United States District Court, D. South Dakota, Western Division
JEFFREY L. VIKEN CHIEF JUDGE
Dwight Thunder Shield pled guilty to one count of assaulting
a federal officer. (Docket 26). The court sentenced defendant
to 14 months of incarceration to be followed by three years
of supervised release. (Docket 42). Defendant filed a pro se
motion challenging the Bureau of Prisons'
(“BOP”) calculation of his sentence, alleging the
BOP was refusing to grant him credit for time served in
federal custody pre-sentencing. (Docket 45). Defendant, with
the aid of counsel, later petitioned the court for a writ of
mandamus or, in the alternative, a writ of habeas corpus
ordering defendant's release from the BOP's custody.
(Docket 46). The government opposes defendant's motion
and petition and defendant filed a reply brief. (Dockets 48
& 51). For the reasons given below, the court denies
defendant's motion and petition.
December 10, 2016, defendant assaulted Tim Peet, an officer
with the Oglala Sioux Tribe Department of Public Safety
(“OST DPS”). (Docket 27 at p. 1). Officer Peet
was employed “pursuant to a PL-638 contract with the
federal government” and so was a federal law
enforcement officer within the meaning of 18 U.S.C. §
111. Id. at p. 2. The OST DPS arrested defendant on
December 10 and charged him with a variety of tribal
offenses. (Docket 49-2). Defendant pleaded guilty to the
tribal charges on December 19, 2016. (Docket 49-3). The
Oglala Sioux Tribal Court sentenced defendant to one year of
incarceration, to end on December 19, 2017. Id.
was federally indicted for this offense on April 18, 2017,
while he was being held in tribal custody in Pine Ridge,
South Dakota. (Docket 1). The government sought a writ of
habeas corpus ad prosequendum to move defendant from
Pine Ridge to the Pennington County Jail in Rapid City, South
Dakota, to appear at his federal proceedings on April 24.
(Docket 5). Magistrate Judge Daneta Wollmann granted the
government's petition on April 25. (Docket 6). Defendant
pled guilty to the federal charge on July 28 and the court
accepted defendant's plea on July 31. (Dockets 30 &
to OST Prosecutor Ms. Vernona Kills Right, defendant
completed his tribal sentence on December 19, 2017, while he
was in federal custody. (Docket 49-6). The court sentenced
defendant on January 22, 2018, and its judgment was entered
on January 24. (Dockets 41 & 42). Defendant continued to
be held in the Pennington County Jail until February 1.
(Docket 46-1). He was then held in the Winner Jail in Winner,
South Dakota, until February 12, at which point he was
released into the BOP's custody. Id. Defendant
is currently held at a BOP facility in Florence, Colorado.
(Docket 46 at p. 2). His expected release date is December
15, 2018. Id.
argues he should receive credit toward his federal sentence
for the time he was incarcerated between April 25, 2017, when
the magistrate judge granted the government's petition
for a writ of habeas corpus ad prosequendum and
February 12, 2018, when he was released into the BOP's
custody. (Docket 46 at pp. 3-4). In defendant's view, the
BOP should have released him on June 14, 2018. Id.
at p. 4. Defendant now seeks a writ of mandamus or, in the
alternative, a writ of habeas corpus from the court ordering
his immediate release. Id. at p. 1.
government contends defendant is not entitled to credit for
the time he served between his arrival in Rapid City on April
25, 2017, and the expiration of his tribal sentence on
December 19, 2017, because federal law only permits credit
for time served “that has not been credited against
another sentence.” 18 U.S.C. § 3585(b). (Docket 48
at pp. 9-10). In the government's view, that
approximately nine-month time span was credited against
defendant's tribal sentence and cannot be credited
against his federal sentence. Id. The government
also asserts defendant's petition should be denied
because he failed to exhaust his administrative remedies
within the BOP. Id. at pp. 10-11.
Defendant's Petition is Cognizable Under 28 U.S.C. §
asks the court to issue a writ of mandamus ordering the BOP
to immediately release him. (Docket 46 at p. 7). Id.
Mandamus relief is inappropriate in defendant's
cites both the All Writs Act, 28 U.S.C. § 1651, and 28
U.S.C. § 1361 as statutory bases for his mandamus
petition. Id. at pp. 1, 5. Neither applies. A court
may grant a writ of mandamus under the All Writs Act only
after three conditions are satisfied. Cheney v. United
States Dist. Court for Dist. of Columbia, 542 U.S. 367,
First, the party seeking issuance of the writ must have no
other adequate means to attain the relief he desires-a
condition designed to ensure that the writ will not be used
as a substitute for the regular appeals process. Second, the
petitioner must satisfy the burden of showing that [his]
right to issuance of the writ is clear and indisputable.
Third, even if the first two prerequisites have been met, the
issuing court, in ...