wilson, supra, 503 U.S. at 334.
II. BACKGROUND
Mr. Johnson was arrested and taken into custody by the Thornton Colorado
Police Department on September 20, 2011. Plaintiff was held in Adams County
Colorado from that time until May 25, 2012. For a portion of his detention time in
Adams County, he was placed in the temporary custody of the United States
Marshals on a federal writ of habeas corpus ad prosequendum. This temporary
custody on the writ was from November 3, 2011 to May 25, 2012. On May 25, 2012,
Mr. Johnson was transported back to Adams County where he pled guilty and was
sentenced on state charges brought by Adams County.
Two and one-half months later, on August 16, 2012, Mr. Johnson was given a
120-month federal sentence in the U.S. District Court for the District of Colorado
while on temporary federal custody on another writ of habeas corpus ad
prosequendum. Five days later, on August 21, 2012, he was returned to state
custody in Adams County. Then, two and one-half month later, on November 8,
2012, Mr. Johnson commenced his federal sentence.
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III. BOP CALCULATION
At issue here is the BOP’s computation of Mr. Johnson’s credit for his presentence detention time. The BOP has credited Mr. Johnson with 103 days of
credit for detention time he served prior to the date his federal sentence
commenced. The records reveal that time was determined as follows:
Mr. Johnson was taken into state custody on September 20, 2011. On May
25, 2012, after pleading guilty to charges brought in Adams County, Mr. Johnson
was given a one-year sentence. He was also given a one year credit for time served
(even though he did not serve a full year). Thus, the time period of incarceration
between September 20, 2011 and May 25, 2012 was for the Adams County state
sentence. I note that although Mr. Johnson was physically in federal custody for a
portion of this time on a writ, that time is not credited to the federal sentence as
pre-sentence detention time because primary jurisdiction is not with the federal
authority.
The time of Mr. Johnson’s detention from May 26, 2012 to August 23, 2012 –
in the amount of 90 days – has been credited by the BOP towards his federal
sentence. During a portion of this time period, Mr. Johnson was again physically in
federal custody on a writ while he appeared in court and was given the 120-month
sentence at issue here in 11-cr-00349-MSK. Again, that time is not credited to the
federal sentence as pre-sentence detention time.
On August 24, 2012, Mr. Johnson was given a one-day sentence in Arapahoe
County for traffic violations, with credit for one day served (August 24, 2012).
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The time of Mr. Johnson’s detention from August 25, 2012 to September 6,
2012 – in the amount of 13 days – has been credited by the BOP towards his federal
sentence.
On September 18, 2012, Mr. Johnson was given a 12-day sentence in
Jefferson County for a failure to appear. He was given a 12-days credit for time
served (even though he served only 10 day from September 7, 2012 through
September 17, 2012).
Mr. Johnson’s federal sentence thus commenced on September 18, 2012, as
the last day he completed his last state sentence. As a result, the BOP computed
his pre-sentence detention credit – for time served in Colorado jurisdictions prior to
the commencement of his federal sentence – as 103 days. The 103 days consists of
the 90 days between May 26, 2012 and August 23, 2012, plus the 13 days between
August 25, 2012 and September 6, 2012.
IV. ANALYSIS
In this application Mr. Johnson argues that his federal sentence should be
credited for the time of September 20, 2011 through August 15, 2012, for a total of
331 days of pre-sentence detention time. Mr. Johnson’s arguments are difficult to
discern. It appears that he first argues that he is entitled to the time from his
arrest (September 20, 2011) to the time of his federal sentencing (August 15, 2012)
because “he was arrested on a federal warrant and was held without bond” and
“primary jurisdiction rest[ed], without question, with the Federal District Court of
Colorado.” [Doc #5]
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However, as noted by the Respondent, the law is that Mr. Johnson can only
be given pre-sentence credit toward his federal sentence for those days in which he
was in state custody pursuant to federal charges and not serving time for a state
criminal sentence. 18 U.S.C. §3585(b)(2)(providing a defendant credit toward the
service of a term of federal 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). In addition, I note that it is clear that the federal
sentence imposed was not to run concurrent to any state court sentence pursuant to
18 U.S.C. §3584(a)(providing that “[m]ultiple terms of imprisonment imposed at
different times run consecutively unless the court orders that the terms are to run
concurrently”); see also United States v. Candelas, 411 Fed. App’x 190, 194 (10th
Cir. 2011)(unpublished) (recognizing federal district court’s discretion to impose
federal sentence that runs consecutively or concurrently to an undischarged state
sentence). I disagree with Mr. Johnson to the extent that he argues, without record
support, that the federal sentence was actually to be assessed to run concurrently
with any state court sentence.
I note that Mr. Johnson addressed his state court sentences by
acknowledging that he was given a one-year sentence on the Adams County
conviction. He argues, however, that the Adams County sentence should only “take
out” 150 days from the 331 days he should be credited. Mr. Johnson computes the
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sentence at 150 days in that a “one year sentence can be completed in 180 days” (as
“2 for 1”) and he “already served 30 of those days back in 2001 before the federal
warrant.” [Doc #5] This computation is erroneous. As set forth above, Mr.
Johnson’s pre-sentence credit was properly decreased by the days he actually served
on his Adams County sentence (between September 20, 2011 and May 25, 2012), as
well as days served for his one-day sentence in Arapahoe County for traffic
violations (August 24, 2012) and time served for his twelve-day sentence in
Jefferson County for failure to appear (September 7, 2012 through September 17,
2012).
Finally, to the extent that Mr. Johnson contends that the BOP violated the
First and Fifth Amendments to the U. S. Constitution by denying him fair and
impartial treatment when computing his pre-sentence credit, and in responding to
his administrative request for review, such relief is not available. These claims
constitute a challenge to the conditions of his confinement, which are not proper
grounds for habeas corpus relief. See McIntosh v. United States Parole
Commission, 115 F.3d 809, 812 (10th Cir.1997)(ruling that a habeas corpus petition
attacks the fact or duration of a prisoner’s confinement and seeks the remedy of
immediate release or a shortened period of confinement; while a civil rights action,
in contrast, attacks conditions of the prisoner’s confinement); Rael v. Williams, 223
F.3d 1153, 1154 (10th Cir. 2000).
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ACCORDINGLY, for the reasons stated, I DENY the Application for a Writ
of Habeas Corpus filed pursuant to 28 U.S.C. §2241, by the Applicant, Joshua
Johnson. [Doc #5]
Dated: December 19, 2018 in Denver, Colorado.
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK
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