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Rodriguez v. C V. Rivera

United States District Court, E.D. Arkansas, Eastern Division

February 2, 2016

FRANCISO JAVIER RODRIGUEZ, Petitioner,
v.
C V. RIVERA, WARDEN, Respondent.

PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

JEROME T. KEARNEY, Magistrate Judge.

INSTRUCTIONS

The following recommended disposition has been sent to United States District Court Judge D. P. Marshall, Jr. Any party may serve and file written objections to this recommendation. Objections should be specific and should include the factual or legal basis for the objection. If the objection is to a factual finding, specifically identify that finding and the evidence that supports your objection. An original and one copy of your objections must be received in the office of the United States District Clerk no later than fourteen (14) days from the date of the findings and recommendations. The copy will be furnished to the opposing party. Failure to file timely objections may result in waiver of the right to appeal questions of fact.

If you are objecting to the recommendation and also desire to submit new, different, or additional evidence, and to have a hearing for this purpose before the United States District Judge, you must, at the same time that you file your written objections, include a "Statement of Necessity" that sets forth the following:

1. Why the record made before the Magistrate Judge is inadequate.
2. Why the evidence to be proffered at the requested hearing before the United States District Judge was not offered at the hearing before the Magistrate Judge.
3. An offer of proof setting forth the details of any testimony or other evidence (including copies of any documents) desired to be introduced at the requested hearing before the United States District Judge.

From this submission, the United States District Judge will determine the necessity for an additional evidentiary hearing, either before the Magistrate Judge or before the District Judge.

Mail your objections and "Statement of Necessity" to:

Introduction

Currently before the Court is a pro se petition for a writ of habeas corpus, pursuant to 28 U.S.C. ยง 2241, filed by Petitioner Francisco Javier Rodriguez on July 31, 2014, in the United States District Court for the Western District of Arkansas. (DE #1) Petitioner filed an amended petition on August 18, 2014. (DE #4) The court transferred the matter to this district on January 29, 2015. (DE #10)

Petitioner is currently incarcerated in the Giles W. Dalby Correctional Facility in Post, Texas, and serving a federal sentence of 168 months' imprisonment for conspiracy to possess with intent to distribute a controlled substance. In this action now before the Court, Petitioner challenges the decision of the Bureau of Prisons (BOP) not to award him credit towards his federal sentence for time spent in state custody. After careful consideration of Petitioner's claims, the Court finds that his present sentence has been correctly calculated and that the petition for writ of habeas corpus should be dismissed.

Procedural Background

Federal authorities arrested Petitioner on November 18, 2005, and released him on bond on December 7, 2005. (DE # 14-1, at pp. 5, 29) On December 21, 2006, Petitioner pleaded guilty to conspiracy to possess with intent to distribute a controlled substance. (DE #14-1, at p. 44, docket entry no. 624) Petitioner remained out of custody on bond, and his sentencing was set for April 2, 2007. Id. On February 28, 2007, Petitioner was arrested and placed in California state custody; he was held without bond. (DE #14-1, at pp. 31-32) The scheduled April 2, 2007, federal sentencing was continued by stipulation due to the state of California's custody and pending charges against Petitioner. (DE # 14-1, at p. ...


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