Deluna v. United States of America

Filing 9

REPORT AND RECOMMENDATIONS re 1 Petition for Writ of Habeas Corpus, filed by Raul Martinez Deluna. (The undersigned RECOMMENDS that the District Judge DISMISS with prejudice Raul Martinez Deluna's Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 (Dkt. No. 1 ).). Signed by Judge Andrew W. Austin. (jk)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
RAUL MARTINEZ DELUNA, #56833-180, §
§
V.
§
§
MIKE PEARCE
§

A-12-CV-816-LY-AWA

REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
TO:

THE HONORABLE LEE YEAKEL
UNITED STATES DISTRICT JUDGE
Before the Court is Petitioner Raul Martinez Deluna’s Petition for Writ of Habeas Corpus

Pursuant to 28 U.S.C. § 2241 (Dkt. No. 1); Respondent Mike Pearce’s Response to Petition (Dkt.
No. 5); Petitioner’s Reply (Dkt. No. 7); and Petitioner’s Supplemental Reply (Dkt. No. 8). The
Magistrate Judge submits this Report and Recommendation to the United States District Court
pursuant to 28 U.S.C. § 636(b) and Rule 1 of Appendix C of the Local Court Rules of the United
States District Court for the Western District of Texas, Local Rules for the Assignment of Duties to
United States Magistrate Judges.
I. BACKGROUND
Petitioner Raul Martinez Deluna (“Deluna”), Reg. No. 56833-180, is a federal prisoner
incarcerated in the Bureau of Prisons (“BOP”) at FCI-Bastrop pursuant to a judgment and sentence
in Criminal Case No. 6:06-CR-00023 in the United States District Court for the Western District of
Texas. Deluna was originally arrested on September 6, 2005, in College Station, Texas, for
possession of cocaine, but was released on bond on October 26, 2005. See Dkt. No. 5 at 2. Federal
authorities pursued Deluna’s case and indicted him on February 14, 2006, with the following
charges: (1) one count of possession with intent to distribute at least five grams of “crack” cocaine

in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(iii); (2) one count of possession with intent
to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C); and (3) possession of
a firearm during the commission of a drug trafficking crime in violation of 18 U.S.C.
§ 924(c)(1)(A)(i). See Judgment in a Criminal Case, United States v. Deluna, No. 6:06-CR-00023
(W.D. Tex. Feb. 14, 2006), ECF No. 27 at 1 [hereinafter Deluna Judgment]. Thereafter, while still
out on bond, Deluna was arrested again by local authorities for burglary charges on May 2, 2006, and
during the time he was in custody, attempted to escape. See Declaration of J.R. Johnson, ¶ 6
[hereinafter Johnson Decl.]. On August 7, 2006, Deluna was temporarily released to federal
authorities pursuant to a federal writ of hasbeas corpus ad prosequendum. Id., ¶ 7. Deluna is
currently serving time after he pled guilty to all three counts of his federal indictment. Deluna was
sentenced on January 24, 2007, to a total of 168 months of imprisonment for his offenses. Deluna
Judgment at 2. The judgment in Deluna’s federal criminal case did not specify whether his federal
sentence was to be served consecutively to, or concurrently with, any state sentence. Id.
Meanwhile, Deluna still had state charges pending against him. He was returned to state
authorities on March 6, 2007, and was sentenced to six years confinement on April 13, 2007, by the
361st District Court of Brazos County in Bryan, Texas, for possession of marijuana. Johnson Decl.,
¶¶ 8–9. On October 4, 2007, Deluna was paroled by the Texas Department of Criminal Justice and
turned over to federal authorities to begin service of his federal sentence. Id., ¶ 10.
II. ANALYSIS
In the instant petition, Deluna seeks credit against his federal sentence for the time he served
from May 2, 2006, until October 4, 2007. Dkt. No. 1 at 4. He argues that the BOP has failed to
award him credit on his federal sentence for time served after Judge Walter Smith ordered his
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sentence to begin. Id. at 1. Deluna asserts several arguments in support of his claim. First, Deluna
relies on the Fifth Circuit’s holding in Spence v. United States, 452 F.2d 1198 (5th Cir. 1971), in
contending that because he was unable to post state bond solely because of a federal detainer when
serving concurrent federal and state sentences, he is entitled to credit on his federal sentence. Dkt.
No. 1 at 1–2. Additionally, Deluna asserts that he is entitled to federal credit from May 2, 2006, until
October 4, 2007, because his state and federal sentences were to run concurrently. Id. at 2–3; see
also Dkt. No. 8 at 1. Deluna cites Judge Smith’s pronouncement that Deluna remain “in custody”
during sentencing to support his contention. Dkt. No. 1 at 2–3. He further argues that the state court
judgment specifically notes that the state sentence is to run concurrently with his federal court
sentence. Dkt. No. 8. In response, the government submits that Deluna is not entitled to credit
against his federal sentence for his time served between May 2, 2006, and October 4, 2007, because
that time has already been credited to his state sentence. Dkt. No. 5.
A.

Whether Deluna’s state and federal sentences run concurrently or consecutively

After considering Deluna’s arguments as well as reviewing the record, the Court finds his
contentions lack merit. As a general matter, the BOP has exclusive authority to compute a federal
offender’s sentence and “determines what credit, if any, will be awarded to prisoners for time spent
in custody prior to the commencement of their federal sentences.” Leal v. Tombone, 341 F.3d 427,
428 (5th Cir. 2003) (internal citations omitted); see also United States v. Wilson, 503 U.S. 329,
334–35 (1992). However, the sentencing federal court retains the discretion to order the offender’s
term of imprisonment to run concurrently with or consecutively to an anticipated but “yet-to-beimposed state sentence.” United States v. Hernandez, 234 F.3d 252, 256 (5th Cir. 2000); see also
Hunter v. Tamez, 622 F.3d 427, 431 n.3 (5th Cir. 2010). When the federal judgment is silent

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regarding multiple sentences imposed at different times, the presumption is that the sentences will
run consecutively. See 18 U.S.C. § 3584(a) (“Multiple terms of imprisonment imposed at different
times run consecutively unless the court orders that the terms are to run concurrently.”); Free v.
Miles, 333 F.3d 550, 553 (per curiam). For sentences imposed at different times to run concurrently,
“[a] district court must specify in its sentencing order that sentences run concurrently; otherwise, they
run consecutively.” Free, 333 F.3d at 553 (emphasis added).
In this case, Deluna’s federal judgment fails to specify whether his federal sentence is to run
concurrently with any subsequent state sentence. Even Deluna admits that Judge Smith did not rule
on whether Deluna’s federal sentence was to run concurrently with a future state sentence. Dkt. No.
1, ¶ 7. The fact that Judge Smith ordered that Deluna remain “in custody” does not, as Deluna
suggests, equate to a ruling that his federal sentence was to run concurrently with future state
sentences.1 This conclusion is further supported by Judge Smith’s response to the BOP’s request for
clarification on Deluna’s nunc pro tunc request in which Judge Smith stated that Deluna’s “federal
sentence should begin after his state sentence is completed.” Dkt. No. 5, Johnson Decl., Attachment
11. Because Deluna’s federal judgment fails to indicate clearly that his federal sentence is to run

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Deluna contends that Judge Smith’s statement that Deluna remain “in custody” was
unequivocal. Dkt. No. 1 ¶ 7. Deluna then points to a Tenth Circuit case to argue that he is entitled
to credit against his federal sentence for this reason. However, the case upon which he relies, Brown
v. Perrill, 28 F.3d 1073 (10th Cir. 1994), was decided based on the previous statute concerning the
calculation of a term of imprisonment, 18 U.S.C. § 3568, which applies only to offenses committed
prior to November 1, 1987. United States v. Mares, 868 F.2d 151, 152 (5th Cir. 1989). Yet it is
clear that Deluna did not commit his offenses prior to November 1, 1987. See Johnson Decl. ¶ 5–6;
Dkt. No. 1, Exh. B. Offenses committed after November 1, 1987, are governed by 18 U.S.C. § 3585.
Pinedo v. United States, 955 F.2d 12, 13 (5th Cir. 1992) (per curiam). Furthermore, “whereas §
3568 permitted credit only for time spent ‘in custody’ related to the offense, [§ 3585] permits credit
only for time spent in ‘official detention’ related to the offense.” Id. Consequently, the Court finds
Deluna’s reliance on the analysis in Brown to be misplaced.
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concurrently with a subsequent state sentence, the Court finds that Deluna’s federal and state
sentences run consecutively rather than concurrently. Free, 333 F.3d at 553 (“Well-settled federal
law presumes that when multiple terms of imprisonment are imposed at different times, they will run
consecutively unless the district court specifically orders that they run concurrently.”) (emphasis in
original).
Additionally, Deluna’s reliance upon the state court’s judgment and conviction is
unconvincing. While it is true that Deluna’s state court judgment does note that “[t]his sentence
shall run concurrently,” Dkt. No. 8 at 5, a state trial court’s determination that an offender will serve
his state sentence concurrently with a federal sentence does not bind the BOP. Leal, 341 F.3d at 429
n.13. “[C]oncurrent sentences imposed by state judges are nothing more than recommendations to
federal officials.” Id. (quoting Taylor v. Sawyer, 284 F.3d 1143, 1150 (9th Cir. 2002) (internal
citations omitted)). Thus, contrary to Deluna’s contention, the fact that the state trial court in his
case determined that his state sentence was to run concurrently with his federal sentence is not
conclusive on the matter.2 Rather, as explained above, because the federal judgment fails to specify
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In his Supplemental Reply, Deluna appears to argue that this Court must honor the decision
of the state trial court that Deluna’s state sentence should be served concurrently with his federal
sentence, citing the Rooker-Feldman doctrine. Dkt. No. 8. However, the doctrine provides a limited
exception which allows lower federal courts “to examine state judicial proceedings pursuant to
habeas corpus review of certain custodial situations, [such as review under] § 2241.” Young v.
Murphy, 90 F.3d 1225, 1230 (7th Cir. 1996); see also Matter of Reitnauer, 152 F.3d 341, 343 n.8
(5th Cir. 1998) (recognizing the limited exception to the Rooker-Feldman doctrine for habeas
petitions). Furthermore, the Rooker-Feldman doctrine is inapplicable to Deluna’s case. The
Supreme Court has recently stressed that the Rooker-Feldman doctrine is confined to “cases brought
by state-court losers complaining of injuries caused by state-court judgments rendered before the
district court proceedings commenced . . . .” Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544
U.S. 280, 284 (2005) (emphasis added). Here, Deluna is not arguing that the state-court judgment
caused his injuries. Rather, Deluna asserts that his injury results from the BOP’s failure to grant him
credit against his federal sentence for time he spent in state custody. Consequently, the Court finds
Deluna’s citation and reliance on the Rooker-Feldman doctrine to be unpersuasive.
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that Deluna’s state and federal sentences were to run concurrently, his sentences are to run
consecutively.
B.

Reliance on Spence v. United States

Because the Court has determined that Deluna’s state and federal sentences run consecutively
rather than concurrently, the Court also finds his citation to Spence to be in error. More specifically,
Deluna relies on a portion of the Spence opinion which references the exception declared in Willis
v. United States, 486 F.2d 923 (5th Cir. 1971). In Willis, the Fifth Circuit considered how to
determine pre-sentence custody credit where unrelated state and federal sentences were ordered by
the State to run concurrently, and the defendant sought federal credit for time spent in state custody
before he was transferred to federal prison. See id. at 925. In Willis, the defendant was arrested on
a federal charge first and, while out on bail, was arrested on an unrelated state charge and taken into
state custody. Id. He remained in state custody through, first, his federal sentencing and, then, his
state sentencing. Id. His state sentence was ordered to run concurrently with his federal sentence.
Id. He remained in state custody for approximately three weeks after his state sentence was imposed,
and then was transferred to federal custody to finish both sentences. Id. He sought federal credit for
all of the time he spent in state custody. Id. The Fifth Circuit decided that the defendant was not
entitled to federal credit for the time actually spent serving his unrelated state sentence after his state
sentence was imposed, but remanded for an evidentiary hearing for the district court to determine
whether he was entitled to credit for any other pre-federal-custody time. The court’s concern was
that the defendant initially spent time in state custody subject to a federal detainer, and he should get
federal credit for that time. The court did not actually decide whether the defendant was entitled to
more federal credit. However, in order for the Willis exception to apply, the petitioner must be
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“serving concurrent federal and state terms with a state full-term date that is equal to or less than the
federal full-term date.” Edison v. Berkebile, 349 Fed.Appx. 953, 956 (5th Cir. 2009) (emphasis
added). As discussed previously, Deluna is serving his state and federal sentences consecutively
rather than concurrently. Consequently, the Willis exception does not apply to Deluna’s case.
C.

Whether Deluna is entitled to credit against his federal sentence

In light of the foregoing discussion, Deluna is not entitled to credit against his federal
sentence for the time period between May 2, 2006, until October 4, 2007. Offenses committed after
November 1, 1987, are governed by 18 U.S.C. § 3585(b), which provides in relevant part:
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). Accordingly, federal inmates may not “double count” time
spent in pre-sentence custody against both their state and federal sentences. In this case, Deluna
cannot receive credit against his federal sentence for the time period between May 2, 2006, until
October 4, 2007, because the time was credited to his state sentence. Johnson Decl., ¶ 13. As such,
Deluna’s instant habeas petition under § 2241 should be dismissed.
III. RECOMMENDATION
The undersigned RECOMMENDS that the District Judge DISMISS with prejudice Raul
Martinez Deluna’s Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 (Dkt. No. 1).

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IV. WARNINGS
The parties may file objections to this Report and Recommendation. A party filing
objections must specifically identify those findings or recommendations to which objections are
being made. The District Court need not consider frivolous, conclusive, or general objections. See
Battle v. United States Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987).
A party's failure to file written objections to the proposed findings and recommendations
contained in this Report within fourteen (14) days after the party is served with a copy of the Report
shall bar that party from de novo review by the District Court of the proposed findings and
recommendations in the Report and, except upon grounds of plain error, shall bar the party from
appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the
District Court. See 28 U.S.C. § 636(b)(1)(c); Thomas v. Arn, 474 U.S. 140, 150-53 (1985);
Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).
To the extent that a party has not been served by the Clerk with this Report &
Recommendation electronically pursuant to the CM/ECF procedures of this District, the Clerk is
directed to mail such party a copy of this Report and Recommendation by certified mail, return
receipt requested.
SIGNED this 1st day of May, 2013.

_____________________________________
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE

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