Luna v. FCI Berlin, Warden

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Alex Luna
v. 	Case No. 17-cv-510-PB
Warden, FCI-Berlin
REPORT AND RECOMMENDATION
Alex Luna, a federal prisoner housed at the Federal
Correctional Institution in Berlin, New Hampshire, following a
2006 conviction in the United States District Court for the
District of Connecticut, has petitioned this court for a writ of
habeas corpus pursuant to 28 U.S.C. § 2241. 	See Doc. No. 1.
The petition challenges the Bureau of Prisons’ (“BOP”) decision
denying him credit for time Luna was incarcerated by the State
of Connecticut between 1998 and 2002. 	Respondent has moved to
dismiss the petition, Doc. No. 9, to which petitioner has
responded. See Doc. No. 14. 	Respondent’s motion has been
referred to the magistrate judge for a report and
recommendation. 	See LR 72.1. 	For the reasons that follow, the
district judge should grant the motion.
Motion to Dismiss Standard
Respondent moves to dismiss pursuant to Fed. R. Civ. P.
12(b)(6). 	The court therefore accepts the factual allegations
in the complaint as true, construes reasonable inferences in
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petitioner’s favor, and determines whether the factual
allegations in the complaint state a claim upon which relief may
be granted. 	Foley v. Wells Fargo Bank, N.A., 772 F.3d 63, 71
(1st Cir. 2014). 	Under Rule 12(b)(6) the court may consider
“facts and documents that are part of or incorporated into the
complaint,” as well as “documents incorporated by reference in
[the complaint], matters of public record, and other matters
susceptible to judicial notice.” 	Giragosian v. Ryan, 547 F.3d
59, 65 (1st Cir. 2008) (citations omitted). 	As petitioner is
proceeding pro se, his pleadings are construed liberally. See
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam).
Background
Luna pleaded guilty in 2006 to drug and weapons charges in
the District of Connecticut and was sentenced to thirty years’
incarceration. 	The indictment in his case noted that the drug
conspiracy at the heart the charges began in or about December
2002. 	He was arrested on the federal charges in March 2005.
Luna had previously been incarcerated in Connecticut after state
drug and assault convictions in September 1998. 	He was released
from state incarceration to supervised parole in March 2002 and
discharged from parole in September 2002. 	In 2016, BOP denied
Luna’s request for federal sentencing credit for the time he
served in state custody.
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After exhausting his administrative appeals, Luna
petitioned this court for relief. 	His petition asserts that the
BOP should include the four years he served on the Connecticut
state charges both in its calculation of the time he is serving
and its calculation of good-time credit.
Discussion
The Attorney General, through the BOP, has the
responsibility to administer federal sentences, United States v.
Wilson, 503 U.S. 329, 331, 335 (1992), and the exclusive
authority “to determine when to give a defendant credit against
a sentence for time he has served.” 	United States v. Jones, 34
F.3d 495, 499 (7th Cir. 1994) (citing Wilson, 503 U.S. at 335
and Kayfez v. Gasele, 993 F.2d 1288 (7th Cir. 1993)).
Pursuant to 28 U.S.C. § 2241(c)(3), a federal inmate may
challenge the execution of his sentence that is allegedly in
violation of the Constitution, laws, or treaties of the United
States. 	See Francis v. Maloney, 798 F.3d 33, 36 (1st Cir. 2015)
(quoting 28 U.S.C. § 2241(c)(3)) (citation omitted). 	Such a
petition can challenge the “manner, location, or condition of a
sentence’s execution.” 	Hernandez v. Campbell, 204 F.3d 861, 864
(9th Cir. 2000) (citations omitted). 	This includes the
“computation of a prisoner’s sentence by prison officials.”
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Jiminian v. Nash, 245 F.3d 144, 146 (2d Cir. 2001) (citing
Chambers v. United States, 106 F.3d 472, 474-75 (2d Cir. 1997)).
Luna asserts that sections 5G1.3 and 5K2.23 of the United
States Sentencing Guidelines entitle him to a downward departure
in his sentence because his federal incarceration 	“resulted
from another offense that is relevant conduct . . . to the
offense of conviction.” 	Doc. No. 1 at 9 (quoting U.S.S.G. §
5G1.3(b). 	Even assuming for the sake of argument – as the
respondent does - that the conduct underlying his 1998
Connecticut convictions is relevant to federal offenses that
began in December 2002, Luna’s argument nevertheless fails.1
In the first instance, to the extent Luna claims that the
district court, rather than the BOP, committed a sentencing
error, such a claim is not appropriate for a § 2241 petition.
See Prescod v. Schuykill, 630 F. App’x 144, 147 (3d Cir. 2015).
Petitions that attack the validity, rather than the execution,
of a sentence, generally must be presented to the sentencing
court pursuant to 28 U.S.C. § 2255. 	United States v. Barrett,
178 F.3d 34, 49 (1st Cir. 1999).
1The presentence report prepared before Luna’s federal
sentencing, Doc. No. 10, casts considerable doubt on whether the
earlier conduct is relevant to Luna’s federal conviction. The
court, however, accepts the petitioner’s assertion, for purposes
of this motion, and need not resolve the issue.
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Next, as the First Circuit Court of Appeals has observed,
“[a] defendant's eligibility for [relief under § 5G.1.3(b)] is
derivative of his eligibility for a concurrent sentence” under
18 U.S.C. § 3584. 	United States v. Ramirez, 252 F.3d 516, 519
(1st Cir. 2001). 	That section delineates only two categories of
defendants who qualify for a concurrent sentence: those subject
to “multiple terms of imprisonment . . . imposed . . . at the
same time,” and those who are “already subject to an
undischarged term of imprisonment.” 	Neither of these provisions
applies to Luna. 	Nothing in the statute authorizes the court to
apply § 3584 to a third category of defendants, those who have
previously served sentences, now completed, for related crimes.2
See United States v. Lucas, 745 F.3d 626, 630 (2d Cir. 2014)
(noting that federal courts lack the authority to order that a
sentence run concurrently with a sentence which has been
completely discharged); see also United States v. Tetty-Mensah,
665 F. App’x 687, 690 (10th Cir. 2016) (finding that U.S.S.G. §§
5G1.3(b) and 5K2.23 do not vest district court with jurisdiction
to lower a sentence).
2To the extent the statute might apply to the consideration
of periods of incarceration that do not overlap with the federal
sentence being imposed, section 3584(a) explicitly commands that
“[m]ultiple terms of imprisonment imposed at different times run
consecutively unless the court orders that the terms are to run
concurrently.”
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Against this factual and legal backdrop, the court finds
that Luna has failed to state a claim upon which relief may be
granted. 	To the extent he asserts that the sentencing court
erred in its Guideline calculation, such a claim is not properly
brought under § 2241. 	Nor is he entitled to relief under 18
U.S.C. § 3584, as that statute does not apply to a defendant who
has already completed his sentence for related crimes.
Construing his complaint liberally, and accepting all facts
alleged therein as true, Luna’s argument that the BOP has
miscalculated his sentence and failed to award him good-time
credits for a Connecticut state sentence he completed before
federal charges were lodged against him is without legal
support. 	The district judge should, therefore, grant
respondent’s motion to dismiss (Doc. No. 9) and direct that
judgment should be entered in the respondent’s favor.
Conclusion
For the reasons stated herein, the district judge
should grant respondent’s motion to dismiss (Doc. No. 9),
close this case, and direct entry of judgment in this
matter. 	Any objections to this Report and Recommendation
must be filed within fourteen days of receipt of this
notice. 	See Fed. R. Civ. P. 72(b)(2). 	The fourteen-day
objection period may be extended upon motion. 	Failure to
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file specific written objections to the Report and
Recommendation within the specified time waives the right
to appeal the district court’s order. 	See Santos–Santos v.
Torres–Centeno, 842 F.3d 163, 168 (1st Cir. 2016).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
February 1, 2019
cc: 	Alex Luna, pro se
Seth R. Aframe, Esq.
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