United States District Court, S.D. Mississippi, Northern Division
REPORT AND RECOMMENDATION
C. GARGIULO, UNITED STATES MAGISTRATE JUDGE
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.
FACTS AND PROCEDURAL HISTORY
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
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).
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
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.
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,  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.
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.
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
sentence computation is governed by Program Statement
5880.28, Sentence Computation Manual (CCCA of 1984).
Directive 5880.28, BOP (July 20, 1999),
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 ...