United States v. Shield

          ORDER

          JEFFREY L. VIKEN CHIEF JUDGE

         INTRODUCTION

         Defendant 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.

         FACTS

         On 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.

         Defendant 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 & 34).

         According 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.

         ANALYSIS

         Defendant 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.

         The 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.

         I. Defendant's Petition is Cognizable Under 28 U.S.C. § 2241

         Defendant 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 situation.

         Defendant 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, 380-81 (2004).

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 ...