PENA-ROSARIO v. UNITED STATES OF AMERICA et al
Filing
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OPINION. Signed by Judge Robert B. Kugler on 09/15/2011. (tf, n.m.)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
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Petitioner,
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v.
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UNITED STATES OF AMERICA,
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et al.,
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Respondents.
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JOSE PENA-ROSARIO,
Civil Action No. 10-4851 (RBK)
O P I N I O N
APPEARANCES:
Jose Pena-Rosario, Pro Se
21034-039
Federal Correctional Institution
P.O. Box 2000
Fort Dix, NJ 08640
John Andrew Ruymann, Esq.
Assistant U.S. Attorney
Office of the U.S. Attorney
402 East State Street, Suite 430
Trenton, NJ 08608
Attorney for Respondent
KUGLER, District Judge
Petitioner Jose Pena-Rosario, a prisoner currently confined
at the Federal Correctional Institution at Fort Dix, New Jersey,
has submitted a petition for a writ of habeas corpus, pursuant to
28 U.S.C. § 2241.1
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The respondents are the United States of
Section 2241 provides in relevant part:
(a) Writs of habeas corpus may be granted by the
Supreme Court, any justice thereof, the district courts
and any circuit judge within their respective
America and the warden of the Federal Correctional Institution.
With this Court’s permission, Respondents filed a motion to
dismiss, in lieu of an answer, on January 21, 2011 (docket entry
8), which remains pending.
The motion to dismiss asserts that
the petition should be dismissed because Petitioner did not
exhaust administrative remedies.
For the following reasons, the
motion to dismiss will be denied.
Respondents are ordered to
answer the petition.
BACKGROUND
On October 24, 1996, the United States District Court for
the Eastern District of Michigan sentenced Petitioner to a term
of imprisonment of 70 months, with 5 years supervised release,
following his conviction of Conspiracy to Possess with Intent to
Distribute and to Distribute Cocaine, in violation of 21 U.S.C. §
846.
Almost two years later, on September 23, 1998, the United
States District Court for the Eastern District of North Carolina
sentenced Petitioner to a term of imprisonment of 262 months,
with 5 years supervised release, following his conviction of
Conspiracy to Distribute and Possession with Intent to Distribute
jurisdictions.
* * *
(c) The writ of habeas corpus shall not extend to a
prisoner unless-... (3) He is in custody in violation
of the Constitution or laws or treaties of the United
States ....
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between 15 and 50 kilos of hydrochloride, in violation of 21
U.S.C. § 846 and § 841(B)(1)(A).
The District Judge in the North
Carolina case ordered that Petitioner’s sentence run concurrently
with the federal sentence he was already serving imposed by the
District Judge in Michigan.
Thus, the BOP calculated
Petitioner’s sentence as an aggregate sentence of 23 years, 8
months, and 29 days.
His projected release date, pursuant to
good conduct time release, is August 13, 2016.
Petitioner asserts in his original petition (docket entry
1), that he is being held in violation of 18 U.S.C. § 3584 based
on how the Bureau of Prisons (“BOP”) and the federal courts
“structured his two sentences which were imposed about two years
apart.”
(Pet., p. 1).
Petitioner states that: “The Sentencing
Court for Petitioner’s second sentence ordered it to be served
concurrent to the first prison term, but the BOP started the time
on the day of imposition.”
(Pet., p. 1).
Petitioner argues that his two sentences should have begun
to run on December 7, 1995, when he was first detained by federal
law enforcement agents.
First, he cites an Eleventh Circuit
opinion for the proposition that “a sentencing court has the
option to start a term of imprisonment for a second offense when
the defendant was detained at an official detention center for
his first offense.”
(Pet., p. 5, citing Coloma v. Holder, 445
F.3d 1282 (11th Cir. 2006)).
Petitioner notes that when he was
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sentenced by the District Judge in North Carolina, the court ran
his sentence concurrently to his federal Michigan sentence, but
did not specify the start date, and “could have ordered the
sentence to begin on December 7, 1995 when the Petitioner was
officially detained on his first case.”
(Pet., p. 5).
Next, Petitioner argues that his two crimes could have been
deemed a “crime spree,” the offenses consolidated and the
sentences served concurrently beginning with his detention date
in 1995.
(Pet., p. 5).
Finally, Petitioner argues that his sentences could have
been served nunc pro tunc, and the BOP could have considered
Petitioner’s jail credit time to have begun in 1995, when he was
first detained in Michigan.
Petitioner asks this Court to grant him jail credit from the
time he was first detained in Michigan on both sentences; for
both sentences from the time his Michigan sentence was imposed;
or for both sentences from the time he was indicted in his North
Carolina case.
Respondents’ motion to dismiss, filed on January 21, 2011,
argues that Petitioner did not exhaust his administrative
remedies on his claims (docket entry 8-2).
In response to the
motion, Petitioner began the administrative remedy process, and
followed through to completion.
On August 5, 2011, he filed an
amended petition (docket entry 9), attaching his administrative
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responses denying relief through the Regional Director level, and
on August 25, 2011, Petitioner filed a letter attaching the
response of the Central Office, National Inmate Appeals
Administrator, denying his appeals.
Thus, Petitioner has now
exhausted his remedies.
DISCUSSION
Respondents’ motion to dismiss for failure to exhaust is now
moot, as Petitioner has since exhausted his administrative
remedies.2
While Respondents were correct in their assertion, at
the time, that Petitioner had not exhausted his administrative
remedies, had this Court granted their motion, the petition would
have been dismissed, without prejudice to Petitioner exhausting
2
The BOP Administrative Remedy Program is a three-tier
process that is available to inmates confined in institutions
operated by the BOP for "review of an issue which relates to any
aspect of his/her own confinement." See 28 C.F.R. § 542.10. An
inmate must initially attempt to informally resolve the issue
with institutional staff. See 28 C.F.R. § 542.13(a). If
informal resolution fails or is waived, an inmate may submit a
BP-9 Request to "the institution staff member designated to
receive such Requests (ordinarily a correctional counsel)" within
20 days of the date on which the basis for the Request occurred,
or within any extension permitted. See 28 C.F.R. § 542.14. An
inmate who is dissatisfied with the Warden's response to his BP-9
Request may submit a BP-10 Appeal to the Regional Director of the
BOP within 20 days of the date the Warden signed the response.
See 28 C.F.R. § 542.15(a). The inmate may appeal to the BOP's
General Counsel on a BP-11 form within 30 days of the day the
Regional Director signed the response. See id. Appeal to the
General Counsel is the final administrative appeal. See id. If
responses are not received by the inmate within the time allotted
for reply, "the inmate may consider the absence of a response to
be a denial at that level." 28 C.F.R. § 542.18.
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his claims, and refiling his petition, or moving to reopen the
case upon exhaustion.
Thus, as Petitioner has since exhausted
his claims, for the sake of judicial economy, this Court will
deny the motion, and order Respondents to answer.
CONCLUSION
For the foregoing reasons, Respondents’ motion to dismiss is
denied.
An appropriate Order accompanies this Opinion.
s/Robert B. Kugler
ROBERT B. KUGLER
United States District Judge
Dated: September 15, 2011
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