United States District Court, N.D. West Virginia
MEMORANDUM OPINION AND ORDER ADOPTING AND AFFIRMING
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE, GRANTING
RESPONDENT'S MOTION TO DISMISS OR, ALTERNATIVELY, FOR
SUMMARY JUDGMENT AND OVERRULING PETITIONER'S
FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE
petitioner, Julio Cesar Gutierrez-Jaramillo
(“Gutierrez-Jaramillo”), filed this pro
se petition under 28 U.S.C. § 2241
seeking credit for time served in the Republic of Peru prior
to his extradition to the United States. The government filed
a motion to dismiss or, alternatively, for summary judgment.
The magistrate judge entered a report recommending that the
government's motion be granted. Gutierrez-Jaramillo then
filed timely objections to the report and recommendation. For
the following reasons, the magistrate judge's report and
recommendation is adopted and affirmed, the government's
motion is granted, and the petitioner's objections are
1998, Gutierrez-Jaramillo was sentenced in the Republic of
Peru to an eight-year term of imprisonment, which was later
increased to fifteen years, scheduled to end on December 1,
2010. ECF No. 11-1 at 9. During his prison term, the United
States sent Peru an extradition request. Id. In
2002, that extradition request was approved and an
extradition detainer was entered. Id. On October 4,
2002, a Peruvian court granted partial release, but
Gutierrez-Jaramillo remained in custody under the extradition
detainer and pending an appeal of the partial release order.
Id. at 10. Then, on April 7, 2004, a higher court
reversed the partial release order. Id. On December
22, 2009, a Peruvian court again ordered a partial release of
Gutierrez-Jaramillo, and he was extradited to the United
States the next day. Id. at 10-11.
plead guilty to one count of conspiracy to import cocaine and
one count of aiding and abetting the importation of cocaine.
Id. at 21. The United States District Court for the
Southern District of Texas sentenced Gutierrez-Jaramillo to a
total term of 210 months of imprisonment. Id. at 22.
The court granted a three-level downward departure from the
applicable United States Sentencing Guideline range, noting
the time Gutierrez-Jaramillo served in Peruvian prison, that
the extradition request likely delayed
Gutierrez-Jaramillo's release from Peruvian prison, and
that the BOP would not count it as time served. ECF No. 11-2
at 3. Gutierrez-Jaramillo's sentence began on February
18, 2011. ECF No. 11-1 at 21-22. The BOP awarded credit for
time served in pretrial custody from December 23, 2009, the
date of his extradition, through February 17, 2011. ECF No.
11-1 at 4.
appealed his conviction and sentence to the United States
Court of Appeals for the Fifth Circuit, and it was affirmed.
Gutierrez-Jaramillo then filed a motion under 28 U.S.C.
§ 2255 challenging the validity of his conviction and
sentence, alleging he was provided ineffective assistance of
counsel in violation of the Sixth Amendment based on his
counsel's failure to get him credit for time served in
Peru. His motion was denied and he did not appeal the
judgment. He then filed a motion under § 2241 alleging
his sentence violated an extradition treaty between the
United States and the Republic of Colombia. That matter is
has now filed another motion under § 2241 claiming the
BOP failed to give him credit for eighty-seven months served
from October 4, 2002 to December 23, 2009 in Peru. He argues
that his Peruvian sentence would have ended on October 4,
2002 but for the then pending extradition request of the
United States. The government filed a motion to dismiss or,
alternatively, for summary judgment. The magistrate judge
entered a report recommending that the motion be granted as a
motion for summary judgment. Gutierrez-Jaramillo timely filed
objections to the report and recommendation.
28 U.S.C. § 636(b)(1)(C), this Court must conduct a
de novo review of any portion of the magistrate
judge's recommendation to which objection is timely made.
Because Gutierrez-Jaramillo filed objections to the report
and recommendation, the magistrate judge's recommendation
will be reviewed de novo as to those findings to
which objections were made. As to those findings to which
objections were not made, those findings and recommendations
will be upheld unless they are “clearly erroneous or
contrary to law.” 28 U.S.C. § 636(b)(1)(A).
survive a motion to dismiss under Rule 12(b)(6), “a
[pleading] must contain sufficient factual matter, accepted
as true, to ‘state a claim to relief that is plausible
on its face.'” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). This plausibility standard requires a
plaintiff to articulate facts that, when accepted as true,
demonstrate that the plaintiff is plausibly entitled to
relief. Francis v. Giacomelli, 588 F.3d 186, 193
(4th Cir. 2009) (citing Iqbal, 556 U.S. at 678;
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “The plausibility standard is not a
probability requirement, but asks for more than a sheer
possibility that a defendant has acted unlawfully.”
Hall v. DirectTV, 846 F.3d 757, 765 (4th Cir. 2017).
“[C]ourts must accept as true all of the factual
allegations contained in the complaint and draw all
reasonable inferences in favor of the plaintiff.”
Id. “[A] [pleading] is to be construed
liberally so as to do substantial justice.”
Id. (internal quotation marks omitted). Further,
this Court must liberally construe pro se
complaints. Erickson v. Pardus, 551 U.S. 89, 94
(2007); Gordon v. Leeke, 574 F.2d 1147, 1151 (4th
Cir. 2007). However, while the plaintiff's allegations
are assumed to be true, Erickson, 551 U.S. at 93,
this Court may not ignore a clear failure in the pleading to
allege facts that set forth a claim. See Weller v.
Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir.
1990). This Court may not rewrite a complaint to include
claims that were never presented, Barnett v.
Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999), construct
the plaintiff's legal arguments for him, id., or
“conjure up questions never squarely presented”
to the court. Beaudett v. City of Hampton, 775 F.2d
1274, 1278 (4th Cir. 1985).
Federal Rule of Civil Procedure 56, this Court must grant a
party's motion for summary judgment if “there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a). A fact is “material” if it might affect
the outcome of the case. Anderson v. Liberty Lobby,
477 U.S. 242, 248 (1986). A dispute of material fact is
“genuine” if the evidence “is such that a
reasonable jury could return a verdict for the non-moving
party.” Id. If the nonmoving party
“fails to make a showing sufficient to establish the
existence of an element essential to that party's case,
and on which that party will bear the burden of proof at
trial, ” summary judgment must be granted against that
party. Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). In reviewing the supported underlying facts, all
inferences must be viewed in the light most favorable to the
party opposing the motion. See Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
party seeking summary judgment bears the initial burden of
showing the absence of any genuine issues of material fact.
See Celotex, 477 U.S. at 322-23. “The burden
then shifts to the nonmoving party to come forward with facts
sufficient to create a triable issue of fact.”
Temkin v. Frederick County Comm'rs, 945 F.2d
716, 718 (4th Cir. 1991), cert. denied, 502 U.S.
1095 (1992). However, “a party opposing a properly
supported motion for summary judgment may not rest upon the
mere allegations or denials of his pleading, but . . . must
set forth specific facts showing that there is a genuine
issue for trial.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 256 (1986). Moreover, “[t]he
nonmoving party cannot create a genuine issue of material
fact through mere speculation or the building of one
inference upon another.” Othentec Ltd. v.
Phelan, 526 F.3d 135, 140 (4th Cir. 2008) (internal
quotation marks omitted). The nonmoving party must produce
“more than a ‘scintilla'” of evidence
“upon which a jury could properly proceed to find a
verdict for the party producing it.” Id.
(internal quotation marks omitted) (quoting
Anderson, 477 U.S. at 251).
“federal custody commences only when the [non-federal]
authorities relinquish the prisoner on satisfaction of the
[non-federal] obligation.” United States v.
Evans, 159 F.3d 908, 912 (4th Cir. 1998). ...