Gutierrez-Jaramillo v. FCI Gilmer

Filing 22

MEMORANDUM OPINION AND ORDER ADOPTING AND AFFIRMING 19 REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE, GRANTING RESPONDENT'S 10 MOTION TO DISMISS OR, ALTERNATIVELY, FOR SUMMARY JUDGMENT AND OVERRULING PETITIONER'S 21 OBJECTIONS. It is ORDERED that this civil action be DISMISSED WITH PREJUDICE and STRICKEN from the active docket of this Court. The Clerk is DIRECTED to enter judgment on this matter. Signed by Senior Judge Frederick P. Stamp, Jr. on 8/14/17. (Pro Se Petitioner via CM/rrr; counsel via CM/ECF) (lmm) (Additional attachment(s) added on 8/14/2017: # 1 Certified Mail Return Receipt) (lmm).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
JULIO CESAR GUTIERREZ-JARAMILLO,
Petitioner,
v.

Civil Action No. 5:16CV172
(STAMP)

FCI GILMER, Warden,
Respondent.
MEMORANDUM OPINION AND ORDER
ADOPTING AND AFFIRMING REPORT AND
RECOMMENDATION OF MAGISTRATE JUDGE,
GRANTING RESPONDENT’S MOTION TO DISMISS OR,
ALTERNATIVELY, FOR SUMMARY JUDGMENT AND
OVERRULING PETITIONER’S OBJECTIONS
The petitioner, Julio Cesar Gutierrez-Jaramillo (“GutierrezJaramillo”), filed this pro se1 petition under 28 U.S.C. § 2241
seeking credit for time served in the Republic of Peru prior to his
extradition to the United States. The government filed a motion to
dismiss or, alternatively, for summary judgment.

The magistrate

judge entered a report recommending that the government’s motion be
granted.
report

Gutierrez-Jaramillo then filed timely objections to the

and

magistrate

recommendation.
judge’s

report

For
and

the

following

recommendation

is

reasons,

the

adopted

and

affirmed, the government’s motion is granted, and the petitioner’s
objections are overruled.

1

“Pro se” describes a person who represents himself in a court
proceeding without the assistance of a lawyer.
Black’s Law
Dictionary 1416 (10th ed. 2014).

I.

Facts

In 1998, Gutierrez-Jaramillo was sentenced in the Republic of
Peru to an eight-year term of imprisonment, which was later
increased to fifteen years, scheduled to end on December 1, 2010.
ECF No. 11-1 at 9.

During his prison term, the United States sent

Peru an extradition request.

Id.

In 2002, that extradition

request was approved and an extradition detainer was entered.

Id.

On October 4, 2002, a Peruvian court granted partial release, but
Gutierrez-Jaramillo remained in custody under the extradition
detainer and pending an appeal of the partial release order.
at 10.

Id.

Then, on April 7, 2004, a higher court reversed the partial

release order.

Id.

On December 22, 2009, a Peruvian court again

ordered a partial release of Gutierrez-Jaramillo, and he was
extradited to the United States the next day.

Id. at 10-11.

Gutierrez-Jaramillo plead guilty to one count of conspiracy to
import cocaine and one count of aiding and abetting the importation
of cocaine.

Id. at 21.

The United States District Court for the

Southern District of Texas sentenced Gutierrez-Jaramillo to a total
term of 210 months of imprisonment.

Id. at 22.

The court granted

a three-level downward departure from the applicable United States
Sentencing Guideline range, noting the time Gutierrez-Jaramillo
served in Peruvian prison, that the extradition request likely
delayed Gutierrez-Jaramillo’s release from Peruvian prison, and
that the BOP would not count it as time served.

2

ECF No. 11-2 at 3.

Gutierrez-Jaramillo’s sentence began on February 18, 2011. ECF No.
11-1 at 21-22.

The BOP awarded credit for time served in pretrial

custody from December 23, 2009, the date of his extradition,
through February 17, 2011.

ECF No. 11-1 at 4.

Gutierrez-Jaramillo appealed his conviction and sentence to
the United States Court of Appeals for the Fifth Circuit, and it
was affirmed.

Gutierrez-Jaramillo then filed a motion under 28

U.S.C. § 2255 challenging the validity of his conviction and
sentence,

alleging

he

was

provided

ineffective

assistance

of

counsel in violation of the Sixth Amendment based on his counsel’s
failure to get him credit for time served in Peru.
denied and he did not appeal the judgment.

His motion was

He then filed a motion

under § 2241 alleging his sentence violated an extradition treaty
between the United States and the Republic of Colombia.

That

matter is currently pending.
Gutierrez-Jaramillo has now filed another motion under § 2241
claiming the BOP failed to give him credit for eighty-seven months
served from October 4, 20022 to December 23, 2009 in Peru.

He

argues that his Peruvian sentence would have ended on October 4,
2002 but for the then pending extradition request of the United
States.

The

government

filed

alternatively, for summary judgment.

2

a

motion

to

dismiss

or,

The magistrate judge entered

Gutierrez-Jaramillo incorrectly uses the date October 2, 2002
in reference to the partial release order granted on October 4,
2002 and later reversed on April 7, 2004.
3

a report recommending that the motion be granted as a motion for
summary judgment.

Gutierrez-Jaramillo timely filed objections to

the report and recommendation.
II.

Applicable Law

Under 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.

Because Gutierrez-Jaramillo

filed objections to the report and recommendation, the magistrate
judge’s recommendation will be reviewed de novo
findings to which objections were made.

as to those

As to those findings to

which objections were not made, those findings and recommendations
will be upheld unless they are “clearly erroneous or contrary to
law.”

28 U.S.C. § 636(b)(1)(A).
To survive a motion to dismiss under Rule 12(b)(6), “a

[pleading] must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

This plausibility

standard requires a plaintiff to articulate facts that, when
accepted as true, demonstrate that the plaintiff is plausibly
entitled to relief.

Francis v. Giacomelli, 588 F.3d 186, 193 (4th

Cir. 2009) (citing Iqbal, 556 U.S. at 678; Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)).

“The plausibility standard is

not a probability requirement, but asks for more than a sheer
possibility that a defendant has acted unlawfully.”

4

Hall v.

DirectTV, 846 F.3d 757, 765 (4th Cir. 2017). “[C]ourts must accept
as true all of the factual allegations contained in the complaint
and draw all reasonable inferences in favor of the plaintiff.” Id.
“[A]

[pleading]

is

substantial justice.”

to

be

construed

liberally

so

as

to

do

Id. (internal quotation marks omitted).

Further, this Court must liberally construe pro se complaints.
Erickson v. Pardus, 551 U.S. 89, 94 (2007); Gordon v. Leeke, 574
F.2d 1147, 1151 (4th Cir. 2007).

However, while the plaintiff’s

allegations are assumed to be true, Erickson, 551 U.S. at 93, this
Court may not ignore a clear failure in the pleading to allege
facts that set forth a claim.

See Weller v. Dep’t of Soc. Servs.,

901 F.2d 387, 390-91 (4th Cir. 1990).

This Court may not rewrite

a complaint to include claims that were never presented, Barnett v.
Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999), construct the
plaintiff’s legal arguments for him, id., or “conjure up questions
never squarely presented” to the court.

Beaudett v. City of

Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
Under Federal Rule of Civil Procedure 56, this Court must
grant a party’s motion for summary judgment if “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.”

Fed. R. Civ. P. 56(a).

A fact is

“material” if it might affect the outcome of the case. Anderson v.
Liberty Lobby, 477 U.S. 242, 248 (1986).

A dispute of material

fact is “genuine” if the evidence “is such that a reasonable jury

5

could return a verdict for the non-moving party.”

Id.

If the

nonmoving party “fails to make a showing sufficient to establish
the existence of an element essential to that party’s case, and on
which that party will bear the burden of proof at trial,” summary
judgment must be granted against that party.
Catrett, 477 U.S. 317, 322 (1986).

Celotex Corp. v.

In reviewing the supported

underlying facts, all inferences must be viewed in the light most
favorable to the party opposing the motion.

See Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
The party seeking summary judgment bears the initial burden of
showing the absence of any genuine issues of material fact.
Celotex, 477 U.S. at 322-23.

See

“The burden then shifts to the

nonmoving party to come forward with facts sufficient to create a
triable issue of fact.”

Temkin v. Frederick County Comm’rs, 945

F.2d 716, 718 (4th Cir. 1991), cert. denied, 502 U.S. 1095 (1992).
However, “a party opposing a properly supported motion for summary
judgment may not rest upon the mere allegations or denials of his
pleading, but . . . must set forth specific facts showing that
there is a genuine issue for trial.”
Inc., 477 U.S. 242, 256 (1986).

Anderson v. Liberty Lobby,

Moreover, “[t]he nonmoving party

cannot create a genuine issue of material fact through mere
speculation
Othentec

or

Ltd.

the
v.

building

Phelan,

526

of

one

F.3d

(internal quotation marks omitted).

6

inference
135,

140

upon
(4th

another.”
Cir.

2008)

The nonmoving party must

produce “more than a ‘scintilla’” of evidence “upon which a jury
could properly proceed to find a verdict for the party producing
it.” Id. (internal quotation marks omitted) (quoting Anderson, 477
U.S. at 251).
III.

Discussion

Generally, “federal custody commences only when the [nonfederal] authorities relinquish the prisoner on satisfaction of the
[non-federal] obligation.”
912 (4th Cir. 1998).

United States v. Evans, 159 F.3d 908,

This is reflected in 18 U.S.C. § 3585(b),

which 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-(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).
Gutierrez-Jaramillo began serving his Peruvian sentence on
February 3, 1998.

ECF No. 11-1 at 9.

He completed that sentence

on December 22, 2009 when a Peruvian court granted his partial
release.
lodged

on

Id. at 10-11.
October

4,

Although an extradition detainer was

2002,

id.

at

9-10,

Gutierrez-Jaramillo

remained in the primary custody of Peru until his sentence was
7

completed on December 22, 2009.

Thus, Gutierrez-Jaramillo may not

receive credit for time served in Peru before December 23, 2009.
In his objections, Gutierrez-Jaramillo argues that but for the
extradition detainer he would have been released on parole in Peru
in 2002.

He argues that a Peruvian court granted his partial

release on October 4, 2002, and that he was not released because of
the extradition detainer.

Thus, he argues he was constructively

detained by the United States after October 4, 2002.

However, the

October 4, 2002 partial release order was reversed by a higher
court

on

April

7,

2004.

Accordingly,

Gutierrez-Jaramillo’s

Peruvian sentence did not end on October 4, 2002 and he remained in
Peru’s primary custody until the partial release order was entered
on December 22, 2009.

Because all of the time he spent in Peruvian

custody from October 4, 2002 through December 22, 2009 was in
service of his Peruvian sentence, Gutierrez-Jaramillo may not
receive credit for time served against his federal sentence.
Accordingly, this Court finds that there is no genuine dispute of
a material fact and the government is entitled to judgment as a
matter of law.
IV.

Conclusion

For the above reasons, the magistrate judge’s report and
recommendation (ECF No. 19) is ADOPTED AND AFFIRMED.

Accordingly,

the respondent’s motion to dismiss or, alternatively, for summary
judgment (ECF No. 10) is GRANTED, and the petitioner’s objections

8

(ECF No. 21) are OVERRULED.

It is ORDERED that this civil action

be DISMISSED WITH PREJUDICE and STRICKEN from the active docket of
this Court.
Should the petitioner choose to appeal the judgment of this
Court to the United States Court of Appeals for the Fourth Circuit
on the issues to which objection was made, he is ADVISED that he
must file a notice of appeal with the Clerk of this Court within 60
days after the date of the entry of this order.
IT IS SO ORDERED.
The Clerk is directed to transmit a copy of this 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.
DATED:

August 14, 2017

/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE

9