(HC) McCormick v. Trate

• Court: District Court, E.D. California
• Decided: October 23, 2023
• Docket: 1:23-cv-00176
• Status: Unknown

Opinion

7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9

10 MICHAEL MCCORMICK, Case No. 1:23-cv-00176-EPG-HC

11 Petitioner, ORDER GRANTING RESPONDENT’S MOTION TO DISMISS AND DISMISSING 12 v. PETITION FOR WRIT OF HABEAS CORPUS 13 TRATE, (ECF No. 13) 14 Respondent.

15 16 Petitioner Michael McCormick is a federal prisoner proceeding pro se with a petition for 17 writ of habeas corpus pursuant to 28 U.S.C. § 2241. The parties have consented to the 18 jurisdiction of a United States Magistrate Judge. (ECF Nos. 5, 9, 10.) For the reasons discussed 19 herein, the Court will grant Respondent’s motion to dismiss and dismiss the petition. 20 I. 21 BACKGROUND 22 On January 16, 2016, Petitioner was arrested by the Kentucky State Police Department 23 for a state law violation of trafficking in a controlled substance in Laurel County Circuit Court 24 Case No. 16-CR-00101. (App. 2, 19.)1 On December 16, 2016, Petitioner was indicted for state 25 law violations of bail jumping and persistent felony offender in Laurel County Circuit Court 26 Case No. 16-CR-00345. (App. 3, 34.) On December 19, 2016, Petitioner was sentenced to an 27 1 “App.” refers to the Appendix lodged by Respondent. (ECF No. 13-1.) App. page numbers refer to the bolded page 1 imprisonment term of eight years for illicit drug trafficking in Case No. 16-CR-00101. (App. 9, 2 36–40.) On May 2, 2017, Petitioner was sentenced to a consecutive imprisonment term of fifteen 3 years for bail jumping and persistent felony offender in Case No. 16-CR-00345. (App. 4, 45–47.) 4 Subsequently, Petitioner pleaded guilty in the United States District Court for the Eastern 5 District of Kentucky to conspiracy to distribute a controlled substance, in violation of 21 U.S.C. 6 §§ 841, 846, in Case No. 6:16-cr-00056. On September 18, 2018, Petitioner was sentenced to an 7 imprisonment term of 188 months. (App. 49–50.) The judgment further stated: 8 Pursuant to U.S.S.G. § 5G1.3(b), the sentence is adjusted downward to One Hundred Sixty-Five (165) Months and Fifteen 9 (15) Days to account for the time (675 days) the defendant has served as to the related undischarged state term of imprisonment in 10 Laurel Circuit, Dkt. Number 16-CR-101, and for which the period of imprisonment as to the related state matter will not be credited 11 by the Bureau of Prisons. Additionally, the federal sentence shall run concurrently with the remainder of the related undischarged 12 term of imprisonment in Laurel Circuit, Dkt. Number 16-CR-101, which the Court estimates to be 693 days. The federal sentence 13 shall run consecutively to the undischarged term of imprisonment in Laurel Circuit, Dkt. Number 16-CR-345. 14 15 (App. 50.) 16 Thereafter, the federal sentencing court was advised by the Federal Bureau of Prisons 17 (“BOP”) that Petitioner’s “original sentence could not be effectuated as written” because “the 18 state sentences had essentially been grouped together, and this made it impossible for [Petitioner] 19 to serve his [federal] sentence consecutive with one state matter and concurrent with the other.” 20 Order at 1, 2, United States v. McCormick, No. 6:16-cr-00056 (E.D. Ky. Dec. 13, 2021), ECF 21 No. 479.2 The federal sentencing court “held a telephonic status conference with counsel . . . to 22 determine the best way to effectuate [Petitioner]’s sentence,” and after said status conference, 23 “counsel for [Petitioner] and the United States collaborated and subsequently proposed” the 24 following language:

25 2 The Court “may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue.” U.S. ex rel. Robinson Rancheria Citizens Council v. 26 Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992) (internal quotation marks and citation omitted)). See also United States v. Raygoza-Garcia, 902 F.3d 994, 1001 (9th Cir. 2018) (“A court may take judicial notice of undisputed 27 matters of public record, which may include court records available through PACER.”); Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006) (“We may take judicial notice of court filings and other 1 The defendant is hereby committed to the custody of the Federal Bureau of Prisons to be imprisoned for a total term of: ONE 2 HUNDRED EIGHTY-EIGHT (188) MONTHS. Pursuant to U.S.S.G. § 5G1.13(b), the sentence is adjusted downward to One 3 Hundred Forty-Two (142) Months, the defendant served as to the related undischarged state term of imprisonment in Laurel Circuit, 4 Dkt. Number 16-CR101, and for which the period of imprisonment will not be credited by the Bureau of Prisons. 5 6 Id. at 1, 2. Subsequently, the federal sentencing court received a letter from Petitioner, in which 7 Petitioner “expressed concern that he was not receiving as much credit for time served on his 8 state sentence as he should have received.” Id. at 2. The court ordered Petitioner’s counsel to 9 review Petitioner’s letter and file a response regarding whether any additional action should be 10 taken before entry of the amended judgment. Petitioner’s counsel informed the court “that he had 11 communicated with his client and that ‘no additional action is requested of the Court prior to the 12 entry of an amended judgment.’” Id. (citation omitted). On December 13, 2021, the federal 13 sentencing court ordered that Petitioner’s judgment be amended, id. at 3, and on January 3, 2022, 14 the amended judgment was issued with the agreed-upon language set forth above, (App. 58). 15 Petitioner is currently incarcerated at the United States Penitentiary in Atwater, 16 California. (ECF No. 1 at 1.)3 On February 6, 2023, Petitioner filed the instant federal petition 17 for writ of habeas corpus pursuant to 28 U.S.C. § 2241. (ECF No. 1.) Therein, Petitioner asserts 18 that his due process rights were violated “due to a simple clerical error” made by both the BOP 19 and the federal sentencing court that denied Petitioner an additional ten months of custody credit. 20 (Id. at 3, 6.) Petitioner also appears to request that he receive federal Good Conduct Time for his 21 original sentence 188 months rather than the downward adjusted sentence of 142 months. (Id. at 22 9.) Respondent filed a motion to dismiss the petition for failure to state a claim and for failure to 23 exhaust administrative remedies. (ECF No. 13.) Petitioner filed an opposition. (ECF No. 16.) 24 II. 25 DISCUSSION 26 Petitioner asserts that his due process rights were violated “due to a simple clerical error” 27 made by both the BOP and the federal sentencing court that denied Petitioner an additional ten 1 months of custody credit for time previously served. (ECF No. 1 at 3, 6.) Petitioner purports to 2 contest how his sentence is being executed and credited by the BOP. (ECF No. 1 at 6.) However, 3 in actuality the petition challenges the calculation of the U.S.S.G. § 5G1.3(b) downward 4 adjustment,4 and the resulting sentence imposed in the amended judgment by the United States 5 District Court for the Eastern District of Kentucky in Case No. 6:16-CR-56. Although “[c]redit 6 for time served is indeed a matter which generally falls within the province of the Bureau of 7 Prisons under 18 U.S.C. § 3585(b),” “[a]pplication of section 5G1.3(b) is a matter for the court, 8 not the Bureau, to decide.” United States v. Drake, 49 F.3d 1438, 1440 (9th Cir. 1995). 9 Therefore, the appropriate venue to raise such a claim is in the sentencing court,5 and Petitioner 10 fails to state a claim for relief under 28 U.S.C. § 2241. See Pinson v. Carvajal, 69 F.4th 1059, 11 1066 (9th Cir. 2023) (“[W]e have consistently held that ‘motions to contest the legality of a 12 sentence must be filed under § 2255 in the sentencing court, while petitions that challenge the 13 manner, location, or conditions of a sentence’s execution must be brought pursuant to § 2241 in 14 the custodial court.’” (quoting Hernandez v. Campbell, 204 F.3d 861, 864 (9th Cir. 2000)). 15 To the extent Petitioner asserts that he is entitled to additional federal Good Conduct 16 Time (“GCT”) credit,6 the Ninth Circuit has held that a prisoner “is not eligible for GCT credit 17 for the [time] he spent in state custody—serving a state sentence—before imposition of his 18

19 4 The Sentencing Guidelines provide: If subsection (a) does not apply, and a term of imprisonment resulted from another offense that is 20 relevant conduct to the instant offense of conviction under the provisions of subsections (a)(1), (a)(2), or (a)(3) of § 1B1.3 (Relevant Conduct), the sentence for the instant offense shall be 21 imposed as follows: (1) the court shall adjust the sentence for any period of imprisonment already served 22 on the undischarged term of imprisonment if the court determines that such period of imprisonment will not be credited to the federal sentence by the Bureau of Prisons; 23 and (2) the sentence for the instant offense shall be imposed to run concurrently to the 24 remainder of the undischarged term of imprisonment. United States Sentencing Commission, Guidelines Manual, § 5G1.3(b). 25 5 The Court notes that, as set forth in section I, supra, Petitioner’s concern that the custody credit was being undercounted was previously raised in the federal sentencing court, and Petitioner’s counsel was given an opportunity to indicate whether any additional action should be taken before an amended judgment was issued. 26 Counsel informed the sentencing court that he had communicated with Petitioner and no additional action was requested. 27 6 “18 U.S.C. § 3624(b)(1) grants the BOP authority to give a prisoner serving a federal sentence up to 54 days of credit on his sentence each year if the BOP determines the prisoner displayed exemplary compliance with eee eR EE RI OE OSI IEE IE OE

1 | federal sentence” because “a prisoner can receive GCT credit only on time served on his federal 2 | sentence, and his federal sentence does not ‘commence’ until after he has been sentenced in 3 | federal court[.]” Schleining v. Thomas, 642 F.3d 1242, 1248 (9th Cir. 2011).’ Accordingly, 4 | Petitioner is not entitled to GCT credit for 188 months rather than 142 months because those 5 | additional 46 months were spent in state custody serving a state sentence before Petitioner was 6 | sentenced in federal court. Therefore, Petitioner fails to state a claim and is not entitled to habeas 7 | relief on this ground. 8 Ii. 9 ORDER 10 Based on the foregoing, the Court HEREBY ORDERS that: 11 1. Respondent’s motion to dismiss (ECF No. 13) is GRANTED; 12 2. The petition for writ of habeas corpus is DISMISSED; and 13 3. The Clerk of Court is DIRECTED to CLOSE the case. 14 15 IT IS SO ORDERED. 16] Dated: _ October 23, 2023 [sf Sy — U7 UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 The petitioner in Schleining, like P g, like Petitioner here, had his federal sentence adjusted downward pursuant to U.S.S.G. § 5G1.3(b) and argued that he was entitled to GCT credits for time he served in state prison on state charges before 28 | he was sentenced on a related charge in federal court. Schleining, 642 F.3d at 1244-46.