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Herrera v. Johns

United States District Court, S.D. Georgia, Waycross Division

August 4, 2017

JORGE HERRERA a/k/a JUAN DEJESUS RODRIGUEZ, Petitioner,
v.
T. JOHNS, Respondent.

          ORDER and MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          R. STAN BAKER UNITED STATES MAGISTRATE JUDGE

         Petitioner Jorge Herrera (“Herrera”), who is currently housed at the D. Ray James Correctional Facility in Folkston, Georgia, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. (Doc. 1.) Respondent filed a Response. (Doc. 8.) For the reasons which follow, I RECOMMEND that the Court DENY Herrera's Petition for Writ of Habeas Corpus, filed pursuant to 28 U.S.C. § 2241, (doc. 1), DIRECT the Clerk of Court to CLOSE this case, and DENY Herrera leave to proceed in forma pauperis on appeal.

         BACKGROUND

         Herrera was apprehended by Immigration and Customs Enforcement (“ICE”) officials in Brownsville, Texas, for attempting to enter the United States after being previously deported. (Doc. 8, p. 3.) The United States District Court for the Southern District of Texas sentenced Herrera to 30 days' imprisonment for knowingly and willfully attempting to gain illegal entry into the United States by a false and misleading representation, in violation of 8 U.S.C. § 1325(a)(3), in Case Number 1:08-PO-1821 on October 1, 2008. (Doc. 8-1, p. 25.) The Texas district court ordered that Herrera receive credit for all time served, and he completed this sentence on October 21, 2008. (Id. at p. 27.)

         On October 24, 2008, Herrera was remanded to the custody of the United States Marshals Service pursuant to an arrest warrant and detainer issued on July 18, 2003, in the Southern District of Florida in Case Number 1:03-CR-20573. (Id. at p. 31.) Herrera was sentenced on June 9, 2009, to 121 months' imprisonment for possession with intent to distribute one kilogram or more of heroin, in violation of 21 U.S.C. § 841(a)(1). Herrera's sentence was later reduced to 120 months' imprisonment. He has a projected release date of August 22, 2017, via good conduct time release. (Doc. 8-1, pp. 2, 19.)

         In his Petition, Herrera asserts he is entitled to credit against his federal sentence for the time he was arrested and under the custody of ICE until the date he was transferred to the Southern District of Florida.[1] (Doc. 1, p. 4.) Herrera claims that, if the Bureau of Prisons (“BOP”) were to correctly calculate his sentence, he would have been entitled to his release on June 7, 2017, rather than on September 21, 2017, as the BOP has calculated.[2] (Id. at p. 5.)

         Respondent contends Herrera has received all of the credit against his federal sentence to which he is entitled. (Doc. 8, p. 6.) Respondent states Herrera's argument to the contrary is without merit because he has already received the credit he seeks, and awarding additional credit violates the prohibition against receiving double credit.

         DISCUSSION

         I. Sentence Computation

         It is the duty of the United States Attorney General, acting through BOP, to determine the amount of credit due for the time served by the defendant prior to sentencing. United States v. Alexander, 609 F.3d 1250, 1259 (11th Cir. 2010). Section 3585 of Title 18 of the United States Code, which pertains to “credit for prior custody, ” is controlling for making credit determinations for sentences imposed under the Sentencing Reform Act of 1984. This statute provides:

(a) Commencement of sentence. A sentence to a term of imprisonment commences on the date the defendant is received in custody awaiting transportation to, or arrives voluntarily to commence service of sentence at, the official detention facility at which the sentence is to be served.
(b) Credit of Prior Custody. 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 ...

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