Opinion
No. CV 19-01260 PHX DWL (CDB)
06-17-2019
William Doyal Chesmore, Petitioner, v. David Gonzales, United States Bureau of Prisons, Charles L. Ryan, Respondents.
REPORT AND RECOMMENDATION
TO THE HONORABLE DOMINIC W. LANZA:
On February 22, 2019, Petitioner William Chesmore filed a petition seeking federal habeas corpus relief pursuant to 28 U.S.C. § 2241 and a motion seeking preliminary injunctive relief. (ECF No. 1; ECF No. 4). Chesmore is represented by the Federal Public Defender's office in this matter and he was granted leave to proceed in forma pauperis.
Chesmore is currently in the custody of the Arizona Department of Corrections ("ADOC") pursuant to a sentence imposed by the Cochise County Superior Court. Chesmore is scheduled for release from ADOC custody on June 28, 2019. The United States Marshals Service ("USMS") has placed a detainer against his custody based on a sentence imposed in 2018 upon the revocation of supervised release in United States v. Chesmore, 4:08-CR-378 FRZ (D. Ariz.). Chesmore's § 2241 motion asks the Court to find he has already served the six-month sentence imposed in 4:08-CR-378 and, accordingly, to quash the detainer.
I Background
On March 10, 2009, pursuant to a guilty plea, Chesmore was convicted of possession with intent to distribute methamphetamine and using and carrying a firearm during a drug trafficking crime, and sentenced to the custody of the Bureau of Prisons ("BOP") for an aggregate term of 106 months imprisonment. United States v. Chesmore, 4:08-CR-0378 (D. Ariz.) at ECF No. 24. The Court also imposed concurrent terms of five years of supervised release on each count of conviction. (Id.). On February 24, 2016, Chesmore was released from custody upon completion of the sentences imposed in 4:08-CR-0378. (ECF No. 14-1). On January 30, 2017, the Court issued an arrest warrant for Chesmore, who was accused of violating the terms of his supervised release. Chesmore, 4:08-CR-0378 at ECF No. 30.
On May 7, 2017, Chesmore was arrested by state authorities on various state drug charges and detained at the Cochise County Jail. (ECF No. 14-1 at 9). On May 8, 2017, the USMS lodged a detainer on Chesmore's custody with the Cochise County Sheriff's Office, based on the outstanding arrest warrant in 4:08-CR-00378. (ECF No. 14-1 at 7).
On November 27, 2017, pursuant to a guilty plea on one count of possession of heroin, the Cochise County Superior Court sentenced Chesmore to a term of 2.5 years imprisonment, with credit for 204 days served in pre-trial custody. (ECF No. 14-1 at 9, 19, 21). The state court ordered Chesmore's conviction be served concurrently with the yet-to-be-imposed federal sentence upon the revocation of his supervised release in 4:08-CR-00378. (ECF No. 14-1 at 21, 23). The state court's sentencing order also provided Chesmore would "remain in the custody of the Cochise County Sheriff and be transported back to the federal [authorities]." (ECF No. 14-1 at 23). On November 28, 2017, Chesmore was transferred to the custody of the USMS, pursuant to the detainer, and the USMS housed Chesmore at the Central Arizona Detention Facility pending the resolution of the federal court revocation proceedings. (Id.).
The state court's judgment and sentence states:
IT IS FURTHER ORDERED that any time that is to be served in the future by the Defendant on any sentence that he receives in U.S. District Court case number CR08-00378-001-TUC-FRZ is to be applied toward this sentencing imposed this date.(ECF No. 14-1 at 21, 23) (emphasis added).
IT IS FURTHER ORDERED that this sentence shall run CONCURRENTLY with any sentence as yet to be imposed in the same U.S. District Court case number CR08-00378-001-TUC-FRZ. This decision shall be ultimately made by the U.S. District Court.
***
IT IS FURTHER ORDERED the Defendant shall remain in the custody of the Cochise County Sheriff and be transported back to the Federal Bureau of Prisons.
On April 11, 2018, Chesmore's supervised release in 4:08-CR-0378 was revoked and Judge Zapata imposed a sentence of six months' incarceration. Chesmore, 4:08-CR-0378 at ECF No. 49. The federal court did not order the federal sentence to run concurrent with the already-running state sentence and did not mention the state sentence when entering judgment. Id.
On May 25, 2018, the USMS updated Chesmore's "USM-129" to reflect the following: "Primary Custody belongs to state, BOP will not designate - [subject picked up from] Cochise on USMS [detainer] but owes state time/state has primary jurisdiction." (ECF No. 14-1 at 16). On June 15, 2018, the USMS returned Chesmore to state custody and lodged a detainer based on the judgment and sentence entered April 11, 2018. (ECF No. 14-1 at 12, 17). Chesmore was received back into ADOC custody on June 19, 2018. (ECF No. 14-1 at 16). Chesmore received credit against his state sentence for the entire time spent in both state and federal custody subsequent to his arrest on May 7, 2017, and his projected release date is June 28, 2019.
A "USM-129" is a Prisoner Tracking System form, titled: "Prisoner Custody, Detention and Disposition."
On November 23, 2018, Chesmore, through appointed counsel, filed a motion in 4:08-CR-0378, seeking to quash the detainer. Chesmore, 4:08-CR-0378 at ECF No. 52. The motion to quash was denied in an order entered January 4, 2019. Id. at ECF No. 56. In the order denying the motion to quash Judge Zapata rejected Chesmore's contention that primary jurisdiction had transferred to federal authorities when Chesmore was received by the USMS in November of 2017, noting the state court judge had explicitly ordered that Chesmore was to "remain in the custody of the Cochise County Sherriff and be transported back to the Federal Bureau of Prisons." Id.
On January 11, 2019, Chesmore's counsel contacted the BOP, asking the BOP to declare the state prison as the designated place for the fulfillment of Chesmore's federal sentence of incarceration in 4:08-CR-0378 pursuant to 18 U.S.C. § 3621(b). (ECF No. 1 at 6). Counsel argued that primary jurisdiction had transferred to the federal authorities on November 28, 2017, and, alternatively, that BOP should designate the state prison for the service of Chesmore's federal sentence nunc pro tunc. (ECF No. 1 at 6-7; ECF No. 1-2). On January 16, 2019, the BOP contacted the chambers of Judge Zapata seeking clarification regarding Chesmore's sentence in 4:08-CR-0378, and the Judge's Courtroom Deputy verified the federal sentence "was not imposed as to run concurrent with any state sentence." (ECF No. 14-1 at 28). Additionally, that same day Judge Zapata issued an order in Chesmore's criminal case, denying Chesmore's motion for reconsideration of the order denying the motion to quash the federal detainer and explicitly stating that the federal sentence was not ordered to be served concurrently with the state sentence. Chesmore, 4:08-CR-0378 at ECF No. 59.
On January 17, 2019, the BOP informed Chesmore's counsel that his federal sentence was a consecutive sentence and that federal law precluded the federal sentence from commencing prior to the date Chesmore is released to the exclusive custody of federal authorities. The BOP determined "that commencement of his federal sentence by way of a concurrent designation is not consistent with the goals of the criminal justice system, Bureau of Prisons policy or federal statute." (ECF No. 1-2).
On February 22, 2019, Chesmore filed the instant § 2241 habeas petition asserting his federal sentence has been completely served. Alternatively, he argues BOP "is illegally refusing to exercise the discretion it enjoys under 18 U.S.C. § 3621(b) and its own policies to designate the Arizona Department of Corrections as the place for service of the revocation sentence." (ECF No. 1 at 2).
II Analysis
Federal law, codified at 28 U.S.C. § 2241, extends habeas corpus relief to a person in custody in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2241(c)(3). The Court has jurisdiction over Chesmore's claims pursuant to § 2241 because he is challenging the manner of the execution of his sentence. Brown v. United States, 610 F.2d 672, 677 (9th Cir. 1990). Additionally, although there is no subject matter jurisdiction in the Court to review individualized, discretionary determinations made by the BOP pursuant to 18 U.S.C. § 3621, judicial review is available for allegations that a BOP action is contrary to established federal law, violates the Constitution, or exceeds statutory authority. Reeb v. Thomas, 636 F.3d 1224, 1228 (9th Cir. 2010).
A. Primary jurisdiction
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.), cert. denied sub nom. Johnson v. Copenhaver, 139 S. Ct. 251 (2018), citing Ponzi v. Fessenden, 258 U.S. 254, 259 (1922). "[T]he first sovereign to arrest a defendant obtains primary jurisdiction over him as against other sovereigns." Id. at 761-62, citing Ponzi, 258 U.S. at 260. The parties do not dispute that the State of Arizona obtained primary jurisdiction over Chesmore by arresting him on May 7, 2017, and that 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).
Chesmore argues that, because he was physically transferred to federal authorities on November 28, 2017, without the use of a writ of habeas corpus ad prosequendum, primary jurisdiction was transferred from the state to the federal authorities on that date and, accordingly, he has spent six months in the primary custody of the federal authorities. (ECF No. 1 at 9-10).
Primary jurisdiction generally terminates when the prisoner's sentence expires, the charges against the prisoner are dismissed, "or the prisoner is allowed to go free." Johnson, 883 F.3d at 765. Because the state charges against Chesmore had not been dismissed, his state sentence had not expired, and Chesmore had not been set free as of November 28, 2017, the only way primary jurisdiction may be deemed to have transferred to the federal authorities on that date is if the temporary transfer of Chesmore from state to federal custody effected a transfer of primary jurisdiction in some other fashion.
Chesmore contends primary jurisdiction was transferred to the United States because the transfer was not made pursuant to a writ of habeas corpus ad prosequendum. (ECF No. 1 at 9). However, although the use of a writ of habeas corpus ad prosequendum is an appropriate way to "loan" an inmate between sovereigns, the absence of such a writ does not per se demonstrate the relinquishment of primary jurisdiction. See Johnson, 883 F.3d at 766, 768. Moreover, a federal sentence does not begin when a defendant is produced for federal prosecution by a writ of habeas corpus ad prosequendum from state custody. Thomas v. Brewer, 923 F.2d 1361 (9th Cir. 1991); Thomas v. Whalen, 962 F.2d 358 (4th Cir. 1992). A federal sentence does not begin to run until the state authorities relinquish the prisoner on satisfaction of the state obligation. Del Guzzi v. United States, 980 F.2d 1269, 1271 (9th Cir.1992).
Determining whether primary jurisdiction was transferred in this circumstance "turns on whether the state with primary jurisdiction intended to surrender its priority upon transfer or merely transferred temporary control of the defendant to the federal government." Johnson, 883 F.3d at 765. "[A] state's transfer of temporary control of the defendant 'extends no further than it is intended to extend' . . ." Id., quoting Zerbst v. McPike, 97 F.2d 253, 254 (5th Cir. 1938). "In determining whether a state's transfer of a defendant to a second sovereign is intended to be 'a complete surrender of the prior jurisdiction' that the state acquired over the defendant, Zerbst, 97 F.2d at 254, [the Court] consider[s] the record as a whole." Id. "[T]he crucial question is whether, in view of the record as a whole, the state intended to relinquish its primary jurisdiction . . ." Id. at 768.
The record before the Court indicates the State of Arizona did not intend to relinquish its primary jurisdiction, as evidenced by the state sentencing court's statement that Chesmore "shall remain in the custody of the Cochise County Sheriff and be transported back to the Federal Bureau of Prisons." (ECF No. 14-1 at 23). Furthermore, the fact that Chesmore was transferred via a detainer is an indication that there was no transfer of primary custody:
A detainer neither effects a transfer of a prisoner from state to federal custody nor transforms state custody into federal custody by operation of law. "Unlike a writ of habeas corpus ad prosequendum issued by a federal district court. . . . a detainer merely puts the officials of the institution in which the prisoner is incarcerated on notice that the prisoner is wanted in another jurisdiction for trial upon his release from prison." United States v. Mauro, 436 U.S. 340, 358 [] (1978) (footnote omitted);Whalen, 962 F.2d at 360-61.
After sentencing Chesmore the state judge ordered him to remain in state custody. The following day the state authorities transferred Chesmore's physical custody to the USMS pursuant to a detainer. Notwithstanding the transfer of physical custody, the State of Arizona continued to run Chesmore's state sentence throughout the time he was in federal custody, thus demonstrating an intent to enforce their sentence first, which is the right of the entity with primary jurisdiction. After Chesmore was sentenced by the federal court the BOP determined that Chesmore could not commence his federal sentence because the State of Arizona retained primary jurisdiction and the USMS returned Chesmore to state custody and lodged a detainer. The State accepted him back and designated him to a state prison to complete the service of his state sentence. Accordingly, the record as a whole indicates the State did not intend to relinquish primary jurisdiction.
B. Concurrent sentences
Chesmore also notes that his state and federal sentences were ordered to be served concurrently by the state court judge, and asserts this fact supports his argument that the state intended to transfer primary jurisdiction to the federal government and that the BOP erred in failing to designate the state prison as the place for service of his federal sentence.
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). Furthermore, 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."). Chesmore's federal sentence can only "commence[] on the date the defendant is 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).
Additionally, because a federal sentence commences only when the federal government has physical possession of and primary jurisdiction over the defendant, Chesmore's federal sentence could not have begun any earlier than April 11, 2018, when the federal district court pronounced sentence. See Blood v. Bledsoe, 648 F.3d 203, 207-08 (3d Cir. 2011), and Vaughn v. Smith, 2012 WL 996556, at *2-3 (D. Ariz. 2012), both citing 18 U.S.C. § 3585(a) and BOP Program Statement 5880.28, Sentence Computation Manual (CCCA of 1984) at 1-13 ("In no case can a federal sentence of imprisonment commence earlier than the date on which it is imposed"); Taylor, 164 F.3d at 445-46 ("[a] federal sentence commences 'on the date the defendant is received in custody awaiting transportation to, or arrives . . . at, the official detention facility at which the sentence is to be served,' 18 U.S.C. § 3585, not when sentence is imposed" by the district court).
The BOP Program Statement 5880.28, Sentence Computation Manual (CCCA of 1984) is available at: http://www. bop.gov/policy/progstat/5880_028.pdf.
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(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). "Congress made clear that a defendant could not receive a double credit for his detention time." United States v. Wilson, 503 U.S. 329, 337 (1992). Chesmore does not dispute that the time spent in federal custody was credited to his state sentence. Because Chesmore received credit against his state sentence for the all of the time spent in federal custody, as well as for all time spent serving the state sentence, he is not entitled to any additional credit against his federal sentence for the same period of time.
(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.
Furthermore, when Chesmore went back to the sentencing court in an effort to compel BOP to run the federal sentence concurrent with the state sentence, the court responded that: "the Court did not order the sentence to run concurrent . . . and the judgment simply committed the defendant to the custody of the Bureau of Prisons for a term of six months." Chesmore, 4:08-CR-0378 at ECF No. 59. This is consistent with the United States Sentencing Guidelines, which state:
Any term of imprisonment imposed upon the revocation of probation or supervised release shall be ordered to be served consecutively to any sentence of imprisonment that the defendant is serving, whether or not the sentence of imprisonment being served resulted from the conduct that is the basis of the revocation of probation or supervised release."U.S.S.G. §7B1.3(f).
The state sentencing judge's statements do not trump this presumption of federal law. "[C]oncurrent sentences imposed by state judges are nothing more than recommendations to federal officials." Del Guzzi, 980 F.2d at 1272 (Norris, J., concurring). Federal judges and the BOP "remain free to turn those concurrent sentences into consecutive sentences by refusing to accept the state prisoner until the completion of the state sentence and refusing to credit the time the prisoner spent in state custody." Taylor v. Sawyer, 284 F.3d 1143, 1150 (9th Cir. 2002), abrogated on other grounds by Setser v. United States, 132 S. Ct. 1463, 1473 (2012). The federal courts have uniformly concluded that a state court's pronouncement that state and federal sentences be served concurrently is not binding on the federal courts or the BOP. Id. See also Eccleston v. United States, 648 F. App'x 606, 607 (9th Cir. 2016), citing United States v. Yepez, 704 F.3d 1087, 1091 (9th Cir. 2012); Peterkin v. Warden, U.S.P. Atwater, 584 F. App'x 342, 343 (9th Cir. 2014); Hermosillo-Enriquez v. Sanders, 413 F. App'x 994, 995 (9th Cir. 2011); Barden v. Keohane, 921 F.2d 476, 478 n.4 (3d Cir. 1990). See also Fegans v. United States, 506 F.3d 1101, 1103-04 (8th Cir. 2007).
The United States Supreme Court abrogated the Taylor/Reynolds rule as it applies to an anticipated, but not-yet-imposed state sentence in Setser v. United States, 566 U.S. 231 (2012). See United States v. Montes-Ruiz, 745 F.3d 1286, 1290-92 (9th Cir. 2014). This matter involves a state court sentencing the defendant to be served concurrently to a not-yet-imposed federal sentence, a situation not implicated by Setser.
The factual circumstance of this case is similar to that of Fegans, in which the Eighth Circuit Court of Appeals reasoned:
[[I]n this case, the State has initial custody and "loan[ed]" the defendant to federal authorities for federal prosecution. After a federal conviction and sentencing, the U.S. Marshals Service return[ed] the defendant to state authorities rather than delivering him to the BOP to begin serving his federal sentence. When the defendant is convicted in state court and begins serving his state sentence, a federal detainer is lodged based upon the unserved federal sentence. When the state sentence has been served, the detainer is executed and the defendant is delivered to the BOP to serve his federal sentence. The issue is compounded when, again as in this case, the state court initially declares that the sentences should be concurrent. It is well-settled that the state court's intent is not binding, so the state court's action raises the defendant's expectations but does not resolve the issue. See Hendrix v. Norris, 81 F.3d 805, 807 (8th Cir. 1996); Abdul-Malik v. Hawk-Sawyer, 403 F.3d 72, 75 (2d Cir. 2005).506 F.3d 1101, 1103-04 (8th Cir. 2007).
Additionally, in this matter the state court itself noted that the ultimate decision regarding the concurrent or consecutive nature of the not-yet-imposed federal sentence was reserved to the federal court; although the state sentencing court ordered the state sentence to "run CONCURRENTLY with any sentence as yet to be imposed in the same U.S. District Court case number CR08-00378-001-TUC-FRZ," the state sentencing court then added: "This decision shall be ultimately made by the U.S. District Court." (ECF No. 14-1 at 21).
C. The BOP's denial of nunc pro tunc designation
Chesmore argues the BOP improperly declined to exercise its authority under 18 U.S.C. § 3621(b) to designate the state prison where he is housed to serve his federal sentence, thus crediting toward his federal sentence the time served on his state sentence. (ECF No. 1 at 11).
The authority to calculate a federal prisoner's period of incarceration and to provide credit for time served is delegated to the Attorney General, who acts through the BOP. Wilson, 503 U.S. at 334-35. "The BOP has the authority to treat state and federal sentences as concurrent in the following relevant circumstances: (1) if an inmate requests a nunc pro tunc designation, and the district court does not object; or (2) if a state jurisdiction makes such a request." Roberson v. Copenhaven, 2013 WL 2286112, at *7 (E.D. Cal. 2013), quoted in McCuistion v. Graber, No. CV-14-00307-PHX-SRB, 2014 WL 5148265, at *2 (D. Ariz. 2014).
The Bureau of Prisons' authority to nunc pro tunc designate a state prison for service of a federal sentence derives from its authority to designate the facility where a federal defendant serves his sentence. 18 U.S.C. § 3621(b); Reynolds v. Thomas, 603 F.3d 1144, 1150 (9th Cir. 2010), abrogated on other grounds by Setser v. United States, [] 132 S. Ct. 1463, [] (2012). Section 3621(b) gives the Bureau of Prisons discretion to designate the facility, but lists the factors that the Bureau of Prisons must consider when it exercises discretion. The statute directs the Bureau of Prisons to consider "any statement by the court that imposed the sentence—(A) concerning the purposes for which the sentence to imprisonment was determined to be warranted; or (B) recommending a type of penal or correctional facility as appropriate." 18 U.S.C. § 3621(b)(4) []. This is a direction to the Bureau of Prisons to consider statements made by the sentencing judge to determine the judge's intent and reasoning for the particular sentence imposed on the particular defendant. See Rodriguez v. Smith, 541 F.3d 1180, 1189 (9th Cir. 2008) (characterizing factors considered under § 3621(b) to include the "sentencing judge's statement"); Woodall v. Fed. Bureau of Prisons, 432
F.3d 235, 248 (3d Cir. 2005) ("Congress expressed an intent that the [Bureau of Prisons] take into account the sentencing judge's recommendation.") . . .Rodriguez v. Copenhaver, 823 F.3d 1238, 1242 (9th Cir. 2016).
The BOP's decision denying Chesmore nunc pro tunc status was not arbitrary or capricious. Notably, when asked to clarify Chesmore's sentence and in his orders in the underlying criminal matter denying Chesmore's motion to quash the detainer, Judge Zapata stated the sentence was to be concurrent, thereby effectively "objecting" to a nunc pro tunc designation. See, e.g., Taylor v. Sawyer, 284 F.3d at 1149 (denying § 2241 relief and holding that BOP's refusal to exercise its discretion to treat a prisoner's federal and state sentences, in effect, as concurrent by designating a state facility as the site for service of the federal sentence was neither arbitrary nor capricious, despite allegedly expressed wishes of state court that sentences be concurrent); Fegans, 506 F.3d at 1104-06 (denying state prisoner's § 2241 petition seeking retroactive concurrent designation of his state and federal sentences; holding that the BOP "carefully considered the relevant factors and acted in accordance with the Program Statement."); Abdul-Malik v. Hawk-Sawyer, 403 F.3d 72, 76 (2nd Cir. 2005) (denying state prisoner's § 2241 petition claiming the BOP improperly denied nunc pro tunc designation which, if granted would have rendered prisoner's federal and state sentences concurrent by designating prisoner's state prison as his federal prison, holding that the BOP gave "full and fair consideration" to the prisoner's request).
Furthermore, BOP's decision to not issue a nunc pro tunc designation was consistent with BOP policy and federal law. BOP policy indicates that such a designation may be appropriate if "the federal sentence is imposed first and there is no order or recommendation regarding the service of the sentence in relationship to the yet to be imposed state term." Program Statement 5160.05, Designation of State Institution for Service of Federal Sentence (2003). When a request for nunc pro tunc designation is received, BOP staff contact the federal district court which sentenced the inmate, "inquiring whether the court has any objections." Id. The BOP "will not allow a concurrent designation if the sentencing court has already made a determination regarding the order of service of sentence." Id.
This Program Statement is available at: https://www.bop.gov/policy/progstat/5160_005.pdf
The BOP contacted the chambers of Judge Zapata, and his response clarified that the federal sentence was not a concurrent sentence. (ECF No. 14-1 at 28). Judge Zapata also affirmed the sentence was not concurrent in his order denying Chesmore's motion to quash the detainer and Chesmore's motion for reconsideration of the motion when denied by Judge Zapata. Chesmore, 4:08-CR-0378 at ECF Nos. 56 & 59. Because the federal sentencing court confirmed that the sentence was to be served consecutively, BOP did not abuse its discretion in failing to nunc pro tunc order the federal sentence served concurrently to the state sentence. Additionally, BOP concluded that "commencement of [Chesmore's] federal sentence by way of a concurrent designation is not consistent with the goals of the criminal justice system. . . ." (ECF No. 1-2). Accordingly, BOP did not act arbitrarily or abuse its discretion in denying nunc pro tunc designation. See Harris v. Bureau of Prisons (BOP) Fed., 787 F. Supp. 2d 350, 359 (W.D. Pa. 2011).
Harris presented a very similar fact pattern to Chesmore's case:
In this case, on November 18, 2009, Petitioner submitted a written request to the BOP for a nunc pro tunc designation. On February 24, 2010, the BOP conducted a Barden review of Petitioner's request for a nunc pro tunc designation []. It was noted that he was subject to a 30 month federal sentence imposed on June 20, 2008 . . . There were no judicial recommendations regarding concurrent/consecutive service of the federal sentence with the state sentence. It was also noted that he was subject to two sentences imposed by the state of Pennsylvania on August 18, 1994 and July 25, 1995 . . . Because the state sentences were imposed before the federal sentence was imposed (and the absence of a federal court recommendation or order for a concurrent federal sentence), it was determined that he was not appropriate for a nunc pro tunc designation.787 F. Supp. 2d 359.
The BOP did not abuse its discretion in denying Petitioner's request for a retroactive concurrent designation. It considered, as it must, the factors set forth in § 3621(b) and concluded that such a designation was not warranted in Petitioner's case. The BOP is charged with carrying out the sentence that the federal court imposed. The federal sentencing court did not order-at the time of sentencing or at any point subsequent to sentencing-that Petitioner serve his federal sentence concurrently with his state sentences. In fact, when Petitioner moved for a designation by the federal court for an order designating his federal sentence to run concurrent to his state sentence, his motion was denied []. Therefore, the BOP was not obligated to calculate Petitioner's federal sentence as concurrent with his state sentence.
III Preliminary injunctive relief
Chesmore's motion for a preliminary injunction seeks the same relief as his habeas petition, i.e., the quashing of the federal detainer and his absolute release from confinement upon completion of his state sentence.
A preliminary injunction is appropriate if the moving party demonstrates either: (1) a combination of probable success on the merits and the possibility of irreparable harm; or (2) that serious questions are raised and the balance of hardships tips in its favor. E.g., LGS Architects, Inc. v. Concordia Homes of Nev., 434 F.3d 1150, 1155 (9th Cir. 2006). These two formulations represent two points on a sliding scale in which the required degree of irreparable harm increases as the probability of success decreases. Id. A request for injunctive relief seeking anything other than to preserve the status quo is disfavored and shall not be granted unless the facts and law clearly favor the moving party. Stanley v. University of S. Cal., 13 F.3d 1313, 1319-20 (9th Cir. 1994).
It is arguable whether the district courts even have the authority to release habeas litigants pending a decision on the merits of a petition. See Roe v. United States Dist. Court (In Re Roe), 257 F.3d 1077, 1080 n.2 (9th Cir. 2001) (declining to resolve this issue but noting that the governing rule "does not appear to contemplate release on bail pending an initial decision in district court."). Assuming the Court possesses the authority to order Chesmore's release pending the resolution of his § 2241 petition, he has not demonstrated a strong likelihood of success on the merits and, accordingly, the motion for preliminary injunctive relief should be denied.
IT IS THEREFORE RECOMMENDED that Chesmore's § 2241 petition (ECF No. 1) and his motion for preliminary injunctive relief (ECF No. 4) both be DENIED.
This 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.
Pursuant to Rule 72(b), Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. Pursuant to Rule 7.2, 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 seventeen (17) pages in length.
Failure to timely file objections to any factual or legal determinations of the Magistrate Judge will be considered a waiver of a party's right to de novo appellate consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). Failure to timely file objections to any factual or legal determinations of the Magistrate Judge will constitute a waiver of a party's right to appellate review of the findings of fact and conclusions of law in an order or judgment entered pursuant to the recommendation of the Magistrate Judge.
Pursuant to 28 U.S.C. foll. § 2254, R. 11, the District Court must "issue or deny a certificate of appealability when it enters a final order adverse to the applicant." The undersigned recommends that, should the Report and Recommendation be adopted and, should Chesmore seek a certificate of appealability, a certificate of appealability should be denied because he has not made a substantial showing of the denial of a constitutional right.
Dated this 17th day of June, 2019.
/s/_________
Camille D. Bibles
United Slates Magistrate Judge