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Espinoza-Garcia v. Johns

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

August 31, 2017

OSCAR OSVALDO ESPINOZA-GARCIA, Petitioner,
v.
TRACY JOHNS, Warden, Respondent.

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          R. STAN BAKER, UNITED STATES MAGISTRATE JUDGE

         Petitioner Oscar Osvaldo Espinoza-Garcia (“Espinoza-Garcia”), who was previously housed at 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. 9.) Espinoza-Garcia filed a Reply, and several other pleadings. (Docs. 10, 14, 18, 19, 20, 21.) For the reasons which follow, I RECOMMEND that the Court DENY Espinoza-Garcia's Petition for Writ of Habeas Corpus, filed pursuant to 28 U.S.C. § 2241, (doc. 1), CLOSE this case, and DENY Espinoza-Garcia leave to proceed in forma pauperis.

         BACKGROUND

         Espinoza-Garcia was convicted in the Northern District of Alabama of illegal entry after deportation in violation of 8 U.S.C. § 1326(a). (Doc. 9-2, pp. 6-7.) The Northern District of Alabama sentenced Espinoza-Garcia to 60 months' imprisonment. Id. He has a projected release date of July 13, 2018, via good conduct time release. (Doc. 9-1, p. 2.)

         In his Petition, Espinoza-Garcia contends that the Bureau of Prisons (“BOP”) has miscalculated his sentence. (Doc. 1.) Specifically, he contends that the BOP has not awarded him the appropriate amount of jail credit toward the service of his federal sentence. Additionally, he alleges the BOP wrongly denied his request to designate his State of Alabama facility for the service of his federal sentence, which would have allowed his federal and State sentences to run concurrently.

         Respondent contends Espinoza-Garcia has received all of the credit against his federal sentence to which he is entitled. (Doc. 9, p. 3.) Respondent takes the position that 18 U.S.C. § 3585(b) and BOP Program Statement 5880.28, Sentence Computation Manual (CCA of 1984), prohibit the application of the requested jail credit Petitioner seeks because the time at issue was already applied toward the service of a state sentence. Respondent also maintains that the BOP properly computed Petitioner's federal sentence to run consecutive to his state sentence and that the BOP properly reviewed and properly denied, in the exercise of its discretion, Petitioner's request for a nunc pro tunc designation.

         DISCUSSION

         I. Sentence Computation

         It is the duty of the United States Attorney General, acting through the 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). 18 U.S.C. § 3585, 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. B 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. 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 (emphasis added). In determining the proper credit, a two-part analysis is helpful. First, it must be determined when the sentence commenced. A sentence “‘cannot begin prior to the date it is pronounced, even if made concurrent with a sentence already being served.'” Coloma v. Holder, 445 F.3d 1282, 1284 (11th Cir. 2006) (quoting United States v. Flores, 616 F.2d 840, 841 (5th Cir. 1980)).

         “Multiple terms of imprisonment imposed at different times run consecutively unless the court orders that the terms are to run concurrently.” United States v. Ballard, 6 F.3d 1502, 1505 (11th Cir. 1993); see also 18 U.S.C. § 3584(a). It is for a federal court to decide if an offender's federal sentence will run concurrently or consecutively to any state sentence the offender may face. See United States v. Andrews, 330 F.3d 1305, 1307 n.1 (11th Cir. 2003). Additionally, “‘if a defendant is in state custody and he is turned over to federal officials for federal prosecution, the state government's loss of jurisdiction is only temporary. The prisoner will be returned to state custody at the completion of the federal proceedings or the federal sentence if the federal government wishes to execute it immediately.'” Powell v. Jordan, 159 F. App'x 97, 99-100 (11th Cir. 2005) (quoting Causey v. Civiletti, 621 F.2d 691, 693 (5th Cir.1980)). “A writ of habeas corpus ad prosequendum is only a loan of the prisoner to another jurisdiction for criminal proceedings in the receiving jurisdiction.” Civiletti, 621 F.2d at 693.

         The following facts regarding Espinoza-Garcia's criminal history make the computation of his sentence less ...


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