Perez v. Hudson

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Frank Perez, Jr.,
Petitioner,
v.
B. Hudson,
Respondent.
No. CV-25-00108-TUC-SHR (MSA)
REPORT AND
RECOMMENDATION
Petitioner Frank Perez, Jr. claims that the Federal Bureau of Prisons (BOP) has
miscalculated his sentence. He therefore seeks habeas relief under 28 U.S.C. § 2241. For
the following reasons, the Court will recommend that his request for relief be denied.
I. Background
On October 4, 2011, Petitioner was arrested in Pennsylvania for assault on a federal
officer and use of a firearm in relation to a crime of violence. (Doc. 13-1 at 25.) He pleaded
guilty to both crimes, and on August 7, 2012, the Pennsylvania district court sentenced him
to a 180-month term of imprisonment. (Id. at 37–38.) From September 22, 2014, to July 19,
2018, Petitioner was temporarily released from BOP custody for prosecution in a separate
federal case in Indiana, where he pleaded guilty to conspiracy to participate in racketeering
activity. (Id. at 3, ¶ 7.) On June 18, 2018, the Indiana district court sentenced him to a 188-
month term of imprisonment, to be served concurrently with the sentence imposed in the
Pennsylvania case. (Id. at 47–48.)
On March 8, 2024, the BOP recalculated Petitioner’s sentence and determined that
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his projected release date is March 7, 2030. (Id. at 11–12.) As prior computations had his
projected release date as March 6, 2025, Petitioner sought administrative relief asserting
that the BOP had wrongfully denied him 5 years of credit. (Doc. 1-1; Doc. 11-1 at 7–8.) At
the final administrative level, the general counsel denied relief. (Doc. 1-1 at 9–10.) This
habeas action followed. (Doc. 1.)
II. Discussion
Petitioner claims that the BOP has miscalculated his sentence. Specifically, he says
that because his first sentence is for 180 months and his second sentence is for a concurrent
188 months, “the total term in effect is 188 months not 258 months as the BOP wrongly
contends.” Respondent disagrees, asserting that the BOP’s calculation is accurate. As
explained below, Respondent is correct.
The BOP is responsible for calculating federal sentences. United States v. Wilson,
503 U.S. 329, 335 (1992). This is a two-step process. The BOP must first determine the
date on which the sentence commenced. 18 U.S.C. § 3585(a). Relevant here, “[a] federal
sentence cannot commence until a prisoner is sentenced in federal district court.”
Schleining v. Thomas, 642 F.3d 1242, 1244 (9th Cir. 2011). The BOP must then determine
whether the prisoner is entitled to any credit for time spent in custody before the sentence
commenced. 18 U.S.C. § 3585(b). A prisoner is entitled to credit only for time “that has
not been credited against another sentence.” Id. Finally, in calculating a sentence, the BOP
must treat “[m]ultiple terms of imprisonment ordered to run consecutively or concurrently
. . . as a single, aggregate term of imprisonment.” Id. § 3584(c).
The BOP correctly applied these rules here. Petitioner’s two sentences are being
treated as a single term of imprisonment beginning on August 7, 2012, the date on which
his first sentence was imposed. (Doc. 13-1 at 11 (listing the “Date Computation Began” as
“08-07-2012”).) However, because a federal sentence cannot begin before it is imposed,
Petitioner’s second, concurrent sentence could not have commenced before June 18, 2018.
See United States v. Flores, 616 F.2d 840, 841 (5th Cir. 1980) (“The sentences could not
be concurrent in the sense of having the same starting date because a federal sentence
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cannot commence prior to the date it is pronounced, even if made concurrent with a
sentence already being served.” (citation omitted)).
To give effect to a later concurrent sentence without granting the prisoner a windfall,
the BOP determines the “Expiration of Full Term” (EFT) of both sentences and then
subtracts the EFT of the first sentence from the EFT of the second sentence. (Doc. 13-1
at 4, ¶ 10.) This “overlap” period is then added to the first sentence to determine the total
length of the aggregated sentences. (Id.) Here, Petitioner was sentenced on August 7, 2012,
to a 180-month term of imprisonment. The EFT for that sentence is August 6, 2027.
Petitioner was later sentenced on June 18, 2018, to a 188-month term of imprisonment. The
EFT for that sentence is February 17, 2034. Subtracting the first EFT from the second EFT
results in an overlap period of 6 years, 6 months, and 11 days. Adding that period to
Petitioner’s first sentence (180 months) results in a total aggregated sentence of 21 years,
6 months, and 11 days, commencing on August 7, 2012, and ending on February 17, 2034.
As noted, the second step in calculating a sentence is to determine whether the
prisoner is entitled to any presentence credit. Here, Petitioner accrued 308 days of credit
between his arrest on October 4, 2011, and first sentencing on August 7, 2012. Subtracting
that period from the total aggregated sentence results in a release date of April 15, 2033.
The BOP record accurately reflects that date. (Doc. 13-1 at 11 (listing the “Expiration Full
Term Date” as “04-15-2033”).) The BOP has additionally subtracted 1,135 days of earned
and projected good conduct time, resulting in a projected release date of March 7, 2030.
(Id. at 12 (listing the “Projected Satisfaction Date” as “03-07-2030”).) Thus, the BOP has
correctly calculated Petitioner’s sentence.
Petitioner’s arguments to the contrary are not persuasive. In his petition, he says that
the BOP has wrongfully deprived him of 5 years that he served in state custody, in violation
of Setser v. United States, 566 U.S. 231 (2012). However, the record shows that he has
been in continuous federal custody since his initial arrest on October 4, 2011. (Doc. 13-1
at 4, ¶ 9.) Petitioner concedes his error in his reply but maintains that he has been deprived
of credit for the time he was temporarily released from BOP custody on a federal writ. This
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argument is factually inaccurate. The BOP’s records show that, as of August 7, 2025,
Petitioner had served a total of 13 years, 10 months, and 4 days. (Id. at 11.) Subtracting
that time from August 7, 2025, comes out to October 4, 2011—the date of Petitioner’s
initial arrest. So, every day of his federal confinement has been accounted for, and there is
no violation of 18 U.S.C. § 3585(b).
Petitioner finally says that because the Indiana court imposed a concurrent sentence
“without any qualification whatsoever,” “the total term in effect is 188 months not 258
months as the BOP wrongly contends.” But as previously explained, “a federal sentence
made concurrent with a sentence already being served does not operate in a ‘fully
concurrent’ manner. Rather, the second sentence runs together with the remainder of the
one then being served.” Shelvy v. Whitfield, 718 F.2d 441, 444 (D.C. Cir. 1983). The BOP
has correctly implemented Petitioner’s concurrent sentence here.
III. Conclusion
The Court recommends that Petitioner’s petition for a writ of habeas corpus under
28 U.S.C. § 2241 (Doc. 1) be denied and dismissed with prejudice.
This recommendation is not immediately appealable to the United States Court of
Appeals for the Ninth Circuit. The parties have 14 days to file specific written objections
with the district court. Fed. R. Civ. P. 72(b)(2). The parties have 14 days to file responses
to objections. Id. The parties may not file replies on objections absent the district court’s
permission. A failure to file timely objections may result in the waiver of de novo review.
United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). The Clerk of
Court is directed to terminate the referral of this matter. Filed objections should bear the
following case number: CV-25-00108-TUC-SHR.
Dated this 15th day of December, 2025.
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