Opinion
CV 20-02291 PHX RCC (CDB)
04-06-2021
Kolany Chatmon, Petitioner, v. Federal Bureau of Prisons, et al., Respondents.
REPORT AND RECOMMENDATION
Camille D. Bibles, United States Magistrate Judge
TO THE HONORABLE RANER C. COLLINS:
Chatmon, who is represented by counsel, challenges the Federal Bureau of Prison's calculation of a sentence of imprisonment imposed in United States v. Chatmon, 4:09 CR 02687(1) RCC. In his petition pursuant to 28 U.S.C. § 2241 Chatmon asserts: “The United States Bureau of Prisons has incorrectly calculated Mr. Chatmon's date of release by failing to give him ‘credit for time served' and Good Conduct Time Release and miscalculating his Earned Time Credit resulting in a sentence unintended and pronounced orally.” (ECF No. 1 at 1).
I. Background
In 2009, Movant was indicted for several federal offenses. United States v. Chatmon, CR 09-02687-TUC-RCC (D. Ariz. Dec. 2, 2009), Doc. 1. On June 29, 2011, Movant pleaded guilty, pursuant to a plea agreement, to interference with commerce by threats or violence, and the remaining counts were dismissed. Id., Doc. 125. Under the terms of the federal plea agreement, the parties agreed to the imposition of a ten-year sentence, but there was “no agreement” as to whether that sentence was to run concurrently or consecutively to Petitioner's sentence in Maricopa County Superior Court case # CR 2009-129069-001. Id. at 2.
Approximately eight weeks later, and prior to sentencing in the federal case, Movant was ordered transported to Maricopa County Superior Court for sentencing in CR 2009-129069-001, and, on September 12, 2011, Movant was sentenced to a twelve-year term of imprisonment with 865 days of presentence credit. In its minute entry, the Superior Court stated that “Defendant shall be able to serve his sentence in this cause in Federal custody, running concurrently with that [in] Federal Case # 09-2687-1-TUC-RCC.” Chatmon v. Ryan, No. 2:19cv05282-PHX-ROS (CDB) (D. Ariz. Sept. 27, 2019) (petition for writ of habeas corpus under 28 U.S.C. § 2254, construed as a § 2241 petition), Doc. 1 at 14 (emphasis added). Although the Superior Court recommended that Movant's state and federal sentences run concurrently, it expressly informed Movant that whether his state sentence ran concurrently with his federal sentence was a matter to be decided by the federal court. Id., Doc. 1 at 17.
Following his state sentencing, on September 29, 2011, Movant was transferred back to federal court for sentencing in his federal case, CR 09-02687, and Movant was sentenced to ten years, “with only THIRTY (30) MONTHS of the ten (10) year sentence to run consecutive with Maricopa County Superior Court case CR-2009129069 and . . . with credit for time served.” CR 09-02687-001-TUC-RCC, Doc. 146. Thus, all but 30 months of Movant's 10-year federal sentence was to run concurrently with his 12-year state sentence, and 30 months was to run consecutively to Movant's 12-year state sentence.
On September 15, 2020, Movant was transferred to federal custody pursuant to a federal detainer lodged with the Arizona Department of Corrections (ADC), ostensibly to begin serving the balance of his federal sentence. (CV 20-00502, Doc. 1 at 12.) Movant claims that he has already served the 30-month balance of his federal sentence where presentence credit has never been credited against his federal sentence. (Id.) Movant was given a Bureau of Prisons time computation of a release date of October 31, 2022. (Id.)United States v. Chatmon, 4:20 CV 00502 RCC, ECF No. 3 at 1-2.
The following charges were dismissed: conspiracy to possess with intent to distribute marijuana; possession of a firearm in relation to a drug trafficking crime; attempt to possess with intent to distribute marijuana; and a forfeiture allegation arising from the charge of attempt to possess with intent to distribute marijuana.
In Maricopa County Superior Court Case Number CR 2009-129069 Chatmon was charged with armed robbery, misconduct involving weapons, and unlawful flight from law enforcement. Chatmon pled guilty to these charges. In 2011 Chatmon also pled guilty to promoting prison contraband in State v. Chatmon, Maricopa County Superior Court Case Number CR 2010-135492.
Chatmon did not appeal his conviction and sentence, nor did he file a timely motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255.
On August 2, 2018, in the underlying criminal matter (United States v. Chatmon, 4:09 CR 02687 RCC (“Criminal Case”)), Chatmon filed a pro se “Motion Request Order for Transport” and he filed a “Request Order to Transport Defendant” on August 9, 2018. (Criminal Case ECF Nos. 166 & 167). The Court appointed counsel, who filed a motion for a hearing but then withdrew the motion, “for the reason that matters raised in the motion are moot.” (Criminal Case ECF No. 172). Chatmon then moved the Court to dismiss appointed counsel and proceed with a hearing. (Criminal Case ECF No. 173). In an order issued December 18, 2018, the Court ordered the BOP to calculate Chatmon's sentence and provide the Court with a written explanation of when Chatmon would complete his state sentence, and be accepted “into federal jurisdiction” to begin serving the 30-month portion of his federal sentence ordered to be served consecutively to his state sentence. (Criminal Case ECF No. 175).
In an order entered March 20, 2019, denying all of Chatmon's then-pending motions in the federal criminal case, the Court noted:
This Court has received a request from the defendant regarding when his time in federal custody should run. The defendant was sentenced in State Court two weeks prior to this Court imposing his federal sentence. It appears the State Court Judge tried to make his state time run concurrent with his federal time. Since the Federal Court was the last court to sentence him, the State Court Judge was without power to do so. This Court imposed a sentence with two and a half years [thirty months] of the sentence consecutive to his state sentence. That was the Court's intention and it appears, with all the Court has seen with his sentence calculation, that is what is being done. Any further relief is DENIED.(Criminal Case No. 177).
Chatmon continued to file motions in the underlying criminal matter, asserting his sentence had been miscalculated and asking the Court to order his release from confinement. See United States v. Chatmon, CR 09-02687-TUC-RCC, at ECF Nos. 178, 180, 186, 189, 193, 197.
Chatmon filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on September 27, 2019, asserting the State of Arizona was holding him in custody beyond the expiration of the sentence imposed pursuant to his state criminal conviction. See Chatmon v. Ryan, 2:19 CV 05282 ROS. On October 7, 2019, Chatmon filed a prisoner civil rights complaint, asserting he was being held by the State after his state-imposed sentence had been fully served; the Court dismissed the matter as duplicative of a then-pending § 2254 action. See Chatmon v. Ryan, 2:19 CV 05339 ROS. In an order entered June 1, 2020, the Court construed Chatmon's then-pending § 2254 petition as seeking relief regarding the execution of his federal sentence, and dismissed the petition. See Chatmon, 2:19 CV 05282 ROS, ECF No. 7.
On November 12, 2020, Chatmon filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255, asserting he had completely served the sentence imposed in his federal criminal case, and that he was being held beyond the expiration of his sentence. See Chatmon v. United States, 4:20 CV 00502 RCC, at ECF No. 1. The Court concluded Chatmon was contesting the execution of his sentence rather than the validity of his sentence and, therefore, that § 2255 was an improper means of seeking relief. Id. at ECF No. 3. Accordingly, the Court dismissed the matter without prejudice. Id. Chatmon also docketed a prisoner civil rights complaint on November 12, 2020, which asserted he was being held in custody past the expiration of his sentence; the complaint was dismissed for failure to state a claim on which relief could be granted. See Chatmon v. Carvajal, 2:20 CV 02182 ROS.
II. Claims for relief
Chatmon, then proceeding pro se, filed the instant § 2241petition on November 25, 2020. Chatmon retained counsel and filed an amended petition on December 6, 2020. In the amended petition Chatmon asserts:
On November 18, 2020, Chatmon filed a § 2241 action, Chatmon v. Carvajal, 2:20 CV 02220 ROS, which was dismissed on December 22, 2020 as duplicative of this matter. On December 10, 2020, Chatmon filed another § 2241 petition, which was also dismissed on December 22, 2020 as duplicative of this matter. See Chatmon v. Koehn, 2:20 CV 02401 ROS.
. . . his release date has been wrongly calculated by the Bureau of Prisons which has resulted in a sentence in excess of that intended by this Court. Specifically, Mr. Chatmon argues that the BOP has erroneously calculated both the time Mr. Chatmon has served, as well as his credit for “good time.”
Mr. Chatmon further argues that the Bureau of Prisons (BOP) has erred in interpreting the sentence imposed by this Court by failing to credit the time properly and exceeding the 10-years 30 months orally pronounced on September 26, 2011 . . .(ECF No. 4 at 3-4). Chatmon alleges he “was brought to federal custody on September 15, 2020, which is more than ten years and 30 months after the Court impose[d] sentence.” (ECF No. 4 at 9) (emphasis in original). He further contends “the BOP website indicates that Mr. Chatmon's sentence is to be completed by October 31, 2022. This sentence exceeds the oral pronouncement of sentence imposed by the Court. This tenet, that oral pronouncement of sentence in the presence of the defendant is well accepted and controlling here.” (ECF No. 4 at 8). Chatmon asks the Court to enforce “the Court's intended sentence on September 26, 2011 as pronounced. On September 26, 2019, Mr. Chatmon served his full 10-year sentence without credit for time served.” (Id.).
In the petition Chatmon asserts he “is currently serving his federal sentence imposed in the District of Arizona on September 26, 2011 at the CoreCivic facility, Central Arizona Florence Correctional Complex. He is awaiting transfer to Beaumont USP in Texas through the auspices of the United States Marshal Service.” (ECF No. 1 at 2). At that time the Bureau of Prisons (“BOP”) inmate locator database indicated Chatmon was not in BOP custody and his release date was October 31, 2022. (ECF No. 1-1 at 1). As of April 2, 2021, the BOP inmate locator database indicates Chatmon is not in BOP custody and his release date is September 18, 2021. See https://www.bop.gov/inmateloc for Register Number 91909-208.
In response to Chatmon's claims, the Government contends:
Petitioner's sentencing court imposed a 10-year sentence, 30 months of which were to run consecutively to his State sentence. His State sentence expired on September 15, 2020. At that point, he was transferred to Federal custody and commenced service of the 30-month, consecutive portion of his Federal sentence. After the application of prior custody credit and a projected full award of Good Conduct Time credit, the Bureau of Prisons has calculated that Petitioner will satisfy his Federal sentence on September 18, 2021 - just over one year after Petitioner's state sentence expired.(ECF No. 17 at 2). The Government further asserts Chatmons' state sentence expired September 15, 2020, and “[a]fter the application of two days of prior custody credit and a projected 540 days Good Conduct Time credit, it is anticipated Petitioner will satisfy his sentence on September 18, 2021.” (ECF No. 17 at 4).
The Government notes:
Petitioner, however, was arrested by state authorities on April 28, 2009, and his time in custody on April 28th and 29th, 2009 was not credited toward his State sentence. See Exhibit A, ¶ 4, Attachment 1 at 1; ¶ 12, Attachment 9. Accordingly, Petitioner's Federal sentence has been credited with two days of prior custody credit, to account for April 28 and 29, 2009, two days that were not applied toward any other sentence. Id. ¶ 17, Attachment 10 at 3.(ECF No. 17 at 5).
On March 22, 2021, Chatmon filed a Motion for Release Pending Adjudication of §2241 Habeas Corpus Petition - Motion for Miscellanaeous [sic] Relief, seeking “release pursuant to 18 U.S.C. §3143.” (ECF No. 22 at 1). In this motion Chatmon asserts:
Section 3143 governs the release or detention of a defendant pending sentencing, appeal, or upon an application for a writ of certiorari.
As a result of a failure of defense counsel to clarify and understand Bureau of Prison policy prior to sentencing, the erroneous understanding and misconstrued Bureau of Prison policy resulted in an unintended sentence by the Court. The Court did not intend that Mr. Chatmon serve a potential 15-year sentence.(ECF No. 22 at 1). Chatmon further asserts:
The Bureau of Prisons [sic] own sentence computation and policy indicates that Mr. Chatmon was eligible for release to a halfway house on March 18, 2021. Yet, because Mr. Chatmon is not in BOP custody but rather in the custody of USMS Mr. Chatmon has not been released to a halfway house. Thus, Mr. Chatmon respectfully moves for release pending adjudication of his §2241 claim.(ECF No. 22 at 2). Chatmon argues: “While there is no specific authority in the context of 2241 petition authorizing release pending the adjudication of the petition, in light of the fact that Mr. Chatmon is currently eligible under Bureau of Prison's own policies, to release is appropriate under these facts.” (Id.). Chatmon continues to insist: “BOP's policy has resulted in a sentence of two-and-one-half-years longer than the sentence intended by the Court.” (ECF No. 22 at 2-3). Chatmon contends he should be released because, inter alia:
In spite of the toxic and violent prison environment, Mr. Chatmon has made a 180-degree turn with his life. Mr. Chatmon has used his time to educate himself, becoming an author and entrepreneur. He has leveraged his previous business experience, owning and operating a tattoo business, to establish a viable career through his writing and innovation in the marketplace. Mr. Chatmon has written over 40 books while incarcerated, one of which has been published - a satirical novel about life in the all-too-common sex-worker industry in the African American culture in the United States - in this novel Mr. Chatmon takes the urban novel as an opportunity to make a social commentary on the sex worker industry. (See Exhibit 2).(ECF No. 22 at 4). Attached to this pleading is a BOP computation of data regarding Chatmon's sentence indicating a “Home Detention Eligibility Date” of March 18, 2021, and a projected release date of September 18, 2021. (ECF No. 22-1).
In response to the motion at ECF No. 22 the Government asserts the motion is “legally futile, ” “as [Chatmon] admits, ” arguing ‘there is no specific authority in the context of [a] 2241 petition' authorizing the Court to grant the relief he is asking.” (ECF No. 23 at 1, quoting ECF No. 22 at 2).
III. Analysis
Federal law, codified at 28 U.S.C. § 2241, extends habeas corpus relief to a person in custody in violation of the Constitution of laws or treaties of the United States. 28 U.S.C. § 2241(c)(3). The Court has jurisdiction over Chatmon's claims pursuant to § 2241 because he is challenging the manner of the execution of his sentence. See Johnson v. Gill, 883 F.3d 756, 761 (9th Cir. 2018); Hernandez v. Campbell, 204 F.3d 861, 864-65 (9th Cir. 2000); Brown v. United States, 610 F.2d 672, 677 (9th Cir. 1990). Additionally, although the Court does not have subject matter jurisdiction to review individualized, discretionary determinations made by the BOP, judicial review is available for allegations that a BOP action is contrary to established federal law, violates the United States Constitution, or exceeds the BOP's statutory authority. Close v. Thomas, 653 F.3d 970, 973-74 (9th Cir. 2011); Reeb v. Thomas, 636 F.3d 1224, 1228 (9th Cir. 2010).
The Attorney General, through the Bureau of Prisons, is responsible for calculating an inmate's federal sentence, which includes a determination of the amount of prior custody credit an inmate is to receive toward the sentence. United States v. Wilson, 503 U.S. 329, 333 (1992); 28 C.F.R. § 0.96 (authorizing the Director of the Bureau of Prisons to exercise any authority of the Attorney General relating to the commitment, control, or treatment of persons charged with or convicted of offenses against the United States). This computation occurs once the defendant commences his federal sentence, rather than at the time of sentencing. Wilson, 503 U.S. at 333. Title 18 of the United States Code at § 3585 dictates the date on which a federal sentence commences, and controls whether time spent in custody prior to the commencement date can be applied to the sentence.
“Primary jurisdiction” is a legal doctrine which accommodates “the need for comity between state and federal authorities with respect to managing defendants who are subject to both state and federal criminal prosecutions and sentences.” Johnson v. Gill, 883 F.3d 756, 761 (9th Cir. 2018). “[T]he first sovereign to arrest a defendant obtains primary jurisdiction over him as against other sovereigns.” Id. at 761-62. The parties do not dispute that the State of Arizona obtained primary jurisdiction over Chatmon by arresting him on April 28, 2009, and by doing so the State acquired the right to enforce its sentence before any other sovereign, i.e., the United States. See, e.g., Taylor v. Reno, 164 F.3d 440, 444 (9th Cir. 1998); United States v. Warren, 610 F.2d 680, 684-85 (9th Cir. 1980).
Federal law requires that, unless a federal court specifically orders a federal criminal sentence to run concurrently to another sentence, multiple sentences are to be served consecutively. See 18 U.S.C. § 3584(a); United States v. Montes-Ruiz, 745 F.3d 1286, 1290 (9th Cir. 2014). A federal defendant's sentence does not begin to run until the inmate is received into federal custody for the purpose of serving his federal sentence. Johnson, 883 F.3d at 764 (“we therefore interpret ‘custody' in § 3585(a) as ‘legal custody,' meaning that the federal government has both physical custody of the defendant and the primary jurisdiction necessary to enforce the federal sentence.”). Accordingly, although the 90-month portion of Chatmon's sentence ordered to be served concurrently with his 12-year state sentence was unquestionably completed prior to his release from state custody, the 30-month portion of Chatmon's federal sentence ordered to be served consecutively to his state sentence could only “commence[] on the date” Chatmon was “received in custody awaiting transportation to, or arrives voluntarily to commence service at, the official detention facility at which the sentence is to be served.” 18 U.S.C. § 3585(a). Therefore, Chatmon's remaining 30-month consecutive sentence could not commence any earlier than September 15, 2020, the date he was released from state custody.
With regard to the calculation of Chatmon's sentence as to credit for time served, subsection § 3585(b) dictates when the BOP may apply prior custody or jail credit to a federal sentence. Specifically, the statute provides:
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.(emphasis added). The statute, therefore, permits the application of prior custody credits to a federal sentence, but limits the award of such credit to instances where the prior custody was not credited against another sentence. See United States v. Labeille-Soto, 163 F.3d 93, 99 (2d Cir. 1998); United States v. Kramer, 12 F.3d 130, 132 (8th Cir. 1993); Clapper v. Langford, 186 F.Supp.3d 235, 239 (N.D.N.Y. 2016). See also Washington v. Young, 2020 WL 3344350, at *6 (S.D.W.Va. May 7, 2020) (collecting and distinguishing cases from the Seventh, Third, and Fourth Circuit Courts of Appeals). “Congress made clear that a defendant could not receive a double credit for his detention time.” Wilson, 503 U.S. at 337.
Accordingly, Chatmon is not entitled to credit for any time spent in federal or state custody, prior to or after the imposition of his federal sentence, if that time was credited to his state sentence. The Arizona Department of Corrections calculated Chatmon's state sentence to have commenced on April 30, 2009, and to have run continuously until it expired on September 15, 2020; this period included the time Chatmon was in federal custody awaiting sentencing in the criminal proceedings in United States v. Chatmon, 4:09 CR 02687 RCC, during which time he was still in the primary custody of the state. With the exception of the two days of custody before April 30, 2009, Chatmon's time in custody was all applied toward the satisfaction of the state sentence, during which time he also served the concurrent portion of his ten-year federal sentence (90 months). Thus, pursuant to § 3585(b) and Wilson, all of the time Chatmon served prior to September 15, 2020, with the exception of the two days not credited to his twelve-year state sentence, cannot be applied to the remaining 30 months of his federal sentence, which was ordered to be served consecutively to his release from state custody.
With regard to the motion at ECF No. 22, the BOP has exclusive authority to determine the location where an inmate serves his custodial sentence, including whether transfer from a secure facility to home confinement is more appropriate for a particular defendant. See Tapia v. United States, 564 U.S. 319, 331 (2011) (“When a court sentences a federal offender, the BOP has plenary control, subject to statutory constraints, over [the place of imprisonment and treatment program].”). While an inmate's sentencing court may make a non-binding recommendation to the BOP as to home confinement, the BOP's designation decision “is not reviewable by any court.” 18 U.S.C. §§ 3621(b) & 3624(c).
Furthermore, the “mere possibility of conditional liberty, ” such as release to home confinement, is not protected by the Constitution. Simmons v. Christensen, 894 F.2d 1041, 1043 (9th Cir.1990). See also Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 7 (1979) (“There is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence.”). Additionally, 18 U.S.C. § 3621(b) provides that “[n]otwithstanding any other provision of law, a designation of a place of imprisonment under this subsection is not reviewable by any court.” See also United States v. Carlucci, 2020 WL 2527013, *3 (D. Ariz. May 18, 2020) (“While the CARES Act gives the BOP broad discretion to expand the use of home confinement during the COVID-19 pandemic, the Court lacks jurisdiction to order home detention under this provision.”).
To the extent the motion at ECF No. 22 seeks compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A), Chatmon must first seek this relief from the Director of the Bureau of Prisons by asking them to bring a motion for this relief. And the Ninth Circuit has expressly held that the BOP's refusal to bring a motion for compassionate release is not subject to judicial review. See Simmons, 894 F.2d at 1043. See also DeLuca v. Lariva, 586 Fed.Appx. 239, 240-41 (7th Cir. 2014); Cruz-Pagan v. Warden, FCC Coleman-Low, 486 Fed.Appx. 77, 79 (11th Cir. 2012) (holding § 2241 does not give district court subject matter jurisdiction to grant compassionate release absent a motion from the BOP under § 3582(c)(1)(A)); Crowe v. United States, 430 Fed.Appx. 484, 485 (6th Cir. 2011); Fields v. Warden Allenwood USP, 2017 WL 1241953, at *1 (3d Cir. 2017) (holding the BOP's decision to file a motion for compassionate release is not judicially reviewable); United States v. Stewart, 2019 WL 2076142, at *1 (D. Ariz. May 10, 2019).
IV. Conclusion
Chatmon's sentence and release date have not been miscalculated, nor is he serving a sentence in excess of that imposed by the Court, nor is he serving a sentence not in accordance with the intent of the Court. Chatmon's motion at ECF No. 22 must be denied as he has not exhausted his request for compassionate release and the Court does not have the authority to order the Bureau of Prisons to allow Chatmon to serve the remainder of his sentence under home confinement. Therefore, IT IS RECOMMENDED that Chatmon's Amended Petition for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (ECF No. 4) be DENIED.
IT IS FURTHER RECOMMENDED that the motion at ECF No. 22 be DENIED.
This report and recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment. The parties shall have 14 days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(b) and 72. Thereafter, the parties have 14 days within which to file a response to the objections. Pursuant to Rule 7.2(e)(3), Local Rules of Civil Procedure for the United States District Court for the District of Arizona, objections to the Report and Recommendation may not exceed ten (10) pages in length.
Failure to timely file objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the district court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to timely file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to appellate review of the findings of fact in an order of judgement entered pursuant to the Magistrate Judge's recommendation. See Fed. R. Civ. P. 72.