Opinion
CIV-21-321-PRW
08-17-2021
ALEJANDRO DANIEL MARQUEZ-SILVA, Petitioner, v. JOHN B. FOX, GREAT PLAINS CORRECTIONAL FACILITY, Respondent.
REPORT AND RECOMMENDATION
SUZANNE MITCHELL UNITED STATES MAGISTRATE JUDGE
Petitioner, a federal prisoner appearing pro se, filed a petition for habeas corpus relief under 28 U.S.C. § 2241 challenging the calculation of his sentence. Doc. 1, at 6-7. Specifically, Petitioner alleges he is entitled to a federal sentence credit for time he served on a concurrent state sentence before beginning his federal sentence. Id. Respondent moved to dismiss, arguing Petitioner has not exhausted his administrative remedies and that he is not entitled to the relief requested. Doc. 11. The Court should dismiss the petition because Petitioner is not entitled to additional jail credit.
United States District Judge Patrick R. Wyrick has referred the matter to the undersigned Magistrate Judge for proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). Doc. 3.
Citations to a court document are to its CM/ECF designation and pagination. Except for capitalization, quotations are verbatim unless otherwise indicated.
Petitioner did not file a response, and his time to do so has expired. See Doc. 5, at 1 (establishing a twenty-one-day deadline to file a response to a motion and a fifteen-day deadline to file a reply to an answer or other response). The Court may therefore, in its discretion, deem Respondent's motion confessed. LCvR7.1(g). The undersigned has considered the merits, though, and finds dismissal appropriate. See Alexander v. Kirby-Smith Mach., Inc., 2006 WL 2400071, at *1 (W.D. Okla. Aug. 17, 2006) (proceeding to merits of summary judgment motion “[a]lthough the plaintiff confessed the motion by failing to respond”); see also Walker v. United Parcel Serv., Inc., 240 F.3d 1268, 1272 (10th Cir. 2001) (“[T]he law favors the resolution of legal claims on the merits.”) (quoting Gocolay v. N.M. Fed. Sav. & Loan Ass'n, 968 F.2d 1017, 1021 (10th Cir. 1992)).
I. The Eastern District of Kentucky sentenced Petitioner to a term of imprisonment to be served concurrently with a previous state-court sentence.
Petitioner was arrested in Ohio and charged with trafficking in heroin. Doc. 11, Ex. 2, at 1. On January 29, 2014, the Court of Common Pleas, Clermont County, Ohio sentenced Petitioner to twenty-four months in the State Penal System after he pleaded guilty (“state sentence”). Id. Ex. 3, at 1.
On November 17, 2014, Petitioner pleaded guilty in the United States District Court for the Eastern District of Kentucky to: (1) Conspiracy to Distribute 100 or More Grams of Heroin; and (2) Conspiracy to Launder Proceeds of Unlawful Activity (“federal sentence”). United States v. Marquez-Silva, 2:13-CR-68-SS-ART-4, Doc. 394 (E.D. Ky. Nov. 17, 2014). On April 30, 2015, that court sentenced Petitioner to “108 months on each [count], concurrent with each other, and concurrently with Clermont County No. 2013-CF-692, FOR A TOTAL TERM OF 108 MONTHS.” Id. at Doc. 649; Doc. 1, Ex. 6, at 5. Petitioner's federal sentence began on the same date. Doc. 1, Ex. 7, at 3; Doc. 11, Ex. 1, at 3.
The Bureau of Prisons (“BOP”) awarded Petitioner jail credit from October 25, 2013, through January 27, 2014, representing the time he spent in state custody before the imposition of his state sentence. Doc. 11, Ex. 7, at 3; id. Ex. 9, at 1; see also BOP Program Statement § 5880.28, at 1-22 (Where the full term of the non-federal sentence is equal to or less than the full term of the federal sentence, “[p]rior custody credits shall be given for any time spent in non-federal presentence custody that begins on or after the date of the federal offense up to the date that the first sentence begins to run, federal or non-federal.”).
II. Petitioner claims he is entitled to federal presentence credit for time served on his state sentence.
Because his federal sentence is concurrent with his state sentence, Petitioner contends he is entitled to credit on his federal sentence for time served on his state sentence. Doc. 1, at 6-7. Petitioner requests “jail time credit from 10/25/2013 to 04/30/2015 because he was prosecuted for the federal offense after he was serving for the state offense that punishes some or all of the same conduct.” Id. at 8.
As noted above, Petitioner received jail time credit for a portion of this time. Petitioner's request for sentencing credit between October 25, 2013, and January 27, 2014, is moot.
Respondent argues the BOP correctly calculated Petitioner's sentence. Doc. 11, at 8. Respondent contends Petitioner's sentence started on the earliest possible date under 18 U.S.C. § 3585(a) and that Petitioner cannot obtain presentence credit for time already credited against his state sentence. Id. at 9.
III. Analysis.
The computation of a federal sentence requires determining (1) “the commencement date of the federal sentence” and (2) “the extent to which a defendant can receive credit for time spent in custody prior to commencement of sentence.” Binford v. United States, 436 F.3d 1252, 1254 (10th Cir. 2006) (citation omitted).
A. Petitioner's federal sentence began on April 30, 2015.
Generally, a federal sentence “commences on the date the defendant is received in custody awaiting transportation to . . . the official detention facility at which the sentence is to be served.” 18 U.S.C. § 3585(a). The Eastern District of Kentucky sentenced Petitioner on April 30, 2015, and the court remanded him to the custody of the United States Marshal. Doc. 11, Ex. 8, at 2. Petitioner's federal sentence started on the same day according to the BOP's computations. Doc. 1, Ex. 7, at 3; Doc. 11, Ex. 1, at 3.
To the extent argues his federal sentence began earlier because it relates back to the beginning of his concurrent state sentence, he is incorrect. “Logically, [a federal sentence] cannot commence prior to the date it is pronounced, even if made concurrent with a sentence already being served.” Demartino v. Thompson, 116 F.3d 1489, 1997 WL 362260, at *2 (10th Cir. 1997) (internal quotation omitted); see also Solis v. Stancil, 2020 WL 1676765, at *7 (D. Colo. Apr. 6, 2020) (“A federal sentence cannot commence prior to the date it is pronounced, even if made concurrent with a sentence already being served.” (internal quotation omitted)), aff'd, 848 Fed.Appx. 820 (10th Cir. 2021); Isles v. Chester, 2009 WL 1010553, at *5 (D. Kan. Apr. 15, 2009) (“To the extent petitioner is contending, however, that ‘concurrent' meant his federal sentence commenced prior to the date he was sentenced in federal court, that argument is rejected. Concurrent sentences normally mean that the sentence being imposed will run concurrently with the undischarged portion of a previously imposed sentence.”); BOP Program Statement § 5880.28, at 1-13 (“In no case can a federal sentence of imprisonment commence earlier than the date on which it is imposed.”). Thus, Petitioner is not entitled to an earlier start date of his federal sentence.
Likewise, in United States ex rel. Del Genio v. U.S. Bureau of Prisons, the Seventh Circuit stated in dicta that “a sentencing judge has the discretion to provide that a sentence is to be retroactively concurrent with another sentence which has already been partially served.” 644 F.2d 585, 589 (7th Cir. 1980). Just as in Del Genio, the federal sentencing court in this case did not specify that Petitioner's sentence was to be retroactively concurrent. See id. There is a split in authority on this point. See United States v. Chavez, 723 F.3d 1226, 1231 n.3 (10th Cir. 2013). For instance, in Jones v. Thomas, the Supreme Court noted in the double-jeopardy context that “crediting time served under one sentence against the term of another has long been an accepted practice.” 491 U.S. 376, 384 (1989) (citing North Carolina v. Pearce, 395 U.S. 711 (1969), overruled on other grounds by Alabama v. Smith, 490 U.S. 794 (1989), another double jeopardy case). Jones involved a double-jeopardy challenge to duplicative state sentences for felony murder and the underlying felony, so the issue was whether the defendant should have been released after serving the shorter of the two sentences. Id. at 382. It was in this context that the Court observed the common practice of crediting time (in contrast with alternate sentencing schemes that do not accommodate such crediting, as where a crime carries the distinct punishments of either a fine or incarceration). Id. at 382-83. Petitioner's two sentences, though, were imposed by the state and federal governments, respectively, so double jeopardy is not a concern. See Gamble v. United States, 139 S.Ct. 1960, 1963-64 (2019) (reaffirming that under the “longstanding” “‘dual-sovereignty' doctrine, a State may prosecute a defendant under state law even if the Federal Government has prosecuted him for the same conduct under a federal statute”).
B. Petitioner cannot receive credit for time served on his state sentence for the period between being sentenced in state court and being sentenced in federal court.
Petitioner seeks jail credit for time spent in detention prior to the commencement of his federal sentence. “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).
Petitioner argues that his state sentence and federal sentence involve the “same offense conduct” and that his “federal offense is taking the earlier offense conduct into account.” Doc. 1, at 2, 7. However, the BOP is statutorily prohibited from awarding presentence credit that has been credited against another sentence. See 18 U.S.C. § 3585(b); United States v. Wilson, 503 U.S. 329, 337 (1992) (“Congress made clear that a defendant could not receive a double credit for his detention time.”); Weekes v. Fleming, 301 F.3d 1175, 1178 (10th Cir. 2002) (“Mr. Weekes received credit against his state sentence for all the time served prior to the date his federal sentence commenced . . . [thus] we agree that Mr. Weekes is not entitled to pre-sentence credit under § 3585(b).”). This is true even where a federal court sentences a criminal defendant to imprisonment running concurrently with a previously entered state sentence. See Fuimaona v. Hudson, 845 Fed.Appx. 795, 796 (10th Cir. 2021) (holding 18 U.S.C. § 3585(b) barred petitioner's request for presentence credit for time served on his concurrent state sentence because “[a] defendant cannot receive presentence credit on a federal sentence for time that was already credited to a prior state sentence.”). And “[w]hen two sentences are imposed on different dates, they cannot run concurrently from any date earlier than the date on which the later sentence is imposed.” Johnson v. Billingsley, 2013 WL 7203941, at *3 (S.D.N.Y. Nov. 22, 2013), adopted as modified on other grounds, 2014 WL 349685 (S.D.N.Y. Jan. 31, 2014).
Because Petitioner has no right to habeas relief, the undersigned does not reach Respondent's argument that Petitioner did not exhaust his administrative remedies. Brown v. Ulibarri, 298 Fed.Appx. 746, 752 n.8 (10th Cir. 2008) (“We need not resolve the state's argument that this claim was not properly exhausted because we may dismiss unexhausted claims on the merits.”); Montez v. McKinna, 208 F.3d 862, 866 (10th Cir. 2000) (holding that a court may dismiss an unexhausted § 2241 petition on the merits where the petition raises “no credible federal constitutional claim” and noting that the separate habeas provision “§ 2254(b)(2) expressly permits” such a merits determination).
Petitioner thus is not entitled to any additional presentence credit for time served on his state sentence.
IV. Recommendation and notice of right to object.
For these reasons, the undersigned recommends that the Court grant Respondent's motion and dismiss Petitioner's § 2241 habeas petition.
The undersigned advises Petitioner of his right to file an objection to this Report and Recommendation with the Clerk of Court on or before September 7, 2021, under 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(2). The undersigned further advises Petitioner that the failure to file a timely objection to this Report and Recommendation waives the right to appellate review of both the factual and legal issues contained herein. Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation disposes of all issues referred to the undersigned in the captioned matter.