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Barrahona-Sales v. Martin

United States District Court, S.D. Mississippi, Northern Division

April 11, 2018

YONI ALBERTO BARAHONA-SALES, #17688-075 PETITIONER
v.
UNKNOWN MARTIN, Warden RESPONDENT YONI ALBERTO BARAHONA-SALES, #17688-075 PETITIONER
v.
UNKNOWN MARTIN, Warden RESPONDENT

          REPORT AND RECOMMENDATION

          JOHN C. GARGIULO, UNITED STATES MAGISTRATE JUDGE

         BEFORE THE COURT is the Petition of Yoni Alberto Barahona-Sales for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 (ECF No. 1). Barahona-Sales also filed a Memorandum in Support of his Petition. (ECF No. 2). Respondent Unknown Martin, Warden of the Federal Correctional Complex in Yazoo City, Mississippi (“FCC Yazoo”), filed a Response (ECF No. 11). Having considered the submissions of the parties and relevant legal authority, the undersigned recommends that the Petition (ECF No. 1) be DENIED and the case DISMISSED.

         I. FACTS AND PROCEDURAL HISTORY

         Petitioner Yoni Alberto Barahona-Sales is currently incarcerated with the Federal Bureau of Prisons (“the Bureau”) at FCC Yazoo. He has filed two nearly identical habeas petitions, which the undersigned consolidated into the instant, earlier-filed case because the Court found that the two petitions “have been brought by the same petitioner, name the same defendant, and involve common questions of law and fact.” (ECF No. 12, at 3). The second petition was filed in Barahona-Sales v. Martin, 3:17-cv-439-WHB-JCG. The exhaustion issues raised in response to the first petition, see (ECF No. 11, at 3) were not raised in response to the second petition and appear to have been mooted by Petitioner completing the Bureau's administrative review procedure. Accordingly, the Court addresses only the merits of the instant Petition.

         His habeas petition argues that he is entitled to credit part of his state sentence for an assault conviction in Tennessee towards the federal sentence that he is currently serving. (ECF No. 1, at 6-7); (ECF No. 2, at 5-6). He at times characterizes this request as seeking a nunc pro tunc designation. Petitioner also asserts that he should be credited for the time between the lodging of a federal detainer on November 18, 2010 and his release from state custody because the federal detainer “prevented him from obtaining a bond or being paroled from the state of Tennessee.” (ECF No. 1, at 7). Respondent maintains that the Federal Bureau of Prisons (“BOP”) properly calculated his sentence, that he is not eligible for a nunc pro tunc designation, and that he is not entitled to any credits towards his sentence. See (ECF No. 11). In support of his opposition, Respondent submitted the declaration of Patricia Kitka, a Correctional Programs Specialist at the BOP. (ECF No. 11-2).

         Mr. Barahona-Sales is currently serving a 96-month sentence for which his projected release date is September 23, 2022. He was convicted in the United States District Court for the Middle District of Tennessee on May 11, 2012 of illegal reentry into the United States by a previously deported felon, in violation of 8 U.S.C. §§ 1326(a), (b)(2). He has already served, concurrent to the instant sentence, a twelve-month sentence for violating the terms of his supervised release. At the time of his sentencing, he was serving a ten-year sentence of imprisonment for assault in Tennessee.

         On direct appeal, the United States Court of Appeals for the Sixth Circuit affirmed Barahona-Sales's conviction, but remanded the case for resentencing because the district court had failed to address his request to serve his illegal reentry sentence concurrently with his state sentence. See United States of America v. Barahona-Sales, 524 Fed.Appx. 235 (6th Cir. 2013). The district court resentenced him to ninety-six months of imprisonment - to be served consecutively to his state sentence and currently with his revocation sentence - and two years of supervised release. Barahona-Sales directly appealed to the Sixth Circuit again, which affirmed the procedural and substantive reasonableness of his sentence. See United States of America v. Barahona-Sales, No. 13-5995 (6th Cir. Feb. 17, 2015).

         On October 5, 2015, he was released from Tennessee custody and taken into custody by the BOP. He filed the instant Petition on April 11, 2016. On June 5, 2017, he filed another Petition seeking identical relief, [1] which was docketed in civil action number 3:17-cv-439-WHB-JCG. The undersigned consolidated these two cases on August 10, 2017. See (ECF No. 14).

         II. DISCUSSION

         A petitioner may attack the manner in which his sentence is being executed in the district court that has jurisdiction over his custodian pursuant to 28 U.S.C. § 2241. United States v. Cleto, 956 F.2d 83, 84 (5th Cir. 1992). Because Barahona-Sales seeks to credit time spent in state custody towards his federal sentence, he “does not question the legality of his conviction or the validity of the [eight]-year federal prison term imposed by the sentencing court. His attack instead focuses on the extent to which his sentence has been executed.” United States v. Gabor, 905 F.2d 76, 77 (5th Cir. 1990) (quoting United States v. Brown, 753 F.2d 455, 456 (5th Cir. 1985)) (internal quotation marks omitted). FCC Yazoo is located within the Southern District of Mississippi. Therefore, this court has jurisdiction over Warden Martin, and Petitioner's claims are properly brought in this court by means of a § 2241 petition. Id. at 78.

         Federal habeas relief under 28 U.S.C. § 2241 is only available upon Petitioner's demonstration that the execution of his sentence “violates the Constitution, laws, or treaties of the United Sates.” Rose v. Hodges, 423 U.S. 19, 21 (1975). Once a district court sentences a federal offender, “the Attorney General, through the BOP, has the responsibility for administering the sentence.” United States v. Wilson, 503 U.S. 329, 335 (1992) (citing 18 U.S.C. § 3621(a)). Thus, the BOP - not the district court - has the authority to award credit against a federal sentence for time spent in state custody under 18 U.S.C. § 3585(b). Id. at 333; United States v. Benavides-Hernandez, 548 Fed.Appx. 278, 279-80 (5th Cir. 2013).

         Petitioner's sentence computation is governed by Program Statement 5880.28, Sentence Computation Manual (CCCA of 1984). Directive 5880.28, BOP (July 20, 1999), https://www.bop.gov/policy/progstat/5880028.pdf. The Program Statement references 18 U.S.C. § 3585, which establishes the rule for the commencement of a federal sentence and credit for a prior sentence, and 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 for 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 ...

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