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Avila v. Greilick

United States District Court, W.D. Oklahoma

February 20, 2019

MARIO AVILA, Petitioner,
v.
B. GREILICK, Warden, Respondent.

          REPORT AND RECOMMENDATION

          GARY PURCELL, UNITED STATES MAGISTRATE JUDGE.

         Petitioner, a federal inmate appearing pro se, brings this habeas action under 28 U.S.C. § 2241 challenging the Bureau of Prison's (BOP) calculation of his federal sentence. The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). Respondent has filed a Response, Doc. No. 21, but Petitioner has not replied.

         I. Background

         The material facts, as set forth in the Response and supported by the Declaration of James D. Crook, Doc. No. 21-1, [1] are not at issue. Texas state authorities arrested Petitioner on April 9, 2010, in Dimmit County, Texas, for Possession of a Controlled Substance, Methamphetamine. On April 11, 2010, Petitioner was released on bond. See Dimmitt County Jail Form, Arrest Date April 9, 2010. Doc. No. 21-2. Petitioner was charged with this crime in the Dimmitt County District Court, No. 10-06-02583-DCRAJA. Doc. No. 21-9.

         While he was out on bail, Petitioner was arrested a second time by Texas State authorities in Dimmit County, Texas, on a warrant for violating his parole by Driving While Intoxicated, Second Offense. See Dimmitt County Jail Form, Arrest Date April 21, 2010, Doc. 21-3. Petitioner was charged with this crime in the Dimmit County District Court, No. 10546. Doc. No. 21-4.

         On August 26, 2010, Petitioner appeared before the Dimmit County District Court in No. 10546, pled guilty to the charges of Driving While Intoxicated, and was sentenced to time served. Doc. No. 21-4.

         Before he could be released, however, Petitioner was taken into temporary federal custody on an arrest warrant for Conspiracy to Transport Illegal Aliens and a Writ of Habeas Corpus Ad Prosequendum. He was charged with this crime in the United States District Court for the Western District of Texas, No. CR-10-1204. Doc. Nos. 21-6, 21-7. In late July 2012, Petitioner pled guilty to Conspiracy to Transport Illegal Aliens, and the federal court sentenced him to 120 months' imprisonment. The judgment of the federal court was silent as to whether the sentence would be served concurrently or consecutively to any future state sentence. See Judgment in Criminal Case, No. DR-10-CR-1205(7)-AM. Doc. No. 21-7.

         Petitioner was returned to state custody on August 3, 2012. See Individual Custody Detention Report, Doc. No. 21-8 at 4. On December 12, 2012, Petitioner pled guilty to the State felony drug charge and was sentenced to eighteen months' imprisonment in a state facility. The state court calculated the date Petitioner started serving his state sentence as August 1, 2012. The state court judgment provided for the state sentence to run concurrently with the federal sentence. See Judgment of Conviction, District Court for Dimmit County, Texas Doc. No. 21-9.

         Petitioner remained in state custody serving his state sentence until January 27, 2014, when he was released to federal custody to begin serving his 120-month federal sentence. See Individual Custody Detention Report Doc. No. 21-8 at 5; see also Commitment Inquiry, Doc. No. 21-10. The BOP computed Petitioner's sentence, giving him credit for the time he spent in temporary federal custody-from August 26, 2010 through July 31, 2012. See Arrest Warrant, Doc. No. 21-6; Public Information Report, Doc. No. 21-11 at 3. Petitioner was not given credit for the time he spent in state custody discharging his state court sentence.

         Through the BOP grievance process, Petitioner sought credit towards his federal sentence for the time he spent serving his state sentence. His requests were denied. See Sentry Admin. Remedy History, Doc. No. 21-12. Thereafter, he filed a Motion for Order Nunc Pro Tunc in the federal sentencing court. Petitioner sought to have the federal court amend its order to reflect that his federal sentence was to have been served concurrently with the state sentence entered after the federal sentence. The court denied his motion. See Order, Doc. No. 21-18.[2]

         Before this Court, Petitioner again seeks credit towards his federal sentence for the time he spent in state custody discharging his state sentence.

         II. Analysis

         The BOP computes federal sentences by (1) determining the commencement date of the federal sentence and (2) determining the extent to which a defendant can receive credit for time spent in custody prior to commencement of his sentence. Binford v. United States, 436 F.3d 1252, 1254 (10th Cir. 2006). Determinations regarding the commencement of a sentence are governed by 18 U.S.C. § 3585(a). “A federal sentence commences when a prisoner is received into federal custody for that purpose.” Esquivel v. Warden, 462 Fed.Appx. 825, 827 (10th Cir. 2012) (citing ...


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