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Hernandez v. Coakley

United States District Court, N.D. West Virginia

January 7, 2019

RAUL GONZALEZ HERNANDEZ, Petitioner,
v.
JOE COAKLEY, Warden, Respondent.

          STAMP JUDGE.

          REPORT AND RECOMMENDATION

          JAMES P. MAZZONE UNITED STATES MAGISTRATE JUDGE.

         I. BACKGROUND

         On June 1, 2018, the pro se Petitioner, Raul Gonzalez-Hernandez, an inmate at USP Hazelton, filed a Habeas Corpus petition pursuant to 28 U.S.C. § 2241 seeking additional credit against his sentence. On June 11, 2018, the Petitioner paid the requisite five dollar filing fee. On August 29, 2018, the undersigned made a preliminary review of the petition and determined that summary dismissal was not warranted. Accordingly, an Order to Show Cause was issued against the Respondent. On October 19, 2018, the Respondent filed a Motion to Dismiss or for Summary Judgment with a supporting memorandum and exhibits. On October 22, 2018, a Roseboro Notice was issued. On November 7, 2018, the Petitioner filed a Response.

         II. FACTS

         On May 3, 2012, California state authorities sentenced the Petitioner to 60 days in state jail and three years of probation for battery. ECF No. 23-1 at p. 6. On August 16, 2012, California state authorities arrested the Petitioner for violation of parole, a felony. ECF No. 23-1 at p. 10. He was sentenced to an additional 160 days in California state jail for the parole violation. Id. At p. 12.

         On September 4, 2013, the Petitioner was named in Count One of a three count indictment returned by a grand jury in the United States District Court for the Central District of California. See Criminal Case # 8:13-cr-016-AG-10 available on PACER. On September 30, 2015, a Writ of Habeas Corpus ad Prosequendum was issued, and on October 15, 2013, while the Petitioner was still in state jail, the United States Marshal Service took him into custody. ECF No. 23-1 at p. 15.

         On July 31, 2017, the Superior Court of Orange County, California sentenced the Petitioner to four years in state jail for extortion of property by force or fear and an additional 4 months for participating in criminal street gang activity. ECF No. 23-1 at pp. 22-23. The Court gave him a total of 2, 018 days of credit towards his sentence. Id. at p. 25.[1]

         On June 12, 2017, the Petitioner pleaded guilty to Count One of the federal indictment which charged him with a “RICO Conspiracy” in violation of 18 U.S.C. § 1962(d). On September 18, 2017, the Petitioner was sentenced to the custody of the Bureau of Prisons for a term of 57 months to be followed by supervised release for a term of three years. ECF No. 23-1 at p. 28. The federal sentencing judge did not make any recommendation whether the federal sentence should be consecutive with or concurrent to any other sentence. Id.

         On September 21, 2017, the United States Marshals Service returned the Petitioner to California state authorities. ECF No. 23-1 at p. 19. California state authorities determined that the Petitioner had fully satisfied his state prison obligation as of September 22, 2017. Id. Because California state authorities gave the Petitioner credit towards his state sentence for the time he was borrowed by federal authorities and prosecuted in federal court, he was released on September 25, 2017 into the exclusive custody of the United States Marshal Service to begin serving his federal sentence.

         The BOP has computed the Petitioner's federal sentence beginning on September 22, 2017, the date he fully satisfied the state prison sentences. The Petitioner's projected release date, via good conduct time is November 10, 2021. Id. at p. 86.

         III. CONTENTIONS OF THE PARTIES

         A. The Petition

         The Petitioner seeks to clarify his sentencing and the amount of time spent in federal jurisdiction. He alleges that the BOP has miscalculated his “day for day actual days as a pre-trial inmate.” ECF No. 1 at p. 5. Although not completely clear, it appears the Petitioner is seeking credit against his federal sentence for the period from October 15, 2013, through September 18, 2017. In completing his petition, ...


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