Perez v. Quintana

Filing 9

MEMORANDUM OPINION & ORDER: IT IS ORDERED that Perez's Petition for a Writ of Habeas Corpus [DE 1 ] pursuant to 28 U.S.C. § 2241 shall be DENIED. A separate judgment in conformity herewith shall this date be entered. Signed by Judge Joseph M. Hood on 7/12/2017.(KM)cc: COR, Petition via U.S. mail

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON

CONFESSOR PEREZ,
Petitioner,
V.
FRANCISCO QUINTANA, Warden.

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Civil No. 17-89-JMH

MEMORANDUM OPINION AND ORDER

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Confessor Perez is a prisoner confined at the Federal Medical
Center (FMC) in Lexington, Kentucky, serving a cumulative sentence
of

imprisonment

of

421

months

to

be

followed

by

a

term

of

supervised release of five years imposed by the United States
District Court for the Southern District of Florida on November
15, 1996.

United States v. Perez, No. 96-cr-201-001 (S.D. Fla.

Nov. 15, 1996); United States v. Perez, 1997 WL 33626852 (11th
Cir. Oct. 2, 1997).

Perez filed a Petition for a Writ of Habeas

Corpus pursuant to 28 U.S.C. § 2241, in which he challenges the
execution his sentence. 1

[DE 1].

For the reasons set out below,

his Petition will be denied.

1

The Court conducts a preliminary review of habeas corpus petitions. 28 U.S.C.
§ 2243; Harper v. Thoms, No. 02-5520, 2002 WL 31388736, at *1 (6th Cir. Oct.
22, 2002). Because the petitioner is not represented by an attorney, the
petition is reviewed under a more lenient standard. Erickson v. Pardus, 551
U.S. 89, 94 (2007); Burton v. Jones, 321 F.3d 569, 573 (6th Cir. 2003). At this
stage the Court accepts the petitioner’s factual allegations as true and his
legal claims are liberally construed in his favor. Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555-56 (2007). Once that review is complete, the Court may deny
the petition if it concludes that it fails to establish grounds for relief, or

On October 4, 1995, Perez and two accomplices robbed an
automotive parts store while carrying a firearm and, during the
offense,

assaulted

its

owners.

On

November

24,

1995,

while

possessing a firearm, Perez and two others robbed a jewelry store
and severely beat its owner after he attempted to resist. Perez
was arrested by Florida police on December 1, 1995, for unrelated
offenses, but after several of his robbery victims identified him
in a lineup, he confessed to his participation in the crimes. Perez
v. Hogsten, 6:10-cv-202-GFVT, 2012 WL 359557, at *1 (E.D. Ky. Feb.
2, 2012).
On March 12, 1996, a federal grand jury indicted Perez for
conspiracy to commit robbery, armed robbery, and the use of firearm
during the commission of a violent felony, in violation of the
Hobbs Act, 18 U.S.C. §§ 1951(a), 2; and 18 U.S.C. § 924(c).
Following a three-day jury trial, he was found guilty on all
counts. On November 15, 1996, Perez was sentenced to a cumulative
421-month term of incarceration to be followed by a five-year term
of supervised release. United States v. Perez, No. 96-cr-201-001
(S.D. Fla. 1996); United States v. Perez, 1997 WL 33626852 (11th
Cir.

Oct.

2,

1997).

The

Eleventh

Circuit

affirmed

Perez’s

conviction and sentence on direct appeal. United States v. Perez,
136 F.3d 140 (11th Cir. 1998).

otherwise it may make such disposition as law and justice require. Hilton v.
Braunskill, 481 U.S. 770, 775 (1987).

Following his federal convictions, Perez was returned to
state custody to face prosecution under Florida charges for armed
robbery, battery and assault. Perez pled guilty to these offenses,
and on December 12, 1996, he was sentenced to a cumulative term of
128 months, which the state court ordered to be served concurrently
with his pre-existing federal sentence.

Hogsten, 6:10-cv-202-

GFVT, 2012 WL 359557, at *1.
In an earlier case, Perez indicated he was then remanded into
the custody of federal marshals, who in turn transferred him into
the custody of the Florida Department of Corrections to commence
service of his state sentence. Perez remained incarcerated in
service of his Florida sentence for approximately eight years until
he was released by Florida officials and turned over to federal
marshals on December 26, 2004.

Id.

In the earlier case, Perez challenged the BOP’s denial of his
request that he receive credit for time spent in service of his
state

sentence.

First,

Perez

challenged

the

Administrator’s

decision on the merits, contending that he will serve the entirety
of his thirty-five year federal sentence regardless of whether a
nunc pro tunc designation is made.
challenge

the

BOP’s

decision

on

Second, Perez appeared to
constitutional

grounds.

He

asserted that he had a reasonable expectation that the state
court’s direction that its sentence be served concurrently would
be honored, citing Jefferson v. Berkebile, 688 F. Supp. 2d 474

(S.D. W. Va. 2010), and thus, presumably implicating due process
concerns.

Finally, he suggested that the BOP’s denial of the

relief requested may violate the separation of powers doctrine or
fail to provide the due respect and comity which should be afforded
judgments entered by state courts, citing Abdul-Malik v. HawkSawyer, 403 F.3d 72, 76 (2d Cir. 2005) and Fegans v. United States,
506 F.3d 1101, 1104 (8th Cir. 2007).
In his opinion addressing each of the issues Perez raised
then

(and

raises

again

in

the

instant

petition),

Judge

Van

Tatenhove fully addressed the applicable law pertaining to the
facts set out above and denied the petition.
202-GFVT, 2012 WL 359557, at *1.

Hogsten, 6:10-cv-

Perez appealed but the appeal

was dismissed for want of prosecution.

Perez v. Hogston, Case No.

12-5166 (6th Cir. Mar. 29, 2012).
In as much as the issues presented in the instant case have
been fully addressed and rejected by Judge Van Tatenhove, the
principle of stare decisis controls the outcome here.

Nothing

more need be said, except to note that it has long been the law of
the Sixth Circuit that any court’s provision of a concurrent
sentence in its judgment is not binding on the Attorney General of
the United States.
68 (6th Cir. 1971).
Accordingly,

See United States v. Herb, 436 F.2d 566, 567-

IT IS ORDERED that Perez’s Petition for a Writ of Habeas
Corpus pursuant to 28 U.S.C. § 2241 [DE 1] shall be, and the same
hereby is, DENIED.
A separate judgment in conformity herewith shall this date be
entered.
This 12th day of July, 2017.