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Gardner v. Shartle

United States District Court, D. Arizona

August 1, 2017

Bryan James Gardner, Petitioner,
v.
JT Shartle, Respondent.

          REPORT AND RECOMMENDATION

          Eric J. Markovich United States Magistrate Judge.

         Pending 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).

         Pursuant 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).

         I. FACTUAL AND PROCEDURAL BACKGROUND

         On 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).

         On June 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).[1] 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 case. Id.

         On 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. at 17.

         On 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 following reasons:

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).

         On 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 institution.

         On 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 that hearing.

         On 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.

         On 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).

         On June 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.

         The BOP 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).

         II. ...


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