United States District Court, N.D. West Virginia
REPORT AND RECOMMENDATION
P. MAZZONE UNITED STATES MAGISTRATE JUDGE.
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.
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.
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.
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.
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.
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
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.
CONTENTIONS OF THE PARTIES
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,