Herrera v. Johns

Filing 9

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DENY Herrera's 1 Petition for Writ of Habeas Corpus, DIRECT the Clerk of Court to CLOSE this case and DENY Herrera leave to proceed in forma pauperis on appeal. Any party see king to object to this Report and Recommendation is ordered to file specific written objections within fourteen (14) days of the date on which this Report and Recommendation is entered. (Objections to R&R due by 8/18/2017). ORDER directing service of the REPORT AND RECOMMENDATIONS of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 8/4/2017. (csr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
WAYCROSS DIVISION

JORGE HERRERA a/k/a JUAN DEJESUS
RODRIGUEZ,
Petitioner,

CIVIL ACTION NO.: 5:16-cv-88

v.
T. JOHNS,
Respondent.

ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Petitioner Jorge Herrera (“Herrera”), who is currently housed at the D. Ray James
Correctional Facility in Folkston, Georgia, filed a Petition for Writ of Habeas Corpus pursuant to
28 U.S.C. § 2241. (Doc. 1.) Respondent filed a Response. (Doc. 8.) For the reasons which
follow, I RECOMMEND that the Court DENY Herrera’s Petition for Writ of Habeas Corpus,
filed pursuant to 28 U.S.C. § 2241, (doc. 1), DIRECT the Clerk of Court to CLOSE this case,
and DENY Herrera leave to proceed in forma pauperis on appeal.
BACKGROUND
Herrera was apprehended by Immigration and Customs Enforcement (“ICE”) officials in
Brownsville, Texas, for attempting to enter the United States after being previously deported.
(Doc. 8, p. 3.) The United States District Court for the Southern District of Texas sentenced
Herrera to 30 days’ imprisonment for knowingly and willfully attempting to gain illegal entry
into the United States by a false and misleading representation, in violation of 8 U.S.C.
§ 1325(a)(3), in Case Number 1:08-PO-1821 on October 1, 2008. (Doc. 8-1, p. 25.) The Texas

district court ordered that Herrera receive credit for all time served, and he completed this
sentence on October 21, 2008. (Id. at p. 27.)
On October 24, 2008, Herrera was remanded to the custody of the United States Marshals
Service pursuant to an arrest warrant and detainer issued on July 18, 2003, in the Southern
District of Florida in Case Number 1:03-CR-20573. (Id. at p. 31.) Herrera was sentenced on
June 9, 2009, to 121 months’ imprisonment for possession with intent to distribute one kilogram
or more of heroin, in violation of 21 U.S.C. § 841(a)(1). Herrera’s sentence was later reduced to
120 months’ imprisonment. He has a projected release date of August 22, 2017, via good
conduct time release. (Doc. 8-1, pp. 2, 19.)
In his Petition, Herrera asserts he is entitled to credit against his federal sentence for the
time he was arrested and under the custody of ICE until the date he was transferred to the
Southern District of Florida. 1 (Doc. 1, p. 4.) Herrera claims that, if the Bureau of Prisons
(“BOP”) were to correctly calculate his sentence, he would have been entitled to his release on
June 7, 2017, rather than on September 21, 2017, as the BOP has calculated. 2 (Id. at p. 5.)
Respondent contends Herrera has received all of the credit against his federal sentence to
which he is entitled. (Doc. 8, p. 6.) Respondent states Herrera’s argument to the contrary is

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Herrera seeks credit from September 22, 2008, until November 18, 2008. (Doc. 1, p. 4.) It is unclear
from where Herrera obtained the November 18, 2008, date, though he contends that is the date he was
transferred to the Southern District of Florida. Based on what the Court can glean from the record, it
appears that November 18, 2008, is listed on Herrera’s Inmate History printout as the date of his presentence admittance, which could very well be the date he was transferred to the Southern District of
Florida. (Doc. 8-1, p. 23.)

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Respondent contends that, during Bryan Erickson’s audit of Herrera’s sentence computation, he noticed
Herrera was not credited with time against any sentence based on his November 22, 2005, arrest in the
State of New York. The BOP adjusted the computation of Herrera’s sentence to credit the time from his
arrest on November 22, 2005, through the date he was released on bond, December 21, 2005.
Accordingly, Herrera’s projected release date is now August 22, 2017, rather than September 21, 2017.
(Doc. 8-1, p. 2 n.1.)
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without merit because he has already received the credit he seeks, and awarding additional credit
violates the prohibition against receiving double credit.
DISCUSSION
I.

Sentence Computation
It is the duty of the United States Attorney General, acting through BOP, to determine the

amount of credit due for the time served by the defendant prior to sentencing. United States v.
Alexander, 609 F.3d 1250, 1259 (11th Cir. 2010). Section 3585 of Title 18 of the United States
Code, which pertains to “credit for prior custody,” is controlling for making credit
determinations for sentences imposed under the Sentencing Reform Act of 1984. This statute
provides:
(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 of 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 (emphasis added). In determining the proper credit, a two-part analysis is
helpful. First, it must be determined when the sentence commenced. A sentence “‘cannot begin
prior to the date it is pronounced, even if made concurrent with a sentence already being
served.’” Coloma v. Holder, 445 F.3d 1282, 1284 (11th Cir. 2006) (quoting United States v.
Flores, 616 F.2d 840, 841 (5th Cir. 1980)).

“Multiple terms of imprisonment imposed at

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different times run consecutively unless the court orders that the terms are to run concurrently.”
United States v. Ballard, 6 F.3d 1502, 1505 (11th Cir. 1993); see also 18 U.S.C. § 3584(a).
Herrera was charged in the Southern District of Texas by criminal complaint in Case
Number 1:08-PO-1823 of knowingly and willfully attempting to gain illegal entry into the
United States by presenting a fictitious resident alien card, in violation of 8 U.S.C. § 1325(a)(3),
at the Brownsville, Texas, port of entry on September 22, 2008. 3 (Doc. 8-1, pp. 25, 29.) On
October 1, 2008, Herrera pleaded guilty to the charged offense and was sentenced to thirty (30)
days’ confinement, with credit for time served. (Id. at p. 27.) Herrera was released on October
21, 2008, and he had received credit against that sentence from September 22, 2008, through
September 30, 2008. (Id. at p. 29.)
On October 24, 2008, Herrera was arrested in the Southern District of Florida based on a
detainer lodged against him by the United States Marshals Service. 4 Herrera had previously
been charged on July 18, 2003, in the Southern District of Florida with conspiracy to possess
with intent to distribute cocaine and heroin and possessing heroin with intent to distribute, in
violation of 21 U.S.C. §§ 841 and 846, in Case Number 1:03-CR-20573. (Id. at p. 31.) Herrera
pleaded guilty to the possession count of the indictment and was sentenced on June 9, 2009, to a
term of 121 months’ imprisonment. (Id. at pp. 9–10.) Herrera’s sentence was subsequently
reduced to 120 months’ imprisonment based on an amendment to the United States Sentencing
Guidelines. (Id. at p. 16.)
The BOP conducted a sentence computation on the date Herrera’s federal sentence
commenced in Case Number 03-CR-20573, June 9, 2009. (Id. at p. 21.) As a result of this

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Herrera was charged under the name of “Juan Jesus Rodriguez-Lopez”. (Doc. 8-1, p. 25.)

4

It appears Herrera was taken into the custody of the Marshals Service in Brownsville, Texas, on
October 22, 2008, and was later arrested in the Southern District of Florida. (See Doc. 8-1, pp. 21, 31.)
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computation, the BOP awarded Herrera credit against his federal sentence from November 22,
2005, through December 21, 2005, which are, as noted above, respectively the date of his arrest
and the date of his release on bond in the State of New York. The BOP also credited Herrera
with the time between his release to the United States Marshals’ custody in Case Number 03CR-20573 on October 22, 2008, and the day before he was sentenced in that case, or through
June 8, 2009, for a total of 260 days’ credit. (Id.)
Next, it must be determined what credit is due for time served prior to the
commencement of Herrera’s federal sentence in Case Number 03-CR-20573. 5 To determine
whether Herrera is entitled to any more credit against his federal sentence, the court must begin
with the plain language of the statute itself. Harris v. Garner, 216 F.3d 970, 972 (11th Cir. 2000)
(en banc) (“We begin our construction of [a statutory provision] where courts should always
begin the process of legislative interpretation, and where they often should end it as well, which
is with the words of the statutory provision.”). Section 3585(b) clearly states that, in some
circumstances, a defendant is entitled to credit for time served prior to sentence commencement
unless that time has been credited against another sentence.
As noted above, Herrera’s federal sentence in Case Number 03-CR-20573 commenced
on June 9, 2009, the date he was sentenced in that case. 18 U.S.C. § 3585(a). Herrera received
260 days’ credit against his sentence for time served in the State of New York and for time
served between the date he was in the exclusive custody of the United States Marshals Service
and the date of his sentencing in Case Number 03-CR-20573. Herrera is not entitled to any more
credit against his federal sentence, as he has received every day of credit to which he is entitled.
Herrera cannot receive credit against his federal sentence for his requested dates (September 22,
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Program Statement 5880.28 provides that, if the prisoner is serving no other sentence at the time the
sentence is imposed on the basis of the conviction for which the sentence is imposed, the sentence
commences on the date of imposition. (Doc. 8-1, p. 35.)
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2008, through November 18, 2008) because, to credit Herrera with these dates, would be to give
him “double credit”, which is prohibited by statute. 18 U.S.C. § 3585(b). In fact, Herrera was
credited with this time in Case Number 1:08-PO-1823, or at least from September 22, 2008,
through October 21, 2008. 6 Herrera is not entitled to his requested relief, and the Court should
DENY his Petition on this basis.
II.

Leave to Appeal in Forma Pauperis
The Court should also deny Herrera leave to appeal in forma pauperis. Though Herrera

has, of course, not yet filed a notice of appeal, it would be appropriate to address these issues in
the Court’s order of dismissal. Fed. R. App. P. 24(a)(3) (trial court may certify that appeal of
party proceeding in forma pauperis is not taken in good faith “before or after the notice of appeal
is filed”). An appeal cannot be taken in forma pauperis if the trial court certifies that the appeal
is not taken in good faith. 28 U.S.C. § 1915(a)(3); Fed. R. App. P. 24(a)(3). Good faith in this
context must be judged by an objective standard. Busch v. Cty. of Volusia, 189 F.R.D. 687, 691
(M.D. Fla. 1999). A party does not proceed in good faith when he seeks to advance a frivolous
claim or argument. See Coppedge v. United States, 369 U.S. 438, 445 (1962). A claim or
argument is frivolous when it appears the factual allegations are clearly baseless or the legal
theories are indisputably meritless. Neitzke v. Williams, 490 U.S. 319, 327 (1989); Carroll v.
Gross, 984 F.2d 392, 393 (11th Cir. 1993). Stated another way, an in forma pauperis action is
frivolous and, thus, not brought in good faith, if it is “without arguable merit either in law or
fact.” Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002); see also Brown v. United States,
Nos. 407CV085, 403CR001, 2009 WL 307872, at *1–2 (S.D. Ga. Feb. 9, 2009).

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Again, the Court is uncertain as to the relevance of November 18, 2008, in Herrera’s calculations.
Nevertheless, Herrera was credited with time in custody from October 22, 2008, through June 8, 2009,
and he cannot be given any more credit against his federal sentence in Case Number 03-CR-20573, as
already discussed.
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Based on the above analysis of Herrera’s Petition and Respondent’s Response, there are
no non-frivolous issues to raise on appeal, and an appeal would not be taken in good faith. Thus,
the Court should DENY Herrera in forma pauperis status on appeal.
CONCLUSION
Based on the foregoing, I RECOMMEND that the Court DENY Herrera’s Petition for
Writ of Habeas Corpus, filed pursuant to 28 U.S.C. § 2241, (doc. 1), DIRECT the Clerk of
Court to CLOSE this case, and DENY Herrera leave to proceed in forma pauperis.
The Court ORDERS any party seeking to object to this Report and Recommendation to
file specific written objections within fourteen (14) days of the date on which this Report and
Recommendation is entered. Any objections asserting that the Magistrate Judge failed to address
any contention raised in the pleading must also be included. Failure to do so will bar any later
challenge or review of the factual findings or legal conclusions of the Magistrate Judge. See 28
U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140 (1985). A copy of the objections must be
served upon all other parties to the action. The filing of objections is not a proper vehicle
through which to make new allegations or present additional evidence.
Upon receipt of objections meeting the specificity requirement set out above, a United
States District Judge will make a de novo determination of those portions of the report, proposed
findings, or recommendation to which objection is made and may accept, reject, or modify in
whole or in part, the findings or recommendations made by the Magistrate Judge. Objections not
meeting the specificity requirement set out above will not be considered by a District Judge. A
party may not appeal a Magistrate Judge’s report and recommendation directly to the United
States Court of Appeals for the Eleventh Circuit. Appeals may be made only from a final

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judgment entered by or at the direction of a District Judge. The Court DIRECTS the Clerk of
Court to serve a copy of this Report and Recommendation upon Herrera and Respondent.
SO ORDERED and REPORTED and RECOMMENDED, this 4th day of August,
2017.

R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

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