United States District Court, D. Colorado
ORDER OF DISMISSAL
CHRISTINE M. ARGUELLO, District Judge.
Petitioner Jose Diaz-Fontanez is in the custody of the Bureau of Prisons ("BOP"), and is currently incarcerated at the United States Penitentiary, Florence High, in Florence, Colorado. Mr. Diaz-Fontanez initiated this action by filing a pro se Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 on September 16, 2013. (Doc. # 1.) For the reasons stated below, the Application is denied.
On December 15, 1992, Mr. Diaz-Fontanez was sentenced by the Commonwealth of Puerto Rico to a two-year term of imprisonment for a firearms violation. (Doc. # 19-1 at 16.) The execution of the term was suspended and Mr. Diaz-Fontanez was placed on probation. ( Id. ) Subsequently, Mr. Diaz-Fontanez was sentenced by the Commonwealth of Puerto Rico to an eight-year term of imprisonment on firearm charges in June of 1993, imposed consecutively to any sentence being served. ( Id. ) His probation was revoked on August 6, 1993. In 1996, Mr. Diaz-Fontanez was sentenced to a three year term for another firearms violation. ( Id. at 17.)
On April 11, 1997, while serving these non-federal sentences, Mr. Diaz-Fontanez was taken into federal custody, pursuant to a Writ of Habeas Corpus ad Prosequendum ("Writ of HCAP") issued by the United States District Court for the District of Puerto Rico. ( Id. at 25.) While in federal detention awaiting conviction and sentencing on federal charges, Mr. Diaz-Fontanez was sentenced by the Commonwealth of Puerto Rico to a 25 year term for murder, to be served concurrently with the federal term to be imposed. ( Id. at 17.) On June 14, 2002, the United States District Court for the District of Puerto Rico sentenced Mr. Diaz-Fontanez to a 324 month term of imprisonment for conspiracy to distribute narcotics, which was to run concurrently with his existing state sentences. (Doc. # 19-1 at 29.) Mr. Diaz-Fontanez was returned to state custody on July 1, 2002. ( Id. at 26.) Upon completion of his state sentence on June 15, 2006, Mr. Diaz-Fontanez was transferred to federal custody to serve the remainder of his federal drug trafficking sentence. ( Id. at 3.) Subsequently, Mr. Diaz-Fontanez's federal sentence was reduced by the United States District Court for the District of Puerto Rico to a term of 192 months and 11 days on February 26, 2009, and further reduced to a term of 188 months on December 10, 2012. ( Id. at 5.) Mr. Diaz-Fontanez's projected release date is May 22, 2016. ( Id. at 42.)
Mr. Diaz-Fontanez filed a Request for Administrative Remedy on March 20, 2013, alleging that the BOP failed to credit him the pre-sentence jail time from April 11, 1997 to June 14, 2002, to which he is entitled. (Doc. # 1 at 7.) When his initial Request was denied on April 4, 2013, Mr. Diaz-Fontanez filed a Regional Administrative Remedy Appeal on April 10, 2013, which was denied on April 24, 2013. ( Id. at 8.) Mr. Diaz-Fontanez filed his final Administrative Remedy Appeal to the Central Office Administrative on May 22, 2013, which was denied on June 27, 2013. ( Id. at 11.)
On March 27, 2013, during the administrative appeal process, Mr. Diaz-Fontanez filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 in the United States District Court for the District of Colorado. ( Id. at 12.) The writ was denied and the action was dismissed without prejudice on May 31, 2013, due to Mr. Diaz-Fontanez's failure to exhaust all administrative remedies. ( Id. at 14-16.) On September 16, 2013, after his final administrative appeal was denied, Mr. Diaz-Fontanez filed the instant action, a second application for a writ of habeas corpus. ( Id. ) In the application, Mr. Diaz-Fontanez alleges that the BOP's failure to credit him pre-sentence jail time served from April 11, 1997 to June 14, 2002, violates his Fifth and Eighth Amendment rights, and is a miscalculation of his sentence under United States Sentencing Commission, Guidelines Manual, § 5G1.3(b) (Nov. 2012). ( Id. at 2-3.) As relief, he seeks immediate release from federal custody. ( Id. at 2.)
II. LEGAL STANDARD
The Court must construe a prisoner's pleadings liberally when he is proceeding pro se. See Haines v. Kerner, 404 U.S. 519, 520 (1972) ( pro se complaints are held "to less stringent standards than formal pleadings drafted by lawyers"). At the same time, the Court cannot act as an advocate for a pro se litigant. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (noting that a pro se litigant must make more than conclusory allegations to state a valid claim).
A Section 2241 habeas proceeding is "an attack by a person in custody upon the legality of that custody, and... the traditional function of the writ is to secure release from illegal custody." McIntosh v. U.S. Parole Comm'n, 115 F.3d 809, 811 (10th Cir. 1997) (quoting Preiser v. Rodriguez, 411 U.S. 475, 484 (1973)). Habeas corpus relief is warranted only if the applicant "is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3). "A petition under 28 U.S.C. § 2241 attacks the execution of a sentence rather than its validity and must be filed in the district where the prisoner is confined." Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996) (citation omitted).
A. WRIT OF HCAP
Mr. Diaz-Fontanez contends that he is entitled to pre-sentence jail time credit for the April 11, 1997 to June 14, 2002 period when he was in federal custody pursuant to the Writ of HCAP.
"The computation of a federal sentence requires consideration of two separate issues. Initially, we determine the commencement date of the federal sentence and then turn to the extent to which a defendant can receive credit for time spent in custody prior to commencement of sentence." Newman v. Cozza-Rhodes, 526 F.Appx. 818, 821 ...