Opinion
3:22-cv-01295-YY
05-19-2023
PORTLAND KEVIN FRANK RASHER, Petitioner, v. HENDRIX, Warden FCI Sheridan, Respondent
FINDINGS AND RECOMMENDATION
YOULEE YIM YOU, UNITED STATES MAGISTRATE JUDGE
Petitioner, an adult in custody at FCI Sheridan, brings this 28 U.S.C. § 2241 habeas corpus action challenging the Bureau of Prisons (“BOP”) calculation of his sentence. For the reasons that follow, the Petition for Writ of Habeas Corpus should be DENIED.
BACKGROUND
On May 26, 2016, Petitioner was arrested by California state authorities and charged in Orange County Superior Court on multiple state charges. Declaration of Angela Kelly (“Kelly Decl.”) ¶ 6, ECF No. 10. On October 18, 2016, Petitioner was transferred from California state authorities into federal custody pursuant to a Writ of Habeas Corpus Ad Prosequendum issued from the District Court for the Central District of California to face federal charges of mail fraud. Kelly Decl. ¶ 7 and Exh. 3. The Court issued an Order of Detention Pending Trial on the same date. Kelly Decl. ¶ 7 and Exh. 6.
Petitioner reached a plea agreement on his federal charges, and on September 29, 2017, the District Court for the Central District of California sentenced Petitioner to a 97-month term of imprisonment. Kelly Decl. ¶ 8 and Exh. 7. The Court ordered that the sentence “shall run concurrently with any state court sentenced [sic] imposed.” Id.
On October 3, 2017, Petitioner was returned to the custody of California state authorities and the federal judgment of conviction was lodged as a detainer. Kelly Decl. ¶ 9. On October 13, 2017, the Superior Court of the State of California, County of Orange, sentenced Petitioner to a 12-year term of imprisonment, concurrent with his federal sentence. Id. ¶ 10. On December 6, 2017, Petitioner was released to federal custody and designated to a BOP facility. Id. ¶ 11. On December 8, 2017, the Superior Court of the State of California, County of Orange, vacated Petitioner's state sentence. Id. ¶ 12. On May 25, 2018, the same court re-sentenced Petitioner to 12 years of imprisonment, again concurrent with his federal term. Id. ¶ 13.
On May 26, 2022, Petitioner's 12-year state sentence expired while Petitioner was still in federal custody. Id. ¶ 14. Petitioner received a total of 1,458 days of presentence credit against this sentence, including 729 days of credit from May 26, 2016, (the date he was arrested), through May 24, 2018, (the date he was re-sentenced). Id. ¶ 18 and Exh. 8.
On or about July 5, 2022, BOP issued to Petitioner a Progress Report indicating that he would receive 491 days of pretrial credit and that his projected release date was October 6, 2022. Pet., ECF No. 1 at 10. The credit reflected the time period between when California state authorities arrested Petitioner on May 26 2016, and when the federal court sentenced him on September 29, 2017. Kelly Decl. ¶ 19. On July 13, 2022, BOP completed a “Willis/Kayfez Calculation Worksheet” for Petitioner and concluded that he was not in fact entitled to federal credit for the 491 days served before his federal sentence was imposed. Kelly Decl. ¶ 20 and Exh. 16. On or about July 18, 2022, the BOP provided Petitioner with updated information removing the credit and calculating a projected release date of February 11, 2024. Pet., ECF 1 at 12; Kelly Decl., ¶ 21. BOP removed the 491 days of credit because Petitioner had already received the credit against his state sentence. Kelly Decl. ¶ 19.
The “Willis/Kayfez” calculation is described and discussed below.
On August 29, 2022, Petitioner filed his Petition for Writ of Habeas Corpus in this Court. Petitioner seeks reinstatement of the 491 days of credit against his federal sentence.
LEGAL STANDARDS
Under 28 U.S.C. § 2241, a district court may grant habeas relief when a petitioner “is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c) (3). “A necessary predicate for the granting of federal habeas relief [to a petitioner] is a determination by the federal court that [his] custody violates the Constitution, laws, or treaties of the United States.” Rose v. Hodges, 423 U.S. 19, 21 (1975) (citing 28 U.S.C. § 2241).
DISCUSSION
The United States Attorney General is responsible for federal sentence computation decisions. United States v. Wilson, 503 U.S. 329, 334 (1992) (citing 18 U.S.C. § 3621(a)); United States v. Checchini, 967 F.2d 348, 349 (9th Cir. 1992). The Attorney General delegates computation authority to the BOP. See 28 C.F.R. § 0.96; Zavala v. Ives, 785 F.3d 367, 375 (9th Cir. 2015).
A federal sentence of imprisonment “commences on the date the defendant is received into custody . . . to commence service of sentence at the official detention facility at which the sentence is to be served.” 18 U.S.C. § 3585(a). Credit for presentence time spent in official detention is provided for in § 3585(b):
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). The “another sentence” referenced includes state sentences. See Lopez v. Terrell, 654 F.3d 176, 184-85 (2nd Cir. 2011) (“[B]ecause the defendant's presentence custody has already ‘been credited against another sentence'-namely, the defendant's state sentence-the [BOP] is prohibited from crediting that time against his federal sentence.”); Trine v. Ives, No. 3:18-cv-00020-AA, 2018 WL 3614000, at *2 (D. Or. July 27, 2018) (where presentence custody time was credited toward petitioner's state sentence, petitioner was not entitled to habeas relief under § 2241 seeking credit against federal sentence), aff'd, 770 Fed.Appx. 874 (9th Cir. 2019).
Although the language of § 3585(b) does not provide for any exceptions, BOP does have a policy to award presentence custody credits already credited to a concurrent state sentence in two narrow circumstances where the BOP has determined that the credits will be of “no benefit” to the federal prisoner. Cruz v. Sanders, No. CV 07-04628-SVW(CT), 2008 WL 5101021, at *2 (C.D. Cal. Dec. 2, 2008). The credits, called Willis and Kayfez credits, are based on judicially created exceptions to § 3585(b) described in Kayfez v. Gasele, 993 F.2d 1288 (7th Cir. 1993), and Willis v. United States, 438 F.2d 923 (5th Cir. 1971). As provided in BOP Program Statement 5880.28, the BOP compares the full terms of the concurrent federal and state sentences before the application of any credits (the “Raw EFT”). Cruz, 2008 WL 5101021, at *2. In the case of Willis credits, the BOP will find that the state-awarded presentence custody credits are of “no benefit” to the federal prisoner where the Raw EFT for the state sentence is shorter than the Raw EFT for the federal sentence. Id. Per Kayfez, if the Raw EFT of the state term is greater than the Raw EFT of the federal term, and if the state Raw EFT, after application of the qualified state presentence time, is reduced to a date that is earlier than the federal Raw EFT, then credits may be applied to the federal term. Id.
Here, Petitioner was in state custody from the date of his arrest on May 26, 2016, until his sentencing in federal court on September 29, 2017. That time was credited toward petitioner's state sentence and, as a result, the BOP could not credit petitioner toward his federal sentence. Moreover, the BOP conducted the Willis/Kayfez credit analysis, and determined that neither of these narrow exceptions applied to allow credit of Petitioner's presentence time toward his federal term of imprisonment. Finally, although the BOP initially indicated the time credit would be applied to Petitioner's federal sentence, it was properly withdrawn from the federal sentence computation once the BOP received notice that the time had been applied to Petitioner's state sentence. See Colone v. United States, No. 1:07cv283, 2008 WL 694706, at *2 (E.D. Tex. Mar. 13, 2008) (where inmate received credit against state sentence, withdrawal of that credit from federal sentence was appropriate).
The fact that Petitioner was temporarily transferred to federal custody to face the federal charges does not allow that time to be credited against his federal sentence. See Thomas v. Brewer, 923 F.2d 1361, 1366-67 (9th Cir. 1991) (holding a state inmate's transfer to federal custody pursuant to a writ of habeas corpus ad prosequendum does not affect the state's primary jurisdiction over the prisoner”); Trine, 2018 WL 3614000, at *2) (same).
In sum, Petitioner was given proper credit for his time in presentence custody against his state term of imprisonment. Under 18 U.S.C. § 3585(b), Petitioner is not entitled to additional credit against his federal sentence.
RECOMMENDATION
For these reasons, the Petition for Writ of Habeas Corpus (ECF No. 1) should be DENIED, and a judgment of dismissal should be entered. Because Petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability should be DENIED. See 28 U.S.C. § 2253(c)(2).
SCHEDULING ORDER
These Findings and Recommendations will be referred to a district judge. Objections, if any, are due by April 21, 2023. If no objections are filed, then the Findings and Recommendations will go under advisement on that date.
If objections are filed, then a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendations will go under advisement.