Omoregie v. Warden

Filing 13

ORDER GRANTING IN PART AND DENYING IN PART PETITION FOR WRIT OF HABEAS CORPUS. For the reasons set forth in the attached ruling, petitioner's petition for a writ of habeas corpus (Doc. # 1 ) is GRANTED in part and DENIED in part. It is GRANTED t o the extent that the Bureau of Prisons shall grant petitioner 765 days of credit toward his federal sentence from November 23, 2013, to December 28, 2015. It is DENIED to the extent that petitioner seeks credit for detention prior to November 23, 2013. It is so ordered. Signed by Judge Jeffrey A. Meyer on 7/16/2018. (Zuckier, Chana)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

ERHAUYI OMOREGIE,
Petitioner,
v.

No. 3:17-cv-00139 (JAM)

WARDEN,
Respondent.

ORDER GRANTING IN PART AND DENYING IN PART
PETITION FOR WRIT OF HABEAS CORPUS
Petitioner Erhauyi Omoregie is a federal prison inmate at FCI Danbury. He has filed this
petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 challenging the calculation of his
sentence by the Bureau of Prisons. He contends that the Bureau of Prisons has wrongfully
refused to credit time he spent in detention prior to formally commencing service of his federal
sentence. For the reasons explained below, I will grant in part and deny in part the petition for a
writ of habeas corpus.
BACKGROUND
Petitioner was charged with criminal possession of a weapon in the second degree in
violation of New York law on September 10, 2004. Doc. #8-2 at 5. On March 29, 2006,
petitioner was sentenced on this charge to seven years of imprisonment and five years of postrelease supervision. Ibid. The sentence commenced on April 7, 2006, when petitioner was
received at the New York Department of Corrections and Community Supervision (NYDOCCS).
Doc. #8-3 at 8. Petitioner was granted credit towards his sentence for 574 days of parole jail time
for the period between petitioner’s arrest on September 10, 2004, and the commencement of his
sentence on April 7, 2006. Ibid. The original maximum expiration date for the seven-year term of

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imprisonment was September 7, 2011, and the original maximum expiration date for parole
release supervision was September 6, 2016. Ibid.
On October 7, 2010, petitioner was conditionally released to supervision after receiving a
“good time adjustment” of 11 months. Doc. #8-3 at 9. If he had not had any violations, the
maximum expiration date for his parole release supervision would have been October 7, 2015.
Ibid.
Petitioner was declared delinquent as of November 23, 2012, as a result of obtaining a
driver’s license without his parole officer’s permission and having an absconder as a passenger.
Doc. #8-2 at 5; Doc. #8-3 at 8. On December 21, 2012, petitioner’s parole was revoked, and he
was sentenced to either 12 months of imprisonment or an alternative term of 90 days in a drug
treatment program.1 Doc. #1-2 at 1; Doc. #1-3 at 3; Doc. #8 at 1; Doc. #8-3 at 6. Petitioner
returned to the custody of the NYDOCCS as a conditional release violator on January 4, 2013.2
Doc. #8-3 at 8. His tentative release date was November 23, 2013, which was 12 months after he
had been taken into custody for the parole violation. Ibid. His maximum expiration date was
calculated to be September 9, 2016, which is the same date as his original maximum expiration
date for his parole release supervision. Ibid.
Petitioner entered the Willard drug treatment program on January 14 or 15, 2013.3 But he
was soon removed from the program on January 24, 2013, and was sent to Downstate

1
The record reflects a handwritten statement of the alternative sentence imposed upon revocation. Doc. #83 at 5. Petitioner states that he was sentenced on December 21, 2012. See Doc. #8-3 at 4 (listing the “hearing date” as
12/21/12); Doc. #8-3 at 6 (indicating that the revocation and sentencing were held on 12/21/2012). The Warden
states that he was sentenced and revoked on January 4, 2013. The evidence in the record indicates that the sentencing
date was December 21, 2012, and that petitioner was returned to state prison on January 4, 2013. The discrepancy
between these dates is immaterial for the purposes of this ruling.
2
Prison records show that at the time of his return, petitioner “owed” 11 months of imprisonment and 2
years, 10 months, and 14 days of parole release supervision toward his original sentence. Doc. #8-3 at 6.
3
Petitioner states that he entered the program on January 14, but the Warden states that he entered the
program on January 15. Doc. #8-3 at 2. This one-day discrepancy is immaterial to this ruling.

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Correctional Facility in order to be transferred to federal custody on a writ of habeas corpus
ad prosequendum to face conspiracy drug charges in federal court in New York. Doc. #8-3 at 2.
For more than two-and-a-half years—from January 28, 2013, until October 29, 2015—plaintiff
was housed at the Metropolitan Correctional Center (MCC), a federal administrative prison in
New York City, pursuant to this writ. Doc. #8-4 at 2.
In the meantime, on June 9, 2015, petitioner pled guilty to federal criminal drug charges.
Doc. #8-5 at 2. He was sentenced for these charges on October 13, 2015, to a prison term of 87
months. Doc. #8-1 at 3.
On October 29, 2015, petitioner was returned to state prison, where he remained for about
two more months until December 28, 2015, when he was released by the State on parole but then
immediately transferred back to federal custody. Doc. #8-3 at 2, 12; #8-4 at 2. The Bureau of
Prisons calculated petitioner’s federal prison sentence to begin on December 28, 2015, and it did
not give him any credit for the time he had previously spent in state custody or at MCC on the
writ of habeas corpus ad prosequendum. Doc. #8-1 at 4.
Petitioner requested that the Bureau of Prisons credit his time spent at MCC against his
federal sentence of 87 months. This request was denied, and petitioner’s appeals were also
denied. Petitioner has therefore properly exhausted his administrative remedies before filing
this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. By means of this
petition filed against the Warden of FCI Danbury, petitioner seeks credit for the time period from
mid-April of 2013—when he believes he would have successfully completed the Willard drug
program and been released on parole—through December 28, 2015.4
Although petitioner’s arguments focus mostly on his time at MCC, the Court understands petitioner’s
challenge to include not only the time he spent in MCC but also the later time he spent back in state custody from
October 29 to December 28, 2015. See Doc. #8 at 5-6 (Warden’s briefing conceding that petitioner properly
exhausted administrative remedies and stating that “[t]he time Petitioner seeks is from April 21, 2013 … through
December 28, 2015”).
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DISCUSSION
Pursuant to 28 U.S.C. § 2241, a prisoner may challenge the manner in which the Bureau
of Prisons executes a sentence, including to challenge how the BOP has computed the start date
and length of a sentence. See Jiminian v. Nash, 245 F.3d 144, 146 (2d Cir. 2001). A federal
criminal defendant’s sentence formally “commences” when he is received into custody at the
official detention facility at which his sentence is to be served. See 18 U.S.C. § 3585(a). A
defendant, however, may sometimes receive credit for time that he has previously served in
detention prior to the formal commencement of his federal criminal sentence. If any such earlier
detention “has not been credited against another sentence,” a defendant shall receive credit for
time that he has previously spent in official detention “as a result of the offense for which the
[current federal] sentence was imposed,” or “as a result of any other charge for which the
defendant was arrested after the commission of the offense for which the sentence was
imposed.” 18 U.S.C. § 3585(b). In short, a “defendant has no right to credit on his federal
sentence for time that has been credited against [a] prior state sentence.” United States v.
Labeille-Soto, 163 F.3d 93, 99 (2d Cir. 1998).
This case involves a prisoner’s claim that he should have received credit toward his
federal sentence for prior time that he spent in federal custody pursuant to a federal writ of
habeas corpus ad prosequendum. This type of writ “orders the production of a prisoner in court
for the purpose of standing trial.” Lugo v. Hudson, 785 F.3d 852, 854 (2d Cir. 2015) (per
curiam). “If a prisoner is serving a state sentence when he is produced for a federal prosecution,
the writ temporarily transfers him to federal custody for prosecution but the state retains primary
custody for the purpose of calculating his state sentence.” Id. at 854–55.
Just because a prisoner has previously spent time in federal custody pursuant to a writ of
habeas corpus ad prosequendum does not mean that this time will be credited to his federal
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sentence. To the contrary, “[i]t is well-established in the Second Circuit that if an inmate is in
state custody when he or she is transferred to temporary federal custody pursuant to a writ of
habeas corpus ad prosequendum, the inmate remains the subject of the state’s jurisdiction during
the time spent in temporary federal custody and, if the inmate receives credit for that time toward
the state sentence, the inmate may not also receive credit for that time toward a later federal
sentence.” Ramos v. United States, 2017 WL 384024, at *2 (D. Conn. 2017). Moreover, “[t]he
Second Circuit has held that the BOP cannot credit a prisoner for time served following his
conditional release date on a state sentence for violation of parole even though the prisoner might
have been released earlier on his state sentence if he had not been transferred to federal custody
on a writ of habeas corpus ad prosequendum.” Stinson v. Williams, 2017 WL 2126592, at *3 (D.
Conn. 2017) (citing United States v. Fermin, 252 F.3d 102, 108 n.10 (2d Cir. 2001)).
The Warden asserts that the “period of time between April 21, 2013 and December 28,
2015, . . . has been credited on his NYS Parole Violation sentence and cannot be double counted
onto his federal sentence which had yet to begin.” Doc. #8 at 6. But other than a conclusory
statement to this effect from a BOP official (Doc. #8-11 at 4 (¶ 11)), the Court can find nothing
in the record to show that all of this time was served pursuant to any state court sentence.
The Warden has provided a series of somewhat cryptic data sheets from the NYDOCCS
relating to the calculation of petitioner’s state sentence. These data sheets reflect the original
computation of petitioner’s sentence when he was first incarcerated, a re-computation upon his
release to parole in 2010, and a re-computation upon his return to prison after his parole was
revoked in 2013. Doc. #8-3 at 9 (“Legal Date Computation” sheet performed on 10/01/2010
shortly before petitioner’s release on parole); Doc. #8-3 at 8 (“Legal Date Computation” sheet
performed on 1/8/2013 after parole revocation). Notably absent from the records is a computation

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after plaintiff was returned to state custody from federal custody in October of 2015.5 Such a
record would show whether the NYDOCCS actually credited petitioner’s time in federal custody
at MCC toward his state sentence.
Moreover, it is unclear how the New York authorities could have credited all the time
petitioner spent at MCC toward his state sentence. As noted above, it is undisputed that petitioner
was sentenced upon revocation of his parole to a term of 12 months of imprisonment or to an
alternative term of 90 days of a drug treatment program. Even assuming petitioner would not
have completed the drug treatment program and instead would have served the full 12 months of
imprisonment, petitioner would have been released from imprisonment on November 23, 2013.
Doc. #8-3 at 20 (“Legal Date Computation” data sheet dated January 8, 2013, and reflecting
“tentative release date” of November 23, 2013). Petitioner was sentenced solely to a term of 12
months imprisonment upon revocation, and the record before me does not show any basis for the
State of New York to have continued petitioner’s imprisonment beyond November 23, 2013.
In light of my concern that the confusing collection of New York data sheet records did
not establish a basis for petitioner’s continuing imprisonment beyond November 23, 2013, I
entered an order to show cause stating that “the Court cannot determine whether New York has
credited this time towards petitioner’s state sentence based on the records submitted” and
requiring the Warden to explain “with specificity how the state records in evidence demonstrate
that New York credited this time toward plaintiff’s state sentence.” Doc. #10. The Warden’s
response was not helpful, because it did not shed light on the records in evidence or show any

5
This stands in contrast to other similar cases in which a court denied a similar writ of habeas corpus based
on state calculations of sentences that clearly credit the petitioner for time spent in federal detention pursuant to a
writ of habeas corpus ad prosequendum. See Curtis v. Billingsley, 2017 WL 1103005, at *2 n.4 (S.D.N.Y. 2017).

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grounds for petitioner’s state court sentence of imprisonment to have extended beyond November
23, 2013. Doc. #11.
Although a New York official has claimed that “Omoregie’s sentence with New York
State expired on 9/06/16” and that “[a]s of that date, DOCCS has no holds and/or further interest
in him,” Doc. #11 at 3, this statement does not explain any basis for the State to have continued
petitioner’s imprisonment until September 6, 2016, as distinct from a sentence that includes
continuing parole supervision status. Accordingly, in the absence of an adequate showing for
petitioner’s continued state imprisonment beyond November 23, 2013, I conclude that petitioner
should have received 765 days of credit for his time in both federal and state custody from
November 23, 2013, to December 28, 2015.
Petitioner further argues that the Bureau of Prisons should have credited him since the
time in April 2013 that he would have completed the 90-day Willard drug treatment program.
This claim is based on petitioner’s belief that he would have been granted an early release in
April 2013 upon successful completion of the 90-day drug program. I don’t agree with this
argument, because it is speculative whether he would have successfully completed the program,
and the Bureau of Prisons is not required to grant credit against a federal sentence based on
speculation that a prisoner would have been released early from state custody but for a federal
writ habeas corpus ad prosequendum. See Curtis v. Billingsley, 2017 WL 1103005, at *6 n.5
(S.D.N.Y. 2017) (citing cases for the proposition that a federal prisoner does not get credit for
time in detention even though he might have been discharged earlier on the state sentence).
Therefore, I conclude that petitioner is not entitled to credit for the time when he might have been
released from the drug treatment program in April 2013 to November 23, 2013, which is the date
that his alternative 12-month revocation sentence of imprisonment expired.
CONCLUSION
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Petitioner’s petition for a writ of habeas corpus (Doc. #1) is GRANTED in part and
DENIED in part. It is GRANTED to the extent that the Bureau of Prisons shall grant petitioner
765 days of credit toward his federal sentence from November 23, 2013, to December 28, 2015.
It is DENIED to the extent that petitioner seeks credit for detention prior to November 23, 2013.
It is so ordered.
Dated at New Haven this 16th day of July 2018.
/s/Jeffrey Alker Meyer
Jeffrey Alker Meyer
United States District Judge

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