Besic v. Pugh

Filing 3

Memorandum Opinion and Order denying petition and this action is dismissed without prejudice pursuant to 28 U.S.C. § 2243. Further, the Court certifies, pursuant to 28 U.S.C. §1915(a)(3), that an appeal from this decision could not be taken in good faith, and that there is no basis upon which to issue a certificate of appealability. Judge Dan A. Polster(C,KA)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

MARIO BESIC,
Petitioner,
vs.
MICHAEL PUGH, WARDEN,
Respondent.

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CASE NO. 4:13 CV 598
Judge Dan Aaron Polster

MEMORANDUM OF OPINION
AND ORDER

Pro se Petitioner Mario Besic filed this Petition for a Writ of Habeas Corpus pursuant to
28 U.S.C. § 2241. In the Petition (Doc. # 1), Besic asserts he is entitled to credit on his federal
sentence for 47 days he spent in the custody of the Immigration and Customs Enforcement
Agency (“ICE”).
I. BACKGROUND
Besic’s Petition is very brief. In its entirety, it states:
Mario Besic claim [sic] that on 7-6-2011, was sentence [sic] and
seriously violation due process U.S. Const Fifth and Fourteenth
Amendment, he was arrested while in INS custody and was spent
47 days, the court abused its discretion when was denied 47 days
jail credit, the very essence of civil liberty certainly consist in the
right laws.
(Doc. # 1 at 3.)
II. STANDARD OF REVIEW
Writs of habeas corpus “may be granted by the Supreme Court, any justice thereof, the

district courts and any circuit judge within their respective jurisdictions.” 28 U.S.C. § 2241(a).
Section 2241 “is an affirmative grant of power to federal courts to issue writs of habeas corpus
to prisoners being held ‘in violation of the Constitution or laws or treaties of the United
States.’” Rice v. White, 660 F.3d 242, 249 (6th Cir. 2011) (quoting Section 2241(c)). Because
Petitioner is appearing pro se, the allegations in his Petition must be construed in his favor, and
his pleadings are held to a less stringent standard than those prepared by counsel. Urbina v.
Thoms, 270 F.3d 292, 295 (6th Cir. 2001). However, this Court may dismiss the Petition at any
time, or make any such disposition as law and justice require, if it determines the Petition fails
to establish adequate grounds for relief. Hilton v. Braunskill, 481 U.S. 770, 775 (1987); see
also Allen v. Perini, 424 F.2d 134, 141 (6th Cir. 1970) (holding district courts have a duty to
“screen out” petitions lacking merit on their face under Section 2243).
III. ANALYSIS
Once a defendant is sentenced in federal court, the Attorney General, through the Bureau
of Prisons (“BOP”), is responsible for administering the sentence. See 18 U.S.C. § 3621(a). To
compute a federal sentence, the BOP must first determine the commencement date of the federal
sentence. By statute, a federal sentence 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.” 18 U.S.C. § 3585(a). A
federal sentence does not commence until a prisoner is actually received into federal custody
solely for that purpose. Gonzalez v. Rushing, 4:12 CV1274, 2012 WL 2127728 (N.D. Ohio
June 11, 2012).
Thereafter, the BOP must apply any jail-time credit to which the offender may be

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entitled
under 18 U.S.C. § 3585(b). Specifically, 18 U.S.C. §3585(b) provides:
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.
Although Besic’s Petition is not entirely coherent, it appears he is seeking credit toward
his federal sentence for the time he spent in the custody of ICE after his arrest. While it is true
that Besic was in federal custody while he was detained by ICE, there is no indication in the
Petition that he was in “official detention ... as a result of the offense for which the sentence was
imposed.” 18 U.S.C. § 3585(b). Detention by immigration authorities pending deportation is
considered civil, rather than criminal, in nature. See De Leon v. Copenhauer,
1:12-CV-00976-BAM HC, 2012 WL 5906551 (E.D. Cal. Nov. 26, 2012); Galan-Paredes v.
Hogsten, 1:CV06-1730, 2007 WL 30329 (M.D. Pa. Jan. 3, 2007); Ghadiri v. Sniezek,
4:06CV1765, 2006 WL 3023034 (N.D. Ohio Oct. 23, 2006); Alba-Tovar v. United States,
CIV.05 1899 JO, 2006 WL 2792677 (D. Or. Sept. 22, 2006). Time spent in the custody of ICE
awaiting a deportation determination therefore is not “official detention” within the meaning of
18 U.S.C. § 3585(b).
The Petition gives no indication of when Besic was transferred from ICE custody to the
custody of the United States Marshals following his arrest or indictment. Besic seems to

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indicate that period of time amounts to 47 days but he does not provide the manner in which he
arrived at this figure. Based on the information in the Petition, and giving it a liberal
construction, there is no indication that Besic is entitled to credit toward his federal sentence.
IV. CONCLUSION
Accordingly, the Petition for a Writ of Habeas Corpus (Doc. # 1) is denied and this
action is dismissed without prejudice pursuant to 28 U.S.C. § 2243. Further, the Court certifies,
pursuant to 28 U.S.C. §1915(a)(3), that an appeal from this decision could not be taken in good
faith, and that there is no basis upon which to issue a certificate of appealability. 28 U.S.C. §
2253; Fed.R.App.P. 22(b).
IT IS SO ORDERED.

/s/Dan Aaron Polster 8/26/13
Dan Aaron Polster
United States District Judge

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