Bonilla-Rosado v. DeBoo
Filing
22
MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE: The 21 Report and Recommendation of the magistrate judge is hereby ADOPTED and AFFIRMED in its entirety. Accordingly, for the reasons set forth, the petitioners 1 § 2241 petition is DISMISSED WITH PREJUDICE and the respondents 14 motion to dismiss or for summary judgment is GRANTED. It is ORDERED that this civil action be DISMISSED and STRICKEN from the active docket of this Court. The C lerk is directed to enter judgment in this matter. Signed by Senior Judge Frederick P. Stamp, Jr on 3/5/2012. (kac) (Copy to pro se petitioner (via cm/rrr), counsel) (Additional attachment(s) added on 3/5/2012: # 1 Certified Mail Return Receipt) (kac).
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
HECTOR BONILLA-ROSADO,
Petitioner,
v.
Civil Action No. 5:11CV146
(STAMP)
KUMA DEBOO,
Respondent.
MEMORANDUM OPINION AND ORDER
AFFIRMING AND ADOPTING REPORT AND
RECOMMENDATION OF MAGISTRATE JUDGE
I.
Background
On October 20, 2011, the pro se1 petitioner, Hector BonillaRosado, filed a petition for habeas corpus pursuant to 28 U.S.C.
§
2241
challenging
the
computation
of
his
federal
sentence.
Specifically, the petitioner alleges that the Federal Bureau of
Prisons (“BOP”) failed to include prior custody credit for time
spent in state custody when computing his federal sentence.
On
December 19, 2011, the respondent filed a motion to dismiss or for
summary judgment and response to order to show cause, in which she
argues that the § 2241 petition should be dismissed because the
petitioner is not entitled to any prior custody credit. On January
6, 2012, the petitioner filed a motion to strike the respondent’s
motion to dismiss and/or reply to respondent’s response to show
cause order. The petitioner argues that the respondent’s motion to
1
“Pro se” describes a person who represents himself in a court
proceeding without the assistance of a lawyer.
Black’s Law
Dictionary 1341 (9th ed. 2009).
dismiss is non-responsive and misapplies the law.
The petitioner
also reiterates his argument that he is entitled to credit for time
served
in
custody
prior
to
the
commencement
of
his
federal
sentence.
United States Magistrate Judge James E. Seibert issued a
report and recommendation on February 7, 2012, recommending that
the respondent’s motion to dismiss or for summary judgment be
granted and the petitioner’s § 2241 petition be dismissed with
prejudice. The magistrate judge advised the parties that, pursuant
to 28 U.S.C. § 636(b)(1)(C), any party may file written objections
to his proposed findings and recommendations within fourteen days
after
being
served
with
a
copy
of
the
report.
petitioner nor the respondent filed objections.
set
forth
below,
this
Court
finds
that
Neither
the
For the reasons
the
report
and
recommendation of the magistrate judge should be affirmed and
adopted in its entirety.
II.
Applicable Law
Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court must conduct
a
de
novo
review
of
any
portion
of
the
magistrate
judge’s
recommendation to which objection is timely made. However, failure
to file objections to the magistrate judge’s proposed findings and
recommendations
permits
the
district
court
to
review
the
recommendation under the standards that the district court believes
are appropriate and, under these circumstances, the parties’ right
to de novo review is waived.
See Webb v. Califano, 468 F. Supp.
2
825 (E.D. Cal. 1979).
Because no objections were filed in this
case, this Court reviews the report and recommendation of the
magistrate judge for clear error.
III.
As
the
magistrate
Discussion
judge
explains
in
his
report
and
recommendation, in general, 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).
In some cases, however, a federal sentence
may begin prior to the date the Attorney General gains physical
custody
of
the
defendant.
When
a
federal
court
orders
a
defendant’s sentence to run concurrently with a previously imposed
state sentence, as in this case, a nunc pro tunc designation can be
made, whereby the BOP designates a state facility as the place for
service of a federal sentence.
See United States v. Evans, 159
F.3d 908, 911-12 (4th Cir. 1998) (“When a federal court imposes a
sentence on a defendant who is already in state custody, the
federal sentence may commence if and when the Attorney General or
the [BOP] agrees to designate the state facility for service of the
federal sentence.”); 18 U.S.C. § 3621(b) (vesting designation
authority in the BOP).
However, the mere fact that a state prisoner is in federal
court pursuant to a federal writ of habeas corpus ad prosequendum
does not mean that the prisoner’s federal sentence has begun to
3
run.
“Rather, the state retains primary jurisdiction over the
prisoner,
and
federal
custody
commences
only
when
the
state
authorities relinquish the prisoner on satisfaction of the state
obligation.”
Evans, 159 F.3d at 912 (citing Thomas v. Whalen, 962
F.2d 358, 361 n.3 (4th Cir. 1992)).
In this case, the federal court sentenced the petitioner on
March 15, 2007 and ordered his federal sentence to run concurrently
with the state sentence he was already serving.
Title 18, United
States Code, Section 3585(b) provides that “[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,” but prior custody cannot be awarded if the
prisoner has received credit towards another sentence.
18 U.S.C.
§ 3585(b); United States v. Brown, 977 F.2d 574, No. 91-5877, 1992
WL 237275, at *1 (4th Cir. Sept. 25, 1992) (a prisoner may receive
credit against his federal sentence for time spent in official
detention prior to the date his sentence commences unless it has
been credited against another sentence).
Here, the petitioner’s state sentence ran continuously from
its start on November 10, 2005 until its expiration on July 11,
2008. Therefore, this Court agrees that the petitioner has already
received credit against his state sentence for the time he spent in
the temporary custody of the United States Marshals Service during
that period.
Because the petitioner cannot receive double credit
for that time served, he is not entitled to any credit for this
4
time against his federal sentence.
For these reasons, the report
and recommendation must be affirmed.
IV.
Conclusion
Because the parties have not objected to the report and
recommendation of the magistrate judge, and because this Court
finds that the magistrate judge’s recommendation is not clearly
erroneous, the ruling of the magistrate judge is hereby ADOPTED and
AFFIRMED in its entirety.
Accordingly, for the reasons set forth
above, the petitioner’s § 2241 petition is DISMISSED WITH PREJUDICE
and the respondent’s motion to dismiss or for summary judgment (ECF
No. 14) is GRANTED.
It is ORDERED that this civil action be
DISMISSED and STRICKEN from the active docket of this Court.
Under Wright v. Collins, 766 F.2d 841, 845 (4th Cir. 1985),
the petitioner’s failure to object to the magistrate judge’s
proposed findings and recommendation bars the petitioner from
appealing the judgment of this Court as to the matters addressed in
the magistrate judge’s report and recommendation.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to the pro se petitioner by certified mail and to
counsel of record herein.
Pursuant to Federal Rule of Civil
Procedure 58, the Clerk is directed to enter judgment on this
matter.
5
DATED:
March 5, 2012
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
6
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