Love v. Gunther

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UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA
Donny Love,
Petitioner
-vs-
Jason Gunther,
Respondent.
CV-25-0245-PHX-DWL (JFM)
Order and
Report & Recommendation
on Petition for Writ of Habeas Corpus
I. MATTER UNDER CONSIDERATION
Petitioner, a federal prisoner, has filed an Amended Petition for Writ of Habeas
Corpus pursuant to 28 U.S.C. § 2241 (Doc. 6) challenging the calculation of his sentence.
The Petitioner's Petition is now ripe for consideration. Accordingly, the undersigned
makes the following proposed findings of fact, report, and recommendation pursuant to
Rule 8(b), Rules Governing Section 2254 Cases, Rule 72(b), Federal Rules of Civil
Procedure, 28 U.S.C. § 636(b) and Rule 72.2(a)(2), Local Rules of Civil Procedure.
II. RELEVANT FACTUAL & PROCEDURAL BACKGROUND
A. FACTUAL BACKGROUND
Petitioner asserts in Ground 1 that “BOP has me currently serving a 4 years sentence
on a California state case, when I was only sentence to 2 years.” (Petition at 2 (“3”).) The
Petition alleges no other specifics, but appends records related to his California
convictions.
Petitioner’s Custody - On May 21, 2010 Petitioner was sentenced in the San
Diego, California Superior Court to a combined sentence of five and four months in prison.
A sentence of 1 year and 4 months was issued in People v. Love, Case No. SCN208988
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(Cal.) (herein “State Case 988”) and a sentence of four years in People v. Love, Case No.
SCD211768 (Cal.) (herein “State Case 768”). The sentence in State Case 768 was
aggravated on the basis that it was committed while Petitioner was out on bail on State
Case 988. The Court credited Petitioner with 488 days of time served in State Case 988
and 532 days of time served in Case 768.
Eventually, Petitioner was released from state parole on August 29, 2011, and on
May 11, 2012 the state court vacated (“recalled”) the sentence in and dismissed State Case
988. On June 25, 2024, the state court retroactively modified the sentence in State Case
768 to two years (starting from May 21, 2010), with 532 days of credit, based on the
dismissal of State Case 988.
Under the retroactively modified sentence, Petitioner’s prison term in State Case
768 was a base of 730 days (2 years at 365 days each), but less 532 days of credit for time
served, leaving 198 days to be served, commencing on May 21, 2010. Petitioner’s state
sentences expired 197 days later, on December 5, 2010.
In the meantime, shortly after sentencing in the San Diego state court and while
serving the sentence in that case, on June 23, 2010, Petitioner was initially taken into
federal custody in the Southern District of California. This custody arose from the
prosecution in United States v. Donny Love, Sr., Case No. 10-CR-02418 (S.D. Cal.)
(“SoDC Case”). Except as discussed hereinafter, Petitioner has remained in federal
custody ever since. On February 15, 2013, Petitioner was sentenced to 370 months in the
SoDC case.
Petitioner was temporarily released from custody in the SoDC Case on federal writs
during three periods:
July 25, 2016 to February 2, 2017,
August 21, 2019 to June 3, 2022, and
July 18, 2023 December 14, 2023.
(Ans., Exh. A, McEvoy Declaration, Doc. 17-1 at ¶¶ 6-9,12; Ans., Exh. A, McEvoy
Declaration, Attach. 2, Abstract of Judgment; Petition, Exhs, Doc. 6-1 at 3-4 (Sent. Modif.
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6/25/24).)
BOP Calculations - Based on the foregoing, the Bureau of Prisons (“BOP”) has
calculated, as of September 9, 2025 (shortly before the Answer was filed in this case), that
Petitioner is entitled to 802 days of pre-sentence credit on the SoDC Case sentence for his
time in federal custody as follows:
- commencing on December 6, 2010, the day after the State Case 768 sentence
expired;
- ending February 14, 2013, the day before his sentencing in the SoDC case.
After deducting the 802 days credit from Petitioner’s sentence in the SoDC case,
BOP has calculated an expected release date (including projected good conduct credits)
for Petitioner of April 10, 2037. (Id. at ¶¶ 10-12.)
Administrative Remedies – BOP provides a multi-level administrative remedies
system, each tier of which must be exhausted:
- commencing with a Request for Informal Resolution (form BP-8),
- proceeding through a formal Request for Administrative Remedy (form BP-9) (at
which a point a “remedy” number is assigned),
- a Regional Office Administrative Remedy Appeal (form BP-10),
- a Central office Administrative Remedy Appeal (form BP-11).
During his term with BOP, Petitioner has not filed nor exhausted any formal administrative
remedy requests regarding jail credits. (Id. at ¶ 14.)
Petitioner contends that in 2014 and 2015, in Remedy # 785330, he inquired about
“Jail Credit,” and exhausted his administrative remedies. (Reply, Doc. 19 at 15
(unidentified and annotated Exhibit).
B. PRESENT FEDERAL HABEAS PROCEEDINGS
Petition - Petitioner, presently incarcerated in the Federal Correctional Institution
at Phoenix, Arizona, commenced the current case by filing his original Petition for Writ
of Habeas Corpus pursuant to 28 U.S.C. § 2241on January 26, 2025 (Doc. 1). That Petition
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was dismissed with leave to amend because Petitioner had failed to allege a constitutional
violation or a cognizable claim. (Order 2/25/25, Doc. 5.)
Petitioner then filed the instant Amended Petition (Doc. 6), and on screening the
Court dismissed for failure to state a cognizable habeas claim Petitioner’s claims regarding
medical issues in Grounds 2 and 3. Respondents were ordered to respond to Ground 1.
(Order 8/5/25, Doc. 7.)
In Ground One, Petitioner contends the records of the Federal Bureau
of Prisons (BOP) do not “accurately reflect jail time credits . . . of a
2 year [State of California] sentence rather than a 5 year and 4 month
sentence.” He contends the Superior Court of San Diego County
modified his sentence, but the BOP’s records are “failing to reflect
and recognize” the modification.
(Id. at 1-2.)
Response - On September 23, 2025, Respondents filed their Answer (Doc. 17).
Respondents argue Petitioner has failed to exhaust his administrative remedies, and the
Petition is without merit and moot because BOP has recalculated Petitioner’ sentence.
Reply – Petitioner had 30 days from service of the Answer, or until October 27,
2025, to reply in support of his Petition. (Order 8/5/25, Doc. 7 at 4.) Petitioner has not
done so.
Instead, on October 14, 2025, Petitioner filed a “Motion to Expand the Petition and
Record Request for Evidentiary Hearing” (Doc. 19). Petitioner purports to seek to
“expand” his Petition, but proffers no proposed expansion and argues no reason for
expansion. Accordingly, the undersigned liberally construes this portion of Petitioner’s
filing (Doc. 19) as Petitioner’s reply in support of his Petition.
Petitioner argues that: (1) despite BOP’s recent recalculations, he is entitled to
relief because BOP has not obtained a recalculation from California state authorities on
his sentence, and Petitioner finds’ BOP’s calculations contradictory; and (2) his exhaustion
of administrative remedies is shown by records of BOP Remedy #785330, appended to
Petitioner’s reply (Doc. 19 at 15).
Petitioner also argues for an evidentiary hearing. The Motion for Evidentiary
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Hearing is addressed hereinafter.
III. APPLICATION OF LAW TO FACTS
A. ADMINISTRATIVE EXHAUSTION
“Federal prisoners are required to exhaust their federal administrative remedies
prior to bringing a petition for a writ of habeas corpus in federal court.” Martinez v.
Roberts, 804 F.2d 570 (9th Cir. 1986).1 Where the petitioner has failed to exhaust those
administrative remedies, dismissal of the claim is appropriate. Id.
“The Bureau of Prisons has established an administrative remedy by which an
inmate in a federal prison may seek review of any aspect of imprisonment. 28 C.F.R. §
542.10 (1984).” Martinez, 804 F.3d 570. Petitioner fails to counter Respondent’s showing
that he failed to exhaust those remedies.
Petitioner does provide some records that appear to relate to a 2015 request for
calculation of his jail credits. But Petitioner fails to show that these requests involved the
issues he raises in the Petition. Indeed, they could not have because he has, since 2015,
had the relevant state prison sentence reduced. Requesting an administrative remedy prior
to the 2024 reduction of the relevant state sentence could not have presented the claim now
raised.
It is true that “courts have discretion to waive the exhaustion requirement when it
is prudentially required, [but] this discretion is not unfettered.” Laing v. Ashcroft, 370 F.3d
994, 998 (9th Cir. 2004). Rather, it is limited to “situations such as where administrative
remedies are inadequate or not efficacious, pursuit of administrative remedies would be a
futile gesture, irreparable injury will result, or the administrative proceedings would be
1 Respondents cite to 42 U.S.C. § 1997e(a), part of the Prison Litigation Reform Act, as
establishing an exhaustion requirement governing the Petition. The PLRA has no
application to a petition for writ of habeas corpus under § 2241. Ward v. Chavez, 678 F.3d
1042, 1045 (9th Cir. 2012) (despite district courts reliance on § 1997e(a) exhaustion
requirement, addressing habeas petition based solely on judicial, prudential exhaustion
requirement). See also Ybarra v. Smith, No. CV-09-1447-PHX-DGC-JRI, 2010 WL
5362647, at *3 (D. Ariz. Sept. 17, 2010), report and recommendation adopted, 2010 WL
5361833 (D. Ariz. Dec. 21, 2010) (detailing nine circuits agreeing);
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void.” Id. at 1000. Here, Petitioner posits no reason to believe his administrative remedies
are inadequate, futile or void, or why irreparable injury would have resulted. At best,
Petitioner disagrees with the conclusions now reached by Respondents, and their BOP
declarant. But Petitioner’s disagreement does not show that administrative process was
ineffectual.
Accordingly, the Petition should be dismissed for failure to exhaust administrative
remedies.
B. MERITS OF CLAIM
Alternatively, the Petition should be denied on the merits as moot. BOP has, since
the filing of the Petition, recalculated Petitioner’s jail time credits.
Current Calculation Correct - Petitioner complains in his Reply that the
calculations are untrustworthy. His complaints are unpersuasive.
Petitioner argues that rather than BOP calculating his California sentence
expiration, BOP should have had California state authorities do so. (Reply at 1.) But BOP
has the responsibility to calculate time serve credits. United States v. Wilson, 503 U.S.
329, 336 (1992).
Petitioner argues that with his California sentence should have ended on December
5, 2009. (Reply at 1.) But Petitioner was not sentenced in the California cases until 2010.
This argument is nonsensical.
Petitioner asserts that his 198 days to be served on the State Case 768 must be
deducted from the 532 days of pre-sentence credit. But this is circular reasoning. The 198
days to be served derives from deducting the 532 days credit from the original sentence of
730 days. The 730 day sentence is not thereby transformed into a 532 days sentence, from
which the remainder 198 days gets again subtracted.
Petitioner argues that he is left with “dead time” until he was detained by the U.S.
Marshals on June 23, 2010. To the contrary, Petitioner was serving his sentence in State
Case 768 until December 5, 2010. He effectively received credit towards State Case 768
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until that date. Thereafter (because he was then in Federal custody, without an effective
state sentence) he began accruing pre-sentence credit towards his federal sentence.
Petitioner complains that BOP has not taken account the dismissal in State “Case
No. SCN208958 [sic].” (Reply at 2.) However, the dismissal of State Case 988 renders it
irrelevant to the calculation of his sentence because BOP has given him credit for his time
in federal custody for all but the time he was subject to and receiving state credit on the
sentence in State Case 768.
Petitioner complains that the records provided show no interim recalculation was
made when State Case 988 was dismissed. (Reply at 2.) Any failure to make such a
recalculation was rendered harmless by BOP’s current calculations which only reduce his
presentence credits on his federal sentence for the time served on a state sentence in the
remaining State Case 768,
Petitioner asserts he was sentenced to 4 years, resulting in a prison term ending on
August 29, 2011. (Reply at 2.) But that was after Petitioner was already accruing federal
credits (as of December 6, 2010) on his federal sentence under the BOP’s calculations. If
Petitioner is right, BOP is being overly generous in their presentence credits.
Petitioner makes several references to “half-time” credits. (Reply at 1, 2.) But
partial-time credits, normally applicable to good time credits, see 18 U.S.C. § 3624(b)(1),
have no application to pre-sentence credits.
Petitioner references an original sentence completion date on the original sentence
of December 1, 2012, and inquires how the reduced sentence could continue through May
21, 2012. (Reply at 9.) The California Department of Corrections’ initial calculation of
Petitioner’s expected release date was December 1, 2012. (Ans. Exh. 1, McEvoy Decl. at
Attach. 2, CDCR Calculation Worksheet.) But this was based on the original sentences
credits for time served in both state cases. After the dismissal of State Case 988, and
modification of Petitioner’s sentence in State Case 768, Petitioner was left with a sentence
of two years (or until May 21, 2012), less 532 days of presentence credit, leaving a release
date of December 6, 2010.
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Mootness - Article III of the United States Constitution limits the jurisdiction of
federal courts to “actual, ongoing cases or controversies.” Lewis v. Continental Bank
Corp., 494 U.S. 472, 477 (1990). A claim is considered moot if it has lost its character as
a present, live controversy and if no effective relief can be granted due to subsequent
developments. Flast v. Cohen, 392 U.S. 83, 95 (1968). A moot petition should be
dismissed. See Kittel v. Thomas, 620 F.3d 949 (9th Cir. 2010) (dismissing moot 2241).
Here, Petitioner seeks a correct calculation of his pre-sentence credits on his federal
sentence. The BOP has, since the filing of the Petition, adopted a correct calculation. Thus
there is no relief to be granted by the Court, and the case has been rendered moot. See
Abernethy v. Acting Warden, FCI-Dublin, 2023 WL 2960010, at *2 (N.D. Cal. Mar. 2,
2023) (2241 petition challenging BOP calculations rendered moot by post petition
recalculation). Accordingly, the Petition must be dismissed as moot.
IV. ORDER ON MOTION FOR EVIDENTIARY HEARING
In his Reply (“Motion to Expand the Petition and Record Request for Evidentiary
Hearing”) (Doc. 19), Petitioner seeks an evidentiary hearing. The motion will be denied
for each of the following reasons.2
First, the Petition should be dismissed without prejudice because Petitioner has
failed to exhaust his administrative remedies.
Second, Petitioner proffers no evidence to be submitted in such an evidentiary
hearing or to otherwise explain what allegations could be proved or what purpose would
be served by such a hearing.
“In deciding whether to grant an evidentiary hearing, a federal court must consider
whether such a hearing could enable an applicant to prove the petition's factual allegations,
which, if true, would entitle the applicant to federal habeas relief.” Schriro v. Landrigan,
2 Petitioner has 14 days from service of this Order to file an objection to this Order pursuant
to Fed. R. Civ. Proc. 72(a) (objections on non-dispositive orders). This is in addition to
any objection to the Report & Recommendation as discussed hereinafter in Section VI.
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550 U.S. 465, 474 (2007). Consequently, where a petitioner does not proffer any evidence
to be adduced at an evidentiary hearing which would prove the allegations of the petition,
the habeas court need not grant a hearing. Chandler v. McDonough, 471 F.3d 1360, 1363
(11th Cir. 2006) (“The failure to proffer any additional evidence defeats [petitioner's]
argument that he was entitled to an additional evidentiary hearing in federal court.”);
Williams v. Bagley, 380 F.3d 932, 977 (6th Cir.2004) (“district court did not abuse its
discretion in denying Williams's request, given his failure to specify ... what could be
discovered through an evidentiary hearing”); Lincecum v. Collins, 958 F.2d 1271, 1279–
80 (5th Cir.1992) (denying evidentiary hearing “[a]bsent any concrete indication of the
substance of the mitigating evidence” the hearing supposedly would provide).
IT IS THEREFORE ORDERED Petitioner’s Motion for Evidentiary Hearing
(Doc. 19) is DENIED.
V. RECOMMENDATION
IT IS THEREFORE RECOMMENDED Petitioner's Amended Petition for Writ
of Habeas Corpus (Doc. 6) be either:
1. DISMISSED WITHOUT PREJUDICE for failure to exhaust
administrative remedies or;
2. alternatively DISMISSED WITH PREJUDICE as Moot.
VI. EFFECT OF RECOMMENDATION
This recommendation is not an order that is immediately appealable to the Ninth
Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of
Appellate Procedure, should not be filed until entry of the district court's judgment.
However, pursuant to Rule 72(b), Federal Rules of Civil Procedure, the parties shall
have fourteen (14) days from the date of service of a copy of this recommendation within
which to file specific written objections with the Court. See also Rule 8(b), Rules
Governing Section 2254 Proceedings. Thereafter, the parties have fourteen (14) days
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within which to file a response to the objections. Failure to timely file objections to any
findings or recommendations of the Magistrate Judge will be considered a waiver of a
party's right to de novo consideration of the issues, see United States v. Reyna-Tapia, 328
F.3d 1114, 1121 (9th Cir. 2003)(en banc), and will constitute a waiver of a party's right to
appellate review of the findings of fact in an order or judgment entered pursuant to the
recommendation of the Magistrate Judge, Robbins v. Carey, 481 F.3d 1143, 1146-47 (9th
Cir. 2007).
In addition, the parties are cautioned Local Civil Rule 7.2(e)(3) provides that
“[u]nless otherwise permitted by the Court, an objection to a Report and Recommendation
issued by a Magistrate Judge shall not exceed ten (10) pages.”
Dated: April 14, 2026
25-0245r RR 26 04 13 on HC.docx
James F. Metcalf
United States Magistrate Judge
Case 2:25-cv-00245-DWL Document 20 Filed 04/14/26 Page 10 of 10