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Finney v. Winn

United States District Court, D. Arizona

March 11, 2015

Maurice Finney, Petitioner,
v.
Louis W. Winn, Jr., Respondent.

REPORT AND RECOMMENDATION

BERNARDO P. VELASCO, Magistrate Judge.

On April 17, 2014, Maurice Finney ("Petitioner"), presently confined in the United States Penitentiary - Tucson in Tucson, Arizona ("USP-Tucson"), filed a pro se Petition Under 28 U.S.C. § 2241 for a Writ of Habeas Corpus by a Person in Federal Custody. (Doc. 1.)[1] On May 7, 2014, Petitioner filed an Amended § 2241 Petition ("Amended Petition"). (Doc. 5.) Pending before the court is the Amended Petition ( id. ), Respondent's answer with exhibits ("Exs.) 1 through 2 attached (Doc. 13) ("Answer"), and Petitioner's brief in reply ("Reply") (Doc. 22).

Petitioner raises one ground for relief. He claims that a federal court judge sentenced him to a 120-month term of imprisonment, to be served concurrently with his state court sentence. He alleges that "[f]rom the time of indictment until transfer to [the Federal Bureau of Prisons'] custody[, ] Petitioner served 1235 days in state custody." Petitioner asserts that the Bureau of Prisons has denied him the credit for these days and has failed to "execute [the] sentence as ordered by [the federal] court to give concurrent credit for [the] state sentence." ( Id. at 4.)

Pursuant to the Rules of Practice of this Court, this matter was referred to Magistrate Judge Bernardo P. Velasco for a Report and Recommendation. (Doc. 7.)

For the reasons discussed below, the Magistrate Judge recommends that the District Court enter an order denying the Petition on the merits.

I. PROCEDURAL BACKGROUND

Petitioner was arrested by state authorities on December 13, 2007, and released the same day on bond. Ex. 1, Declaration of Alan Ray ("Ray Declaration"), ¶ 3 and Attachment ("Ex.1 Att.") 1 at p.4.[2] On January 31, 2008, petitioner was arrested on a state probation violation and his state probation was revoked on February 7, 2008. Ray Declaration ¶¶ 4-5 and Ex.1 Att. 1 at p.5, and Ex.1 Att. 2 at p.10. Petitioner was ordered by the state court to serve a term of six years imprisonment. Id. Petitioner completed this state sentence on June 20, 2011. Ray Declaration ¶ 9.

On February 13, 2008, Petitioner was indicted on a federal charge of Felon in Possession of a Firearm, in violation of 19 U.S.C. §§ 922(g)(1) and 924. See Ex. 1 Att. 2 at pp.1-2; see also United States v. Finney, CR 3:08-0041 (M.D. Tenn., January 29, 2014)(Doc. 3).[3] On March 31, 2008, Petitioner was "borrowed" from state custody pursuant to a writ of habeas corpus ad prosequendum and temporarily taken into federal custody by the United States Marshals Service ("USMS"). Ray Declaration, ¶ 6 and Ex.1 Att. 3. On June 8, 2010, Petitioner entered a guilty plea to a charge of Felon in Possession of a Firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(c)(1), and the United States District Court for the Middle District of Tennessee sentenced Petitioner to a term of imprisonment of 120 months, to be served concurrent with his state sentence. Ray Declaration, ¶ 7 and Ex.1 Att. 4.

Petitioner was returned to state custody from July 2, 2010, until June 20, 2011, at which time Petitioner had completed his state sentence and he was taken into federal custody to complete the remainder of his 120 month federal sentence. Ray Declaration, ¶¶ 8-9 and Ex.1 Att. 3 at p.2 and Ex.1 Att. 4. Petitioner has received credit toward his federal sentence for all of the time spent in state custody after June 8, 2010. Ray Declaration, ¶ 10, Ex.1 Att. 6 at p.2.

Since July 19, 2011, Petitioner has been incarcerated at USP-Tucson. Ex. 2, Declaration of Theresa T. Talplacido ("Talplacido Declaration") ¶ 2 and Ex.2Att. 1. On January 27, 2014, Petitioner filed a motion for clarification of the execution of his sentence before the sentencing court. See Amended Petition, at 3; see also Finney, CR 3:08-0041 (M.D. Tenn., January 29, 2014) (Doc. 60).

The District Court denied Petitioner's motion without prejudice to refiling in the appropriate district after he exhausted administrative remedies within the Federal Bureau of Prisons ("BOP"). See United States v. Finney, CR 3:08-0041 (M.D. Tenn., January 29, 2014)(Doc. 61).

Petitioner was awarded eight days of credit for the time spent in state custody for which he did not receive state credit: December 13, 2007, and January 31, 2008 through February 6, 2008.

Petitioner claims in his Amended Petition that he was sentenced on July 2, 2010[4] to a term of 120 months to be served concurrent with the state sentence from the time "of indictment until complete." (Addendum to Amended Petition, at 3.) The Petitioner argues that the correct date to begin running his federal sentence concurrently with his ...


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