Benjamin Hermosillo-Enriquez v. LINDA SANDERS, Warden

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BENJAMIN HERMOSILLO-ENRIQUEZ,
Petitioner - Appellant,
v.
LINDA SANDERS, Warden,
Respondent - Appellee.
No. 09-55833
D.C. No. 2:08-cv-01321-JSL-FFM
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
J. Spencer Letts, Senior District Judge, Presiding
Submitted February 8, 2011**
Pasadena, California
Before: PREGERSON, WARDLAW, and BEA, Circuit Judges.
Benjamin Hermosillo-Enriquez (“Hermosillo”) appeals the district court’s
denial of his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. §
FILED
FEB 16 2011
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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Because the parties are familiar with the facts, we recite them here only as1
necessary.
2
2241. We have jurisdiction over this appeal pursuant to 28 U.S.C. § 2253, and we
affirm.1
The district court did not err when it held the state court’s sentencing
order—that Hermosillo’s state sentence be served concurrently with his federal
sentence—had no effect on Hermosillo’s federal sentence. We are bound by this
court’s decision in Taylor v. Sawyer, 284 F.3d 1143 (9th Cir. 2002): “[C]oncurrent
sentences imposed by state judges are nothing more than recommendations to
federal officials. Those officials remain free to turn those concurrent sentences
into consecutive sentences by refusing to accept the state prisoner until the
completion of the state sentence and refusing to credit the time the prisoner spent
in state custody.” Id. at 1150 (quoting Del Guzzi v. United States, 980 F.2d 1269,
1272–73 (9th Cir. 1992) (Norris, J., concurring)).
Moreover, Hermosillo is not entitled to any credit against his federal
sentence for the time he spent in state custody due to the federal detainer. A
defendant “is entitled to credit for the time he otherwise would have been out on
bail if (1) the federal detainer had been the sole reason for the denial of bail, and
(2) the state failed to credit his state sentence for that time.” Tucker v. Carlson,

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“[T]he guilty plea of a defendant who is subjected to federal prosecution2
while in state custody is vitiated if the defendant is not made aware that any federal
sentence which may be imposed upon him will not begin to run until he is received
in federal custody.” Myers v. United States, 319 F. Supp. 326, 327 (C.D. Cal.
1970), aff’d 451 F.2d 402 (9th Cir. 1972); see also United States v. Neely, 38 F.3d
458, 459 (9th Cir. 1994).
3
925 F.2d 330, 332 (9th Cir. 1991) (internal quotation marks omitted); see also 18
U.S.C. § 3585(b) (“A defendant shall be given credit toward the service of a term
of imprisonment for any time he has spent in official detention prior to the date the
sentence commences . . . that has not been credited against another sentence.”)
(emphasis added). Even if Hermosillo could prove the federal detainer was the
sole reason he was denied bail, he would not be entitled to credit against his federal
sentence because he received credit on his state sentence for all pre-sentence
detention time.
Finally, Hermosillo is not entitled to habeas relief based on his contention
that his plea was not knowingly and voluntarily made. Hermosillo’s due process2
claim is not cognizable in a habeas petition filed against his warden, in the
custodial court, pursuant to 28 U.S.C. § 2241. See Hernandez v. Campbell, 204
F.3d 861, 864 (9th Cir. 2000) (“Generally, motions to contest the legality of a
sentence must be filed under § 2255 in the sentencing court, while petitions that
challenge the manner, location, or conditions of a sentence’s execution must be

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brought pursuant to § 2241 in the custodial court.”). Here, the sentencing court
was the United States District Court for the District of New Mexico. We are
unable to construe this claim as a § 2255 petition and transfer it to the appropriate
district court under 28 U.S.C. § 1631 because the petition would be untimely and
no grounds for equitable tolling are alleged.
AFFIRMED.

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