Cruz-Perez v. Kizziah

Filing 5

MEMORANDUM OPINION & ORDER: 1. Cruz-Perezs petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 R. 1 is DENIED. 2. This action is DISMISSED and STRICKEN from the Court's docket. 3. A corresponding judgment will be entered this date. Signed by Magistrate Judge Edward B. Atkins on 11/29/17.(MJY) cc: COR, Pro Se Filer via US Mail

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION at PIKEVILLE
CARLOS CRUZ-PEREZ,

Civil Action No. 7:17-168-KKC

Petitioner,
v.

MEMORANDUM OPINION
AND ORDER

GREGORY KIZZIAH, Warden,
Respondent.

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Carlos Cruz-Perez is an inmate at the United States Penitentiary – Big Sandy in Inez,
Kentucky. Proceeding without a lawyer, Cruz-Perez filed a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2241. [R. 1]. For the reasons set forth below, the Court will deny CruzPerez’s petition.
After Cruz-Perez was convicted of a drug-related crime, immigration officials deported
him to the Dominican Republic. 1 Nevertheless, Cruz-Perez returned to the United States without
legal authority and, in 2013, he was convicted of additional drug-related crimes in New York state
court. While Cruz-Perez was serving time in state prison, federal prosecutors in the Eastern
District of New York charged him with illegal re-entry after deportation as an aggravated felon, in
violation of 8 U.S.C. § 1326(a). Cruz-Perez pled guilty to that charge. Then, in February 2015,
while Cruz-Perez was still serving time in state custody, the United States District Court for the
Eastern District of New York sentenced him to a term of imprisonment of “77 months in total: 35

This procedural history comes from Cruz-Perez’s petition and attached documents at R. 1, as well as his underlying
criminal case of United States v. Cruz-Perez, No. 1:14-cr-273 (E.D.N.Y. 2014).
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months of which to run concurrently with the undischarged portion of the defendant’s state court
sentence, and the remainder of which to run consecutively to defendant’s state court sentence.”
According to Cruz-Perez, about 20 months later, in October 2016, he was released from state
custody and placed in a federal prison, where he is now serving out the rest of his sentence for
violating § 1326(a).
Cruz-Perez exhausted his administrative remedies and filed a § 2241 petition with this
Court, arguing that the Bureau of Prisons improperly calculated the date of his release from federal
prison. As best as the Court can tell from Cruz-Perez’s petition, he acknowledges that his federal
sentence began to run in February 2015 when the federal district court imposed its sentence and
concedes that he received credit for the 20 months he spent in state prison from February 2015
until October 2016. That said, Cruz-Perez appears to be arguing that he should have also received
an additional 15 months of credit for time he spent in state custody before his federal sentence was
even imposed.
Cruz-Perez’s argument is without merit. That is because when a federal district court
directs that the defendant’s federal sentence is to run concurrent with the undischarged term of a
previously-imposed state sentence, the federal sentence only runs concurrent with the portion of
the state sentence that remains to be served. See Pitman v. Bureau of Prisons, No. 09-cv-383GFVT, 2011 WL 1226869, *4 (E.D. Ky. 2011); Staley v. Patton, No. 07-cv-122-HRW, 2009 WL
256745, *3 (E.D. Ky. 2009); Belcher v. Cauley, No. 08-cv-132-HRW, 2009 WL 464932, *2 (E.D.
Ky. 2009). Here, when the federal district court imposed its sentence on Cruz-Perez, he apparently
only had approximately 20 months left to serve on his state sentence. Thus, the Bureau of Prisons
properly determined that Cruz-Perez’s federal sentence only ran concurrent with those 20 months.
Therefore, Cruz-Perez’s petition is unavailing.

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Accordingly, it is hereby ORDERED as follows:
1.

Cruz-Perez’s petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 [R.
1] is DENIED.

2.

This action is DISMISSED and STRICKEN from the Court’s docket.

3.

A corresponding judgment will be entered this date.

Dated November 29, 2017.

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