United States District Court, W.D. Louisiana, Alexandria Division
REPORT AND RECOMMENDATION
H.L. Perez-Montes United States Magistrate Judge
the Court is a petition for writ of habeas corpus (28 U.S.C.
§ 2241) filed by pro se Petitioner Javier Ramon Perez
(“Perez”) (#24464-081). Perez is an inmate in the
custody of the Federal Bureau of Prisons (“BOP”),
incarcerated at the United States Penitentiary in Pollock,
Louisiana. Perez challenges the calculation of his sentence
by the BOP.
Perez has received all the credit to which he is legally
entitled, his petition should be denied and dismissed.
was arrested on September 8, 2015 by police in Ogden, Utah
for possession of a dangerous weapon by a restricted person.
At the time of the arrest, Perez was on parole for a robbery
conviction (Docket No. 061701160) and possession of a firearm
by a restricted person (Docket No. 121900303). The new charge
was dismissed by the State of Utah on March 3, 2016, but
parole was revoked in the two prior cases. (Doc. 1-2, p. 14).
was prosecuted in federal court for the firearms charge.
Specifically, Perez was charged with possession of a firearm
by a convicted felon (18 U.S.C. § 922(g)(1)) and
possession of an unregistered silencer (26 U.S.C. §
5861(d)). On March 9, 2016, Perez was “borrowed”
by the United States Marshal Service for his federal
prosecution pursuant to a writ of habeas corpus ad
prosequendum. In accordance with a plea agreement, Perez
was convicted of possession of an unregistered silencer.
(1:16-cr-0013, D. Utah, Doc. 26). Perez was sentenced to 63
months of imprisonment. (1:16-cr-0013, D. Utah, Doc. 26).
sentencing, Perez was returned to state authorities with a
federal detainer. (Doc. 1-2, p. 14). On December 20, 2016,
Perez was released from state custody to federal authorities.
(Doc. 1-2, p. 14).
filed an administrative grievance seeking additional prior
custody credit from September 8, 2015, through October 14,
2016. (Doc. 1-2, p. 14). The Bureau of Prisons partially
granted Perez's request at the national level, and
applied prior custody credit from September 8, 2015 through
October 20, 2015. According to the BOP, that time had not
been credited toward Perez's state sentences for which
his parole was revoked. (Doc. 1-2, p. 14). However, Perez did
not receive credit for October 21, 2015 through December 20,
2016 because those dates were credited toward Perez's
state sentences. (Doc. 1-2, p. 15).
Law and Analysis
authority to grant or deny credit for time served is
specifically reserved to the U.S. Attorney General, who has
delegated that responsibility to the BOP. See
U.S. v. Wilson, 503 U.S. 329 (1992). The district
court may review a challenge to the BOP's refusal to
grant credit or make such a designation in a § 2241
petition. See Pierce v. Holder, 614 F.3d 158, 160
(5th Cir. 2010).
federal judgment is silent with respect to whether sentences
are to run concurrently or consecutively, the presumption is
that they will run consecutively unless the court
specifically orders that they run concurrently. See
18 U.S.C. § 3584(a); U.S. v. Jack, 566
Fed.Appx. 331, 332 (5th Cir. 2014); Free v. Miles,
333 F.3d 550, 553 (5th Cir. 2003). Because the district court
failed to specify the nature of the sentences, they are
presumed to be consecutive.
18 U.S.C. § 3585 provides that a defendant shall be
given credit toward the service of a term of imprisonment for
any time he has spent in official detention prior to the date
the sentence commences: “(1) as a result of the offense
for which the sentence was imposed; or (2) as a result of any
other charge for which the defendant was arrested after the
commission of the offense for which the sentence was imposed;
that has not been credited against another sentence.”
18 U.S.C. § 3585(b).
determined that Perez had not received credit on his state
sentences from September 8, 2015, through October 20, 2015.
Accordingly, the BOP granted Perez credit toward his federal
sentence for those dates. (Doc. 1-2, p. 14). However, because
Perez was serving his state sentences from October 21, 2015,
through December 20, 2016, that time cannot also be credited
toward Perez's ...