United States District Court, D. Colorado
ORDER ON APPLICATION FOR WRIT OF HABEAS CORPUS
ROBERT E. BLACKBURN, District Judge.
This matter is before me on the Application for a Writ of Habeas Corpus Pursuant to 29 U.S.C. § 2241 ("Application") [#4] filed October 21, 2013, by counsel for Applicant Cesar Grajeda. On December 4, 2013, Respondent was ordered to show cause why the Application should not be granted. Respondent filed a "Response to Order to Show Cause" ("Response") [#17], and Applicant filed "Cesar Grajeda's Reply to the Respondent's Response to the Order to Show Cause" ("Reply") [#18]. After reviewing the pertinent portions of the record in this case including the Application, the Response, and the Reply, I conclude that the Application should be denied.
Applicant is a federal prisoner confined at Florence Federal Correctional Complex in Florence, Colorado. Applicant is challenging his sentence computation by the Bureau of Prisons ("BOP"). As relief, he seeks an order requiring the BOP to consider Applicant's nunc pro tunc request for 572 days of presentence credit against his federal sentence.
The record establishes the following facts:
1. On or about October 4, 2007, Applicant was arrested by local law enforcement officers in Jefferson County, Colorado, for distribution of marijuana. [#17-1 at 9]. He remained in state custody until October 8, 2007. [ Id. at 2; #11-1 at 26].
2. On September 13, 2008, Applicant was arrested by agents of the Drug Enforcement Administration, and a criminal complaint was filed against him in the United States District Court for the District of New Mexico charging him with conspiracy to distribute in excess of 100 kilograms of marijuana in violation of 21 U.S.C. § 841(a)(1) & (b)(1)(B). [#17-1 at 11, 14]. He was released from federal custody nine days later on September 22, 2008. [ Id. at 12].
3. On or about November 12, 2008, Applicant was taken into state custody to await sentencing for the state marijuana offense in People v. Grajeda, 07-CR-2877 (District Court, Jefferson County, Colorado). [#11-1 at 13, 26]. On November 24, 2008, he was sentenced to a prison term of four years in the custody of the Colorado Department of Corrections ("CDOC") and three years of mandatory parole. [#17-1 at 9].
4. On March 13, 2009, while Applicant was in CDOC custody serving his state sentence, federal authorities assumed temporary custody of Applicant pursuant to a writ of habeas corpus ad prosequendum. [#17-1 at 11]. Applicant pleaded guilty in federal court to conspiracy to distribute marijuana. [ Id. at 16].
5. On June 2, 2010, the United States District Court for the District of New Mexico sentenced Applicant to a sixty-month term of imprisonment in the custody of the BOP to run concurrently with his state sentence. [ Id. at 11, 16-17]. Following his federal sentencing, Applicant was returned to CDOC custody on June 16, 2010. [ Id. at 11-12].
6. On August 10, 2011, Applicant completed his state prison term, was released from CDOC custody, and was placed in the custody of the BOP pursuant to a federal detainer. [#17-1 at 12].
7. On August 15, 2011, the BOP determined that Applicant's federal sentence commenced on the date it was imposed, June 2, 2010 and made a nunc pro tunc designation of the CDOC facility as of June 2, 2010, for concurrent service of his federal sentence. [#17-1 at 22, 24]. Based on this calculation and good time, Applicant's projected release date is September 17, 2014. [ Id. at 24].
8. On November 13, 2012, Applicant's attorney wrote a letter to the BOP Mid-Atlantic Regional Office requesting a nunc pro tunc designation of the CDOC facility for concurrent service of Applicant's federal sentence. [#11-1 at 25-30]. In the letter, Applicant's attorney acknowledged that the BOP had already given Applicant prior custody credit for the period Applicant was in federal custody following his arrest by federal agents (September 13, 2008 to September 22, 2008). [ Id. at 25]. Moreover, Applicant's attorney also recognized that the BOP had given credit against Applicant's federal sentence for the time Applicant remained in CDOC custody following the imposition of his federal sentence (June 2, 2010 to August 26, 2011). [ Id. at 25-26; #4 at 4]. Applicant's attorney then sought a nunc pro tunc designation for 572 days of time served while Applicant was in state custody prior to the imposition of the federal sentence as follows:
(a) Five (5) day credit for the period Applicant was in state custody following his arrest for distribution of marijuana (October 3, 2007 to October 8, 2007);
(b) Eleven (11) day credit for the period Applicant was in state custody awaiting sentencing for the state offense (November 12, 2008 to November 23, 2008);
(c) One hundred and ten (110) day credit for the period Applicant was in state custody serving his state sentence (November 24, 2008 to March 12, 2009); and
(d) Four hundred and forty-six (446) day credit for the period Applicant was borrowed by federal authorities pursuant to writ of habeas corpus ad prosequendum to attend his federal criminal ...