Gonzalez-Hernandez v. Coakley

Filing 33

MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING 28 REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE, OVERRULING PETITIONER'S 31 OBJECTIONS, DENYING AS MOOT PETITIONER'S 4 MOTION TO CLARIFY SENTENCING AND AMOUNT OF TIME SPENT UND ER FEDERAL JURISDICTION BEFORE SENTENCING AND TO RECOMMEND THAT THE DEFENDANT RECEIVE ALL PRE-TRIAL JAIL CREDIT EARNED IN FEDERAL JURISDICTION AND DENYING AS UNTIMELY PETITIONERS 32 MOTION FOR SENTENCING HEARING. It is further ORDERED that this c ase 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 2/1/19. (Pro Se Petitioner via CM/rrr) (lmm) (Additional attachment(s) added on 2/1/2019: # 1 Certified Mail Return Receipt) (lmm).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
RAUL GONZALEZ-HERNANDEZ,
Petitioner,
v.

Civil Action No. 5:18CV96
(STAMP)

JOE COAKLEY, Warden,
Respondent.
MEMORANDUM OPINION AND ORDER
AFFIRMING AND ADOPTING REPORT AND
RECOMMENDATION OF MAGISTRATE JUDGE,
OVERRULING PETITIONER’S OBJECTIONS,
DENYING AS MOOT PETITIONER’S “MOTION TO CLARIFY
SENTENCING AND AMOUNT OF TIME SPENT UNDER
FEDERAL JURISDICTION BEFORE SENTENCING AND TO
RECOMMEND THAT THE DEFENDANT RECEIVE ALL PRE-TRIAL
JAIL CREDIT EARNED IN FEDERAL JURISDICTION”
AND DENYING AS UNTIMELY PETITIONER’S
“MOTION FOR SENTENCING HEARING”
I.

Background

The pro se1 petitioner, Raul Gonzalez-Hernandez, filed a
petition for habeas corpus under 28 U.S.C. § 2241 (“§ 2241”).

ECF

No. 1.

The petitioner also filed motions titled as “Motion to

Clarify

Sentencing

and

Amount

of

Time

Spent

Under

Federal

Jurisdiction Before Sentencing and to Recommend that the Defendant
Receive All Pre-trial Jail Credit Earned in Federal Jurisdiction”
(ECF No. 4) and “Motion to Enter Sentencing Hearing” (ECF No. 32).
The action was referred to United States Magistrate Judge James P.

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).

Mazzone for initial review and report and recommendation pursuant
to Local Rule of Prisoner Litigation Procedure 2.
The pro se petitioner filed a petition for habeas corpus under
28 U.S.C. § 2241.

ECF No. 1.

In the petition, the petitioner

contends that the Federal Bureau of Prisons (“BOP”) “miscalculated
[his] day for day actual days as a pre-trial inmate.”

Id. at 5.

The petitioner requests that this Court “clarify [his] pre-trial
actual day for day time spent as a federal inmate in federal
custody fighting [his] case [and] to notify [BOP] w[ith] better
records showing [his] actual jail day for day in custody dates as
far back as Oct[ober] 15[], 2013 till Sept[ember] 18[], 2017.” Id.
at 8.
The petitioner then filed a “Motion to Clarify Sentencing and
Amount of Time Spent Under Federal Jurisdiction Before Sentencing
and to Recommend that the Respondent Receive All Pre-trial Jail
Credit Earned in Federal Jurisdiction.”

ECF No. 4.

In that

motion, the petitioner states that he “was sentenced to a term of
57 months imprisonment and 3 years supervised release on [September
18, 2017] for Racketeering Influenced and Corrupt Organizations
Conspiracy[,] . . . [that he] was taken into [f]ederal [c]ustody on
October 15, 2013 where he remained until sentencing on September
18, 2017[, and that he] spent 4 1/2 years in [f]ederal [c]ustody,
under [f]ederal [j]urisdiction, as a pre-trial inmate before he was
sentenced to a term of 57 months.”

2

Id. at 1.

The petitioner

contends that “[t]he language used . . . at sentencing clearly
shows the [petitioner’s] [f]ederal sentence was given by the
[j]udge, with the belief that the [petitioner’s] sentence was
no-more than a couple of months from it[s] end, due to the record
showing significant pre-trial credit.

The record shows that the

conversation between the [petitioner’s] [a]ttorney, the [Assistant
United States Attorney] and the [h]onorable [j]udge spoke about an
immediate release for the [petitioner] or possibly a term to be
served in the half-way house.”

Id. at 2.

The petitioner alleges

that the BOP “miscalculated [his] jail credit and has given [the
petitioner] no credit for the 4 1/2 years spent in [f]ederal
[c]ustody.”
Court

Id.

Therefore, the petitioner requests that this

“[c]larify

[petitioner]

be

the
given

sentence[,]
credit

.

for

.
time

.

recommend
served

in

that

the

[f]ederal

[c]ustody[, and] issue findings of fact and rulings of law showing
why the [petitioner] should get none of the credit for the 4 1/2
years spent in [f]ederal [c]ustody].”

Id. at 2-3.

After filing a motion for extension of time to file an answer
(ECF No. 19) that was granted by Magistrate Judge James P. Mazzone
(ECF No. 20), the respondent filed a motion to dismiss or, in the
alternative, motion for summary judgment. ECF Nos. 22 and 23. The
respondent

first

administratively

argues

challenge

that
the

the

petitioner

computation

of

his

did

not

sentence;

therefore, he cannot pursue his claims in this lawsuit. ECF No. 23

3

at 4-6.

Second, the respondent argues that the BOP has broad

discretion to compute federal prison sentences.

Id. at 6-8.

Lastly, the respondent argues that California state authorities
retained primary jurisdiction over the petitioner while federal
authorities “borrowed” him pursuant to a writ of habeas corpus, and
that the state gave petitioner credit toward his state sentence for
that time.

Id. at 8.

The respondent argues that petitioner is not

entitled to duplicative credit toward his federal sentence for time
that already reduced his state sentence.

Id. at 8-9.

The petitioner then responded to the respondent’s motion to
dismiss or, in the alternative, motion for summary judgment.

ECF

No. 26.

In that response, the petitioner requests that the Court

respect

the

sentencing

judge’s

words

during

sentencing,

and

requests the sentencing transcripts, alleging that the transcripts
will show the miscalculation of time.

Id. at 1-5.

then proceeds to list “supporting facts.”

The petitioner

Id. at 5-9.

United States Magistrate Judge Mazzone entered a report and
recommendation, in which he recommends that the respondent’s motion
to dismiss or, in the alternative, motion for summary judgment (ECF
No. 22) be granted, the § 2241 petition be denied and dismissed
with prejudice, and the petitioner’s “Motion to Clarify Sentencing
and

Amount

of

Time

Spent

Under

Federal

Jurisdiction

Before

Sentencing and to Recommend That Defendant Receive All Pre-trial
Credit Earned in Federal Jurisdiction” (ECF No. 4) be denied as

4

moot.
that

ECF No. 28 at 11.
if

they

The magistrate judge informed the parties

objected

to

any

portion

of

the

report

and

recommendation, they were required to file written objections
within 14 days after being served with copies of the report.

Id.

The petitioner filed objections after the petitioner was
granted an extension to respond to the magistrate judge’s report
and recommendation (ECF Nos. 29 and 30).
II.

ECF No. 31.

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 an objection is timely made. Because the petitioner filed
objections to the report and recommendation, the magistrate judge’s
recommendation will be reviewed de novo as to those findings to
which the petitioner objected.

As to those findings to which

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

28

U.S.C. § 636(b)(1)(A).
III.

Discussion

Because the petitioner filed objections to the report and
recommendation,

this

Court

reviews

the

magistrate

judge’s

recommendation de novo as to those findings to which objections
were made.
For the reasons stated below, this Court adopts and affirms
the report and recommendation of the magistrate judge (ECF No. 28),

5

and overrules the petitioner’s objections (ECF No. 31). This Court
further denies the petitioner’s “Motion to Clarify Sentencing and
Amount of Time Spent Under Federal Jurisdiction Before Sentencing
and to Recommend That Defendant Receive All Pre-trial Credit Earned
in Federal Jurisdiction” (ECF No. 4) as moot and petitioner’s
“Motion to Enter Sentencing Hearing” (ECF No. 32) as untimely.
In his objections, the petitioner first indicates that he has
requested copies of his sentencing hearing transcripts, and that he
cannot continue “forward” if his request is ignored.

Id.

at 1-3.

Second, the petitioner states that he understands that he cannot
receive

double

sentence.

credit

Id. at 3.

toward

his

state

sentence

and

federal

Specifically, the petitioner indicates that

his whole argument is based on the sentencing judge’s words, and
that the sentencing judge has “every right and discretion” to
determine how the petitioner’s time should be served.

Id. at 3-6.

After filing his objections, the petitioner also filed a
“Motion to Enter Sentencing Hearing.”

ECF No. 32.

requests copies of the sentencing transcripts.

This motion

Id. at 1.

Upon de novo review, this Court is of the opinion that the
magistrate judge’s report and recommendation should be adopted and
affirmed in its entirety and the petitioner’s objections should be
overruled in that the magistrate judge correctly found that, first,
since the federal court that sentenced the petitioner did not
indicate whether the petitioner’s federal sentence should run

6

consecutively or concurrently to the petitioner’s state sentence,
the BOP’s default position was to calculate the petitioner’s
sentence as consecutive.

Id. at 8-9.

Therefore, the magistrate

judge correctly concluded that the petitioner’s federal sentence
was appropriately calculated.

Id. at 9.

Second, the magistrate judge correctly found that because the
petitioner was transferred to federal authorities pursuant to a
writ of habeas corpus, California retained primary custody over the
petitioner; and because petitioner cannot receive double credit, he
is not entitled to further credit against his federal sentence
before the date he completed his state sentence obligations,
September 22, 2017.

Id. at 10.

For those reasons, the “Motion to Clarify Sentencing and
Amount of Time Spent Under Federal Jurisdiction Before Sentencing
and to Recommend That Defendant Receive All Pre-trial Credit Earned
in Federal Jurisdiction” (ECF No. 4) is denied as moot.

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IV.

Conclusion

For the reasons discussed above, the report and recommendation
of the magistrate judge (ECF No. 28) is hereby AFFIRMED AND ADOPTED
and

the

petitioner’s

objections

(ECF

NO.

31)

are

OVERRULED.

Further, petitioner’s “Motion to Clarify Sentencing and Amount of
Time Spent Under Federal Jurisdiction Before Sentencing and to
Recommend That Defendant Receive All Pre-trial Credit Earned in
Federal Jurisdiction” (ECF No. 4) is DENIED AS MOOT.

Petitioner’s

“Motion to Enter Sentencing Hearing” (ECF No. 32), filed on January
31, 2019 with his objections to the magistrate judge’s report and
recommendation, is DENIED AS UNTIMELY.
It is further ORDERED that this case 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 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.

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DATED:

February 1, 2019

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

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