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Ali v. Feather

United States District Court, Ninth Circuit

September 23, 2013

MIRZA Z. ALI, Petitioner,
v.
MARION FEATHER, Warden, Respondent.

Mirza Z. Ali, FRN 98962-011 FCP-Sheridanm, Sheridan, OR. Pro Se Petitioner.

S. Amanda Marshall, United States Attorney District of Oregon, Natalie Wight, Assistant United States Attorney District of Oregon, Portland, OR. Attorneys for Defendant.

OPINION AND ORDER

GARR M. KING, District Judge.

Petitioner Mirza Z. Ali brings this action, pursuant to 28 U.S.C. ยง 2241, seeking a writ of habeas corpus. For the reasons set forth below, I deny the petition.

FACTS

Petitioner claims entitlement to 560[1] days of prior custody credit toward the service of his 60-month federal sentence imposed in 4:02-CR-40081-CW-1 (N.D. Cal.) ("2002 Case"). His current projected release date is August 31, 2015, with good conduct time.

Specifically, petitioner contends he did not receive 250 days of credit for time he served on an earlier federal conviction, in 4:99-CR-40002-CW-1 (N.D. Cal.) ("1999 Case"), which he says was to run concurrently with his 2002 Case. He also argues 310 days he served in California state case H-50509 ("2010 State Case"), at the same time a federal detainer on the 2002 Case had been lodged, should be credited against his 2002 Case.

The timeline for these three cases is as follows: Petitioner was arrested on September 14, 1998 for making false statements to government agencies; he posted bond and was released. Those charges resulted in the 1999 Case. While the 1999 Case was pending, petitioner was arrested on April 18, 2002 for conspiracy to commit mail and wire fraud, aiding and abetting, conspiracy to launder money, and money laundering. Those charges resulted in the 2002 Case.

On June 26, 2002, after petitioner had been in custody for 69 days, Judge Claudia Wilken, a judge for the Northern District of California, sentenced petitioner to 6 months' incarceration in the 1999 Case. The Judgment stated all counts were to be concurrent with each other, but did not mention the then-pending 2002 Case. The Bureau of Prisons ("BOP") credited the 69 days to petitioner, as well as the September 14th day of his arrest, and deemed the sentence completed as of October 16, 2002.

However, petitioner remained in custody after October 16, 2002, pending resolution of the 2002 Case. He was released on bond on December 24, 2002. Judge Wilken then sentenced petitioner to a term of 60 months' incarceration in the 2002 Case, on October 24, 2007, but stayed the Judgment pending appeal.

On August 25, 2010, the Ninth Circuit issued its decision affirming in part and reversing in part decisions made in the 2002 Case; it affirmed petitioner's 60-month sentence.

That same day, California state authorities arrested petitioner in Oakland on charges of Grand Theft-the 2010 State Case. Upon petition from Pretrial Services the next day, on August 26, Judge Wilken issued an arrest warrant to show cause why petitioner's bail should not be revoked for violating his release conditions in the 2002 Case. Pet. for Arrest Warrant for Def. under Pretrial Supervision, ECF 674.[2] In the petition, the Pretrial Services Officer informed the court that petitioner was being held on $1, 000, 000 bail, and he was scheduled to appear in state court on August 27, 2010.

The Ninth Circuit denied the petition for rehearing and declined to stay the mandate in the 2002 Case; it issued its mandate on December 21, 2010. Accordingly, Judge Wilken ordered that petitioner's Judgment and commitment order be lodged against him in state custody and that "his federal sentence shall begin upon his release from state custody." Order Concerning Serv. of Defs.' Sentences 3, ECF 691 (Jan. 27, 2011). The next day, petitioner's attorney filed a motion asking Judge Wilken to amend her order to delete the portion of her order directing that petitioner's federal sentence would begin following his release from state custody. He argued petitioner might be entitled to credit for time served in the 2010 State Case against the sentence imposed by Judge Wilken. Petitioner's attorney argued his client might be acquitted of the state charges, receive a sentence of less than time served, or the BOP might conclude the reason petitioner did not receive bail in the 2010 State Case was due to the warrant issued by Judge Wilken. Regardless, he argued the decision was one for the BOP and not Judge Wilken. Judge Wilken granted the modification request and removed the offending clause. Mot. for Mod. of Ct.'s Order, ECF 695; Order Granting Req. for Mod., ECF 696. She filed an Amended Judgment on February 14, 2011, again imposing a sentence of 60 months "on all counts to run concurrent[.]" Am. J. 3, ECF 699.

On July 1, 2011, petitioner was sentenced to eight years of probation in the 2010 State Case, with a condition that he "serve the first 621 days of said probationary period in the Alameda County Jail." Roush Decl. Attach. 7, at 2. The judge gave him credit for that time, made up of 311 days of actual jail time and 310 days of good time/work time. Petitioner was also sentenced to a ...


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