(HC) Shrader v. Plumley, No. 1:2017cv01338 - Document 16 (E.D. Cal. 2018)

Court Description: ORDER Directing Clerk's Office to Assign a District Judge to This Matter; FINDINGS and RECOMMENDATIONS recommending that the Petition for Writ of Habeas Corpus (Doc. 1 ) be DENIED With Prejudice signed by Magistrate Judge Michael J. Seng on 4 /4/2018. This case has been assigned to Chief Judge Lawrence J. O'Neill and Magistrate Judge Michael J. Seng. The new case number is 1:17-cv-01338-LJO-MJS (HC). Referred to Judge O'Neill. Objections to F&R due within thirty (30) days. (Jessen, A)
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(HC) Shrader v. Plumley Doc. 16 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 THOMAS C. SHRADER, Petitioner, 12 13 v. 14 Respondent. ORDER DIRECTING CLERK’S OFFICE TO ASSIGN A DISTRICT JUDGE TO THIS MATTER B.W. PLUMLEY, Warden 15 Case No. 1:17-cv-01338-MJS (HC) FINDINGS AND RECOMMENDATION TO DENY PETITION FOR WRIT OF HABEAS CORPUS 16 (ECF NO. 1) 17 THIRTY-DAY DEADLINE 18 19 20 21 22 23 24 25 26 27 28 Petitioner is a federal prisoner proceeding pro se with a petition for writ of habeas corpus under the authority of 28 U.S.C. § 2241. Respondent B.W. Plumley is represented by Rosanne Rust of the United States Attorney’s Office, Eastern District of California. Petitioner filed the instant petition for writ of habeas corpus on October 5, 2017. (Pet., ECF No. 1.) He contends that the Bureau of Prisons miscalculated his sentence in violation of federal law and the order of the sentencing court. On February 13, 2018, Respondent filed a response. (ECF No. 12.) Petitioner then filed a “rebuttal.” (ECF No. Dockets.Justia.com 1 14.) The matter is submitted. 2 I. Procedural History and Petitioner’s Argument 3 Petitioner is in federal custody at the Federal Correctional Institution, Mendota, 4 pursuant to the November 18, 2010 judgment of the United States District Court for the 5 Southern District of West Virginia, convicting him on two counts of stalking through the 6 use of an interstate facility and one count of being a felon in possession of a firearm. 7 (ECF No. 12-1 at 2.) He received a 235-month sentence and a 5-year term of supervised 8 release. (Id. at 3-4.) 9 Petitioner contends that the 5-year term of supervised release must be deducted 10 from his 235-month prison sentence, so that he serves only 175 months in prison, 11 followed by the 5 years of supervised release. He argues that the sentence, as 12 interpreted by the Bureau of Prisons (“BOP”), instead imposes the 5-year term of 13 supervised release after the 235-month prison sentence, in excess of the term allowable 14 under the applicable sentencing guidelines range. It is somewhat unclear whether he 15 contends that the District Court imposed an unlawful sentence, or whether he contends 16 that BOP has misinterpreting the sentencing court’s order and therefore improperly 17 calculated his sentence. 18 II. Discussion 19 To the extent Petitioner intends to challenge the sentence imposed by the District 20 Court, this Court lacks jurisdiction under § 2241. Petitioner may challenge his sentence 21 by way of 18 U.S.C. § 3742 or 28 U.S.C. § 2255. Except in limited circumstances not 22 presented here, see Alaimalo v. United States, 636 F.3d 1092, 1096 (9th Cir. 2011), 23 Petitioner cannot challenge his sentence in a petition brought pursuant to 28 U.S.C. 24 § 2241. Although Petitioner disavows any intent to challenge the sentence imposed by 25 the District Court, his primary argument is that the sentence, as imposed, is unlawful. 26 The Court cannot, and will not, grant relief on such a claim on the instant petition. 27 28 2 1 Petitioner instead styles his argument as a challenge to the BOP’s calculation of 2 his sentence, not the imposition of the sentence itself. To the extent Petitioner suggests 3 that BOP should have conformed his sentence to the sentencing guidelines, regardless 4 of the sentence actually imposed by the Court, his argument is misplaced. He does not 5 provide, and the Court does not find, authority that would permit BOP to alter a 6 purportedly unlawful sentence to bring it into conformance with the law. Cf. Reynolds v. 7 Thomas, 603 F.3d 1144, 1149 (9th Cir. 2010) (“Once the district court has discharged its 8 sentencing function, the defendant is committed to the custody of the BOP, which has 9 the authority to calculate the defendant’s sentences in accordance with the district 10 court’s orders, as well as to designate the facility for service of such sentences.”), 11 abrogated on other grounds by Setser v. United States, 132 S. Ct. 1463 (2012). 12 Petitioner next attempts to argue that the sentence actually imposed by the Court 13 required BOP to deduct the five year term of supervised release from his term of 14 incarceration. This argument is not supported by the record. The District Court’s 15 Judgment and Conviction Order provides that Petitioner is “committed to the custody of 16 the United States Bureau of Prisons to be imprisoned for a total term of TWO HUNDRED 17 THIRTY-FIVE (235) MONTHS.” The Order separately provides, “Upon release from 18 imprisonment, the defendant shall be on supervised release for a term of FIVE (5) 19 YEARS.” (ECF No. 12-1 at 3-4.) The District Court plainly intended to add the term of 20 supervised release to the 235 month term of imprisonment. 21 Finally, even if the Court were to reach the merits of Petitioner’s claim that the 22 sentence as construed by the BOP exceeds the guidelines, the claim must be rejected. 23 In imposing a term of imprisonment, the Court “may include as part of the sentence a 24 requirement that the defendant be placed on a term of supervised release after 25 imprisonment.” 18 U.S.C. § 3583(a). The Ninth Circuit has rejected the argument that 26 this statute merely affords the sentencing court the “discretion to convert a portion of a 27 term of imprisonment already authorized by a substantive criminal statute into a period of 28 3 1 supervised release.” United States v. Montenegro-Rojo, 908 F.2d 425, 432 (9th Cir. 2 1990)l see also United States v. Soto-Olivas, 44 F.3d 788, 790 (9th Cir. 1995) (affirming 3 that supervised release may be included as a separate part of a defendant’s sentence, 4 in addition to his prison sentence). Instead, the Ninth Circuit has concluded that a district 5 court may tack the period of supervised release “onto any term of imprisonment 6 authorized by a substantive criminal statute, even a term near or at the maximum.” 7 Montenegro-Rojo, 908 F.2d at 432. 8 9 10 11 12 13 Accordingly, Petitioner is not entitled to relief. III. Conclusion and Recommendation Petitioner has not consented to Magistrate Judge jurisdiction. The Clerk of Court is therefore directed to assign a District Judge to this matter. Additionally, it is HEREBY RECOMMENDED that the petition for writ of habeas corpus be denied with prejudice. 14 The findings and recommendations are submitted to the United States District 15 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 16 thirty (30) days after being served with the findings and recommendations, any party 17 may file written objections with the Court and serve a copy on all parties. Such a 18 document should be captioned “Objections to Magistrate Judge’s Findings and 19 Recommendations.” Any reply to the objections shall be served and filed within fourteen 20 (14) days after service of the objections. The parties are advised that failure to file 21 objections within the specified time may result in the waiver of rights on appeal. 22 Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 23 F.2d 1391, 1394 (9th Cir. 1991)). 24 25 26 IT IS SO ORDERED. Dated: April 4, 2018 /s/ 27 Michael J. Seng UNITED STATES MAGISTRATE JUDGE 28 4