Cruz-Rodriguez v. USA, No. 2:2018cv00413 - Document 1 (D. Nev. 2018)
Court Description: ORDER granting 234 Motion to Vacate (2255) as to Rafael Cruz-Rodriguez (3). IT IS FURTHER ORDERED that Cruz-Rodriguez's sentence 200 is VACATED. Cruz-Rodriguez is resentenced to a sentence of time served and all previously ordered conditions in his amended judgment 200 are reimposed. The CLERK OF COURT is directed to REENTER JUDGMENT. The Clerk must also file this order and a separate civil judgment in the related civil cases: 2:18-cv-00281 and 2:18-cv-00413.IT IS FURTHER ORDERED that the Federal Bureau of Prisons IMMEDIATELY RELEASE Cruz-Rodriguez, SUBJECT to any DETAINERS. IT IS FURTHER ORDERED that Cruz-Rodriguez's motion for appointment of counsel 235 is DENIED as MOOT. Signed by Judge Jennifer A. Dorsey on 11/6/2018. (Copies have been distributed pursuant to the NEF - DC)
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Cruz-Rodriguez v. USA Doc. 1 1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 United States of America, 4 Case No.: 2:16-cr-00030-JAD-CWH Plaintiff/respondent Order granting motion to vacate sentence and resentencing defendant 5 v. [ECF No. 234] 6 Rafael Cruz-Rodriguez, 7 Defendant/petitioner 8 Federal prison inmate Rafael Cruz-Rodriguez pled guilty to one count of conspiracy to 9 distribute and possess with intent to distribute. I sentenced him to 33 months of imprisonment, 10 and he was subsequently sentenced to a concurrent sentence in Nevada state court for the same 11 offense conduct. Cruz-Rodriguez moves to vacate his federal sentence under 28 U.S.C. § 2255, 12 arguing that his trial counsel was ineffective because she didn’t realize that he was in federal pre13 trial detention under a writ of habeas corpus ad prosequendum and therefore not entitled to time14 served credit against his federal sentence. Although the government contests this conclusion, it 15 asserts that, in the interests of justice, I should resentence Cruz-Rodriguez to time served due to 16 the unusual circumstances underlying his federal and state sentencings. I therefore grant Cruz17 Rodriguez’s motion, vacate his sentence, resentence him to time served with all prior-stated 18 conditions of supervised release imposed, and order the Bureau of Prisons to immediately release 19 him from custody, subject to any detainers. 20 Background 21 In September 2015, the North Las Vegas Police Department arrested Cruz-Rodriguez on 22 suspicion of acting as a runner for a drug-trafficking organization. 1 Before state-court 23 1 ECF No. 217 at 1; see also ECF No. 220 at 3. Dockets.Justia.com 1 proceedings were initiated, the United States filed a criminal complaint against Cruz-Rodriguez 2 and his co-conspirators 2 and successfully petitioned for a writ of habeas corpus ad 3 prosequendum. 3 Cruz-Rodriguez was transferred from state custody to the U.S. Marshals 4 Service on October 19, 2015, and eventually indicted by a federal grand jury on the conspiracy5 to-distribute charge. 4 He pled guilty, and I sentenced him to 33 months of custody on April 18, 6 2017. 5 7 Several weeks later, the State of Nevada charged Cruz-Rodriguez with a drug-trafficking 8 felony offense based on the same conduct underlying his federal conviction. 6 He again pled 9 guilty and was sentenced to 12 to 36 months to run concurrent to his federal sentence. 7 The state 10 court also credited Cruz-Rodriguez for 657 days for the time he spent in federal pre-trial 11 detention. 8 12 In November 2017, almost seven months after I entered judgment on his federal 13 conviction, Cruz-Rodriguez filed a “motion for a sentence nunc pro tunc.” 9 He argued that the 14 Bureau of Prisons (BOP) erred by not crediting him for the 18 months he spent in federal 15 16 17 18 2 ECF No. 1. 3 ECF Nos. 7, 16–17. 4 ECF No. 217 at 1; ECF No. 54. 5 ECF Nos. 196–97, 200. 19 6 23 8 Id.; see also ECF No. 240 at 5. 9 ECF No. 217. ECF No. 217-1; ECF No. 220 at 3 (“[B]oth the state case and federal case were related to the drug trafficking organization (DTO) and attendant drugs attributed to Mr. Cruz-Rodriguez, who 20 was a ‘drug mule’. The state case arrest and charges were for possession of heroin within the same time period as the charges in the instant federal case and within the same DTO.”); ECF No. 21 240 (the government stating that Cruz-Rodriguez’s “state conviction is based on conduct that is entirely encompassed by his federal offense of conviction”). 22 7 ECF No. 217-1 at 2. 2 1 custody. But Cruz-Rodriguez did not contest the general rule that a defendant held in pre-trial 2 detention by federal authorities under a writ of habeas corpus ad prosequendum is “considered to 3 be ‘on loan’” from the jurisdiction that originally arrested him and is therefore not entitled to 4 time-served credit against his federal sentence. 10 Cruz-Rodriguez instead argued that the 5 probation office’s presentence report (PSR), which stated that he was “in continuous federal 6 custody,” misled him to believe that he was in exclusive federal custody. 11 He contended that, if 7 he had understood that he was being held by federal authorities on a writ, he would have 8 requested that I delay sentencing him until after he was sentenced in state court. 12 He then 9 would have sought to have his federal sentence run concurrent to his state sentence, which was 10 credited for the time he spent in pre-trial detention under the writ. He argued that, because the 11 PSR’s inaccurate portrayal of his detention status prevented him from taking these steps, I should 12 order the BOP to credit the time he spent detained under the writ. 13 The government countered that Cruz-Rodriguez’s motion was untimely because, under 14 Federal Rule of Criminal Procedure 35(a), I may correct a sentence only within 14 days of 15 rendering it. 13 At a motion hearing, 14 Cruz-Rodriguez argued that I could nonetheless grant him 16 relief under Rule 36, which permits district courts to correct a clerical error in the judgment “at 17 any time . . . .” But Cruz-Rodriguez sought to substantively amend his sentence—not merely fix 18 19 10 See Thomas v. Brewer, 923 F.2d 1361, 1367 (9th Cir. 1991); see also Dugan v. Clark, No. 20 CV 00-9374-RC, 2001 WL 113660, at *3 (C.D. Cal. Feb. 2, 2001) (citing Thomas and holding that the petitioner was “not entitled to credit against his federal sentence for time spent in federal 21 custody pursuant to the writ of habeas corpus ad prosequendum”). 11 See ECF No. 217 at 1. 22 12 ECF No. 220 at 4. 23 13 ECF No. 219 at 2. 14 ECF No. 227. 3 1 a clerical error. And because the Ninth Circuit has held that “the fourteen day provision in 2 Rule 35(a) is jurisdictional,” 15 I denied his motion on the record. 3 At a subsequent status-check hearing, Cruz-Rodriguez’s attorney stated that she had 4 informed Cruz-Rodriguez that he could collaterally attack his federal sentence under § 2255. 16 I 5 confirmed on the record that Cruz-Rodriguez understood that this avenue was available to him, 6 and he eventually filed this pending petition. Two weeks ago, I directed the government to 7 submit an answer, which it timely filed this week. 17 8 Discussion 9 The government argues that the BOP correctly denied Cruz-Rodriguez time-served credit 10 under 18 U.S.C. § 3585(b), which allows the BOP to credit an inmate for time spent in pre-trial 11 detention only if this time “has not been credited against another sentence.” And because the 12 state court credited Cruz-Rodriguez’s state sentence, he is not entitled to the same credit against 13 his federal sentence. The government further contends that Cruz-Rodriguez’s counsel was not 14 ineffective because she could not have known during his federal sentencing whether Nevada 15 would subsequently prosecute him and thus could not have requested time-served credit against 16 his federal sentence at that point.18 And, the government continues, it would have been 17 “reasonable” for Cruz-Rodriguez’s attorney to believe that Nevada would decline to prosecute 18 him because the PSR noted that the state was monitoring his federal case and “especially because 19 the offense conduct for which Cruz-Rodriguez was charged in state court was part and parcel of 20 21 15 22 United States v. Aguilar-Reyes, 653 F.3d 1053, 1056 (9th Cir. 2011). 16 ECF No. 229. 23 17 ECF No. 240. 18 Id. at 6–7. 4 1 the federal offense . . . .”19 The government also represents that its prosecutor also “likely 2 anticipated the state would drop its charges after the federal sentencing” and that Cruz-Rodriguez 3 would have therefore received time-served credit against his federal sentence. 20 The government 4 calculates that, as of the time it filed its response, Cruz-Rodriguez has been in custody for just 5 over 37 months, which exceeds his 33-month sentence. 21 6 Ultimately, I need not decide whether Cruz-Rodriguez can establish ineffective assistance 7 of counsel because the government nonetheless asserts that the interests of justice support 8 resentencing Cruz-Rodriguez to time served.22 It highlights several “highly unusual 9 circumstances” in support of this recommendation: 10 (1) [the] defendant’s state conviction is based on conduct that is entirely encompassed by his federal offense of conviction; (2) the parties may reasonably have expected the state to dismiss its charges once the defendant was sentenced in federal court, and thus for the defendant to have all of the time he spent in custody prior to the commencement of his federal sentence credited toward that sentence; (3) the state court intended the state and federal sentences to run concurrently; and (4) the defendant has already spent more time in custody tha[n] the federal sentence imposed . . . . 23 11 12 13 14 15 Given these circumstances, the government has (to the extent of its 16 17 recommendation) “expressly and affirmatively” waived the provision of Cruz18 Rodriquez’s plea agreement waiving his right to collaterally challenge his 19 20 19 Id. at 7. 20 22 Id. 21 Id. at 8 n.3. 23 22 Id. at 8. 23 Id. 21 5 1 conviction.24 I therefore find good cause for granting Cruz-Rodriguez’s motion to 2 vacate his sentence, resentence him to time served, and order his immediate 3 release from prison subject, of course, to any applicable detainers. 4 Conclusion 5 Accordingly, IT IS HEREBY ORDERED that Cruz-Rodriguez’s motion to vacate his 6 sentence under 28 U.S.C. § 2255 [ECF No. 234] is GRANTED. 7 IT IS FURTHER ORDERED that Cruz-Rodriguez’s sentence [ECF No. 200] is 8 VACATED. I RESENTENCE Cruz-Rodriguez to a sentence of time served and reimpose all 9 previously ordered conditions in his amended judgment [ECF No. 200]. The CLERK OF 10 COURT is directed to REENTER JUDGMENT. The Clerk must also file this order and a 11 separate civil judgment in the related civil cases: 2:18-cv-00281 and 2:18-cv-00413. 12 IT IS FURTHER ORDERED that the Federal Bureau of Prisons IMMEDIATELY 13 RELEASE Cruz-Rodriguez, SUBJECT to any DETAINERS. 14 IT IS FURTHER ORDERED that Cruz-Rodriguez’s motion for appointment of counsel 15 [ECF No. 235] is DENIED as MOOT. Dated: November 6, 2018 16 17 _______________________________ U.S. District Judge Jennifer A. Dorsey 18 19 20 21 22 23 24 Id.; see also ECF No. 122 at 12. 6
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