Opinion
No. CIV 04-2706-PHX-MHM (VAM).
July 7, 2006
ORDER
Petitioner has filed a pro se Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241 claiming a denial of his due process rights based upon the alleged mis-calculation by the Bureau of Prisons ("BOP") of credit for time served on Petitioner's federal sentence. (Dkt.#1). The matter was referred to Magistrate Judge Virginia A. Mathis who has issued a Report and Recommendation that recommends that the Petition be denied. (Dkt.#7). Petitioner has not filed an objection to the Report and Recommendation.
STANDARD OF REVIEW
The district court must review the Magistrate Judge's findings and recommendations de novo if objection is made but not otherwise. United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). See 28 U.S.C. § 636(b)(1)(C) ("[a] judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made"). "Failure to object to a magistrate judge's recommendation waives all objections to the judge's findings of fact." Jones v. Wood, 207 F.3d 557, 562 n. 2 (9th Cir. 2000).
DISCUSSION
The Court has considered the pleadings and documents of record in this case. On December 12, 2001, Petitioner was transferred to federal custody from state custody pursuant to a writ. (Petitioner Memorandum of Law, Dkt.#3 at Exhibit 1). On August 16, 2002 Petitioner was sentenced by the United States District Court in Utah to a term of 46 months as a result of his conviction for possession of a firearm by a person using or addicted to a controlled substance, unlawful possession of an unregistered sawed-off shotgun and possession of stolen firearms. (Id). On August 20, 2002, Petitioner was returned to state custody in Utah and was sentenced on September 4, 2002, with his sentences for his state convictions to run concurrent and "any other federal charges." (Petitioner Memorandum of Law, Dkt.#3 at Exhibit 2). On September 15, 2002, Petitioner was "mistakenly" taken to a federal correctional facility to begin his federal sentence. (Respondent's Response, Dkt.#8 at pp. 2-3). Upon recognizing the error, Petitioner was returned to state custody on January 16, 2003 to complete his state sentence. (Petitioner Memorandum of Law, Dkt.#3 at Exhibit 4). On August 5, 2003 Petitioner was paroled from state custody and picked up by federal authorities on a federal detainer. (Id). The Inmate History indicates that Petitioner came into federal custody on October 7, 2003. (Respondent's Response, Dkt.#8 at Exhibit B, p. 1).
Respondent acknowledges that Petitioner was mistakenly taken to the federal facility.
Petitioner claims that he is entitled to credit served on his federal sentence from September 4, 2002 (state sentencing date) to October 7, 2003 (date committed to BOP).
The Magistrate Judge has recommended that Petitioner's claim based upon a denial of his due process rights be denied as the BOP's calculation of time served is accurate. Specifically, the fact that Petitioner spent some time in federal custody prior to commencement of his federal sentence does not alter the fact that the state of Utah had priority over Petitioner for purposes of his sentence. See Thomas v. Brewer, 923 F.2d 1361, 1366-67 (9th Cir. 1991) (holding that federal sentence does not commence during time prisoner is a state prisoner but temporarily present in federal court; rather, in such circumstance the prisoner it considered to be "on loan" to the federal authorities). Thus, Petitioner's federal sentence did not begin until he was received into federal custody after being paroled on his state sentence. See 18 U.S.C. § 3585(a). As neither party has filed objections to the Magistrate Judge's Report and Recommendation, it is adopted by the Court.
Accordingly,
IT IS HEREBY ORDERED adopting the Magistrate Judge's Report and Recommendation in its entirety as the Order of the Court. (Dkt.#10).
IT IS FURTHER ORDERED that the Petition for Writ of Habeas Corpus is denied. (Dkt.#1).
IT IS FURTHER ORDERED directing the Clerk of the Court to enter judgment accordingly.