United States District Court, D. Arizona
REPORT AND RECOMMENDATION
J. Markovich United States Magistrate Judge.
before the Court is Petitioner Bryan James Garnder's
pro se Petition under 28 U.S.C. § 2241 for a
Writ of Habeas Corpus. (Doc. 1). Petitioner alleges that the
Bureau of Prisons (“BOP”) has failed to credit
his federal sentence with time that he spent in federal
custody on a Writ of Habeas Corpus Ad Prosequendum.
Id. Respondent filed a Return and Answer and
requests that the Court deny the Petition. (Doc. 13).
Petitioner filed a Reply to the Answer. (Doc. 14).
to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure,
this matter was referred to Magistrate Judge Markovich for a
Report and Recommendation. For the reasons stated below, the
Magistrate Judge recommends that the District Court deny the
Petition under 28 U.S.C. § 2241 for a Writ of Habeas
Corpus. (Doc. 1).
FACTUAL AND PROCEDURAL BACKGROUND
March 4, 2008, Petitioner was paroled from the Utah
Department of Corrections (“Utah DOC”) where he
was serving two state sentences: (1) a parole eligible life
sentence for Sexual Abuse of a Child, which expires on
January 21, 2099; and (2) a 15-year sentence for Sexual
Exploitation of a Minor, which expires on March 2, 2020.
(Doc. 13 Ex. A Attach. 2). On January 21, 2010, Petitioner
was arrested and detained on a parole violation. (Doc. 13 Ex.
A. Attach. 3). On January 27, 2010, Petitioner signed an
affidavit and plea of guilt, admitting to the conduct that
led to the parole violation. (Doc. 13 Ex. A. Attach. 2 at 2).
On February 10, 2010, the Utah Parole Board revoked
Petitioner's March 4, 2008 parole date and Petitioner
again began serving the undischarged portion of his state
sentence. (Doc. 13 Ex. A Attach. 2 at 3).
23, 2010, Petitioner was indicted in the United States
District Court for the District of Utah for possession of
child pornography. (Doc. 13 Ex. A Attach. 4). On March 29,
2011, Petitioner was transferred from Utah state prison to
the custody of the U.S. Marshals Service pursuant to a
federal writ of habeas corpus ad prosequendum issued by the
United States District Court for the District of Utah on
March 21, 2009. (Doc. 13 Ex. A Attach. 5). The writ provided
that Petitioner would be returned to the state institution
that he had been residing in at the conclusion of the federal
February 6, 2013, Petitioner and the Utah Parole Board
stipulated to vacate Petitioner's guilty plea to the
parole violation charge. (Doc. 1-2 at 17-18, 23). The parties
also agreed to hold a parole revocation hearing upon final
adjudication of Petitioner's federal case. Id.
August 6, 2013, Petitioner pled guilty to possession of child
pornography in his federal case and was sentenced to 120
months imprisonment and a lifetime term of supervised
release. (Doc. 13 Ex. A Attach. 9). At sentencing,
Petitioner's counsel requested that the district court
order Petitioner's federal sentence to run concurrently
with his state sentences, and also asked the court to order
the concurrent sentence run retroactively and include the
time that Petitioner had been in state custody on the parole
violation. The district ordered the federal sentence
“to run concurrently with [the] two state court
sentences presently being served in the Utah State
Prison” (Doc. 13 Ex. A. Attach. 11 at 20:19-21), but
declined to order concurrent retroactive time for the
I am not going to run concurrent retroactive time. Whether it
is allowed or not, I really don't know because as you
pointed out both cases are a little bit ambiguous, it is
counseled against in the guidelines, and importantly, the
[plea] agreement simply says concurrently. It does not
mention backwards retroactively. And in view of the fact that
Mr. Gardner is getting quite a break, I do not think that it
is in any way what was contemplated by the agreement and I
decline to do so.
(Doc. 13 Ex. A. Attach. 11 at 13:19-14:2).
August 15, 2013 Petitioner was returned to Utah state prison.
(Doc. 13 Ex. A Attach. 6 at 2). Petitioner remained in
federal custody pursuant to the writ from March 29, 2011,
though August 15, 2013, when he was returned to the state
September 6, 2013, the Utah Parole Board vacated
Petitioner's affidavit and plea of guilty to his parole
violation, and also vacated the February 10, 2010 revocation
of Petitioner's parole that was based on the guilty plea.
(Doc. 13 Ex. A Attach. 2 at 2). The Utah Parole Board
scheduled a new parole revocation hearing for September 25,
2013. Id. Petitioner remained in custody pending
October 7, 2013, the Utah Parole Board again revoked
Petitioner's March 4, 2008 parole date. (Doc. 13 Ex. A
Attach. 2 at 1). On February 18, 2014, Petitioner was paroled
to the United States Marshals Service (“USMS”).
Id. Petitioner remains subject to the jurisdiction
of the Utah Parole Board until the expiration of his state
sentences on January 1, 2099, unless the Utah Parole Board
terminates or commutes his sentence.
April 16, 2014 the BOP designated the Utah DOC for service of
Petitioner's federal sentence. (Doc. 13 Ex. A Attach. 10;
Ex. B ¶12, Attach. 7).
4, 2014, Petitioner filed a motion to correct clerical error
which requested that the District Court in Utah amend its
judgment to set out the exact dates for credit for time
served. The district court declined to do so and left the
“determination and calculation of time served to the
Bureau of Prisons.” (Doc. 13 Ex. A. Attach. 3 at 4).
The United States Court of Appeals for the Tenth Circuit
affirmed the district court decision, reasoning that: (1)
Petitioner was requesting that the district court do
something that the court declined to do at sentencing; and
(2) the district court has no authority to compute
pre-sentence credit; only the Attorney General, though the
BOP, has that authority. Id. at 6-7.
prepared a sentence computation for Petitioner based on the
120-month term of imprisonment commencing on August 6, 2013,
the date the district court imposed the federal sentence.
(Doc. 13 Ex. B Attach. 6). The BOP did not credit
Petitioner's federal sentence with the time he spent in
state custody prior to the imposition of his federal sentence
because the Utah DOC credited that time toward the
satisfaction of Petitioner's state sentences. (Doc. 13
Ex. A Attach. 2 at 4). Petitioner's projected release
date is May 15, 2022. (Doc. 13 Ex. B Attach. 6).